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THE THREE-MILE LIMIT OF TERRITORIAL SEAS:
A BRIEF HISTORY

Commander Sayre A. Swarztrauber
United States Navy

Part I (Pages i to 280,
Chapters I through X)

Washington, D. C, 1970

(cj

Reprodu if the Navy and

bound by the U. S. Gov nt Printing Office,
Washington, D. C., 19"

THE THREE-MILE LIMIT OF TERRITORIAL SEAS
A BRIEF HISTORY

by
Commander Sayre A'. Swarztrauber

Submitted to the
Faculty of the School of International Service
of The American University
in Partial Fulfillment of
the Requirements for the Degree
of
Doctor of Philosophy

in
International Studies

LIBRARY

NAVAL POSTGRADUATE SCHOOfl

MONTEREY, CALIF. 93940

(cj Copyright by Sayre Archie Swarztrauber 1970

iii

TABLE OF CONTENTS

CHAPTER PAGE

I. INTRODUCTION 1

Definition of the Study, 3; Terminology,
6; Organization of the Study, 14;
Sources, 16.

II. HISTORICAL BACKGROUND OF THE CONCEPT OF

TERRITORIAL SEAS 20

The Medieval Period, 20; The Sixteenth
Century: Iberian Monopoly of the Seas,
24; The Seventeenth Century: Open or
Closed Seas? 37.

III. THE CANNON SHOT RULE 46

The Notion of Territorial Seas, 46;

Development of the Cannon Shot Rule, 49;
Cornelius van Bynkershoek and his
Dissertation, 5#; Eighteenth Century
Practice of States, 62; Range of
Cannon , 69 .

IV. THE LINE OF SIGHT DOCTRINE 74

The Practice of States, 74; The Views of
Publicists, 77; Analysis of the Line of
Sight Doctrine, 61.

V. THE MARINE LEAGUE 37

Early Scandinavian Claims, #S; Definition -
of Marine League, 92; Adoption of the
One-League Limit, 95; Miscellaneous
Claims, 97.

VI. GENESIS OF THE THREE-MILE LIMIT 100

Early Three-Mile Practice, 100; The

Equation of Cannon Shot and Three Miles,
10$; The Publicist Ferdinando Galiani,
107; The United States1 Adoption of the
Three-Mile Rule, 109; The Three-Mile Limit
in Early Court Decisions, 117; The Fishing
Convention of lSlS, 119.

VII. THE NINETEENTH CENTURY GROWTH OF THE THREE-
MILE LIMIT 125

Great Britain as Champion of the Three-Mile
Limit, 125; The Customs Consolidation Act

CHAPTER PAGE

of 1876, 135; Nineteenth Century State .
Practice, 139; Nineteenth Century Pub-
licists, 151; International Arbitrations
and Multinational Conventions, 161; The
North Sea Fisheries Convention (1882),
162; The Bering Sea Arbitration, 165.

VIII. EARLY CONTRADICTIONS TO THE THREE-MILE LIMIT 169
Claims of States to Different Limits, 169;
United States Practice, 175; Claims of
States for Special Purposes, 180; Practice
of Great Britain, 182; Views of Publicists
and Learned Societies, 186; International
Tribunals and Multilateral Agreements, 193;
The Alleganean (1885), 195.

IX. THE FIRST QUARTER OF THE TWENTIETH CENTURY:

THE THREE-MILE LIMIT BECOMES PARAMOUNT . . 200
The Practice of States, 205; International
Arbitrations and Multilateral Agreements,
215; The North Atlantic Coast fisheries
Arbitration, 221; Effects of World War I
on the Three-Mile Limit, 230; The Russian
Twelve-Mile Claim, 231; Views of Learned
Societies and Publicists, 237.

X. THE INTER-WAR PERIOD: THE THREE-MILE RULE

COMMENCES ITS DECLINE 243

The Hague Conference of 1930, 244; The
Inter-War Practice of States: The
Contiguous Zone, 262; American Pro-
hibition Legislation, 263; Miscellaneous
Contiguous Zone Claims, 272; Inter-War
Publicists, 276.

XI. WORLD WAR II AND THE THREE-MILE LIMIT ... 281
Neutrality and Security Zones, 281; The

Truman Proclamations, 288; The Two Hundred-
Mile Limit, 302; Views of the Contemporary
Publicists, 305; Resurgence of Russia's
Twelve-Mile Claim, 311; The Proliferation
of Sovereign States, 320.

XIII. THE POST-WORLD WAR II TERRITORIAL SEAS

CONTROVERSY 327

The Fisheries Controversy, 328; Latin
America and the United States, 339;
Anglo-Norwegian Fisheries Case, 347;
Anglo-Icelandic "Fish War," 349; The
Rhee-Line (Japan-Korea) Dispute, 350;

CHAPTER PAGE

Indonesia (Archipelago Doctrine), 352;
The Security Controversy, 355; Air
Defense Identification Zones, 36l; Corfu
Channel Case, 365; The Arctic Ocean
(Soviet ••Sector") Claim, 367; Gulf of
Aqaba Dispute, 371; North Korea (Pueblo
and EC-121), 375.

XIII. ROLE OF THE UNITED NATIONS 379

Contribution of the International Law
Commission 379; The 195# United Nations.
Conference on the Law of the Sea, 3&#;
The I960 United Nations Conference on the
Law of the Sea, 399; Delimitation of the
Territorial Sea, 406.

XIV. THE DEMISE OF THE THREE-MILE LIMIT 424

The Twelve-Mile Fishing Limit, 424; The
United States as Champion of the Three-
Mile Limit, 437; The United States-
Soviet Territorial Seas Rapprochement,
453; Views of Contemporary Publicists,
46O.

XV. CONCLUSION 46S

Precis of the Rise and Fall of the Three- -
Mile Limit, 463; Evolution of the Nature
of the Three-Mile Limit, 475; Recommen-
dations: Extent of the Territorial Sea,
4S0; Prospects for the Future, 4#4.

BIBLIOGRAPHY . . . 492

J. N Dili a .'................. ....... >0>

LIST OF TABLES
TABLE PAGE

I, Comparative Naval Strengths of Selected

States in 1914 201

II. World* s Merchant Ships in 1914 203

III. Miscellaneous State Contiguous Zone Claims

(1930-1940) •. . 275

IV. Seaward Extent of U. S. Maritime Control

Areas (World War II) 2#7

V. Post-World War II Continental Shelf Claims

of Selected States ...... 301

VI. World Merchant Fleets at the Close of World

War II (1946) 313

VII. Warships of the Powers in 1946 . 315

VIII. Warships of Selected Navies in 1963 318

IX. World Merchant Fleets in 1967 319

X. Post-World War II Twelve-Mile Claims of

Selected States 325

XI. Territorial Sea Claims of Selected States,
Showing the Diversity of International
Practice in 1958 ............. 3^9

XII. Adoption of the Principle of the Low-water Line
by the Maritime States, Showing Year of

Adoption and Terminology Used 409

XIII. Leading Fishing States of the World (1963) . 432

Vll

ABSTRACT

The three-milo limit originated in the eighteenth century. Pre-
viously, states had fixed their seaward boundaries at various limits
for various purpose si range of cannon shot for neutrality, range of
eyesight for security, and one or more marine leagues for fishing.
During the late eighteenth century the French Foreign Office and Ital-
ian writers suggested that a uniform limit of three miles might be
more suitable. When forced to proolaim a neutral zone in the war be-
tween England and France, the fledgeling United States hurriedly and
reluctantly adopted the three-mile limit as a temporary measure in
1793. Great Britain, perceiving the world-wide advantages that such a
narrow international limit of territorial waters would afford her vast-
ly superior merchant, naval, and fishing fleets, adopted that limit for
herself. Then with the consensus of the other great powers, Britain
championed the three-mile limit to its peak of strength as a rule of
international law in the 1920* s. Only Soviet Russia, devastated by mil-
itary defeat and civil war, diplomatically ostracized, and possessing
no maritime assets, claimed a greater extent, twelve miles.

During the inter-war period there commenced a series of events and
developments leading to the decline and demise of the three-mile rule.
World War Two saw the return of Russia as a great power. She reaffirm-
ed her twelve-mile claim and many states followed suit. The United
States* 19*4-5 proclamations on the continental shelf and fisheries trig-
gered several Latin American state olaims to 200-mile limits. The United
States, having inherited Britain's role as champion of the three-mile

limit, was not in a position to defend it forcibly as had the British.
To challenge the Soviet twelve-mile claim and the Latin American 200-
mile claims would have risked nuclear war and a disruption of the
Inter- American System, respectively. By the end of the 1960's, inter-
national agreement had been replaced by an anarchic situation with re-
spect to the extent of the territorial sea. The three-mile limit was
dead, having been superseded by several special limits for special
purposes.

The study includes an historical summary of the development of
the concept of territorial waters. The opinions of publicists; state
domestic practice, laws, decrees, and court cases; and international
conventions, arbitrations, and tribunals are examined for each historic-
al period of the study. Additionally, the three-mile limit is consider-
ed in terms of its impact on international relations and from the
standpoint of individual states' interests.

The study leads to two conclusions; First, it will require United
States-Soviet Union agreement on a limit of territorial seas if the ex-
isting law of the sea anarchy is to be overcome. Second, unless the suc-
cessor to the three-mile limit— presumably the twelve-mile limit—meet
with the same fate, states must withdraw their several olaims to spec-
ial jurisdiction beyond the territorial sea, e. g. , the continental
shelf, special fishing rights, security, etc. , and settle on one limit
beyond which the seas and their resources are free for the use of all.

CHAPTER I
INTRODUCTION

To study the history of international maritime poli-
tics is to learn that the greater the maritime strength
of a nation, the greater is its tendency, or at least its
motivation, to control the seas. This can be, and has been,
done in two ways. One method, the mare clausum, or closed
seas, was rather crude. A state simply decreed certain
great ocean areas as belonging to that state, to the ex-
clusion of the maritime traffic of other states. A second
method, mare liberum, or free seas, was more subtle. The
seas were declared free for the navigation of all. If
the declaring state's maritime assets were sufficient to
protect its own interests in the face of all competition —
as was the case with Rome and Britain during their respec-
tive "Pax Romana" and "Pax Britannica" — then that state
controlled the seas, probably more effectively than the
states which had claimed large oceans as private property.

Under this latter method, it follows that the more
free the seas are, the greater the flexibility of the
stronger maritime powers, and the greater their opportunity
to exercise control. If the coastal states of the world
were to claim very narrow territorial seas along their
ocean frontiers, this would maximize the area of useable

2
seas for those states equipped to use them, whether for
fishing or for commerce. Moreover, under these conditions
the warships of maritime states would enjoy greater free-
dom of movement during hostilities or when conducting
peacetime operations in the interest of their state's secur-
ity.

For the simple reason that man is a land creature,
the land areas are the most important to him. Likewise,
those waters of the ocean nearest his coasts are the most
important waters as far as he is concerned. It is there
the fishing is best. The sea bottom there is more suscep-
tible to exploitation for its sedentary and mineral re-
sources. For centuries most international trade has been
conducted between coastal ports, and the important maritime
battles have been fought in the vicinity of the coasts.
Hence, the narrower the territorial seas of littoral states,
the greater the benefits realized by the maritime powers
which, using the high seas as lines of communication, have
been able to take advantage of the world's coasts.

Conversely, wide territorial seas exclude ships of
foreign countries from the economically and strategically
valuable waters closest to a state's shores. Hence, states
without great naval or maritime strength have generally
opted for wide territorial seas. There is an interesting
trade-off in this regard between the advantages to be gained
by a state in excluding foreigners from its coasts and the

advantages to be gained by exploiting the coasts of other
states. Periodically during history states have had to
make this value assessment and then choose, so to speak,
between mare clausum and mare liberum.

The most notable instance of mare clausum resulted
about half a millenium ago when the Pope divided the world
between Spain and Portugal. And the most notable. instance
of mare liberum was the three-mile limit, the narrowest
extent of territorial seas to achieve status as a rule in
the law of nations.

To follow the history of the three-mile limit is,
in a sense, to follow the relative power positions of the
maritime states. The greatest of these have been the
most ardent defenders of the rule. The states without
great fleets have been its antagonists and have argued for
a wider extent of territorial seas as an alternative.

I. DEFINITION OF THE STUDY

The purpose of this study is to produce a history
of the three-mile limit of territorial seas as a rule of
international law. The study will ascertain and document
the conditions under which the rule came into existence,
the course of, and reasons for, its rise to paramount cy,
and the circumstances which led to its demise.

The significance of such an undertaking lies chiefly

4
in its timing. That the three-mile limit did emerge and
exist as a rule of international law scarcely needs prov-
ing, although in the course of this study that will be ac-
complished for reasons of completeness. The demise of the
rule, however, does deserve a thorough documentation.
Almost traditionally in jurisprudence, there have been
laws — both national and international — which have .lingered
on the books long after they have served their useful-
ness, being ignored, sometimes even for decades, until
quietly repealed. Essentially, such is the case with the
three-mile limit. De facto, it is no longer the law of
nations; de jure, it remains on some statute books, simply
awaiting final interment. But there is no need whatever
to wait until that time to write the account of this
historic rule of international law.

No indication can be found that a history of the
three-mile limit has been undertaken by any other writer,
especially in an Italic or Germanic language. This study
is believed to be the first. However, there have been
written numerous valuable and comprehensive works dealing
with the law of the sea in general, such as those by C.
John Colombos, and by Myres S. McDougal and William T.
Burke. Each of these devotes a generous number of pages

C. John Colombos, The International Law of the Sea
(New York: David McKay Company, Inc., 19o2; . I sixth
edition was published in 1967.

Myres S. McDougal and William T. Burke, The Public

5
to the matter of territorial seas. Then, too, there have

been several very useful treatises focusing more closely on

the more restricted topic of territorial seas. Foremost among

them, in this writer's view, is that by Philip C. Jessup.

The Norwegian publicist Arnold Raestad, the French publi-

5
cist Joseph B. Imbart de Latour, and the British publicist

Thomas Fulton produced similarly excellent works, from dif-
fering European points of view. These works treat the sub-
ject both historically and conceptually, and each considers
the three-mile rule at length. Finally, on the subject of ^
the three-mile rule itself, there have been published several
highly informative essays and papers, dealing with specific
aspects of the rule. In this category are those by Bernard

Heinzen, Thomas Baty, and H. S. K. Kent, which have appeared

in law journals •

Order of the Oceans: A Contemporary International Law of
the Sea (New Haven and London: Yale University Press, l^o"2) .

^Philip C. Jessup, The Law of Territorial Waters and

Maritime Jurisdiction (New York: G. A. Jennings, Co., 1927 J.

^Arnold Raestad, La mer territoriale (Paris: A.
Pedone, 1913).

^Joseph B. Imbart de Latour, La mer territoriale au
point de vue theorique et pratique (Paris: G. pedone -LaurTel,

Thomas ¥. Fulton, The Sovereignty of the Sea (Edin-
burgh and London: W. Blackwood and Sons, l^Tl} .

'Bernard Heinzen, "The Three-Mile Limit: Preserving
the Freedom of the seas," Stanford Law Review, XI (July,
1959) (this article includes a well-documented 45-page his-
torical summary of the three-mile rule) ; Thomas Baty, "The
Three-Mile Limit," American Journal of International Law,

6
These related works, and certainly many others, were
consulted in the course of the study, and in varying de-
grees they influenced the writer. In fact, not a great deal
will be written here that has not already been recorded
elsewhere in different form, in related and unrelated con-
texts. But unlike the works which have preceded it, this
study will gather pertinent information and data concerning
the three-mile limit from all available sources, and or-
ganize it in historical sequence, utilizing the three-mile
rule itself as the central theme.

II. TERMINOLOGY

Most of the terminology in this study is common and
self-explanatory, or is adequately defined in standard
dictionaries. But there are instances where writers on
international maritime law have used different expressions
to describe the same thing. These must be mentioned in
order to eliminate confusion.

Territorial Sea

The territorial sea is that belt of sea adjacent to
the coast of a state, beyond its land territory and its in-
ternal waters, over which the sovereignty of the state ex-
tends c However, it seems there have been as many attempts
to apply terminology to this belt of waters as there have

XXII (July, 1923); and H. S. K. Kent, "The Historical Origins
of the Three-Mile Limit," ibid., LXVIII (October, 1954).

7
been attempts to establish its limits.

The term territorial sea (or seas) is very common

and is also very old. Ferdinand Perels (German publicist,

1S36-1903) uses the term, but also employs "maritime terri-

tory" synonymously. Philip C. Jessup prefers "territorial

waters"; he named his book accordingly. Certain writers

object to the use of the word "territory," and maintain that

the state's jurisdiction over this belt of water is not

quite as extensive as that exercised over land territory.

Sir Travers Twiss, (English jurist, l809-l#97) circumvents

the notion of territory by substituting the term "juris-

dictional waters." For the same reason, Henri J. F. X.

Bonfils (French jurisconsult, 1S35-1&97) uses interchange-
ably the terms "jurisdictional seas" and "littoral seas."
"Littoral sea" also appears in the work of the Swiss pub-
licist Alphonse Rivier (1835-1S93) on an eQual basis with
the term "adjacent sea" or mare proximum. The more famous
Swiss publicist, Emmerich de Vattel (1714-1767), preferred

Ferdinand Paul Perels, Manuel de droit maritime
international (Paris: Guillaumin, 188477 p. 24.

"Sir Travers Twiss, The Law of Nations Considered
as Independent Political Communities (revised second edi-
tion; uxiord: Clarenden rress, ±tte 1+ ) , p. 293.

Henri J. F. X. Bonfils, Manuel de droit internat-
tional public (seventh edition; Paris: Rousseau, 1914), p.
322.

i:LAlphonse P.O. Rivier, Principes du droit des gens
(Paris: A. Rousseau, 1896), vol. I, p. 145.

12
"marginal waters." Two centuries later, William E. Master-

13
son entitled a book with similar words, "marginal seas."

Another book title, La mer cQtiere (The Coastal Sea) , re-
flects the preference of French publicist Paul Godey.

Similarly inclined, the German writer Frans von Liszt calls

15
the belt "coastal waters," And German-born British pub-
licist Lassa Oppenheim referred to the maritime belt simply
as "martime belt." Examination of the texts of these
writers reveals that despite their varying terminology, they
all had the same thing in mind, namely, the waters defined
above as "territorial seas,"

The League of Nations Preparatory Committee for the
Codification Conference, in drafting the bases of dis-

Emmerich de Vattel, The Law of Nations or the Prin-
ciples of Natural Law Applied to the Conduct and to the Af-
fairs oF"Nations and of Sovereigns, 1758 edition, trans.
Charles G. Fenwick (in Classics of International Law, ed,
James Brown Scott; New York: Oceana Publications, Inc., and
London: Wildy and Sons, Ltd., reprinted 1964) , para. 289,
p. 109.

William E. Masterson, Jurisdiction in Marginal

Seas with Special Reference to Smuggling (New York: The

Macmillan Co., 192^77"^

^Paul Godey, La mer cStiere (Paris: A. Pedone, 1896) .

^Frans von Liszt, Das volkerrecht, systematisch
dargestellt (fifth edition; Berlin: 0. Haring, 1907), P.
86, translated and reproduced in Henry G. Crocker (ed.),
The Extent of the Marginal Sea, U. S. Department of State
XWshington: Government Printing Office, 1919), p. 292.

Lassa Francis Lawrence Oppenheim, International
Law: a Treatise (second edition; New York and London:
Longmans, Green and Co., 1912), vol. I, p. 255.

9
cussions for the 1930 Hague Conference, selected the term
'•territorial waters." Almost ironically, considering the
failure of the Conference to reach agreement on the sub-
stantive issues, the delegates chose to manipulate semantics
by enacting: "The Committee on Territorial Waters felt

that the expression 'territorial sea* was more appropri-

17
ate." ' The United Nations, through its International Law

Commission, has followed this lead by consistently referring

to the "territorial sea" throughout its literature and

conferences on the subject. This study, likewise, will

rely on the term "territorial sea" whenever confusion might

result through the use of another term.

Internal Waters

There also develops a terminology problem in asso-
ciation with those waters wholly within the state such as
lakes, harbors, bays, and rivers. The terms "internal
waters," "national waters," "interior waters," and "inland
waters" are all found in contemporary usage in this regard.

"Internal waters" has found favor among a majority
of the nations as evidenced by its inclusion in the 19 5#
Geneva Convention on the Territorial Sea and Contiguous
Zone. Colombos, on the other hand, refers to these waters

'League of Nations, Final Act, Conference for the
Codification of International Law, The Hague, March-April
1930 (Geneva: League of Nations, 1930), reprinted in
Supplement to American Journal of International Law, XXIV
(July, 1930), p.- 183.

10
as "national" or "interior" waters. Paul Godey was of the
opinion that these waters — ports, bays, and closed seas —
should be called the "territorial" seas, in that they were
bona fide territory. As indicated earlier, he recommended

the term "coastal" for those waters along the coast, which

19
are now routinely called territorial seas. * Herbert Briggs,

among others, indicates still another preference .in his

20
choice of the term "inland waters*"

There is ample opportunity for ambiguity in the use

of the latter term, inasmuch as it is used under the United

States* Inland Rules of the Nautical Road to define certain

navigable waters in and near the United States. While some

of these "inland waters" are well within the maritime

boundary of United States territorial seas, others extend

well beyond and far into the high seas, especially along

21
the New England and Florida coasts.

Further confusion arises due to certain writers'

Colombos, op. cit., p. 73.

yGodey, op_. cit., pp. 7-3.

Herbert Briggs, The Law of Nations (second edition;
New York; Appelton-Century-Crof ts7""lnc . , 1952) , p. 239.

21Raymond F. Farwell, The Rules of the Nautical
Road (revised edition: Annapolis, Maryland: United States
Uaval Institute, 1954), pp. 339-399; and Ralph S. Wentworth,
et al. (eds.), Knight's Modern Seamanship (twelfth edition,
revised; New York: D. van Nostrand Co., Inc., 1953), pp.
297-293; see also infra, chapter XIV.

collective reference to all waters under the jurisdiction
of a state as "national" waters, or "territorial" waters,
including both "internal" and "coastal" waters. And while
there are other instances of conflicting terminology, these
remarks should suffice to demonstrate that there has been
no universal agreement as to a standard nomenclature. In
this study, the term "internal waters" will be used wherever
misinterpretations are possible.

Contiguous Zone

During the past several decades there has come into
vogue a relatively new terra, "contiguous zone," used to
describe generally the waters at the maritime frontiers of
littoral states. Today it is used to define a belt of
water adjacent to, and extending to seaward beyond, the
territorial sea, in which the state exercises certain special
jurisdiction to prevent violation of its customs, immigra-
tion, navigation, and sanitary laws and regulations, to
list the most important of them. While this zone is part
of the high seas, it is measured from the baseline on the
coast in the same manner as is the territorial sea. This
is approximately the definition adopted by the United Na-
tions Geneva Conference of 195#» and reflects little change
since the earliest usage of the term. The 1953 Geneva
Conference also set the maximum limit of the contiguous
zone at 12 miles measured from the same baseline used to

delimit the territorial seas.

Baseline

The term "baseline" deserves an introductory defi-
nition inasmuch as it is the continuous point of origin
along the coast from which the territorial sea is measured.
Quite obviously, along a relatively straight coast the
baseline is easy to delimit; for centuries most states have
agreed that it should be the low-water line. The problems
arise in drawing a baseline along irregular coastlines
with many indentations or fringe islands; for by defini-
tion, to landward of the baseline the waters are internal
waters, and to seaward, the territorial sea belt is mea-
sured.

Measurement

Statute mile. According to Webster, the term "mile"
comes to us from the Latin of ancient Rome, milia passuum,
or 1000 paces, measuring about 1620 yards. In current
English usage, the measure is slightly longer, 1760 yards
(5280 feet or 1609.35 meters) and is referred to as the
statute or English mile.

Convention on the Territorial Sea and the Con-
tiguous Zone (U. N. Doc. A/Conf. 13/L.52), Article 24, in
United Nations Conference on the Law of the Sea, Vol. II,
Plenary""MeetInas (U. N. Pu5T A/^onTT TS/WJ TEew York;
United Nations, 1953), p. 135.

Nautical mile. ** In navigation and astronomy the

term "mile" was adopted because it was a familiar terra,
associated with measuring distances, and coincidentally,
almost equal to the statute mile. Nevertheless, the nautical
mile derives from its relationship with the measurement of
arc on the earth's surface and is only secondarily a measure
of linear distance. A nautical mile equals one minute of
latitude, or one-sixtieth of a degree. This measure, also
called "sea" mile, "air" mile, and in England, "Admiralty"
mile, equals 2025.37 yards (6076.10 feet or 1352 meters).
It equates to about 1.15 or 3/7 of a statute mile.

Geographic mile. Because of the earth's oblate-
ness, its equatorial diameter is slightly greater than its
polar diameter. A nautical mile is sometimes erroneously
mistaken as being one minute of the arc at the equator.
Rather, that unit is properly called a "geographic" mile,
equal to 2029.03 yards (6087.03 feet or 1355 meters). This
difference between a nautical mile and a geographic mile
is obviously negligible.

Metric system. Infrequently, states which use the
metric system have expressed the extent of their offshore

2^John C. Hill, et al. (eds.), Button's Navigation
and Nautical Astronomy "("Annapolis, Maryland? United States
Naval Institute, 1958), pp. 10-11.

24Ibid.

14
customs jurisdiction in terms of that system. In such
cases, the measure used has been the kilometer (1000 meters),
or the myriameter (10,000 meters), equal to ,621 and 6.21
statute miles, respectively. It should be recalled that
the metric system is properly a substitute only for land
measurement, a statute mile, and that states which use the
metric system must still use nautical miles in matters of
navigation and astronomy. In almost all cases they mea-
sure their territorial seas in nautical miles.

Marine league . The marine league is generally equal
to three nautical miles, and consequently, the term became
virtually interchangeable with "three-mile limit" in some
state papers and in the writings of several publicists.
The marine league will be considered in greater detail in
a subsequent chapter.

The Three-Mi le Limit

The rule of the three-mile limit under international
law can be defined as limiting the seaward extension of a
coastal stated territorial jurisdiction at the outer
boundary of a zone of water extending three miles from the
shore of that state. The miles are nautical miles, and
they are measured from the low-water mark.

III. ORGANIZATION OF THE STUDY

History is never so simple that its writing can be
reduced to a straight line approach. Related events,

15
occurring simultaneously, must be treated separately, in
parallel, in order to avoid an utterly disjointed narrative.
This has been true to a degree even with a subject as re-
stricted as the three-mile limit. Nevertheless, wherever
possible, the writing of this study follows a simple chron-
ological narrative.

The first substantive chapter provides the -histor-
ical background from ancient times to the period of the
Renaissance. The following three chapters deal respective-
ly with three antecedents of the three-mile limit as they
developed separately but concurrently during the sixteenth,
seventeenth and eighteenth centuries. Next, the three-
mile limit is traced chronologically in five chapters from
its eighteenth century origins until World War II, one
chapter among these being devoted to competing views and
practice. The post World War II period is dealt with in
three chapters: the controversy over the extent of terri-
torial seas, the involvement of the United Nations, and
the demise of the three-mile rule. A concluding chapter
completes the work.

Within each major topical or chronological subdi-
vision, and where practical, the writing technique employed
is to consider first the actual practice of states — court
decisions, laws, treaties, and the like — and then the work
of publicists and learned societies. In considering the
practice of states, the relatively important maritime powers

16
only are considered for the period up to 1930. For until
that time it was solely the major maritime powers that
shaped the law of territorial seas. Thereafter, the lesser
powers, even non-maritime states, began to exert an impact
on that law. In considering the work of publicists both
objective and subjective materials are found. Not only do
they report the de facto law of nations as practiced by
states, citing and quoting valuable references and materials,
but they also advance their opinions de lege ferenda, or
what they believe the law should be.

In studying the events of recent times, the activity
of international organizations is seen as a significant
factor in the development of the law of territorial seas.
The United Nations has served as a medium for the conclu-
sion of multilateral conventions on the subject and, as such,
assumes a role in the actual practice of states. Also, in
the case of draft conventions or conventions which fail to
receive the necessary ratifications, and in the case of the
work of the International Law Commission, the United Na-
tions can be said to be playing the role de lege ferenda.

IV. SOURCES

The concept of territorial seas was developed in
Europe long before the United States commenced amassing its
present abundance of primary source material in the na-
tion's capital. Primary sources for the period through the

17
eighteenth century are located, by and large, in the

archives of the capitals of Europe. For that period, the
writer relied on historians and publicists who had access
to and utilized those sources. Commencing with the period
following the American Revolution, primary reliance shifted
to United States Government publications — chiefly those of
the State Department and the Congress. For the period
since 1920, there is available the voluminous documentation
from the prolific agencies of the League of Nations and the
United Nations.

There are certain sources which, because of the
writer's special indebtedness, should be expressly men-
tioned here. The ancient period was especially well ex-

25
amined and documented by Percy Fenn. ' Frances Davenport

prepared a collection of documents for the Carnegie Insti-

tuion of Washington which greatly facilitated dealing with

26
the period of the fifteenth and sixteenth centuries. The

cannon shot rule, the line of sight doctrine and the

Scandanavian league were most effectively covered by

^Percy Thomas Fenn, Jr., "Justinian and the Free-
dom of the Sea," American Journal of International Law,
XIX (October, 1925 j .

Frances Gardiner Davenport, European Treaties
Bearing on the History of the United States and its De-
pendencies to 1648 C vol . I of IV vols.; Washington: Uar-
negie Institution of Washington, 1917) .

IS
Wyndham Walker, ' Paul Godey, and Arnold Raestad,2^ re-
spectively, H. S. K. Kent*s article on the origins of the

30
three-mile limit was very useful . In 1919, Henry G.

Crocker compiled for the U. S. Department of State an ex-
ceedingly valuable — over 700 pages of fine print — collec-
tion of writings, conventions, national legislative acts,
decrees, regulations, treaties, and other state documents
relating to the extent of territorial waters, the bulk of
which related to the eighteenth and nineteenth centuries.
This was the most valuable of all sources of data uncovered
during the course of this research. But almost as useful
for the nineteenth century period was the comprehensive

United States Senate twelve-volume report of the North At-

lantic Fisheries Arbitration.

For the early twentieth century, a most valuable work

was that of William E. Masterson. ' The League of Nations

'Wyndham L. Walker, "Territorial Waters: The Cannon

Shot Rule," British Yearbook of International Law, XXII
(1945).

Paul Godey, La mer cStiere (ojd. cit.) .

^Arnold Raestad, La mer territoriale (op. cit.) .

^ H.S.K. Kent, op. cit.

^ Henry G. Crocker (ed.). The Extent of the Marginal
Sea (op. cit.; .

^^nited States Congress, Senate, Proceedings in the
North Atlantic Coast Fisheries Arbitration, 12 vols. , ""Senate
Document No. 870, 61st Cong., 3rd Sess. (Washington: Govern-
ment Printing Office, 1912).

^William E. Masterson, Jurisdiction in Marginal Seas
with Special Reference to Smuggling Cop. citTT.

19
documents, especially those associated with the 1930 Hague
Codification Conference, were the best sources for the inter-
war period. Similarly, for the post-World War II period,
the documents of the United Nations, most particularly those
associated with the Geneva Conferences on the Law of the
Sea, provided the most lucrative and useful source of ma-
terials.

CHAPTER II

HISTORICAL BACKGROUND OF THE CONCEPT
OF TERRITORIAL SEAS

I. THE MEDIEVAL PERIOD

The three-mile limit of territorial seas, as a rule
of international law, did not surface until the eighteenth
century. But the concept of territorial seas had developed
much earlier, so by way of further introduction, a summary
of the pertinent world events and international political
thought bearing on the development of this rubric of in-
ternational law is undertaken in this and the following three
chapters .

Italian Maritime Supremacy; Thirteenth and Fourteenth
Centuries

Since medieval times the issue of free seas versus
closed seas has gone full cycle. Roman law laid down that
the sea is communis omnium naturali jure, or by nature,
common to all mankind, and not susceptible of possession
in the same manner as land. The earliest formal pronounce-
ment found by this writer concerning the legal status of
seas is found in the second century writings of the Roman
jurist Marcianus, as preserved in the Digest of Justinian

(4S3-565). This pronouncement declared simply that the sea
and the fish in it were open or common to all men. There
was no extension of state jurisdiction from the shore to
seaward, and the shore was defined as the high water mark
of the flood tide. These very liberal views were incor-
porated into the Justinian Code promulgated in 529 A.D.

During those early times, when Rome firmly, ruled the
Mediterranean, the matter of control of, or sovereignty
over, the seas was not particularly important, or at least
not contested. However, during the Middle Ages, with the
growth of maritime commerce and competition, the waters of
the Mediterranean and the coasts of western Europe became
the subject of conflicting claims. Littoral kings and
princes started to claim sovereignty over the waters adja-
cent to their land territory, Venice, which rose to domi-
nate the Mediterranean and Near East trade routes to the
Orient, began demanding fees from all vessels sailing in
the Adriatic in the year 1269; and they maintained control

Percy Thomas Fenn, Jr., "Justinian and the Freedom
of the Seas," American Journal of International Law, XIX
(October, 1926), pp. 716-719, 72J. Fenn includes a detailed
account of this period, well documented, with a generous
bibliography. See also Albert G. de Lapradelle, "The Right
of the State Over Territorial Sea," Revue GeneVale de Droit
International Public, V (1#93), p. 26b, reproduced In Henry
G. Crocker led.), The Extent of the Marginal Sea, United
States Department of State I Washington: Government Print-
ing Office, 1919), p. 1S7, and Christian Meurer, The Program
of the Freedom of the Seas, trans, from German by Leo J.
Fraclitenberg I Washington; Government Printing Office, 1919)?
chap e I e

o
there until the seventeenth century.

During the following century, there commenced the

literary defense of such practice. Bartolus de Sassoferrato

(1314-1357), an Italian jurist and professor at Pisa and

Perugia, and one of the most famous and oft-quoted jurists

of the Middle Ages, wrote a short treatise advocating "that

every adjacent State should have an 'imperium* over the

coastal sea to the extent of 100 miles which, according to

him, was something less than a two-day journey at sea."^

Such a width, of course, was more than enough to make the

Adriatic an Italian sea. A pupil of Bartolus, who became

equally famous as a teacher, Baldus de Ubaldis (1327-1400),

agreed on a wide extent of territorial waters, but held that

its limit was 60 miles.

De Lapradelle, loc. cit.

Walther M. A. Schucking, Das Kilstenmeer im Inter-
nationalen Rechte (Gottingen: Dieterich 'sche univ.-buchdr.,
1897), p. 6, quoting Bartolus' Tractatus: Tyberidis siye
de fluminibus, in volume VI of his Opera (Lugdunura, 1552) ,
p. 146, translated and reprinted in Crocker, op_. cit. , p.
424. The 100-mile limit widely attributed to Bartolus has
been derived from his statements on offshore islands. He
held that offshore islands belong to a province when they .
were within a moderate distance from the coast. He de-
fined a "moderate" distance as 100 miles and maintained
that the province should exercise jurisdiction within this
distance.

«Joseph J. B. Irabart de Latour, La mer territoriale
au point de vue theorique et pratique (Paris: G. Pedone,
TE&9) , p.~T9; Baron Ferdinand de Cussy, Phases et causes
celebres du droit maritime des nations (Leipzig: F. A.
Brockhaus, 1856; , vol. I, p. 91; and Marquis de Ramon de
Dalmau y de Olivart, Tratado de derecho international
publico (fourth edition; Madrid: V. Suarez, 1903), vol. I,

Not to be outdone by their Venetian competitors, the
Genoese, across the Italian peninsula, staked a claim of
sovereignty over the Ligurian Gulf (now Sea), There is
recorded a decision of the Supreme Court of Piedmont, as
late as the seventeenth century, citing Bartolus and Baldus
as basis for their finding, which approved the action of a
Savoyan man-of-war that had stopped a Spanish ship bound

for Naples, in the Ligurian Sea, at a distance of 50 miles

5
from the port of Monaco.

Portuguese Maritime Supremacy: Fifteenth Century

In western and northern Europe there were similar
claims over large sea areas. The Danes, Swedes, and Poles
claimed various parts of the Baltic; the English claimed
the Narrow Seas (Channel), the North Sea, and the waters
around the British Isles within an arc drawn from Cape
Finisterre in Spain to North Cape in Norway. These claims
reached their greatest extravagance when Portugal, and later
Spain, made their debut in maritime affairs. Under the
leadership of Prince Henry the Navigator (1394-1460), the
west coast of Africa was explored by Portugal. On January
3, 1455 t Pope Nicholas V, expressed his approval and great

p. 203, all translated and reproduced in Crocker, 0£. cit.,
pp. 250, 49 and 334> respectively.

^Schucking, loc. cit., citing Cacheranus, Decisiones
Senatus Pedemontani, Dec, p. 155.

Thomas A. Walker, A History of the Law of Nations
( Cambridge s Cambridge University Press, l899)» vol. I,
p. 162 0

2^
pleasure with the Portuguese effort by issuing the papal
bull Romanus Pontifex, which, "... seeking and desiring
the salvation of all . . . ," apparently granted for the first
time, to the Portuguese, the exclusive and permanent rights

to the lands of Africa from Cueta to Guinea and "beyond,

7
towards that southern shore • " The Portuguese did not ig-
nore this "blank check" to build an empire in the. name of
converting heathens. By i486, Bartholomew Diaz reached the
Cape of Good Hope, and in 1498, Vasco Da Gama sailed around
the Cape, up the east coast of Africa, and across the Arabian
Sea to India, and thus opened up an alternate, all ocean,
trade route to the Orient.

II. THE SIXTEENTH CENTURY:
IBERIAN MONOPOLY OF THE SEAS

Spain Rises to Maritime Paramount cy

The papal bulls . Soon the Spanish discoveries in
America were to be similarly lauded and rewarded by a later
Pope, Alexander VI. When news of the Columbus discoveries
reached the Portuguese King, John II, the latter became
suspicious that the New World lands might be within his vast,
only partially explored, southern realm of "Guinea and the

'For complete text, Latin and English, see Frances
G. Davenport, European Treaties Bearing on the History of
the United States and its Dependencies to 1648 (.Washington?
Carnegie Institution of Washington, 19177, pp« 13-26.

Guinean Sea," possibly even part of the "southern shore"
mentioned in the papal bull. When he prepared an armada
to take possession of Columbus1 discoveries, the Spanish
sovereigns, Ferdinand and Isabella, quickly notified the
Pope. Pope Alexander VI (Rodrigo Borgia), in arbitrating
the dispute, issued several papal bulls which were most
favorable to Spain. In commenting on the bulls. Frances
Davenport, citing several authoritative sources, suggests
that the Pope's close ties to Spain and the Spanish Crown

may have influenced his decisions in issuing the bulls.
In the first, the bull Inter Caetera, of May 3> 1493 $ he
assigned the lands in question, and all future lands to be
discovered, to Spain, but with a clause safeguarding the
pontifical concessions previously made to Portugal, and ex-
cepting any other lands already possessed by a Christian
owner. In another bull, Inter Caetera of May 4, 1493 > the
Pope was more specific, and even more favorable to Spain,
granting her the exclusive right to all territories west of
a demarcation line drawn "... from the Arctic pole, namely
the north, to the Antarctic pole, namely the south • • • the
said line to be distant one hundred leagues towards the west

Davenport, o£. cit. , pp. 56 and 79.

^Ibid. , p. 56. Pope Alexander VI was a native of
Valencia, Spain. "Alexander," Encyclopaedia Britannica
(1953 edition), I, 599.

10Davenport, pjo. cit., pp. 56-63 (complete text).

and south from any of the islands commonly known as the
Azores and Cape Verde •*' This demarcation line was ap-
proximately at the 35 west meridian, passing between
Greenland and Iceland and then straight south, dividing
the Atlantic. This bull did not include the clause safe-
guarding Portugal. Moreover, it prohibited anyone, at the
penalty of excommunication, M. • . to go for the purpose of

trade or any other reason to the islands or mainlands,

12
found and to be found «> „ ." west of the line of demar-
cation, without Spanish permission.

The Treaty of Tordesillas. That the Portuguese felt
aggrieved by this partiality is not surprising. For one
thing, they felt that a line only 100 leagues to the west
of their Azores and Cape Verde possessions did not give them
enough maneuvering room around those frequently visited
island territories. Accordingly, Portugal asked Spain to
agree to a line farther west, one half way between the Cape
Verde Islands and Columbus1 new territories. Secretly,

King John "was certain that within those limits famous

13
lands and things must be found." J Apparently to obtain

Portuguese recognition of their American claims, the Spanish
agreed to a new demarcation meridian 370 leagues west of
the Cape Verde Islands, or at approximately 45° west longi-
tude., The Treaty of Tordesillas was concluded in June,

11Ibid., pp. 71-33. 12Ibid.» p. 77. 13Ibid.. p. $4.

1494 and was ratified in September. * More equitable than

the papal bulls, the Treaty provided that all lands to the

east of the line would be Portuguese and those to the west,

Spanish. Although not specifically so stated, this Treaty

implied a division of the globe into two equal semi-spheres,

a feature lacking, and obviously not intended, in the papal

bulls .

More important from a maritime point of view, the

Treaty also included language dealing with the seas,

strongly implying the notion of outright ownership of the

high seas by the two sovereigns. In order to reach the

Americas, Spanish ships had to cross through the Portuguese

waters east of the line. The Treaty provided for such

passage, permitting Spanish ships.

... to sail in either direction, freely, securely,
and peacefully, over the said seas of the said King of
Portugal, and within the said line . . . They shall
take their courses direct to the desired region ana for
any purpose desired therein and shall not leave their -, c
course, unless compelled to do so by contrary weather.

This wording is strikingly similar to that used today in
defining the doctrine of innocent passage.

The Treaty of Tordesillas was a bonanza for Portu-
gal because the westerly displacement of the line of de-
marcation, located eastern Brazil, undiscovered until some

^For full text, Spanish and English, see ibid.,
pp. 86-100.

15Ibid., p. 97.

28
years later, in the Portuguese serai-sphere, confirming
King John's optimistic speculation. After Tordesillas,
and during the sixteenth century, the Portuguese and Spanish
extensively explored and colonized: the Portuguese in
Africa, Persia, India, the East Indies, and Brazil; the
Spanish in North, Central, and South America, and the T.7est
Indies. In spite of the broad scope of agreements reached
in the Treaty, the century was fraught with disputes and
disagreements over interpretation and implementation. For
example, there was a quarrel concerning the number of
leagues in an equatorial degree, and concerning the exact
location of the Cape Verde Islands. Later, there was a
bitter disagreement when attempting to fix the exact loca-
tion of the Moluccas Islands (Spice Islands) of the East
Indies. They had been discovered in 1512 by the Portuguese
captain, Magellan, who in 1518 transferred his allegiance

to Spain. Both states heatedly claimed that the islands

17
lay on their respective sides of the demarcation line.

Views of Vitoria. Although Italian writers had risen
to the defense of Italian claims of jurisdiction over
extensive sea areas, there was apparently no such move among
the writers in Spain and Portugal. In fact, the reverse

l6Ibid., pp. 85 and 131.

•^Ibid., pp. 118-198. These pages contain treaties
and draft treaties, annotated, documenting the attempts to
settle the issue. Actually, the reciprocal of the demarca-
tion line, or the 135 east meridian, places the Islands
just inside the Portuguese sector.

29
seems true. Probably the most distinguished sixteenth
century writer on international law expressed righteous
indignation at the sweeping claims of Spain and Portugal.
This was, ironically, Francisco Vitoria (I4SO-I546) , a
Spanish theologian and lawyer, of the Order of the Domini-
cans. Although the Dominicans had generally been faithful

1$
to the Holy See, writing in 1532, Vitoria challenged the

authority of the Pope to grant the New World empire; he

challenged the Pope's temporal authority over the Indians

in the New World; he challenged the Spanish Emperor's

right to seize lands occupied by the Indians; and he held

that extension of the Empire was not a just cause to wage

19
war on the Indians. He went on to explain that

. . . the Spaniards have a right to travel into the
lands in question and to sojourn there, provided they
do no harm to the natives, and the natives may not pre-
vent them ... it would not be lawful for the French
to prevent the Spanish from traveling or even from
living in France, or vice versa . . . Thou shalt not
do to another what thou wouldest not wish done to
thyself.20

Ernest Nys, "Introduction" to Franciscus de Vic-
toria (Italian version of name), De Indus et de lure Belli.
Relectiones, trans, by John Pawley Bate tin Classics of
International Law, ed. James Brown Scott (New York: Oceana
Publications. Inc. , and London: Wildy and Sons Ltd., re-
printed 1964), p. 75.

19
'Francisco Vitoria, op_. cit . , pp. 129-149. The

unabridged title translated: On the Indians Lately Dis-
covered, and On the Indians, or on the Law of War Made by
the Spaniards on the Barbarians, first published in 15577

20Ibid., pp. 151-153.

The spirit of free movement and commerce evident in
these passages later led Grotius to invoke Vitoria as an
authority when he protested the conception of sovereignty

over the high seas; conversely, Selden, in defending such

21
a concept, took exception to these views of Vitoria.

Northern European States Contest Iberian Dominion over the
Seas

France. Whereas Portugal had led all the others in
maritime prowess during the fifteenth century, the sixteenth
century saw the Spanish come to the fore, with her exploita-
tion of Mexico and Peru. But it was also during the sixteenth
century that the French, English, and Dutch made their bid
to wrest control of the seas from the Iberian powers. The
French corsairs, in particular, began to plague both Spanish
and Portuguese mariners early in the century. This, of
course, brought reprisals on French shipping. The French
and Spanish, especially, collided when the former attempted
to establish a colony in Florida, and when the French com-
menced attacking Spanish treasure ships and settlements in
the West Indies. The French maintained that the seas were
common, and would not agree to being excluded on the basis
of the papal bulls. The two powers concluded a treaty at
Crepy-en-Laonnois in 1544, wherein the Spanish agreed that

21Ernest Nys, pjo. cit . , pp. 96-97, and Arthur
Nussbaum, A Concise History of the Law of Nations (New
York: The Macmillan Co., 19507, p. "oTT

the French could sail to the West Indies for trade and the
French agreed not to colonize there. Yet, the French
corsairs continued to plunder the "Spanish" Indies. Like-
wise, British sailors scorned the Spanish claim to a monop-
oly of the Atlantic, and ceaselessly and increasingly com-,
mitted piracy against the Spanish ships during the latter
part of the sixteenth century. '

It was during this Franco-Spanish rivalry that the
renowned French publicist, Jean Bodin (1530-1596), pub-
lished De Republique. Writing in the year 1576, he adopted
the view of Baldus, and fixed the limit of territorial seas
at 60 miles, ^ explicitly referring to the Court of Piedmont* s

Davenport, op_. cit . , pp. 205-209, 220.

-*Sir A. V/. Ward, Sir G. W. Prothers, and Sir Stanley
Leathers, eds., The TJars of Religion (Vol. Ill of The Cam-
bridge Modern History. 13 vols.; Cambridge: Cambridge
University Press, 1934), p. 492.

^Percy Thomas Fenn, Jr., "Origins of the Theory of
Territorial V/aters," American Journal of International Law,
XX (July, 1926), p. 479, citing Jean Bodin, Les six livres
de rg-oublique de I. Bodin Anauein (Paris: Chez I du Pius,
1333) , bk. I, chap. JT. There is considerable disagreement
among publicists on the extent of territorial seas advocated
by Bodin. In the Latin version, Bodin wrote 60 miles
("o . . ut sexaginta miliaribus a littore . . ."). The
French version, which appeared about the same time, reads
30 leagues (". . . iusque a XXX lieu5!s loing de sa terre
. . ."). The writers Bynkershoek, de Cussy, Latour, Olivart
and Schucking cite Bodin' s 60 miles. Vattel and de Lapra-
delle cite 30 leagues. Professor Nicholas M. Matte (Deux
frontieres invisibles: de la mer territoriale a l'air

decision.

52
25

Scandinavia. The Scandinavian states at this time
in history numbered two: The Kingdom of Denmark and Norway
and the Kingdom of Sweden. Scandinavians in general had
historically been seafaring peoples, the Norwegians and
Danes somewhat more so than the Swedes, probably because
of their Atlantic seaboard. State papers indicate that

the Dano-Norwegians were actively involved in international

maritime legal matters as early as the sixteenth century.

Although they did not keep pace with France, Holland, and
England in naval or maritime commercial strength, their
extensive fishing enterprises and their co-location with
those powers on the North Sea, involved them in matters
of territorial seas. As early as May 10, 159S, the fol-
lowing Danish ordinance was deemed necessary and promul-
gated:

territorial, Paris: A. Pedone, 1965) equates Bodin's 30
leagues to 90 miles; this is believed an oversight. This
inconsistency may stem from the varied interpretations of
"league," a term often confused in writings on maritime
law. The French league varied in antiquity between 2 and
4 miles. It is now 3 miles.

^See supra, note 6.

26H. S. K. Kent, "Historical Origins of the Three-
Mile Limit," American Journal of International Law, XL VIII
(October, 1954), p. 539; and Crocker, op. cit., passim.

If any English vessels, contrary to the orders of
the king, are found hovering and fishing in the waters
between Vespen^ and Iceland, or two Norwegian leagues
(uker sj^s) northeast from Vespen^, make all haste 27
possible to capture them and bring them to Copenhagen „

Holland. The Dutch, too, entered the international
maritime scene during the sixteenth century, but with more
vigor, Holland, comprised of the northernmost of the prov-
inces of the Netherlands, revolted in 1567, and there com-
menced a protracted war of resistance against the Spanish

crown. In 1531 > under William the Silent, Holland declared

28
its independence from Spain, ' a status not recognized by

the latter until the Treaty of Westphalia in I648.

The revolutionary events in Holland, fortunately for

that country, coincided with Spain's invasion and annexation

of Portugal in 1580. * This, coupled with the closing of

30
the port of Lisbon in 1599 f left certain sectors of the

Portuguese empire to the mercy of the trade-hungry Dutch.
Holland proceeded at once to take control of the East In-
dies and displace Portugal as the primary maritime power
in the eastern hemisphere.

England. The British, for their part, defeated the

'Crocker, op. cit., p. 513* His footnote reads?
"Translation. For Norwegian text, see Arnold Raestad,
Kongens Strgfmme, p. 195 »"

Sir A. W. Ward, et al. , 0£. cit., vol. Ill, pp.
182-259.

2^Ibid. , pp. 499-500. Spain occupied Portugal and
managed her foreign affairs until 1640.

3°Ibid., pp. 530-531.

Spanish Armada in 1533. This was clearly a turning point
in maritime affairs, representing both the decline of Spain,
and the rise of England. Both the British and French were
eager to move in and fill the vacuum left by Spain in the
western hemisphere; and both did, colonizing North America
throughout the seventeenth century. Joining forces with the
United Netherlands (Holland), England and France formed

an offensive and defensive league against Spain in 1596,

31
designed among other things to strip Spain of her dominions.

Another treaty was concluded between England and the United

Netherlands in 1598, this one paving the way for an English

32
and Dutch condominium over the seas. However, there had

arisen strong disagreements among Queen Elizabeth's advisors

on the matter of concluding this treaty. Those opposed to

the treaty foresaw the Dutch growing rich and powerful,

posing a competitive threat to the British;^ their warnings

amounted to something of a premonition of the Anglo-Dutch
dispute over the control of the seas which was to charac-
terize the following century.

Publicists. It was during this time that the first
important English writings on the matter of public maritime

^Davenport, pja. cit., pp. 229-234, text of Treaty of
the Hague, October- 31 f 159o\

32lbid., pp. 239-242, text of Treaty of Westminster
of August~o7l6, 1598.

33Ibid., p. 239.

law were undertaken, those of Alberico Gentili (1552-160$).

Gentili was an Italian lawyer who, in 1579, fled Italy
in company with his father to escape the Holy Inquisition,
which later sentenced them in absentia to life imprisonment
on charges of heresy. In 15&0, Gentili chose England for
his self-imposed exile. There he rapidly rose in favor as
a teacher and jurist. In 1605, he was appointed as advo-
cate before the English Court of Admiralty to represent the
interests of Philip III of Spain. ^ While serving thus as
counsel, he acquired a considerable knowledge in maritime
matters and especially in the mutual rights and duties of
belligerent and neutral powers, and most notably, as con-
cerned the warring Dutch and Spanish. From this base, he

35
wrote Pleas of a Spanish Advocate, which he personally

considered as the best of his several books and manuscripts.
From a twentieth century perspective, his writings. on

the seas are most curious, even ambiguous. Starting from

the premise of freedom of the seas, wherein ". • . it be

said that the sea is common,"-^ he proceeded to impose heavy

* walker, op_. cit. , p. 274.

** illberico Gentili, Hispanicae Advocationis Libri Duo
(in The Classics of International Law, ed. James Brown Scott,
trans. Frank Frost Abbott. New York: Oceana Publications,
Inc., and London: Wildy and Sons, Ltd., reprinted 1964, first
published 1613, written 1605).

^ Gesina H. J. Van der Molen, Alberico Gentili and the
Development of International Law: His Life Work and Times
(second revised edition; Leyden: A. W. Sijthoff , 1963), p. 59 •

^Gentili, op_. cit., p. 35 (chap. VIII, On the Pro-
tection of Sea-Territory) ■

restrictions on that freedom. He invokes the prestige of

Bartolus (100 miles) in defending the British claims to the

sea areas adjacent to England (Channel, North Sea, etc.)-.

The following excerpts offer a representative sampling of

his views on British dominion over the coastal waters:

. . . the word territory was applied equally to
land and to water.

. . . And you see how the sway of our King extends
far toward the south, the north, and the west . . .
And thus, immeasurable is the broad jurisdiction of our
King upon the sea.3#

Even over the high seas, which he maintained are "common,"

he extends to his sovereign a "jurisdiction," apparently

to enable him to take measures against pirates, privateers,

and possibly others:

Nor is this jurisdiction maintained by the enforcement
of a certain royal edict in which certain boundaries
are laid down, beyond which the King refuses to have
his territorial power extended in connection with these
acts of war between the Spaniards and the Dutch. 39

Obviously, in the words of Arthur Nussbaum, ". . „ his opin-
ions agree perfectly with the interest of that great sea
power, England,"

Another writer of the time, Fra Paolo Sarpi (1552-
1623), an Italian prelate, historian, and a member of the
Order of Servites, espoused the view that a state ought to

3BIbid.
39Ibid.

Nussbaum, ojd. cit. , pp. Bl-S2„

37
exercise dominion over coastal waters to ". . .an extent
equal to that which was necessary to the power of the State,
but that injuries to other States were to be avoided,"^1

III. THE SEVENTEENTH CENTURY:
OPEN OR CLOSED SEAS?

Such then, was the general background as the six-
teenth century turned, and the seventeenth century ush-
ered in a new set of circumstances and actors, Spain and
Portugal had completed their roles as the principals; now
it was to be England and Holland, with the French and Scan-
dinavians, although most interested in the proceedings,
not as directly involved,

Holland: Mare Liberum

The Dutch East India Company. It has already been men-
tioned that the Port of Lisbon was closed in 1599 and that
the Dutch opportunistically seized control of the East Indies,

^ Ernest Nvs, Le droit international (Brussels: A.
Castaigne, 1904-6) vol. I, p. 498, translated and quoted in
Crocker, op_. cit. , p. 32$. "Also Latour, op_. cit . , p. 29;
and Henri J. F. X. Bonfils, Manuel de droit international
public (seventh edition; Paris: Rousseau, 1914}. p. 322,
translated and quoted in Crocker, op_. cit. , p. 11. The
writers have reference to Fra Paolo Sarpi, Domino del mar
Adriatico della serenissima republica de Venetia (vol. VI
of 0pere""del pa"dre Paolo dell' ordirTe cli"1 servi : e theologo
della serenissima republica di Venetia, 6 vols. ; Venice:
Appresso Roberto Meietti, l6£7) .

By 159#, the Dutch had established themselves in Mauritius
in the Indian Ocean, and shortly thereafter, settled in Java
and the Moluccas. In 1602 the Dutch East India Company
was founded. As it sought to trade in the East Indies, it
met with the armed resistance of the Portuguese, abortively
attempting to hold those colonies, and to exclude all others
from the Indian Ocean on the authority of the papal bull
of 1493* This trade confrontation led to much bitterness,

culminating with the Dutch East India Company seizing a

i 2
Portuguese galleon as prize.

Hugo Grotius. The defense of this action on the part
of the Dutch East India Company came from the pen of Hugo
Grotius (1533-1645), Dutch jurist, publicist, and states-
man. His brilliance and works had made him famous while
still an adolescent. At fifteen, he was a member of the
staff of the Dutch embassy in France, where King Henry IV
referred to him as "the miracle of Holland," and where, a
year later, he received the degree of Doctor of Laws from
the University of Orleans. There is considerable evidence
that Grotius was then retained by the Dutch East India

^ James Brown Scott, "Introductory Note," in The
Freedom of the Seas (Mare Liberum) or the Right which
Belongs to the Dutch to Take Part in the East Indian irsde,
trans.* xialph van Deman I^lagoTfinTNew York: Oxford University
Press, for the Carnegie Endowment for International Peace,
1916), p. vii.

^Nussbaum, 0£. cit . , p. 97.

Company to write a legal opinion concerning the capture
of the Portuguese galleon. There was opposition in Holland,
even within the Company, against the capture, and the Com-
pany needed a scholarly, well-documented treatise justifying
the siezure in order to sway opinion favorably towards their
policies. So, during the winter of 1604-1605, Grotius wrote
his On the Law of Spoils (De Jure Praedae) , fully vindicating
the action of the East India Company. ^

In 160S, the Dutch entered into truce negotiations
with the Spanish. The latter tried to pressure the Dutch
into renouncing their Sast Indian trade, whereupon the
Company, in a letter of November 4, loOS, requested Grotius
to detach and publish Chapter XII of his De Jure Praedae,
which dealt with the freedom of the seas. This was done
anonymously under the title, Mare Liberum. ' The remainder
was not published until two. and a half centuries later (186&).

.James Brown Scott, 00. cit. , p. vi. In a lengthy
footnote, Scott quotes Robert Fruin as advancing the view
that De Jure Praedae was initially a legal brief, prepared
expressly by Grotius for the Sast India Company, in one of
many instances where he served as counsel for that Company.

^Ibid. See also .Ernest Nys' Introduction to
Grotius* De Jure Belli ac Pacis, (see infra, note 52 for
full citation) . Nys reports in some detail on pages xv to
xxiii the research efforts of Robert Fruin, history pro-
fessor at the University of Leyden, concerning these ties
of Grotius with the Dutch East India Company, citing Fruin,
gen Onuitp;ep;eren werk van Hu,~o de Groot (An Unpublished
,.;ork"nr GrotiusT in Versoreide Geschritten, vol. Ill, pp.
361-445 (English version in Biblioteca Visseriana (Leyden,
1925) vol. V, pp. 1-100.

40
In the work itself, Grotius challenges the Portuguese
title to Java and the Moluccas on the basis " • • • that the
act of discovery is sufficient to give a clear title of

sovereignty only when it is accompanied by actual posses-

Zi.6
sion." He denies the temporal power of the Pope in declar-
ing, "Trade with the East Indies does not belong to the
Portuguese by virtue of title based on the Papal Donation.
• • • For no one can give away what he does not himself

possess." In support of this, he argues: ". • • the

Lord Jesus Christ when he said, 'My kingdom is not of this

world,1 thereby renounced all earthly power . . ." , citing

St. Luke, St. John, and Francisco Vitoria.

In Chapter V, he deals at length with the sea:

. • . since the sea is just as insusceptible of phys-
ical appropriation as the air, it cannot be attached to
the possession of any nation.

But if the Portuguese call occupying the sea merely
to have sailed over it before other people, and to have,
as it were, opened the way, would anything in the world
be more ridiculous? . • • There is not a single person
in the world who does not know that a ship sailing
through the sea leaves behind it no more legal right
than it does track. 49

Concerning the Papal right to grant title to the sea,

Grotius wrote:

^"Grotius, op_. cit., p. 12,
47Ibid., p. 66.
48Ibid., p. 16.
49Ibid., pp. 33-40.

. . . the sea and the right of navigating it, are
concerned only with money and profits, not with piety;
surely every one with any brains at all will agree that
the Pope has no jurisdiction here. 50

Although Mare Liberum was probably written for the
relatively limited purpose of justifying the Dutch activ-
ities in the east, its relevance increased with time, and
its impact was felt rather more by the British than by the
Spanish. For the seventeenth century became one of Anglo-
Dutch rivalries, world-wide. During the course of the
century, for example, the Dutch wrested control of Surinam
from the British in the west, and the British similarly
established themselves in India and Malaya at the expense
of the Dutch. As early as the first decade of the seven-
teenth century, a London East India Company had been formed,
competing directly not only with the Portuguese, but also
with the Dutch East India Company.

Grotius was one of four deputies sent to England

by the Dutch East India Company in an unsuccessful 1613

51
attempt to resolve this quarrel between the two companies.

Ten years later he resumed writing, again addressing the

subject of jurisdiction over the seas. In 1623 and 1624

he produced his great work On the Law of War and

^ Ibid., pp. 44-46.

^G. N. Clark, "Grotius* s East India Mission to
England," Transactions of the Grotius Society, XX (1934),
pp. 45 ff»

52
Peace. In this epoch-making work, he refined his earlier

position on the extent of a state's dominion over the seas:

Now the Lordship over a portion of the sea is ac-
quired in the same way as other lordships — that is,
as we have said above, by means of persons and by way
of territory. By way of persons, when a fleet, which
is a sea army, is established somewhere on the sea;
by way of territory, insofar as those who navigate in
that part of the sea nearest the land can be held in
restraint from the land, no less than if they were found
upon the land itself. 53

Here, introduced by Grotius, was the concept that jurisdic-
tion over the adjacent seas was a function of the effective
extent of control from the land, a concept which would
capture the fancy of statesmen for the next 300 years.

England; Mare Clausum

Although Grotius* thesis — that the sea is a territory
open and free to all — was not directed at the English, the
latter were quite wary of it. For if his argument were
sound, then the English claims to the surrounding seas
would fail. Moreover, as she moved into the vacuum of
declining Spanish influence, England stood to gain through
"inheriting" vast areas previously claimed by Spain.

John Selden. Not long after Mare Liberum was pub-
lished, the English seized several Dutch walrus cargos,

* Hugo Grotius, De Jure Belli ac Pacis, text of I646,
trans. Francis T.7. Kelsey (in Classics of International Lav/,
ed. James Brown Scott. New York: Carnegie Endowment for
International Peace, 1925).

53Ibid., pp. 129-130.

taken in Greenland waters, on the basis the Dutch lacked
British authority to fish there. The Dutch government
complained. It was probably King James I himself, who at
this point requested that a treatise be prepared as a di-
rect rebuttal to that of Grotius. Because of his renown
as a scholar, lawyer, and historian, John Selden (1584-
1654)1 was asked to perform the task, which he did in 1618.
Because of some passages that the King considered offensive
to his friend, the Danish King, the work was shelved until

it was published in 1635.

The work was published under the Latin title, Mare
Clausum, seu de Dominio Maris. A rather wordy second sub-
title on this edition reveals much of Selden1 s purpose:

The right and dominion of the sea in two books.
In the first the sea is proved by the law of nations,
not to be common to all men, but to be susceptible of
private dominion and propriety as well as the land.
In the second, it is asserted that the most serene King
of Great Britain is the Lord and proprieter of the
circumfluent and surrounding sea, as an inseparable
and perpetual appendix of the British Empire. 55

Comparing Selden1 s work to that of Grotius, Kent

writes:

He fell far short of his great rival in the force
and beauty of his argument, but he entirely surpassed

^Eric G. M. Fletcher, "John Selden (Author of Mare
Clausum) and his Contribution to International Lav/," Trans-
actions of the Grotius Society, XIX (1933), pp. 8-9.

^John Selden, Mare Clausum: the Tti^ht and Dominion
of the Sea in Two Books. The riflht, etc., etc., ed. James
Howell, trans. Marchamont Nedham (London: 1633).

him in the extent and variety of his citations and
researches. 5t)

Although far more scholarly, thorough, and complete, Selden
was at a distinct disadvantage. Selden was writing an
apologia of the status quo in an age of widespread . liber-
alization. Ke accurately reported the maritime practice
and concepts of nations at the time, using Venice, Genoa,
Portugal, Spain, and all the English kings as authoritative
examples. "If the Mare Liberum was the inspired harbinger

of the future, the Mare Clausum was the faithful mirror of

57
the actual and the exhaustive record of the past."'

Regarding the substance of the disagreement between

Grotius and Selden, de Lapradelle has this to say:

. . . The disagreement between Grotius and Selden
did not bear on the right of passage which Selden ac-
knowledged, but on the right of fishing, the right to
maritime honors of the flag, the right of neutrals to
forbid naval war. With the concession by Selden of the
right of passage, great progress was accomplished. In
the other parts of his doctrine, the Mare Clausum, after
its first breach, gradually crumbled. The monopolies
of fishing on the high seas were extinguished by pur-
chase. In I636, Holland obtained from England the
exemption from licenses for fishing in the North Sea
by the payment of thirty thousand pounds sterling. The
right to salute, by which maritime sovereignty was
symbolized, continued much longer. Its persistence
caused in part the war of 1652, and furnished a pre-
text for that of 1672 . . . The regulations of the
English admiralty, up to 1805, preserved traces of
these pretensions. But at the beginning of this century,

* James Kent, Commentaries on American Lav; (Fourteenth
ed«> Boston, 1896), p. 27, reproduced in Crocker, 00 • cit.,
pp. 173-1SO.

' 'Fletcher, on* cit., p. 11.

Great Britain finally renounced them.

These teachings of Selden provided the official

basis for English policy on the matter of the seas for

over 100 years. The English legal writer, Charles Molloy,

writing in 1676, reaffirmed the view:

After the writing of the illustrious Selden, cer-
tainly 'tis impossible to find any prince or republic
or single person imbued with reason or sense "that
doubts the dominion of the British Sea to be entirely
subject to that imperial diadem. 59

If Molloy seriously believed what he wrote here, it
must have been from a position of strength, i.e., the abil-
ity of the British by force to impose their will, for cer-
tainly the other maritime states at this time, notably
Holland, France, and Denmark and Norway had ideas of their
own as to the extent of territorial seas. These will be
examined in the next chapter.

"De Lapradelle, 0£. cit. , pp. 266-26?.

^Charles Molloy, De Jure Maritimo et Navali (London;
J. Walthoe, 1744), p. 75, translated and reprinted in
Crocker, 0£. cit. pp. 297-293.

CHAPTER III

THE CANNON SHOT RULE

Thus. far, sovereignty over the seas has been treated
in somewhat general terms with an emphasis on the involvement
of early nation states, one with another, on matters concern-
ing the seas. Too, thus far the term "territorial seas" has
been rather taken for granted. However, at this point, brief
mention must be made concerning the notion, or concept, of
territorial seas, because as states gradually abandoned their
extravagant, vague claims over vast expanses of the high seas,
in favor of more modest claims to coastal waters, they also
became more definitive and selective about the purpose and
justification behind their maritime claims. This is especially
true in the case of the cannon shot rule which made its debut
in the practice of states for virtually the sole purpose of
identifying neutral coastal zones in which warlike acts were
not to be committed.

I. THE NOTION OF TERRITORIAL SEAS

As pointed out in Chapter II, the Romans did not ex-
tend their state jurisdiction to seaward. Later, however,
the Glossators (commentators on the text of Roman law or civil
law), especially Azo (Azolinus Porcius, 1150?-1230?) , an
Italian jurist and professor at Bologna, advanced the doctrine

that the state exercised punitive powers over offenses com-
mitted on the high seas. Here the Glossators were attribut-
ing some sort of extraterritorial authority to state vessels,
for there was no claim whatsoever to territorial seas.

In the following century, the renowned Bartolus ex-
panded on the notion of state authority. He taught that the
prince was lord of his territory and of the sea subject to
him. He defined the part of the sea which was subject to the
prince as that portion immediately adjacent to his territory
— which, according to Bartolus, extended seaward 100 miles.
The prince, therefore, was to exercise his jurisdiction in
this adjacent area, which Bartolus termed a "judicial dis-
trict." A few years later, Baldus introduced these concepts

into feudal law. The importance and extent of this terri-
torial jurisdiction is more readily appreciated when it is
considered in light of the fundamental land tenure relationship
(fief holding) between lord and vassal under feudalism and
feudal law.

One hundred years after Baldus, a commentator on
feudal law by the name of Afflictis recorded the existence
of a new officer of the law, the admiral, who was appointed
by the sovereign and who ranked as the third officer of the

Percy Thomas Fenn, "Origins of the Theory of Terri-
torial Waters," American Journal of International Law, XX
(July, 1926), p.~4§U:

2Ibid. , p. 472, citing and quoting from Baldus de
Ubaldis, Usus Feudorum Commentaria (Lugduni, 15^5) f p. 35.1.2

realm. The admiral's duty was to punish those guilty of
offenses committed at sea, and to suppress piracy. The sea

for this purpose was still a district of the nation or king-

dom. Thus, it would seem that the first meaningful purpose

in claiming certain territorial sea was that of judicial
jurisdiction over offenses that might be committed therein .

It would have been quite logical at this pe'riod of
time to identify these seas as jurisdictional seas or waters.
But it was only a matter of a few decades until Gentili
produced his De Jure Belli (first published in 159&), in
which he gave us the basis for the more comprehensive term
"territorial seas". He credited Baldus with elaborating
the theory of "mare adiacens" and Bartolus with the 100-mile

limit, both of which he espoused in part. He then applied

5
the term "territorium" to these "adjacent seas", and implied

that the sovereign's jurisdiction within these seas was

authority in toto, just as if it were his land territory.

Thus, after Gentili, publicists began writing of "territorial"

seas or waters.

Jbid., p. 473, citing M. de Afflictus, Sanctiones,
et Const itutiones Hovissima Praelectio (Venice, 1562) .

^"See supra, chap. I, p. 7«

^Alberico Gentili, De Jure Belli Libri Tres, trans.
of 1612 eidtion by John C. Rolfe (in Classics of Interna-
tional Law, ed. James Brown Scott; Hew York: Oceana Publi-
cations, Inc., and London: V/ildy and Sons, Ltd., reprinted
1964), p. 334.

1+9

The theory or notion of territorial seas, then, had
been evolved, but leaving the matter of determining the ex-
tent of the territorial sea, and the definition of the pur-
pose or purposes to be served by such seas, to further
evolutionary process. It has already been pointed out, in
connection with the Grotius-Selden controversy, that the
British had attached by as early as the seventeenth century
certain other significances to the "British" seas, such as
the rendering of honors to their flag, and others. The
Spanish and Portuguese, for their part, had considered their
claims over the seas as reserving for themselves an expanse
of "private property", a "private road" so to speak, through

which foreigners could not pass without obtaining special

. • 7
permission.

II. DEVELOPMENT OF THE CANNON SHOT RULE

Three antecedents have been found which can all be
claimed as the basis, in varying degrees, for the three-mile •
limit. Each of these, the line of sight doctrine, the
Scandinavian league, and the cannon shot rule, will all be
examined. The cannon shot rule, which is certainly the most
famous, will be considered first.

The cannon shot rule, simply stated, is that a state

See supra, chap. II, p. 44.
'See supra, chap. II, pp. 26-27 .

exercises sovereignty over its coastal waters as far as its
cannons can shoot. The French have a somewhat better term
for it, "portee du canon." "Portee" conveys the impression
of distance more so than the English term "shot," and it
might have been more accurate if the rule had been called
the "cannon range rule" in English. The cannon shot rule
served the statesmen who favored it for about three hundred
years, during the period 1610 until 1911. It was paramount
during the eighteenth century, especially from 1702 until
1793 t during which time effective cannon range was relatively
constant, increasing from about one to two miles.

It was a most practical rule. There was never any
problem in determining the extent of state control at any
given location; one needed only to shoot the cannon and
measure the distance to the fall of the shot. There was, of
course, no uniform extent of seaward boundaries provided by
the rule. In each location, cannon range depended on height,
position, and caliber of the cannon or cannons emplaced. But
as will be seen, for the purpose intended, this was irrelevant

Seventeenth Century Practice of States

Holland. It seems that the Dutch were the first to
advance the cannon shot idea. On May 6, 1610, a Dutch dele-
gation visited England to complain against a British procla-

Albert Manucy, Artillery Through the Ages (Washing-
ton: Government Printing Office, 1949), PP» 5^-12, 32. Also,
see infra, pp. 69-73 •

mation of a year earlier forbidding "strangers" to fish in
waters claimed as British seas. The Dutch argument, sub-
mitted in the form of a note, included the following:

2. For that it is by the law of nations, no prince
can challenge further into the sea than he can command
with a cannon except gulfs within their land from one
point to another. 9

Interestingly, this Anglo-Dutch fishing disagreement and the
Dutch cannon shot argument occurred concurrently with the
publication of Grotius' Mare Liberum. It may even be that
there was some connection between Grotius and the cannon shot
note. But although several writers have assumed on fairly
substantial grounds that it was Grotius himself that composed
the note, it has not been proven that he was directly in-
volved. And while the possibility has been suggested, it
is reasonably certain that Grotius was not a member of the
1610 delegation. G. Norman Clark writes that the only time

yHenry G. Crocker (ed.), The Extent of the Marginal
Sea, United States Department of State (WasETngton: Govern-
ment Printing Office, 1919) » p. 606, quoting Thomas W. Fulton,
The Sovereignty of the Sea (Edinburgh and London: W. Black-
wood and Sons, 1^11 ) , p . 156, in turn quoting Great Britain,
State Papers, Domestic, vol. 47, p. 111. This citation is
corroborated by Wyndham L. Walker, "Territorial Waters: The
Cannon Shot Rule," British Yearbook of International Law,
XXII (1945), p. 222.

Frans De Pauw, Grotius and the Law of the Sea,
trans. P. J. Arthern (Brussels: Editions de ITlnstitut de
Sociologie, 1965), p. 43, citing L. Ledeboer, "Een nota uit
het jaar lolO" (A Note Dating from 1610) in Grotiana, IV,
1931, pp. 3^-42.

Grotius visited England was in 1613. It can be said, how-
ever that Grotius* later writings, while not specifically-
mentioning cannon range in connection with territorial seas,

12
strongly suggest that he favored the cannon shot concept.

Again in 1671, Holland showed partiality for the cannon

shot rule in international diplomacy by issuing regulations

to Dutch ships requiring them to salute foreign fortresses

13
and towns when they approached to within cannon range. J

Belgium. Another instance noted wherein cannon shot
figured in state affairs occurred between Belgium and Algiers
in 1662. Ships returning to port from long voyages would
stop for inspection ". • . at a distance at which a ship could
be struck by cannon shot • • .", in order that port author-
ities could determine if the ship was still in the hands of

14
its registered owner.

France. Within a few years, the cannon shot concept

G. Norman Clark, "Grotius' s East India Mission to
England," Transactions of the Grotius Society, XX (1934),
p. 45.

See supra, chap. II, note 53, P« 42.

-'Crocker, loc. cit . , quoting Arnold C. Raestad, La
mer territoriale: etudes historiques et .juridiques (Paris:
rT"Pedone, 1913), p. 114.

^"Amended treaty of peace between the Federated
States of Belgium and the Kingdom of Algiers," translated
and reproduced in Crocker, op_. cit., p. 511, citing Dumont,
Corps uniyersel diplomatique du droit des gens (Amsterdam,
1728), vol. 6, part 2, p. 445 .

53
began to take root in France. Without a doubt, the French
had everything to gain in championing any concept which
espoused narrow territorial seas, because the British
claimed all the waters on France's Atlantic coasts: The
North Sea, the English Channel, and Bay of Biscay. The
English based their claim to the entire Channel, right up

to the shores of France, on their former title to Brittany

15
and Normandy. The French resented this claim and Louis

XIV even refused to allow the Channel to be called the

16
English Channel or British Sea.

As early as 1685 the French were treating the cannon
shot rule as established law in France. The capturing of
ships as prizes of war had become a matter of significance
during the seventeenth century and the French adapted the
cannon shot doctrine to suit this particular situation.
They held that the range of cannon was the limit of terri-
torial waters in matters of capture at sea, and that maritime
acts of war would not be committed within range of neutral

15
^Bo roughs, Sir John, The Sovereignty of the British

Seas (written in the year lo33» ed. Thomas Wade; Edinburgh:

WTTTreen and Son, Ltd., 1920), pp. 61-62.

Emmerich de Vattel, The Law of Nations or the
Principles of Natural Law AppTTedH5o" *En"e uonciuct ancTTo
the Affairs of Nations and Sovereigns, 1758 ed. trans, by
Charles G. Fenwick (in Classics of International Law, ed.
James Brown Scott; New York: Oceana Publications, Inc. and
London: Wildy and Sons, Ltd., reprinted 1964) » P» 108 (Book
I, chap. XXIII, para. 289). To this date in French cartog-
raphy and literature, the English Channel is usually re-
ferred to simply as "la Manche" or "the Channel."

5^
17
states' guns.

In 1691, the French ambassador at Copenhagen, pro-
testing a Danish claim to a greater extent of territorial
seas, tendered the following to the Dano-Norwegian Govern-
ment: "Respect of the coasts of any part of Europe whatso-
ever has never been extended further than cannon range, or

IS
a league or two at the most."

In 1693, the French had cause to complain to the

Portuguese Government. The British had captured two French

ships within range of the guns of the port of Lisbon, and

France was seeking redress from Portugal on the grounds that

Portugal should have prevented the seizure. They offered

the argument that they themselves had previously captured

a Dutch ship under the guns of a Portuguese fortress, but

after having reflected on the matter, they had concluded

that it had been illegal under the law of nations and had

19
released the Dutch ship.

'Wyndham L. Walker, 0£. cit. , p. 215, citing a letter

to M. De Croissy of 19 January 1685, French National Ar-
chives, Collection de la Marine, F2.7.

Crocker, op_. cit., p. 519. Crocker's footnote
reads, "Translation. For the French text, see Arnold
Raestad, La mer territoriale, p. 111."

"wyndham L. Walker, op. cit., p. 217, citing a letter
to M. D'Estrees, of 1 April 1693, French National Archives,
Collection de la Marine, F2.ll, folio 263, and letters to
De L'Escole of~"2"2 April and 3 June 1693, same collection
F2.ll, folio 449. (The dependency of Portugal under Spain
following annexation in 1530 terminated in I64O.)

The French, then, had formulated a rule of maritime
law, at least for their own purposes, making it illegal
in wartime to capture a ship in a neutral port or under
guns actually emplaced in a neutral fortress, consequently-
offering protection for belligerant vessels seeking refuge
"sous les canons des forteresses'"' of neutrals. There was
apparently no objection to such capture or warlike acts
along undefended coasts. Further, there was apparently no
intention to extend territorial jurisdiction uniformly to
seaward in order to form a belt of territorial seas equal
to the range of theoretical cannons emplaced all along the

coast. The theory, rather, was one of zones or areas of

20
fire, near and around guns actually in place.

Seventeenth Century Publicists

This cannon shot rule of France was developed without
the aid of any known publicists on international law.
Those who had written on coastal waters, and who might
have mentioned the cannon shot concept, did not. Neverthe-
less, a few of the more important and interesting seven-
teenth century commentators on the subject of territorial
seas must be considered.

Richard Zouche (1590-1660), an Englishman, published
his most important work in 1650. He cites several authors

20Ibid., p. 222

56
in a bibliographical attempt to justify England's claim to
the Channel. He quotes Grotius out of context to strengthen
this position, and even discovers a Frenchman, John du
Tillet, writing in De Rebus Gallicis, who "... frankly
admits that the kings of France had no sovereignty over the
sea • • •

Joannes Loccenius (1593-1677), a Swedish jurist and
publicist, writing in 1651, declared that the sovereignty
of the sea can belong to no man. Then he rather defeated
his own purpose by adding that a part of the adjacent sea

may be subjected to the ownership of a king, that part being

22
equal to a two-day journey at sea — this latter phrase

having appeared in the works of Bartolus. This extent of

territorial seas, of course, is indeterminable; it depends

on the speed of the vessel, and could have been as little

as 50 miles, or as great as 500 depending on the force of

the wind. But his theory was so novel that it is mentioned

by many writers, including Bonfils, de Cussy, Hall, de

Lapradelle, Latour, Nys, and Schucking.

Richard Zouche, An Exposition of Fecial Law and

Procedure, or of Law Between Nations, and Questions Con-
cerning ~the*""5ame » trans, from Latin by J. L. Brieriy (in
Classics of International Law, ed. James Brown Scott (New
York: Oceana Publications, Inc., and London: Wildy and
Sons, Ltd., reprinted 1964) , pp. 74-75.

Joannes Loccenius, De .jure maritimo libri tres

(Holmiae: Nicolai Wankivii, Reg. Ma j . typogr., 167471T

57
Franz Stypmann (I6l2?-l650) , a German, is quoted by-
German publicists and others as claiming the 100-mile limit
to be the only one commonly accepted • Stypmann, of course,
draws mainly on Bartolus, but also acknowledges the 60-mile
claim of Baldus and Bodin. ^

Samuel Pufendorf (1632-1694), a most prolific Saxon
publicist, published his main work in 1672. ^ He writes
that dominion of the high seas would be useless — even un-
just— obviously following very closely the writing of
Grotius,; not only for his views, but also for his manner
of presenting them. On the subject of territorial seas
he writes:

• • • any maritime people which has any use of navi-
gation is master of the sea which washes its shores,
in so far as it is held to serve as a defence, and
especially of parts or places where any easy landing
can be made. \ Bodin, On the Republic, Bk. I, the last

bk. I, chap. IV; Latin text excerpted and reproduced in
Albert G. de Lapradelle, "The Right of the State over
Territorial Sea." Revue Gene*rale de Droit International
Public, V (189S), p. 275; and Joseph B. I. de Latour, La
mer territoriale au point de yue theorique et pratique
"(Paris: G. Pedone-Lauriel, "183^7, p. 29.

^Walther M. A. Schucking, Das Kustenmeer im Inter-

nationalen Rechte (Gottingen: Dieterich ' sche univ.-buchdr.,
1897)t p. 7t quoting Franz Stypmann, De jure maritimo
(Grypnrw., l5o2), sec. 56, translated ana reproduced in
Crocker, op_. cit. , p. 425 •

^"Samuel Pufendorf, De Jure Naturae et Gentium
Libri Octo, trans. C. H. ancFW. A. Oldfather (in Classics
of International Law, ed. James Brown Scott; New York:
Oceana Publications, Inc., and London: Wildy and Sons,
Ltd., reprinted 1964) »

chapter, states on the authority of Baldus: "By a kind
of right common to all rulers whose territories border
upon the sea, it has been agreed that a ruler can impose
his law upon those who approach within sixty miles of
his shore.") ... .25

Pufendorf makes no comment on his quotation of Bodin, leav-
ing the reader with the impression that he approves, or at
least has no objection to, a 60-mile territorial sea.

Johann Wolfgang Textor (1638-1701), a third German
writer of the period, adds nothing new to the concept or
extent of territorial seas, but concurs generally with

Grotius that the whole ocean does not properly admit of

26
ownership. Textor is mentioned here only because of the

elevation of his work to the status of a "classic" by James

Brown Scott, a status questioned by several writers since.

Cornelius van Bynkershoek and His Dissertation

Certainly the name which has been most commonly
associated with the cannon shot rule is that of Bynker-
shoek (1673-1743). Born of a Zeeland family of merchants,
he devoted his life to law and writings on the law. He
sat for 40 years on the Supreme Court of Appeals at The

25
26

Ibid., p. 565o

Johann Wolfgang Textor, Synopsis of the Law of
• John P. Bate (in Classics" oT InternatTor

Nations, trans. John P. Bate (in Classics or International
Law, ed. James Brown Scott; New York: Oceana Publications,
Inc., and London: Wildy and Sons, Ltd., reprinted 1964) ,
pp. 66-67.

59
Hague, 19 years of which he served as the President (Chief
Justice) • He is most famous for the dissertation Dominion
of the Sea, written in 1702, early in his legal career. '

Bynkershoek, opposing the British pretensions on
sovereignty over the seas, took up, and elaborated on the
doctrine of Grotius and Pufendorf of the common rights of
all peoples to navigation, trade, and fishing on the high
seas. His most celebrated contribution to international
maritime law is found in his dissertation in chapter II,
which is entitled, "Whether a Maritime Belt Can Be Occupied

and Held Under Sovereignty, and If So, in What Way It May

2#
Be Done." In this chapter, he addresses the matter of

seas close to the shore. First he critically examines the

claims of states to a maritime belt:

But indeed since by the law of nations we do not
recognize ownership without possession, we must examine
how far the ownership of a maritime belt seems to have
extended ... For according to that law, possession is
not acquired, unless the entire "res" in question is
brought under the control of the man who. wishes to
possess it • • •

I should think, therefore, that the possession of a mari-
time belt ought to be regarded as extending just as far as
it can be held in subjection to the mainland, for in that

'Cornelius van Bynkershoek, De Domino Maris Disser-
tatio, trans. Ralph Van Deman Magoffin I in Classics of
International Law, ed. James Brown Scott; New York: Q^ceana
Publications. Inc., and London: Wildy and Sons, Ltd., re-
printed 1964) t PP» 13-14 (introduction).

28Ibid., pp. 41-45 .

way, although it is not navigated perpetually, still the
possession acquired by law is properly defended and
maintained . . , Hence we do not concede ownership of a
maritime belt any farther out than it can be ruled from
the land, and yet we do not concede it that far . . .

• • •

you may see that the early jurists who ventured
to recognize dominion over a maritime belt wander about
in great uncertainty in regulating its limits.

Some authorities extend it to a hundred miles, some
to sixty . . . Others again set various other limits
. . . But no one could easily approve the reasoning on
which all these rules are based, or that reasoning
either by which it is accepted that dominion over the
sea extends as far as the eye can reach. 29

Bynkershoek then introduces what he believes to be an ac-
ceptable alternate, the cannon shot rule:

Wherefore on the whole it seems a better rule that
the control of the land [over the sea] extends as far
as cannon will carry; for that is as far as we seem
to have both command and possession. 30

Thirty-five years later, Bynkershoek completed his

main work, Questions of Public Law. In his chapter en-
titled "Whether it is Lawful to Pursue or Attack an Enemy
in a Neutral Port or Territory," he reaffirms his earlier
view:

. . . for I hold that the territorial domain ends
where the power of weapons terminates.

29Ibid., pp. 42-43.
Ibid., p. 44.

•^Cornelius van Bynkershoek, Quaestionum Juris Pub-
lici Libri Duo, trans. Tenny Frank (in Glassies of Interna-
tional Law, ed. James Brown Scott; New York: Oceana Publica-
tions, Inc., and London: Wildy and Sons, Ltd., reprinted.
1964) .

Following this principle, it is not permitted to
begin a battle on the seas so near land that it is
within reach of the cannons of the forts . . .32

Nowhere in Bynkershoek 's writing does he suggest an
exact measurement or width of a territorial sea, rather he
seems to write disapprovingly of it. With him it is clearly
a function of the range of a cannon, which, of course,
varies from place to place and from cannon to cannon. More-
over, nowhere does he say that states ought to claim a mari-
time belt along their coasts the width of which would equal
cannon range, nor does he say they should not claim such
a belt. Literally scores of well-known writers since Byn-
kershoek have drawn the inference from his words that the
famed Dutch jurist envisioned such a belt and have accorded
this interpretation to his writings. Likewise, many writers
have accepted the view that Bynkershoek himself conceived
of the cannon shot rule. The evidence, however, suggests
that the former is probably incorrect and that the latter
is certainly untrue. It would be safer to speculate, as
does Wyndham Walker, that Bynkershoek was merely recording,
with his approval, the current practice of certain states—
notably Holland and France — in recognizing the protection
afforded to belligerent ships by the series of coastal
"safe havens" within range of fire of actual guns in place

32Ibid., pp. 5k and 57.

33
in forts on the shore. Certainly this view of Bynkershoek

is consistant with his strong advocacy of free seas as found

through the rest of his chapters and books.

There is no doubt that Bynkershoek deserves continued

recognition as the first publicist to record and to recommend

the cannon shot rule; indeed, he popularized it. That he

was successful and convincing in his argument is evidenced

by the number of states that soon accepted the cannon shot

rule, and the number of writers that have attributed even

more to him than perhaps he ever intended to say or imply.

Eighteenth Century Practice of States

France, of course, continued to adhere to the cannon
shot rule. In treaties of 17#6, 1737, and 1795 with England,
Russia and Tunis respectively, she established the range
of cannon shot as the extent of the neutral zone for war-
ships.

England. During the eighteenth century, England

gravitated away from her claims to "British Seas" and as

early as 1762 had concluded the following:

Article II. It is also agreed that if any ships
or vessels of Christian nations, in enmity with the

5 ^Wyndham Walker, 0£. cit., pp. 230-231. This view
is also shared by J. L. Brierly, The Law of Nations (sixth
edition; New York and Oxford: Oxford University Press,
1963), p. 202.

For texts, see Crocker, 0£. cit., pp. 521-523

King of Great Britain, &c, shall, at the time hereafter
be met with or forced upon the coast of the Kingdom of
Algiers, either at anchor or othervd.se, and not within
the reach of cannon shot of the shore, that it shall
and may be lawful for any of His Britannic Majesty's
ships or vessels of war, or any English privateers, or
letters of marque, to take and seize as prizes, any such
shins or vessels - <. -3?

Italian States. Between 177$ and 17&7, the Grand

Duchy of Tuscany, the Vatican, the Republic of Genoa, the

Republic of Venice, the Kingdom of the Two Sicilies, and the

Kingdom of Naples issued edicts, passed laws, or concluded

treaties barring maritime hostilities within range of their

cannons. Following the unification of Italy, the new

Italian government reaffirmed the cannon shot rule of its

several predecessors in instructing its naval officers:

IV. You will bear in mind that you must abstain
from any act of hostility whatever in the ports and in
the territorial waters of neutral Fowers; remembering
that the limits of the territorial waters extend to

^Great Britain and Kingdom of Algiers, "Treaty of
Feace and Commerce, May 14i 17o2," British and Foreign
State Papers, vol. 1, pt. 1, p. 372, reproduced in Crocker,
op. cit. , p. 537.

•* Regulations of the Grand Duchy of Tuscany Relat-
ing to Navigation and Commerce in Time of 'Jar, August 1,
177S; Edict of the Pone Relating to Navigation and Commerce
in Time of War, March 4, 1779; Edict of the Republic of
Genoa Concerning Navigation and Commerce in Time of War,
July 1, 1779; Edicts of the Republic of Venice Concerning
Navigation and Commerce in Time of War of July 1, and
September 9, 1779; Treaty of Commerce Between Russia and
the Two Sicilies of January 6/17,1737; and Treaty Between
Naples and Russia of January 17, 1737; pertinent articles
translated and reproduced in Crocker, 0£. cit., pp. 596-
593.

64
the distance of a cannon shot from the shore.

Spain and Portugal, in treaties with Algiers (1736)
and with Russia (1737), respectively, adopted the cannon shot
rule for purposes of neutrality and taking of prizes.^

United States. In January, 1737, the United States
concluded a Treaty of Peace and Friendship with the Sultan

of Morocco, protecting American vessels "... within gun-

39
shot of his forts. • • ,M*" Seven years later, the United

States and England agreed that:

Article 25 ... • Neither of the said parties
shall permit the ships or goods belonging to the sub-
jects or citizens of the other, to be taken within
cannon shot of the coast, nor in any of the bays,
ports or rivers of their territories. . . .40 '

•"Kingdom of Italy, "Instructions from the Minister

for Marine Affairs to all general, superior and subaltern
officers, commanding the navy, the squadrons and the vessels
on service, June 20, 1366," British and Foreign State Papers,
vol. $3, p. 307, reproduced in Crocker, 0£. cit., p. 598.

^ Spain and Algiers, Treaty of June 14, 1736 and
Portugal and Russia, Treaty of Commerce of December 9/20,
1737, applicable articles translated and reproduced in
Crocker, op_. cit., pp. 6l3 and 623, quoting G. F. von Mar-
tens, Recueil des traites (second edition; Gottingue:
Dieterich, 1317=13^) , vol. IV, pp. 123, 323.

^French language version: ". • .la porte'e du
canon des chateaux • . .," see Crocker, op_. cit. , p."~o"32
for full~text.

^°United States and Great Britain, "Treaty of Amity,
Commerce, and Navigation, November 19 > 1794, U.S. Statutes
at Large, vol. 3, pp. lib, 123, reproduced in Crocker,
0£. cit., p„ 637. This article expired October 23, 1307.

Russia. In 1787, Russia entered into the treaty
with the Two Sicilies, cited above, the first in a series
of similar treaties with other states, recognizing the
range of cannon shot as the extent of protective, neutral
waters. During the nineteenth century, Russia experimented
with several other limits — 3 miles, 10 miles, 30 miles, and
100 miles — for various purposes of neutrality, fishing, and
territorial jurisdiction^" — but abandoned them all in 1911,
and reverted to the cannon shot rule. This will be treated
more fully in Chapter IX.

From this it can be seen that within a century of
Bynkershoek's dissertation all the important maritime states
except for the Scandinavians, together with some not-so-
important maritime states, had adopted in actual practice
the cannon shot rule for purposes of neutrality. Nothing
in this eighteenth century practice seems to indicate that
the states considered the cannon shot rule as applying to
purposes other than neutrality and prize law, for example,
such as fishing. Whenever fishing is considered, it seems
to be in terms of some other means of measuring the limits;

^ Ukase of September 4/l6, 1821, establishing terri-
torial seas of Russian Asia and America at 100 sea miles;
Russian Prize Law of 1869, establishing neutral zone as
cannon range or 3 miles; Russian instruction to cruisers
of 1893 establishing 3-raile territorial waters; Rules and
Treaties of 1893 establishing 10-mile fishing zone on
Russian sea coast and 30-mile fishing zone around Komandorsky
Islands, reproduced in Crocker, 0£. cit. , pp. 620-622.

these will be considered in the following chapters.

Eighteenth Century Publicists

The writers, too, considered the cannon shot rule
as applying eventually to neutrality and prize law.

Giuseppe Casaregi (1675-1737), an Italian authority
on maritime and commercial law, whose major work -was pub-
lished in 1740, accepts the cannon shot rule for neutrality,
holding that ships may not be taken as prize in a neutral
prince's ports or in the adjacent sea within range of shore
batteries. However, he adheres to the old 100-mile rule of
Bartolus for other purposes, .such as criminal or civil jur-
isdiction.

Christian Vfolff (1676-1756), a German publicist, who
produced a vast work on international law between 1740 and
174#, with a condensation of it in 1749, did not mention the
cannon shot rule. He upholds the freedom of the sea for
navigation and fishing, and considers that the sea may not
be subjected to the ownership of any one. Concerning the
marginal sea, Wolff wrote that its extent was a matter of
mutual protection. "Parts of the sea can be occupied by
nations which dwell near it, so far as they are able to pro-

^ V/yndham L. Ualker, cvo. cit., p. 224, citing Josephi
Casaregis, (Latin version of name; , Discursus legales de
commercio . . . conculatus maris, cum ejusdem exolicatione
(Venetiis: Balleoniana, 1740 ) .

tect the same." The mutuality is explained by Wolff:

. . . since the sea furnishes a means of protection
to maritime countries, and therefore it is to the
advantage of the inhabitants that no one should be
allowed to remain there with armed ships. 43

Felix Joseph de Abreu y_ Bertodano (1700?-1775) , a
Spanish publicist writing in 1746, like Casaregis, concluded
that capture under neutral guns was illegal. Also, like
Casaregis, Abreu contended that states, like Spain, with
expansive ocean frontages should extend their jurisdiction
100 miles to seaward. He added, however, that states which
fronted on narrow seas (presumably less than 200 miles
wide), should share the sea, sound, channel, or -strait as
the case may be, on an equal basis with the other littoral
state or states also bordering that sea.

Emmerich de Vattel (1714-1767) , a well-known Swiss
diplomat and philosopher, published his most important work
in 1753. In it he follows generally the principle of free
seas, but accepts claims to wide marginal seas such as
those of Britain and Venice, provided they are maintained

^Christian Wolff, Jus gentium methodo scientifica
pertractatum, trans. Joseph H. Drake (in Classics of
International Law, ed. James Brown Scott; iVew York: Oceana
Publications, Inc., and London: Wildy and Sons, Ltd.,
reprinted 1964) , pp. 69-72.

^Vyndham L. Walker, op_. cit . , pp. 224-225, citing
Felix Joseph de Abreu y Bertodano , Tradato Juridi co-Politico
sobre Pressas de Mar (Cadiz: Imprenta real de marina,
1746), chaps. IV-VI.

by force. ' Concerning the cannon shot rule he writes:

Today, all the sea space within cannon range all along
the coasts is regarded as being part of the national
territory, and for this reason, a vessel captured under ,•
the cannons of a neutral fortress, is not a legal prize.

Vattel*s words in the first part of the sentence can be in-
terpreted as advocating a uniform belt of territorial seas,
the width of cannon range, all along ( • • • le long de . • .)
the coast. But the latter part of the sentence clouds the
issue, and there is no amplifying indication of exactly what
this writer had in mind.

Rene Josue Valin (1695-1765), a French Admiralty
official, produced two important works concerning the extent
of jurisdiction over coastal waters. The first of these
(1760) dealt extensively with fisheries. After discussing
the diverse claims to coastal waters, he offers his own
suggestion, namely, that for purposes of fishing, the coastal
state should claim exclusive rights as far out to sea as bot-
tom soundings can be obtained, or to two leagues, whichever
is farther. ' The second of Valine works (1763) dealt with

^Vattel, 0£. cit., p. 103.

^ Ibid. , p. 109. This translation, by the author,
is from tKe~~ French text, and is somewhat more literal than
the one furnished in the Classics series.

^'Rene Josue Valin, Commentaire sur l'ordonance de
la marine (second edition; Paris: Joubert, 1841), vol. IT,
p. 687, cited by Latour, 0£. cit., p. 30, translated and
reprinted in Crocker, 0£. cit., p. 250. The most eminent of
Valin* s critics on this theory is the famous Argentinian

the law of prizes. Like Casaregis and Abreu writing before

him, he believed in different limits for different purposes,
and upheld the cannon shot rule in cases of prizes and neu-
tral rights and duties.

Range of Cannon

One of the main difficulties in dealing with the can-
non shot rule is that cannons have varied so much' in range,
both with the passage of time and from country to country.
Another difficulty is in overcoming the common misconcep-
tion that cannon range was about three miles at the time of

Bynkershoek. International lawyers of no less stature than

49 50

James Brown Scott and C. John Colombos^ have stated this

to be the case; so have many others.

publicist, Carlos Calvo. He attacks the theory on its
impreciseness, specifically its failure to define suitably
the sea bottom. He points out that the floor of the sea
drops off percipitously in some places and that it inclines
slightly elsewhere, all of which would produce an unac-
ceptably non-uniform extent of territorial seas. Carlos
Calvo, Le droit international thgorique et pratique . . .
(fifth edition; Paris: A. Rousseau, 189677 v°l» If PP»
477-478.

^ Rene Josue Valin, Traite des Prises (La Rochelle:
Chez J. Legier, and Paris: Chez Merigot pere, 1763) , vol. I,
chapter IV, sections 3-6, cited by Wyndham L. V/laker, op.
cit., pp. 225-226.

^" James Brown Scott, Introductory note to De Domino
Maris, op. cit., p. 17 •

^ C. John Colombos, The International Law of the Sea
(fifth revised edition; New York: David McKay Co., Inc.,"
1962), p. 83.

70
Cannons came into general use during the Hundred
Years War (1339-1453). The fifteenth century became the
age of the large bombards, the largest calibre gun ever
built. Edinburgh Castle boasted a cannon named Mons Meg,

which could throw a 19i-inch iron ball 1400 yards, and a

51
stone ball twice as far. Many such guns were built in

the fourteenth, fifteenth, and early sixteenth centuries.

The only state that is reported to have constructed
a cannon capable of shooting three miles is Spain • The six-
teenth century Spanish mathematician and historian, Luis
Collado, claims that the Spanish had culverins capable of
randomly throwing a 24-pound ball as far as 6666 yards;

however, its effective range was only something on the order

52
of 1742 yards. None of the other European states, it ap-
pears, built culverins as large as the Spanish, the smallest

Spanish culverin being larger than the largest French or

53
British model." Moreover, the French, British, and Germans

soon abandoned the heavy, immobile and inaccurate guns for

lighter, trainable, and maneuverable pieces; and the big guns

' Manucy, 0£. cit . , p. 3.

Ibid., pp. 31-34, citing Luis Collado, Platica

Manual de la Artilleria (Milan, 1592) . Manucy points out
that the faXl of shot of these mamouth guns was completely
unpredictable and uncontrollable beyond 1742 yards, or ap-
proximately one mile. Moreover, these guns could only be
serviced to fire a few times a day, and there was an inor-
dinate possibility on each firing that the gun itself would
blow up.

53Ibid., pp. 34-35.

71
of the fifteenth century became obsolete. The Germans,
under Maximilian I, with guns of 1500-yard range, earned the
reputation as the best gunners in sixteenth century Europe. '*

English guns of the mid-seventeenth century were cap-
able of firing a 40-pound ball about 1700 yards, and the

56
largest calibre French cannon carried about 1200 yards.

Thus, at the time of Bynkershoek's De Domino Maris, maximum

57
range of cannons was about one mile. Ranges increased

slowly during the century. In 1740, during negotiations

between Denmark and Holland, in which Holland was disputing

a Danish claim to a territorial sea of 4 leagues, one Dutch

diplomat is quoted as saying, "I do not believe that there

is any cannon in the world that can carry even one league,

let alone four leagues." And toward the end of the century,

the Spanish king made the following contribution:

1. The immunity of the coasts of all my dominions
is not to be marked as hitherto by the doubtful and

54Ibid., p. 6.

^A. V. B. Norman and Don Pottinger, A History of War
and Weapons, 449 to 1660 (New York: Thomas Y. CrowelllTo.,
196-6), pp. 2TJPZ157

^General Alphonse Fave, Etudes sur le passe et l'avenir
de l'artillerie (Paris: J, Dumaine, 18637, vol. IV, p. 9.

^Belgian publicist Ernest Nys estimates that the
maximum range of cannon was 700 meters, or just under a half
mile, at the time of Bynkershoek: Ernest Nvs, Le droit
international (Brussels: A. Castaigne, 1904) 9 vol. I, p* 504»

^Wyndham L. Walker, 0£. cit. , p. 227.

uncertain range of cannon, but by the distance of two
miles of 950 toises each. 59

This is particularly noteworthy, coming from Spain, whose

gunners claimed their cannons to. have the longest range.

During the Napoleonic wars, French artillery ranges

increased to just under three miles, and during the United

States Civil War, maximum range of artillery and naval rifles

was 31" miles. In the early years of the twentieth century,

the range of field artillery increased spectacularly. By

World War I, standard field artillery of Great Britain had

a 5-mile range; that of France and Germany, a little greater.

The British had one gun, the Mark III, 14-inch gun, which

could shoot 20 miles, and the Germans developed the "Big

Berthas," mamouth guns that dropped 265-pound shells on Paris

6?
from gun sites 76 miles distant in Germany. Standard

field artillery ranges rose to 20 miles in World War II,

but this was eclipsed by the development of the V-2 rockets

and the post-World War II intercontinental ballistic missiles.

^"Spanish regulations to be observed in prize cases,

June 14, 1797," translated and reproduced in Crocker, op.

cit., p. 624, citing A. Riguelme, Apendice al derecho inter-

nacional de Espana, vol. 2, p. 2527 "Toise" is the French

word for fathom, or 6 feet.

Favg, op_. cit. , vol. V, p. 59.

Manucy, op_. cit. , pp. 20 and 52.

"Artillery," Encyclopaedia Britannica (1953 edition)
II, 46S and 470; "Ordnance." Encyclopaedia Britannica (1953
edition), XVI, 360-661.

To review, while technology had been such that three-
mile guns could have been manufactured during Bynkershoek's
time, such guns were considered impractical, and hence were
not built. Cannon range was about one mile in 1702 when
De Domino Maris was published; it increased to about two
miles at the end of the century, and to about three miles by
the end of the Napoleonic wars. It did not reach 12 miles
until the twentieth century during the pre-World War I arms
race.

CHAPTER IV

THE LINE OF SIGHT DOCTRINE

While the cannon shot rule was growing on the north
central European mainland, a competing formula was being de-
veloped by the peripheral maritime states, Spain,- England, and
Scandinavia, that of the line of sight doctrine. A most flex-
ible concept, the line of sight doctrine can furnish the
logic necessary to satisfy claims to a territorial sea as
narrow as three miles or as wide as 50 miles. The rule has
been most commonly associated with claims to three miles,
six-miles and with the Scandinavian claims, all of which will
be considered in this chapter.

I. THE PRACTICE OF STATES

Spain

It seems that the first government to associate itself
with the line of sight doctrine was that of Spain in the year
1565. It must be recalled that this was a period of time
when Spain was desperately trying to resist the French and
British inroads into her western hemisphere realm. Maritime
.competition, both in commerce and naval strength, was growing.
These realities must have occasioned some pragmatic thinking
in the Courts of Spain, for in October, 1565, King Philip II
of Spain proclaimed 5

No one can come to our coasts, harbors, roadsteads
or rivers, or within sight of our land to wait for or
damage the ships of our allies, under any pretext whatso-
ever, on pain of seizure of crew and goods .1

This is a considerable "watering down" of the restrictive

provisions in the Treaty of Tordesillas and in the papal

bulls prohibiting transit on the "Spanish and Portuguese

oceans" except by special permission. This proclamation

certainly reflects the apparent serious doubts of the Spanish

government as to its ability to continue to enforce her claims

over those vast ocean areas.

England

The next state to adhere to the line of sight doctrine
in diplomatic relations was England. As might be expected,
she did not abandon her claims to the waters surrounding the
British Isles, but applied the line of sight rule to other
areas of the world. Between 1676 and 1751 Great Britain
concluded eight treaties with Tripoli, Algiers, and Tunis
establishing line of sight protective zones around her Medi-
terranean dominions, i.e., Tangier, Minorca, and Gibraltar.
The following excerpt is typical:

Article VIII. That none of the ships or other smaller
vessels of Tripoli shall remain cruising near His Majesty's
city and garrison of Tangier, or in sight of it, nor other

Henry G. Crocker. (ed.) , The Extent of the Marginal
Sea, United States Department of State U'asHngton: Govern-
ment Printing Office, 1919), p. 622, quoting Ernest Nys, Le
droit international: les principes, les theories, les faits
(Brussels: A. Castaigne, 190AJ » vol. I, p. 499 o

76
way disturb the peace and commerce of that place.

Scandinavia

Just 15 years later, in June 1691, the King of Denmark
and Norway established a protective zone within sight of Nor-
way and Jutland, prohibiting captures therein. That same
year the King promised protection to British and Dutch ships
sailing "within sight of the dominion of the Dano-Norwegian
King. ..." In implementing these 1691 policies of the Dano-
Norwegian monarchy, Denmark ordered the following:

If our cruising frigates encounter any man of war or
privateer from any of the belligerents, that might have
been captured in Nessed or Rifved, or within sight of our
coasts, which is computed as four or five leagues (mil)
from the outlying rocks, they shall courteously demand r
their freedom, considering them as invalid captures. • .

2
Great Britain and Tripoli, "Treaty of Peace and

Commerce, March 5, I676," British and Foreign State Papers,

vol. I, part I, p. 715 , reproduced in Crocker, p_£. cit. ,

p. 534. The other treaties in this series, Treaties of Peace

and Commerce with Algiers of April 10, 1682, April 5, 1686

and August 17, 1700; Treaties of Peace with Tripoli of July

19, 1716 and September 19, 1751; and Treaties with Tunis of

August 30, 1716 and October 19, 1751, also quoted from British and

Foreign State Papers, are reproduced in Crocker, 0£. cit.,

pp. 534-3377"

•'King of Denmark and Norway, "Royal Decree Regarding
Prizes, June 9, 1691," translated and reproduced in Crocker,
op. cit., p. 51&, quoting Arnold Raestad, Kongens Strgfmme
TKristiania: Cammermeyer, 1912), p. 245.

^Great Britain, Netherlands, and Denmark and Norway,
Treaty of December 8/18, 1691, Article 6, translated from
Norwegian and reproduced in Crocker, 0£. cit., p. 518.

^King of Denmark, "Kings Order in Council, Regarding
Maritime Prizes, June 13,1691," Ibid., p. 514.

This is the earliest instance found equating the line of sight
to a specific measure, namely, 16 or 20 nautical miles. The
Norwegian coast is mountainous, which gives them an enhanced
height of eye and consequently a more extensive view. How-
ever, this was not the whole logic underlying their claim.
The distance of 16 to 20 miles was the distance, on a clear
day, that the uppermost parts of the rigging of a large ship
would first come into the view of an observer on the shore,

Italy

At least one other line of sight case is recorded,

involving the Kingdom of the Two Sicilies and the Ottoman

Empire :

Article 16, We, on our part, will not permit the
vessels of the Ottoman Empire to be pursued or molested
within sight of the coasts of our states. Likewise,
the vessels of the Ottoman Empire may not molest the
vessels of our friends within sight of our coasts, 7

II. THE VIEW OF PUBLICISTS
These occasions wherein the line of sight doctrine
was incorporated into the laws and treaties of various states
were by no means as numerous as those of the cannon shot.
Nevertheless, there is virtually no book on international

Philip C. Jessup, The Law of Territorial Waters and
Maritime Jurisdiction (New York: G. A. Jennings Co., Inc.,
1927), p. 41b, quoting Eliel Lb'fgren, legal advisor to the
Swedish Foreign Office, in an opinion rendered February, 1925
to the Swedish Minister for Foreign Affairs.

7Crocker, op,, cit., p. 629, translating and quoting
from F. A. W. Wenck, Codex .juris gentium recentissimi
(Leipzig, 173S), vol. I, p. 525.

7S
maritime law that does not mention the line of sight doctrine,

referring specifically to one or more of the above state
papers or to one of three writers on the subject: Bynkers-
hoek, de Rayneval, and Godey.

Bynkershoek

Apparently the earliest writer to take a position on

the line of sight doctrine was Cornelius van Bynkershoek*

He specifically challenges the proclamation by King Philip II

of Spain, cited above, on the basis that it is "o , , too

loose and variable a rule." He then rhetorically queries:

For does he mean the longest possible distance a man
can see from the land, and that from any land whatever,
from a shore, from a citadel, from a city? As far as a
man can see with the naked eye? or with the recently
invented telescope?®

Bynkershoek then rejects the line of sight doctrine in favor

of the cannon shot rule,

Rayneval

The line of sight doctrine did not have a champion such
as Bynkershoek, As a matter of fact, it was a whole century
after De Domino Maris denounced the doctrine before a French-
man, Joseph M, G. de Rayneval (1736-1B12) came to its defense.
Writing in 1S03, he took the reverse of Bynkershoek* s position:

Cornelius van Bynkershoek, De Domino Maris Dissertatio,
trans, Ralph Van Deraan Magoffin (in Classics of International""
Law, ed, James Brown Scott; New York: Oceana Publications, Inc.,
and London: Wildy and Sons, Ltd,, reprinted 1964)* P* 44.
Bynkershoek cites the promulgation as being issued in October
1563 instead of 1565-

. . . Authors generally adopt the rule of the cannon
shot, but their opinion is based neither upon a general
rule nor upon uniform practice. According to some the
most just standard would be the visual horizon, as seen
from the shore."

Then, after considering the several other historic and con-
temporary claims to territorial seas, Rayneval agrees with
those who advocate the line of sight doctrine.

Godey

Another century passed before the doctrine had a second
major sponsor, also a Frenchman, Paul Godey. Godey, writing
in 1396, was Under Secretary of the French Navy and adapted
the line of sight doctrine to suit the needs of a specific
project of his, that of justifying a six-mile limit of terri-
torial waters. Godey is the first writer to explain and elab-
orate upon the line of sight doctrine; hence, his work will
be discussed here, even though per se, it bore no direct re-
lation to the origin of the three-mile limit.

His most convincing argument lay in the fact that cannon
range had increased to the point of exceeding visual range.
Agreeing in principle with the cannon shot rule, he contended
that shore gunners could not effectively control their guns
beyond human sight, and therefore the range of human sight,
and not the range of cannon, should be the governing cri-

^Joseph M. G. de Rayneval, Institutions du droit de
la nature et des gens (new 1832 edition; Paris :1. DuranHT
1551), vol. I, p. 3(31; translation by author.

, 10
terion.

Godey argued that neither the cannon shot rule nor the

three-mile limit had provided states with adequate protection

for their fishing and fiscal interests and suggested that

the range of human sight would be sufficient to meet those

needs. Godey admitted that the exact distance that one

could see varied with the height of eye, the time of day,

the season, atmospheric conditions, the size and color of

the object to be seen, and other factors. But he offered

a solution: states could adopt as a limit the mean extreme

12
range of human eyesight, translated into precise figures.

Godey arranged to conduct the necessary experiments and compu-
tations. A series of horizon sightings were taken, using a
height of eye of 10 meters above the surface. His findings:

From personal information that we have been able to
procure from professional men, it seems that this mean
very closely approaches six marine miles (about 11
kilometers) .13

Finally, Godey packages the several needs of coastal states

—fishing, customs, neutrality, security, jurisdiction—

neatly within a six-mile territorial limit:

10Paul Godey, La mer cdtidre (Paris: A. Pedone, 1896)
pp e 20-21 .

1:LIbid., p. 17.

12Ibid., p. 21.

1^Paul Godey, "Les limites de la mer territoriale,"
Revue Generale de Droit International Public, III (Mar.-
April, 1896), p. 232, trans, by author.

The single zone of 6 miles, seems to us, fully suffic-
ient in time of war as in time of peace; to extend it
beyond — which would be to adopt a rule without sanction —
v/ould be to expose one's self to the most serious dangers,
without receiving in return, any appreciable advantages.1^-

Godey* s writings were not warmly received, neither

the line of sight doctrine, nor the six-mile rule. One of his

critics, de Lapradelle, humorously accused Godey of favoring

the line of sight doctrine because, as a man of the sea, he

would rather have his territorial sea measured by seaman's

15
eye than by army artillery. '

III. ANALYSIS OF LINE OF SIGHT DOCTRINE

Extent of Territorial Seas Based on Line of Sight

For a man standing on the beach, the seaward horizon
is about three nautical miles away. This fact alone gives
the line of sight doctrine some right to the title of fore-
runner of the three-mile limit. Too, there is ample evidence

that the statesmen who formulated the three-mile rule gave

16
consideration to the line of sight doctrine. But as Godey

pointed out, a man on the beach at 10 meters above the surface

has a horizon of approximately six-nautical miles. And, a

man atop a 500-foot cliff overlooking the beach can see 26

^Ibid., p. 237, trans, by author.

15Albert G. de Lapradelle, "The Right of the State over
the Territorial Sea," Revue Generale de Droit International
Public. V (1893) i p. 330.

See infra, chapter VI.

82
miles. Moreover, a ship with a 100-foot mast approaching
the beach can be seen 11 miles farther away by all three
men. In other words, given a clear atmosphere, the distance
things can be seen at sea is a function of two variables, the
height of the viewer, and the height of the object viewed.

The following table lists horizon distances for several se-

17
lected heights:

HEIGHT NAUTICAL
FEET MILES

80 10.2

100 11.4

110 12.0

310 20.1

500 25.6

1,000 36.2

2,000 51.2

50,000 255. 8

100,000 361.8

Using the figures in the above table, a man enjoying the
vantage point of a 100-foot sand dune can see to a horizon
11.4 miles distant. On a clear day, he could see the 110-
foot sail or smoke stack of an approaching ship at 23.4 miles,
an addition of the two heights. Similarly, he could see the
top of a 1000-foot island almost 48 miles.

HEIGHT

NAUTICAL

FEET

MILES

1.1

2.0

2.8

3.0

3.6

5.1

30 ,

6.3

33 (10 meters)

6.6

8.1

'U.S. Navy Hydrographic Office (originally by Na-
thaniel Bowditch) , American Practical Navigator (Washington:
Government Printing Office, 1958), p. 1254; and John C. Hill,
et al., (eds.), Dutton*s Navigation and Piloting (Annapolis,
Md. : United States Naval Institute, 1^8;, pp. 147-148.
Brittin and Watson write: "The theory that it [the three-
mile limit] originated from the line of sight, which from the
shoreline at sea level is approximately three miles, contains
substantial validity." Burdick Brittin and Liselotte B. Wat-
son, International Law for Seagoing Officers (second edition;
Annapolis: U» S, Naval Institute, I960), p. 54*

Configuration of Territorial Seas Based on Line of Sight

The human eye, unlike a cannon, is very portable. And
whereas most sea coasts have not been rimmed with cannons,
almost all sea coasts are populated. Hence, unlike the cannon
shot rule, which inscribed territorial seas only within the
arcs of fire of cannons in place, the line of sight doctrine
provides a continuous belt of territorial seas along the coast j
out to the range of visibility of those who live* and work

there. Moreover, the wording of the state papers, e.g.,

Id
"within sight of our land" or "within sight of our coasts" , -

clearly implies a continuous visual surveillance belt of

waters, whether or not there are lookouts posted all along the

shoreline.

In criticizing the line of sight doctrine, Bynkers-

hoek classified it along with the other "maritime belts,"

namely, 100-mile, and 60-mile, all of which he rejected.

Rayneval claimed that the waters which washed the coasts of a

state were part of it, not all the way out to a hundred miles

or to sixty miles, but only out to the horizon, thereby

20
strongly implying a belt. Godey defined his marginal sea

as ". . . that part of the open sea which lies along the

+. »21
coasts. ...

See supra , pp. 75-76,

'Bynkershoek, 0£. cit., p. 43 •

De Rayneval, 0£. cit., p. 300,
21Godey, La mer cotiere, p. £»

The actual configuration of the belt could vary depend-
ing on one's opinion as to where the viewer stands. Godey
chose to position his viewer everywhere along the coast at
an elevation of 10 meters. The Scandinavians, who claimed
the horizon was 16 to 20 miles distant, obviously were consid-
ering their viewer as taking advantage of the geographic ele-
vations along their shores. Hence, Godey' s continuous belt
was quite uniform, the seaward boundary being at all points,
six miles from the nearest land. The Scandinavian concept,
conversely, would cause the width of the belt to vary, bulging
to seaward in areas of mountainous or high shoreline and
shrinking where the coast was low and flat.

Purpose of Territorial Seas Based on Line of Sight

Thus, the continuous belt feature of the line of sight
doctrine distinguishes it from the cannon shot rule. But it
is also different in its purpose. Whereas the cannon shot rule
was developed for purposes of neutrality, the line of sight
doctrine's primary function was to provide a protective or
security belt around the littoral state. True, the line of
sight belt was considered also in terras of customs, fishing,
and neutrality zones, but the prevailing theme of the doc-
uments and publicists was that of protection. Both the
Spanish declaration and the Anglo-Tripoli Treaty, quoted
above, read as creating a protective belt.

It seems quite possible and logical that the instinc-
tive human need for protection and security prompted the early

S5
claims to a territorial sea based on the visual horizon. For
the same reasons, security lookouts have traditionally been
posted on exposed perimeters to provide early warning. It is
human nature that those dangers which are not visible are the
ones feared most.

In any event, as indicated earlier, the Dano-Norwegian
king in 1691 promised protection to British and Dutch ships
sailing within sight of his lands. It was at the same time
that the pirates of the Barbary states (Morocco, Algiers, Tunis,
and Tripoli) achieved their greatest strength and had become

a significant menace to the ships of the maritime states

plying the Mediterranean. This situation occasioned the

conclusion of the eight British treaties noted above, estab-
lishing a line of sight protective zone around the British
possessions in the area. It was also at this time that
Christian Wolff described the territorial sea as a protective
zone. De Rayneval, too, envisioned coastal waters within
visual range as a protective zone:

A state should be master of its adjacent waters for two
equally important reasons: first, protection against
all surprise and violation of its territory; the second,
defense against smugglers. 24

Finally, Godey wrote of the marginal seas:

They are free for innocent passage, under condition,

22"Barbary Pirates," Encyclopaedia Britannica (1953
edition), III, 96-97.

^See supra, chapter III, p. 66.

2/*De Rayneval, .op. £it., p. 300, trans, by author.

nevertheless, of respecting the military and police
ordinances enacted by the adjacent state for the pro-
tection of its territory, of its coastal population,
and of its economic and fiscal interests .25

In brief summary, the cannon shot rule contributed
the notion of territorial seas within range of cannon for
purposes of neutrality. The line of sight doctrine added
the notion of a continuous belt along the coast for the pro-
tection of the state. Neither of these concepts "dealt, except
in an ancillary context, with fishing, one of the most impor-
tant of the reasons that states claim territorial seas. This
will be considered in the next chapter.

^Godey, La mer cotiere, p. S

CHAPTER V

THE MARINE LEAGUE

The first apparent application of the line of sight
doctrine was by the King of Spain in 1565. Likewise, it
was the Dutch that first invoked the cannon shot -rule in
the year 1610. And, it was during the intervening period
that the Danes instituted the use of an exactly fixed ex-
tent of territorial seas — in marked contrast to the vari-
able distance of cannon or visual range— measured in marine
leagues. This took the form of a 159# Danish ordinance
ordering the seizure of any English ships hovering or fish-
ing within two leagues of the coast. Thereafter, with
only very few exceptions, most of which have already been
noted, the Scandinavian states consistently measured their
territorial sea boundaries in leagues. Granted, in earlier
times, Bartolus and Bodin had fixed the limit of territorial
seas at 100 and 60 miles; however, the narrower limits which
evolved in Scandinavian practice were the first claims to
specifically measured seas which were consistent with the
principle of free seas and manageable from a point of view
of enforceability.

Text quoted supra. Chapter- II, p. 33 *

I. EARLY SCANDINAVIAN CLAIMS

The foregoing is not to say that Denmark had always
been a consistent champion for the cause of free seas. For
500 years she collected "Sound Dues," a toll collected from
ships passing through the straits between the Baltic and North
Seas. This she reluctantly gave up at the Treaty of Copen-
hagen of 1#57» at which juncture she found herself no longer

powerful enough to enforce the practice. Moreover, the

Danes had claimed as closed seas, the "Northern Seas," i.e.,

the waters between Norway and Iceland and Greenland, now

3
known as the Norwegian Sea. This claim was made in order to

reserve exclusive fishing grounds for Dano-Norwegian citizens.
Licenses were sold authorizing foreigners to fish on the high
seas there during the seventeenth and as late as the eighteen-
th centuries. This boldness inevitably led to confrontation
with Holland and France, and even strained relationships with
otherwise amicable England.

Iceland and the Faeroes

As on the high seas, not all the early Scandinavian
coastal claims were as liberal as the two-league ordinance
of 159S, especially as concerned the island colonies. The

2Thomas J. Lawrence, The Principles of International
Law (sixth edition; Boston: D. C. Heath & Co., 1915), p. 192

^H. S. K. Kent, "The Historical Origin of the Three-
Mile Limit," American Journal of International Law, XLVIII
(October, 1954), p. 53^7"

*Tbid.

Dano-Norwegian government decreed some rather exorbitant

private fishing zones before finally being forced to retreat

before the diplomatic pressure of the great maritime powers

during the eighteenth century. The first of these appeared

as a decree by the King of Denmark and Norway on December 16,

1631:

And if any foreigners, whether whale hunters or English
sea fishermen, come within four geographic leagues (mil),
or if those from other nations come within six leagues of
the coast, they shall be attacked. 5

During the course of the seventeenth century Denmark claimed

several successive fishing belts around Iceland and the

Faeroes, varying between two and six leagues. Finally, in

1682 the limit was fixed at four leagues, and remained so

until 1&36, when it was reduced to one league.

King of Denmark and Norway, "Decree of December 16,
1631 Establishing a Protective Zone in the Territorial Waters,"
in Henry J. Crocker (ed.), The Extent of the Marginal Sea
United States Department of State (Washington: Government
Printing Office, 1919), p. 517. This decree, addressed to
Dano-Norwegian maritime enforcement authorities, and showing
partiality toward England, was apparently designed to avoid
friction with England. Nevertheless, a state message from
Danish King Christian IV to Charles I of England politely
requested that English fishermen also be cautioned to remain
at least six leagues from the coast. See ibid. , p« 514 Tor
text of message.

King of Denmark, "Manifesto regarding the management
of the trade and fishing along Iceland and the Faerp group,
of May 13, 1682," translated from Danish and reproduced in
Crocker, op_. cit., p. 514, quoting Stephensen and Sigurdson,
Lovsamling for Island (Copenhagen, 1853) •

'Denmark, "Decision of the exchequer regarding fishing
privileges in Iceland of March 19, 1836," translated from
Danish and reproduced in Crocker, 0£. cit., p. 515 »

90
Greenland

In the case of Greenland, Dano-Norwegian claims were
even more selfish, as evidenced by the following declaration
of 1733:

All foreign vessels which come within a distance of
four leagues of the coasts of our colonies or land within
a distance of thirteen leagues of the colonies (of
Greenland) shall be attacked ,°

This thirteen-league prohibited zone was widened to fifteen
leagues by royal orders in 1740 and 1751 > before being re-
duced to four leagues by royal decree of October 22, 175# •
Fifteen leagues, although a short-lived claim, seems to be
the widest Scandinavian fishing zone on record— fifteen
leagues being 60 nautical miles!

European Mainland

The Dano-Norwegian king, surprisingly, was somewhat
more generous toward foreign fishermen with respect to his
mainland coasts. By royal order in 1692 he reserved the
fjords and a ten-league whaling belt along the coast of Norway

"Norwegian consular declaration establishing a pro-
tective zone along the coasts of Greenland, of February 22,
17 3B," translated and reproduced in Crocker, op. cit., p.
608, quoting Arnold Raested, Kongens strgfaime TTristiania,
1912), p. 238. Raestad's La mer territoriale (Paris, 1913) 1
cited passim, is an abbreviated French language edition
of the original Norwegian version Kongens strjamme .

9Kent, 0£. cit., pp. 543-544, quoting M. Vahl and
G. Co Andrup (eds.J, Greenland (London, 1929) 9 p<» 21.

91
for his own subjects.

In all these ordinances, decrees, and concessions,
reserving exclusive lights along Scandinavian coasts there
were two common elements: the claims were consistently
measured in leagues and most of them dealt solely with fishing
rights. There are certain writers treating this subject who
maintain that there is a relationship between this Scandi-
navian practice of measuring fishing zones in leagues and the
doctrine of line of sight, Norwegian Supreme Court Judge
Thorvald B8ye traces the Dano-Norwegian fishing claims to the
1691 line of sight neutralty decree, discussed in the pre-
vious chapter. Similarly, Thorsten Kalijarvi claims that

even modern-day Scandinavian claims originated with the

12
principle of sight. However, the tie between the line of

"Norwegian Royal Concession for Whale Fishing of

December 3, 1692," translated and reproduced in Crocker,

op. cit., p. 60#, quoting Raestad, Kongens Str^mme, p. 242.

The three Scandinavian monarchies underwent many historical

power realignments. From 1397 to 1523, the Danish monarch

served also as that of Norway and of Sweden; from 1523 to

1814, the Danish king served also as King of Norway; from

1614 to 1905 the King of Sweden served also as King of Norway,

Nevertheless, royal decrees, regulations, and proclamations

continued to be issued in the name of all three states,

e.g., in the present case, this Norwegian Royal Concession

was issued by the King of Denmark and Norway in his capacity

as King of Norway.

Thorvald Boye, "Territorial Waters, with Special
Reference to Norwegian Legislation," Report of the Thirty-
third Conference of the InternationalTaw Association, XJQCIII
(1924) (London: Sweet and Maxwell, Ltd., 1925), pp. 298-300.

12Thorsten Kalijarvi, "Scandinavian Claims to Juris-
diction over Territorial Waters," American Journal of Inter-
national Law XXVI (January, 1932), pp. 59-60, 64.

sight doctrine and the Scandinavian league is probably less
valid than a tie between the line of sight doctrine and the
three-mile rule or the six-mile rule. The argument tracing
the practice of measuring Scandinavian territorial seas in
leagues to the 1691 line of sight decree is defeated by the
existence of the two-league fishing ordinance of 1593 — 93
years its senior. The point that B8ye and Kalijarvi are try-
ing to make is that the Scandinavian league , as a measure of

territorial waters, developed independently of either the

13
cannon shot rule (in the case of Kalijarvi), J or the three-
mile rule (in the case of Bflye) . ^ These assertions are both
undoubtedly true. The Danish two-league fishing ordinance
of 1598, pre-dated by 12 years the Dutch argument based on
cannon shot. Moreover, the earliest mention of a three-mile
limit did not occur until the 18th century.

II. DEFINITION OF MARINE LEAGUE

The Scandinavians were the first to measure their
territorial seas with the marine league. Other states follow-
ed; by the nineteenth century France, England, Holland, Spain
the United States, Germany, and others had incorporated the
term "marine league" into state papers defining various limits
of their territorial seas. But in each of these cases, they
were referring to the more widely accepted definition of the

13Ibid.„ p. 64.

1/fBtfye, 0£. cit., p. 298 0

93
term "marine league," the one which has persisted to present
times.

Contemporary Marine League

This latter marine league is equivalent to three nau-
tical miles, 6076 yards or 5556 meters. It is also referred
to as a "sea league" and often simply as "league." It is

the same measurement known as the English league, the French

15
lieue, and the Spanish legua. All these measurements are

based on the length of a nautical mile, or an arc of one min-
ute, defined previously. Hence, the marine league, three times
as long, equals three minutes or 1/20 degree of latitude.

German "League"

Arnold Raestad also reports the existence of another

"league" — type of measurement known as the Low German mil,

17
of approximately 6,600 meters. Kalijarvi cites Swedish

"Instructions" to the fleet dated 1779 calling for naval

jurisdiction out to a distance of one German mile, or four

18
English miles. This correlates closely to Raestad* s "Ger-
man mil," in that four English, or statute miles equal approxi-

^Raestad, Kongens Strgfrnme , p. 186, translated and
reproduced in Crocker, op_. crt. , p. 513.

John C. Hill, et al. (eds.), Dutton's Navigation
and Piloting (Annapolis: United States Naval Institute,
I^5"8;, pp. 10-11 .

'Raestad, Kongens Str^mme, loc. cit.

Kalijarvi, 0£„ cit. , p. 60 •

mately 6^00 meters. This measure equals about 3ty nautical

miles.

Scandinavian League

The most difficult measure to understand is the Scan-
dinavian league. The term has been derived from uke s.iVs,
a medieval Nordic measure equal to one twelfth of a degree
or five nautical miles. In the sixteenth century it was
considered as about seven or eight kilometers or about four
nautical miles and it took the name mil, norsk mil, or Nor-
wegian mile. Then, in the seventeenth century it became
interpreted in Dano-Norwegian writings as: one league (mil) ,

one marine league, one old marine league, and one geographic

19
league of 7420 meters.

There are three sources of difficulty here. First,

Scandinavian measurements, in contrast to those of southern

Europe, are based on geographic measurements, or degrees of

longitude at the equator. Because the earth is somewhat

flattened at the poles, an equatorial degree is slightly longer

than a degree of latitude, resulting in the Scandinavian

navigational mile being a "geographic" mile, three meters

20
longer than the standard nautical mile.

Second is the fact that uke sj^s became known as both

mil and league. Some publicists have translated mil as "mile,"

'Raestad, Kongens Str^mme , loc. cit.
BBye, pj>. cit., p. 301; Hill, et al., 0£. cit., p. 11

95
and others have translated it as "league." Third, the Scan-
dinavian league (mil) of 7420 meters contains four nautical
miles (plus 12 meters) instead of three miles as is found in
the leagues of southern Europe, As such, it equals 1/15 of
a degree in lieu of 1/20 of a degree.

All of this leads to difficulty in reconciling the
writings of different publicists. In some cases the term
"geographic mile" will be correctly defined as one mile or
1#52 meters and in others, the 7420-meter length will have
been intended.

In summary, when used by Scandinavian publicists, or
by others referring to Scandinavian territorial waters, the
term "marine league" generally refers to a distance of four
nautical miles; otherwise, the term usually implies the
three-nautical mile length.

III. ADOPTION OF THE ONE-LEAGUE LIMIT

Returning to the specific claims of the Dano-Norwegian
kingdom, the eighteenth century became a major turning point.
In attempting to put teeth into her extensive claims around
Iceland and Greenland, the Danes made a series of seizures

of Dutch vessels found fishing along the Iceland and Green-

21
land coasts. These occurred between 1737 and 1740. But

by this time, the Danes could no longer count on the support

of the British who were shifting from a policy of mare clausum

Kent, 0£. cit. , p. 542.

96
to mare liberum. An armed clash between Denmark and Holland

was avoided only after the British, French, and Swedish

jointly applied pressure on Copenhagen to abandon their

large claims.

The outcome of this diplomacy was the reduction of

Scandinavian claims over territorial seas to one marine league

(four nautical miles). On June 13, 1745, a royal rescript

was issued which fixed four miles as the extent of the Dano-

23
Norwegian fishing monopoly. On the same day, a royal de-
cree was promulgated establishing one league as her neutral-

24
ity zone. Two years later another rescript was issued:

Russian fishermen are hereby permitted to fish off
the coasts of Finmarken . . . providing they remain a1
a distance of one league (mil) from the land ,*5

26
Sweden followed suit for purposes of neutrality in 1779.

22Ibid., p. 543.

^Albert G. de Lapradelle, "The Right of the State over
Territorial Seas," Revue Gen£rale de Droit International
Public, V (1S9S), p. 338; L. M. B. Aubert, "La mer territorial
de la Norvege," Revue GeneYale de Droit International Public.
I (1#94)> p. 432; and Crocker, op. cit., p. 608.

^"See Crocker, loc. cit. for text translated from
Norwegian.

25
yIbid. Footnote reads, "Translation. For the Nor-
wegian text, see J. A. S. Schmidt, Rescripter, resolutioner
og collegial-breve for Kongeriget Norge for tidsrumemt 1660-
IE13. vol. 1. P. 313T57

Philip C. Jessup, The Law of Territorial Waters and
Maritime Jurisdiction (New York: G. A, Jennings Co., Inc.,
1927), pp. 36-37, translating and reproducing an article by
Lage Stael von Holstein in Stockholms Dagblah, Dec. 10, 1924.
Von Holstein quotes from an instruction signed on May 23,
1779 by Prince Carl the Younger proclaiming Swedish juris-

Thus, by the middle of the eighteenth century, there
had evolved the Scandinavian one-league limit of territorial
seas, primarily for purposes of fishing but also for purposes
of neutrality. Most Scandianvian states have tenaciously
defended their one-league limit in the face of repeated
diplomatic attempts to obtain their agreement to the later
three-mile limit. Their best defense in the face of this
pressure has been the 1745 vintage of their one-league —
four-mile — practice •

IV. MISCELLANEOUS CLAIMS

The Dano-Norwegian 15-league claim around Greenland
was not the only 15-league exclusive fishing zone on record.
The Treaty of Paris between France and England, terminating

the French and Indian War, prohibited French fishermen within

27
15 leagues of Cape Breton Island (Nova Scotia) . Granted

that 15 Dano-Norwegian leagues are 60 miles and 15 English

leagues are only 45 miles, these bemeaning treaty provisions

clearly reflect the defeat rendered France by England in that

war. But not to be completely outdone, four years later

France imposed similarly restrictive treaty terms on the

diction over a maritime belt one "German Mile" wide, within
which hostilities would not be tolerated.

27France and Great Britain, Treaty of Paris, Article 5
of the Definitive Treaty of Peace, February 10, 1763. Full
English text in Crocker, op_. cit., p. 520, quoting from
British and Foreign State Papers, vol. I, part 1, p. 422,
The Treaty also established a three-league fishing limit on
the mainland coast «

Emperor of Morocco, In the Franco-Moroccan Treaty of Peace
and Commerce of May 28, 1767 a 30-mile territorial sea was

established around France insofar as Moroccan vessels were

28
concerned.

Some really odd proposals on how to measure the terri-
torial sea have been uncovered by the research of publicists .
The German publicist Johann Ludwig Kliiber (1762-1837) mentions

an ancient proposal that the territorial sea should be no

29
wider than a stoned throw, 7 Another writer, Johann Kaspar

Bluntschli (1808-1881), without citing his sources, explains

the proposal this way:

... The sovereignty of States over the sea origi-
nally extended a stone's throw from the shore, subse-
quently to an arrow shot; firearms were then invented,
and by rapid progress we have arrived at the long-range
cannon of today, but the principle has still been re-
tained—"dominion over the territory ends where the
force of arms ends, • • ,"30

The French publicist Paul Pradier-FodSre (1826-1904)

compiled a list of the various extents of the territorial sea.

Among those listed was the very vague proposal that the terri-

Article 6 of Treaty, translated and quoted in

Crocker, ojd. cit. , p, 521.

" Johann Ludwig Kliiber, Droit des gens moderne de
1' Europe (second edition: Paris: Guillaumin, 187k) » p."T80,
translated and reproduced by Crocker, 0£, cit., p. 183»

•* Johann Kaspar Bluntschli, Le droit international
codified trans, from German M. C, Lardy C fifth edition re-
vised; Paris: Guillaumin, 1895) , para. 302, translated and
reproduced in Crocker, op., cit., p. 8.

torial sea be as wide as the length of a race course. Also
among his listings is the equally vague proposal that the
measure of territorial seas be based on the maximum range that
the human voice could be heard from the shore. * De Latour

also mentions the human voice limit, and like Pradier-Fodere,

33
rejects it as too vague and arbitrary.

One final ancient claim, before moving on to an exami-
nation of the three-mile limit — and this one is no doubt the
strangest of them all. Strange, because in a century when
states had greedily divided the entire earth* s ocean surfaces,
there was stated what must have been the most modest claim
ever, that is, to a specific width. " . • .In 1594» the
Baltic Sea was considered as belonging to the Duke of Pomerania
only to the extent of half a mile from the shore. • • ,";^

** Paul L. E. Pradier-Fodere, Traite de droit internat-
ional public europeen et americain, 8 vols.~"CParis: G. Pedone-
Lauriel , 188 5-1906 ) , vol . II, para. 630, p. 152, translated
and reproduced in Crocker, op_. cit . , p. 394.

32Ibid.

^ Joseph B. Imbart de Latour. La raer territoriale au
point de vue theorique et pratique (Paris: li. ^edone-Laurlel,
1889 ) t p.~l*J, translated and reproduced in Crocker, op_. cit.,
p. 250.

3Z*V/alther M. A. Schucking, Das Kiistenmeer im Interna-
tionalen Rechte (Gottingen: Dieterich 'sche univ.-buchdr.,
1899;, p. 7, translated and reproduced in Crocker, 0£. cit.,

P . 42 5 »

CHAPTER VI

GENESIS OF THE THREE-MILE LIMIT

I. EARLY THREE-MILE PRACTICE

The three-mile limit quietly crept into international
practice and then crept back out again virtually unnoticed
on at least two occasions before it emerged as a long-term
fixture in the maritime affairs of state.

Port of Yarmouth

The first such instance noted occurred in connection
with the British so-called "hovering acts." The first of
these acts was passed in 1709 and was designed to prevent
the smuggling of dutiable items such as pepper, raisins and
mace, under penalty of treble the value of not only the
goods themselves but also the means of conveyance, whether
water craft or horse and carriage. This law was found
to lack the requisite clarity and definition for proper
enforcement and a second "hovering act" was passed by Parli-
ament in 1713 , "An Act against clandestine running of uncus-
tomed goods, and for the more effectual preventing of frauds

William E. Masterson, Jurisdiction in Marginal Seas
with Special Reference to Smuggling (New 7orE: The Macmillan
Co., 1929), p. 6, citing 3 Anne, chap. 7, sec. 17, "An Act
for granting to Her Majesty new duties of excise and upon
several imported commodities

0.0

100

101

relative to the customs." This law noted that ships laden

with coffee, tea, brandy, spirits and other goods, "...

pretending to be bound for foreign ports, do frequently lie

hovering on the coasts of this kingdom, with intentions to

run the same privately on shore as opportunity offers . . . ,"

and granted authority to British customs officers to visit

and search:

Any ship or vessel of the burthen of 50 tons, or
under, laden with customable or prohibited goods,
. . . found hovering on the coasts of this Kingdom,
[or] within the limits of any port, . . .3

The Act did not specify the extent of customs officers'
authority along the coasts, and left the matter of deter-
mining the limits of the various ports up to the respective
port authorities. The ports of King's Lynn, Newcastle-on-
Tyne, and Whitby were delimited at the fourteen,- sixteen,
and thirty-fathom lines, respectively, but the Customs
Collector at Yarmouth established a three-mile limit for
his port. In his letter of October 31> 1723, he advised
the Board of Customs that the port of Yarmouth extended?

• . • from Cromer church in the County of Norff ,
and by an imaginary line bearing north into the sea
to the distance of 3 miles from the land and then
bearing by an imaginary line at the same distance from
the shoar East South East 3 miles and by the same line
and same distance bearing South till it falls opposite
Lewestoff Ness and from thence from the same line and
same distance bearing South and by West till it falls

Ibid., citing 5 Geo. I, chap. XI
^Ibid. , pp. 7-3.
/*Tbid., pp. 9-10.

102

opposite to a place commonly called Covehithe, Cove
Kitts or Cothy in the County of Suffolk, 3 miles from
the shoar and from the said bounds and limits V/est in
at the Peer commonly called Yarmouth Peer and so North
up the River Yarmouth to Yarmouth Bridge. 5

This three-mile limit at Yarmouth survived only 8 years.

The problem of smuggling became so acute in the view of the

English that in 1736 another "hovering act" was enacted

establishing a customs zone of two leagues, all along the

coast, which engulfed the previous limits established for

individual ports. The three-mile limit did not appear again

in British customs matters for almost a century and a half.

Swedish Naval Instructions

Something of an anomaly in Scandinavian practice is
reported by Lage Stael von Holstein in his account of a short-
lived Swedish experiment with the three-mile limit. Von
Holstein writes that there were numerous privateers operat-
ing off the coast of Sweden in 175#. The Governor of GOteborg
requested instructions from the Crown as to how far out to sea
he might legally seize the vessels of privateers. King Adolf
Frederick, after consulting with the Boards of Chancery, Com-
merce, and Admiralty issued instructions that:

A distance of three miles from the Swedish waters
(coast) in the open sea undeniably belongs to the juris-
diction of Sweden and consequently no hostilities should

^Ibid. , p. 10.
6Ibid., pp. 10, 26,

103
7

be allowed there •

As in the case of the port of Yarmouth, this three-
mile limit was superseded by a wider limit several years
later. In 1779 Prince Carl the Younger fixed the extent
of Swedish jurisdiction at one German mile. Von Holstein
laments this abandonment of the three-mile limit as he
writes:

Hastily and seemingly without cause the three-mile
limit was given up for the German mile. . . . The
reason for this change was probably the desire to have
similar regulations to those in force in Denmark. #

From a practical point of view, it is difficult to see why

this substitution of the German mile troubled von Holstein.

Assuming Arnold Raestad and Thorsten Kalijarvi are correct,

the German mile was equal to 3.43 nautical miles, representing

'Swedish Royal Order of October 9, 175#, in Philip C.
Jessup, The Law of Territorial Waters and Maritime Juris-
diction (New York: G. A. Jennings Co., Inc., 1927), p. 36,
citing article by Lage Stael von Holstein, in Stockholms
Dagblad, December 10, 1924. There is disagreement as to
whether or not this Swedish three-mile neutrality zone did
in fact measure three nautical miles. H. S. K. Kent supports
the view of von Holstein that the Swedish mile was equal to
the modern nautical mile ("Historical Origins of the Three-
Mile Limit," American Journal of International Law, XLVIII
(October, 1954) > p. 550). Conversely, Eliel LSfgren, Swedish
Foreign Office, believes that the three miles in the 175$
neutrality zone was equal to 12 nautical miles (Jessup, op.
cit., pp.- 413-416). Torsten Gihl supports this latter view,
holding that the three miles equaled either 12 or IB nautical
miles ("The Limits of Swedish Territorial Wasters," American
Journal of International Law, L (January, 1956), pp. 121-
122) e Both positions are entirely plausible.

Jessup, 0£« cit., pp. 36-37.

^See supra , Chapter V, p. 93 „

10^

a difference of only 900 some yards, quite insignificant
considering the 30-mile French-Moroccan territorial sea and

the 45-mile British-French fishing zone in effect at that

. . 10
time.

The Joanna Katherina

Although the difference between the German mile and
three miles was worrisome to von Hoist ein, to Thomas Baty
the difference was irrelevant. In fact, he considers a
Scottish legal case of 1761 which upheld the "German mile
limit" as being tantamount to an historic affirmation of the
three-mile limit.

The case in question was that of the Joanna Katherina,
in which a British ship had been seized by a French privateer
on the Norwegian coast. The British owner of the ship at-
tempted, through court action, to block the sale of the ship
by its French captors. He alleged that it had been illegally
captured within the territorial waters of the Kingdom of Den-
mark and Norway. In reaching its decision, however, the court

determined the extent of Dano-Nowegian seas to be one German

12
mile and accordingly decided in favor of the captors.

See supra , chapter V, p. 97 °

11Thoraas Baty, "The Three-Mile Limit." American
Journal of International Law, XX (July, 1928), p. 517.

Benton v. Briork; The Joanna Katherina, ibid.,
citing Folio Decisions, IV, 14JT Faculty Collection, No. 49 9
p0 104«

105

II. THE EQUATION OF CANNON SHOT AND THREE MILES

The Ellen and the Squirrel

The seizure of the Joanna Katherina had been only-
one of many during the then current v/ar between England and

13
France, During the same year, 1761, there occurred two

other seizures, under similar circumstances, which brought
to light the first apparent evidence that governments
might be thinking in terms of equating the then widely-
accepted cannon shot rule to a specific distance . A French
privateer had captured two British ships , the Ellen and the
Squirrel, in the Kattegat off Jutland — waters claimed by
Denmark as territorial seas. The British complained on be-
half of the owners to the Dano-Norwegian government, which
protested the seizures in turn to the French.

There had been considerable error or deliberate dis-
tortion of truth in the testimony as to the exact location of
the captures. The problem was further complicated by the
fact that the Danes claimed a four-mile league and the French
recognized only the cannon shot for purposes of neutrality.
The case came before the French Conseil des Prises which
rejected the testimony of the British ship captains in favor
of the deposition of the French privateer. In its ensuing

!3 Seven Years War (1756-1763) fought in Europe and
India, and the French and Indian V/ar (1754-1763) fought in
North America.

io6

memorial to the Danish government, France asserted that the
seizures had been legal as far as France was concerned. But
curiously the memorial went on to indicate a French willing-
ness to depart from their previous position and concede to
a continuous belt of territorial seas as claimed by the
Scandinavians, except that they could not agree to the Danish
four-mile belt, but perhaps to one of three miles'. ^

The Danish Foreign Minister, Baron Bernstorff , then
prepared a report concerning this French reply, which he
considered unsatisfactory, and delivered it to British Am-
bassador Titley. Titley, in turn, forwarded it to London,
-commenting on the French memorial:

Besides this chicane about sufficient Testimony, the
French make another Difficulty concerning the Distance.
They seem indeed to think that the Territorial Right may
extend to Three Miles, the possible Reach of Cannon Shot
from Land; but this Measure is short of the League (of
Fifteen to a Degree) required by Denmark. •*

For whatever motive, this reflected a capacity for

progressive thinking in the Quai d'Orsay. It is reasonably

certain that French artillery was not effective beyond two

miles in 1761. Possibly they were planning ahead, considering

1^H. S. K. Kent, "Historical Origin of the Three-Mile
Limit," American Journal of International Law, XLVIII (Octo-
ber, 1954), pp. 548-549 o

1^Kent, 0£. cit., citing Great Britain, State Papers ,
Foreign, Denmark, vol. 112, Titley to Lord Holdernesse
L British Secretary of State for the Northern Department],
despatch of January 6, 1761, with enclosures.

107

the forecasts of ordnance experts, in view of the fact that

three-mile cannons were developed and placed in service within

a few decades. But in any event, they had formulated an
equation between cannon shot and three miles and had communi-
cated it diplomatically to a foreign power.

The Publicist Ferdinando Galiani

A score of years passed before the cannon shot-three-
mile equation is again noted in the literature. In 17#2
there was published the monograph, The Duties of Neutral
Princes towards Belligerent Princes, by the Abbe Ferdinando
Galiani (1723-17#7). An Italian, Galiani was known primarily
as an economist. He had written books on practical economics,
international trade, monetary matters, and even on the arts,

but he climaxed his literary career with an excursion into

17
international law.

This interest in international law was probably oc-
casioned by Galiani* s diplomatic service. From 1759 to 1769 $
he was Secretary of the Neopolitan Embassy (Kingdom of the

Two Sicilies) in Paris, where he also served frequently as

IS
Charge d' Affaires. This period happened to coincide with

Ferdinando Galiani, De' doveri de* principi neutrali
verso i principi guerregianti , e di quest! verso neutrali

TMUnT mi).

■^"Galiani, Ferdinando," Dizionario Enciclopedico
Italiano (1956 edition), V, 1&1+.

lgIbid.B p. 183 •

10S

the latter years of the war between England and France just
discussed. It is noteworthy that Galiani was serving in Paris
at the time the French Foreign Office made its cannon shot-
three-mile equation. Galiani' s subsequent book on neutrality
is fair indication that he put to good use his Paris exposure
to the maritime affairs between England, France, and Denmark.
In his book he analyzes the cannon shot practice wherein
states claimed as territorial waters the areas covered by
the guns of shore batteries. Then he concludes:

It would appear reasonable to me, however, that without
waiting to see if the territorial sovereign actually
erects some fortifications, and what caliber of guns he
might mount therein, we should fix, finally, and all
along the coast, the distance of three miles, as that
which surely is the utmost range that a shell might be
projected with hitherto known gun powder. 19

This passage is remarkably consistent with the position ad-
vanced by France in 1761. Galiani does not credit the French
with equating cannon shot to three miles, nor does he claim

'Galiani, ojd. cit., p. 422. The writer was assisted
in this translation by Lieutenant Colonel Salvatore Martire,
Doctor of Aeronautical Engineering, Italian Air Force,
Assistant Attache for Air, Italian Embassy, V/ashington, D.C.P
October 27, 1969. The original Italian version reads;

"Mi parrebbe peraltro ragionevole, che senza attendere a
vedere se in atto tenga il Sovrano del territorio costrutta
taluna torre o batteria, e di qual calibro di cannoni la
tenga montata, si determinasse fissamente, e da per tutto
la distanza di tre miglia dalla terra, come quella, che
sicuramente e" la maggiore ove colla forza della polvere
finora conosciuta si possa spingere una palla, or una boraba»M

109

it as his own original idea. But it would be naive to assume
that Galiani could have remained unaware of the French posi-
tion after ten years in Paris diplomatic circles. He may
well have borrowed the idea from the French. Or he may have
been trying to strike a compromise. His own government, the
Kingdom of the Two Sicilies, favored the cannon shot rule.
Cannon range was approximately two miles at the time. The
Scandinavians claimed a league of four miles. Galiani se-
lected a standard league of three miles. But whatever the
basis for his convictions, he approved of three miles as the
limit for territorial seas and he published it. So even if
Galiani' s only contribution were to publish a concept that
had recently been introduced, having done so, he must be
credited with being the first three-mile limit publicist.
What is said of Bynkershoek in popularizing the cannon shot
rule must also be said of Galiani with respect to the three-
mile rule. Arnold Raestad writes of Galiani, "After him, the

authors began to identify cannon range and the three-mile

20
limit. ..."

III. THE UNITED STATES* ADOPTION OF
THE THREE-MILE LIMIT

Political Pressures on the United States

Galiani had written his book during the American

20Arnold Raestad, La mer territoriale ; etudes historiques
et .iuridique (Paris s A. Pedone, 1913) » P« 125 «~

110

Revolution. For England, that had been just another in the
long series of wars that kept her occupied throughout the
eighteenth century. The powers of Europe, notably France,
took advantage of England's involvement in America to harass
British colonial possessions in other regions of the world.
France's support of the Americans, both direct and indirect,
built up a considerable reservoir of goodwill between the
two countries and placed the fledgling United States in
France's debt.

The American Revolution was followed within a few years
by the French Revolution, and in 1793 the British found them-
selves in coalition with the other powers of Europe, again
fighting France. The ensuing hostilities between France and
the Coalition were embarassing to the United States, for it
placed the latter in the position of maintaining her neutral-
ity in the face of Anglo-French and Franco-Spanish maritime
hostilities along the American coast, for all three — England,
France, and Spain — still held possessions in North America.

George Washington's administration not only faced the
serious internal problems of the infant republic but it had
to walk a political tightrope between the great powers.
France especially applied political pressure on the American
government. On September 13, 1793 French Minister Edmond
Charles Genet sent a letter to Secretary of State Thomas
Jefferson asking that the United States define the extent of
territorial protection along its coasts, noting that govern-

Ill

21
merits and jurists had differing views on the subject.

Genet, meanwhile, attacked Washington's policy of neutral-
ity and tried to cash in on the goodwill by drawing America
into France's war against England and Spain, The following
is an example of Genet's pressure tactics:

I have passed one year at London, two at Vienna,
one at Berlin, five in Russia, and I am too well initi-
ated in the mysteries of these cabinets, not -to tremble
at the fate which menaces America, if the cause of liberty
should not triumph, everywhere; for everywhere there is
a throne, I warrant that you have an enemy. All the
princes look upon you as our teacher; almost all consider
you as rebels, who must sooner or later be chastised;
almost all have sworn your ruin as well as ours. • • .22

The Jefferson Notes

Although neither Washington nor Jefferson wished to
be hurried in establishing a limit for United States terri-
torial seas, they had no choice but to respond to Genet.
On November S, 1793 Jefferson sent notes, almost identical
in substance, to Genet and to the British Minister, Mr. G.
Hammond, fixing "provisionally" United States8 territorial
seas at three miles:

United States Government, The American State Papers
and Publick Documents of the United States from the Accession
of George Washington to
vTew of our Foreign ReTat:
BosTonT T. ts. wait
195.

22"The Minister of the French Republick with the United
States, to Mr. Jefferson, Secretary of State of the United
States, New York, Nov. 1$, 1793, 2d year of the Republick
of France," ibid., p. 194-

112

The President of the United States, thinking that,
before it shall be finally decided to what distance from
our seashores the territorial protection of the United
States shall be exercised, it will be proper to enter
into friendly conferences and explanations with the
powers chiefly interested in the navigation of the seas
on our coasts, and relying that convenient occasions may
be taken for these hereafter, finds it necessary in the
meantime to fix provisionally on some distance for the
present government of these questions. You are sen-
sible that very different opinions and claims have
been heretofore advanced on this subject. The greatest
distance to which any respectable assent among nations
has been at any time given, has been the extent of the
human sight, estimated at upwards of twenty miles, and
the smallest distance, I believe, claimed by any na-
tion whatever, is the utmost range of a cannon ball,
usually stated at one sea league. Some intermediate
distances have also been insisted on, and that of three
sea leagues has some authority in its favor. The char-
acter of our coast, remarkable in considerable parts of
it for admitting no vessels of size to pass near the
shores, would entitle us, in reason, to as broad a
margin of protected navigation as any nation whatever.
Reserving, however, the ultimate extent of this for
future deliberation, the President gives instructions
to the officers acting under his authority to consider
those heretofore given them as restrained for the present
to the distance of one sea league or three geographic
miles from the seashores. This distance can admit of
no opposition, as it is recognized by treaties between
some of the powers with whom we are connected in commerce
and navigation, and is as little, or less, than is
claimed by any of them on their own coasts.

For the jurisdiction of the rivers and bays of the
United States, the laws of the several States are under-
stood to have made provision, and they are, moreover,
as being landlocked, within the body of the United
States. 3

^"Mr. Jefferson to Mr. G. Hammond, Germantown, Nov.
3, 1793," in United States Congress, House of Representatives,
The Counter Case of Great Britain as Laid Before the Tribunal
of Arbitration, Convened at Geneva Under the Provisions of
the Treaty Between the United States of America and Her
Majesty the Queen oT~Great Britain, Concluded at yashinp;ton
May §. 1B7T, 42nd Cong., 2nd Sess., Ex. doc. 324 ^Washington:
Government Printing Office, 1S72), pp. 553-554.

113

This note to Mr. Hammond is slightly longer than the one
sent to Mr. Genet. The version sent to the French did not
include the first sentence, emphasizing the temporary nature
of the U. S. position. It appears from the modest and
cautious — almost to the point of being apologetic — language
of the note, that the United States did not want to offend
the British by seeming greedy, but also that they wanted to
keep the door open for a later claim to a wider limit of
territorial seas when strong enough to defend it. This
interpretation is confirmed by John Quincy Adams in his
Memoirs, who at the same time reveals something of Jeffer-
son's annoyance with Genet:

The President [Jefferson] mentioned a late act of
hostility committed by a French privateer near Charles-
ton, S. C, and said that we ought to assume as a prin-
ciple that the neutrality of our territory should
extend to the Gulf Stream, which was a natural boundary,
and within which we ought not to suffer any hostility
to be committed. M. Gaillard observed that on a former
occasion, in Mr. Jefferson's correspondence with Genet,
and by an act of Congress at that period, we had seemed
only to claim the usual distance of three miles from the
coast; but the President replied that he had then assumed
that principle because Genet by his intemperance forced
us to fix on some point, and we were not then prepared
to assert the claim of jurisdiction to the extent we are
in reason entitled to; but he had then taken care ex-
pressly to reserve the subject for future consideration,
with a view to this same doctrine for which he now con-
tends. I observed that it might be well, before we
ventured to assume a claim so broad, to wait for a time
when we should have a force competent to maintain it.
But in the meantime, he said, it was advisable to squint

^••Mr. Jefferson, Secretary of State, to Mr. Genet,
Minister of France, Germantown, Nov. S, 1793 i in The Ameri-
can State Papers . . ., op_. cit. , pp. 195-196 «

11*

at it, and to accustom the nations of Europe to the
idea that we should claim it in the future. ^5

From the foregoing it is apparent that the 1793 three-
mile claim — which was the first formal three-mile claim made
by a state — was not envisioned by its architects as the en-
during rule of international law which it became. Moreover,
they saw it as serving only a single purpose: a neutrality
zone. There are good reasons to believe — these will be
mentioned later — that the idea of a three-mile zone for fish-
ing or customs would have been repugnant to American states-
men at the time.

The text of the Jefferson three-mile limit notes is
evidence enough that the Secretary of State and his staff
had considered the cannon shot rule, the line of sight doc-
trine, and the marine league before selecting a three-mile
limit; all three are specifically mentioned in the notes.
Cannon range was being equated to three miles at the time;
a man standing on the beach could see about three miles;
and the one-league limit — albeit a league of four miles —
was currently claimed in Scandinavia. It is not known which
of these influenced Jefferson the most, although one of his

^John Quincy Adams, Memoirs of John Quincy Adams:
Comprising Portions of His Diary from 1795-1^4^1 ed. Charles
Francis Adams (Philadelphia: J. B. Lippincott and Co., 1&74-
77), vol. I, pp. 375-376. The author is reporting statements
made by the President on November 30, 1#05. Adams was a
Uo S. Senator at the time.

115

later writings indicates that he looked with favor on the

26
line of sight doctrine. Nor can there be found any direct

tie between the writings of Galiani and the Jefferson notes.

The point was apparently too obscure to have been commented

on by Jefferson's biographers, although Thomas Baty suggests

that the United States1 decision was influenced by Galiani1 s

27
writings. In any event, it is reasonably certain that the

Letter from President Jefferson to the Secretary of

the Treasury dated September 8, I894f in Paul L. Ford, The

V/ri tings of Thomas Jefferson (New York: G. P, Putnam's Sons,

1892-189977 vol. VIII, p. 319.

27
'Baty, 0£. cit. , p. 516. Although there seems to be

no concrete evidence that Jefferson was specifically aware
of Galiani' s equation of cannon shot with three miles, it
may well have been that the equation was known in diplomatic
circles at the time. As pointed out earlier, the French
Foreign Office had considered three miles as the equivalent
of cannon range as early as 1761. Hence, it is not inconceiv-
able that Genet, in his enthusiasm to influence the young
American republic, had arranged to have this view communicated
to Jefferson or to his staff. With respect to Jefferson's
statement about the range of human sight and twenty miles,
it can be fairly assumed that the Dano-Norwegian Royal Order
of June 13, 1691 (quoted supra, p. 76) equating the range of
sight to five Scandinavian leagues had received wide diplo-
matic dissemination. Concerning Jefferson's mention of the
three-league practice, it must be assumed that as Secretary
of State he was familiar with the provisions of the 1763
Treaty of Paris between England and France, fixing a three-
league fishing zone along the North American mainland. (The
15-league limit, cited supra on p. 97 applied only to Cape
Breton.) Moreover, four years earlier tin 17#9) the publi-
cist G. F. von Martens published his Precis du droit des gens
moderne de 1' Europe, in which he stated on page 105: ~"TTT cus-
tom, generally acknowledged, extends the authority of the pos-
sessor of the coast to a cannon shot from the shore; that is
to say, three leagues from the shore. ... ." Jeff erson is known
to have been familiar with this view advanced by von Martens,
by virtue of marginal cross reference notes which he made in
his personal copy of Vattel's Le droit des gens, 1775 edition.
(See Bernard G. Heinzen, "The Three-mi le"Timit s Preserving

116

choice of three miles was made reluctantly, under pressure;
that it was intended to be a stop gap measure to provide a
temporary solution; and that it was a compromise, blending
elements of three historic antecedents: the line of sight
(a continuous coastal belt), the marine league (of a specific
width), and the cannon shot (for purposes of neutrality).

The Act of 1794

Seven months after the Jefferson notes were delivered

to Genet and Hammond, the three-mile limit became the law of

the land, enacted by the Congress of the United States:

Section 6. And be it further enacted and declared,
that the district courts shall take cognizance of com-
plaints, by whomsoever instituted, in cases of captures
made within the waters of the United States or within a
marine league of the coasts or shores thereof .23

The United States thus became the first state to incorporate
the three-mile limit into its domestic laws.

the Freedom of the Seas," Stanford Law Review II (July 1959) ,
pp. 615-616, and Stefan A. Riesenfeld, Protection of Coastal
Fisheries under International Law (Washington: Carnegie En-
dowment for International Peace, 1942), pp. 25-2S.

2^"An Act in addition to the Act for the punishment of
certain crimes against the United States, June 5> 1794>"
United States Congress, The Public Statutes at Large, ed.
Richard Peters, Esq. (Boston: Charles C. Little and James
Brown, 1350), vol. I, p. 3^4.

117

IV. THE THREE-MILE LIMIT IN EARLY
COURT DECISIONS

The Twee Gebroeders (1800)

Curiously, it was the British High Court of Admiralty,

and not the U. So Supreme Court, that first based a decision

on the three-mile limit. Four Dutch ships had been captured

on the Prussian Coast. The Prussian Charge d» Affaires sought

restitution in the English courts, contending that the ships

had been seized in Prussian territorial waters. Sir William

Scott delivered the opinion that the seizure was illegal, and

that the vessels should be restored, on the grounds that

the seizing ship

. . . was lying in the Eastern branch of the Eems,
within what may I think be considered as a distance of
three miles, at most, from East Friesland. . . I am of
the opinion, that the ship was lying within those limits,
in which all direct hostile operations are by the law of
nations forbidden to be exercised. 29

The "Anna" (1305)

Five years later, the British High Court of Admiralty
handed down another decision invoking the three-mile limit,
this time involving the United States. The Anna, sailing under
the American flag, was captured by a British privateer at a

Twee Gebroeders (Alberts, Master), 3 C. Robinson

162 (1800) , in Edwin De Witt Dickinson, A Selection of Cases
and Other Readings on the Law of Nations (New York and" London s
McGraw-Hill Book Co., Inc., 19^9) f pp. 77&-780.

118

distance of a mile and a half from the alluvial islands of

silt built up at the mouth of the Mississippi River, The

defense held that the silt islands were not part of the

territory of the United States, but "no man's land." It was

again Sir William Scott that delivered the opinion of the

Court:

We all know that the rule of law on this subject is
"terrae dominium finitur, ubi finitur anno rum vis," and
since the introduction of fire arms, that distance has
usually been recognized to be about three miles from the
shore. . • I am of the opinion that the right of terri-
tory is to be reckoned from those islands. That being
established, it is not denied that the actual capture
took place within the distance of three miles from the
islands. . .3°

The seizure was held illegal, and restitution was ordered,

with costs and damages. *

The "Tilsit" Captures (1303)

Thomas Baty describes a French case of 1303 in which
the Tilsit captured some American ships in the Baltic Sea off
Pillau on the Prussian coast. The French prize court upheld

the captures as good prize, because they had been taken more

31
than three miles from the shore.

30The Anna (La Porte, Master), 5 C. Robinson 373 (1305),
in Charles G. Fenwick, Cases on International Law (second
edition; Chicago: Callaghan and Co., 19 51 J, PP« A-32-A-33.

5lBaty, 0£. cit., p. 513, citing Baron Ferdinand de
Cussy, Phases et Causes CSlebres du Droit Maritime des Nations
(Leipzig: F. A. Brockhaus, 185b;, vol. II, p. 71 •

119

The Brig "Ann" (1312)

The first major case in United States Courts involving
the three-mile limit, was that of the brig Ann, decided by
the U. S. Circuit Court, Massachusetts, May term, 1S12,
Circuit Justice Story, in his decision, referred to the three-
mile limit in such a clever way as to make it, rather than
cannon shot, appear as established international law:

As the Ann arrived off Newburyport, and within three
miles of the shore, it is clear that she was within the
acknowledged jurisdiction of the United States. All the
writers upon public law agree that every nation has exclu-
sive jurisdiction to the distance of a cannon shot, or
marine league, over the waters adjacent to its shore. 32

His several citations and references were to cases and pub-
licists that had upheld the cannon shot rule. Apparently he
had not yet learned of the foreign cases, Twee Gebroeders,
the Anna, or the Tilsit, which certainly would have enhanced
the documentation of the opinion.

V. THE FISHING CONVENTION OF ldl8

With these several court cases, the three-mile limit
had been advocated by publicists, adopted as foreign policy,
incorporated into domestic statutes, and upheld by the courts.
All that was lacking was the recognition of the three-mile

32The Brig Ann, 1 Gallison 62 (1312), in United States
Government, The. Federal Cases: Comprising Cases Argued and
Determined in the Circuit and District Courts of the United
States CSt. Paul: West Publishing Co., 1894) , volTi, case
number 397, pp. 926-928.

120

limit between governments in the form of an international
treaty. This came in 18l£.

Treaty of Paris (17&3)

Before the American Revolution, the North Atlantic
seaboard was fished on the basis of equal rights for all
British subjects whether from New Jersey, New Hampshire, Nova
Scotia or Newfoundland. The best fishing was found along the
shores and banks of Nova Scotia and Newfoundland. By the
Treaty of Utrecht (1713) the French had lost Nova Scotia

(Acadie) and Newfoundland to the English, but retained fish-

33
ing rights there. Then as a result of the French and In-
dian War, France lost all the rest of Canada except for the
islands, St. Pierre and Miquelon, off the coast of Newfound-
land, again retaining fishing rights in Newfoundland but

3A.
loosing them in Nova Scotia.

Thus, there was little competition for the colonial

fishermen. Wide fishing zones were claimed by Great Britain

and the colonists exploited them with British protection and

blessing. But American independence threatened to change this.

^United States Congress, Senate, Proceedings in the
North Atlantic Coast Fisheries Arbitration, benate Document
No. 870, 61st Cong., 3rd sess. (Washington: Government
Printing Office, 1912), vol. IV, pp. 5-6.

^Ibid., d. 6, and "Definitive Treaty of Peace, Great
Britain and France, February 10, 1763," in Henry G. Crocker,
(ed.), The Extent of the Marginal Sea, U.S. Department of
State (Washington: Government Printing Office, 1919), p. 520,
citing British and Foreign State Papers, vol0 I, part 1,
p, 422. Also see supra , chapter V, p. 97«

121
The fishermen from New Jersey and New Hampshire would no longer
be British subjects, able to enjoy the fishing off Newfound-
land and Nova Scotia. They feared a 45-mile exclusion similar
to that imposed on the French, Hence, the American peace
negotiators, being briefed for Paris, were given strict in-
structions to preserve to their utmost ability the fishing

35
privileges they had traditionally enjoyed .

During the Paris negotiations of 1782, the British
strongly resisted the American fishing demands, wishing in-
stead, completely to exclude the rebels from the fisheries of
the remaining British colonies in Canada. It was a distinct
victory, and a tribute to the negotiating skill of Benjamin
Franklin, that the British yielded on this point. The final
version of the peace treaty provided that the Americans should
"... continue to enjoy unmolested the right to take fish

of every kind . • . where the inhabitants of both countries

36
used at any time heretofore to fish. • • „" In effect, the

Americans won the right to continue to enjoy the wide terri-
torial seas of the British colonies without having to defend

^ ^Extract from "Report of a Committee of Congress, con-
sisting of Mr. Lovell, Mr. Caroll, and Mr. Madison, to which
had been referred certain papers relative to the fisheries and
Proceedings in Congress in regard thereto on 22nd January and
20th August, 1782," in North Atlantic Coast Fisheries Arbi-
tration, op. cit8> vol. 7, p. 46.

•*6Great Britain and the United States, Article III
of "Definitive Treaty of Peace, September 3, 1783," The
Public Statutes at Large » op. cit., vol. VTII, p. 82,

122

those seas — the Royal Navy would take care of that — and with-
out having to make any formal commitments to define or defend
their own newly acquired coastline! As something of a face-
saving quid pro quo, in Article VIII of the Treaty, the United
States agreed that British ships could freely navigate the
length of the Mississippi River. '

Treaty of Ghent (1814)

Things went smoothly until after the War of 1812. The
Treaty of Ghent, December 24, 1814, settling that War, had
made no mention of either the fisheries or the navigation
of the Mississippi. Then in June, 1#15, an American cod
fisherman, 45 miles from the Nova Scotia coast, was warned
by a British sloop that he was trespassing, and was ordered
not to come within 60 miles of the Coast. The American-
Minister in London, John Quincy Adams, protested the act and
maintained that the War of 1312 in no way affected the fishery
provisions of the treaty of 17#3. The British rejected this,
and averred that the treaty of 17#3, like all treaties in
similar circumstances, was annulled by the subsequent war
between England and the United States.^

37Ibid., p. 83.

3 John Bassett Moore, A Digest of International Law
(Washington; Government Printing Office, 1906), vol, I,"
p. 771.

39 Ibid.
40Ibid.

123

Convention of 1818

This triggered a bitter controversy, which lasted three

41
years. British naval ships were ordered by the Admiralty

to seize American fishing vessels found in the contested

waters. Negotiations were arduous and long; neither side

would yield to the reasoning of the other. The Americans

wished to fish Canadian waters right up to the shore; the

British wished to exclude them entirely. A compromise was

inevitable, and again it was a three-mile limit which became "*

the compromise solution. The key sentence in the Convention

of 1818 reads:

And the United States hereby renounces, for ever, any
liberty heretofore enjoyed or claimed by the inhabitants
thereof to take, dry, or cure fish on or within three
marine miles of any of the coasts, bays, creeks, or
harbors of His Britannic Majesty's dominions in America.
• • .^

It had been obvious to the American negotiators that they
were going to have to give up something. Their rights to
fish in British waters had been a case of "having one's cake
and eating it too." More important, it had been an un-
pallatable affront to British dignity, and the British uti-
lized the War of 1812 to put an end to it. While the Ameri-

^ This controversy is dealt with at length in John
Quincy Adams, The Duplicate Letters, the Fisheries, and the
Mississippi: Documents Relating to Transactions at the
Negotiation of Ghent Washington: Davis and Force, 1822) 0

^"Great Britain and the United States, "Convention
Respecting Fisheries, Boundary, and the Restoration of
Slaves, October 20, 1818," The. Public Statutes at Large.
op. cit., vol. VIII, p. 249 •

124-

cans would have preferred a wider territorial sea along their
own coast, they felt they had more to gain by exploiting the
British fisheries up to within three miles, than they might
lose if foreigners were to fish within three miles of the
American coast.

Thus, illogically, it was a struggling, infant repub-
lic, that launched the three-mile rule, for purposes of
neutrality and for fishing, and for reasons quite beyond its
control. Concurrently, Britain, having defeated Napoleon,
became the strongest of the Great Powers and the "Mistress
of the Seas." She had already seen the advantages in scaling
down the world's territorial seas, and she willingly followed
the American lead, and shortly became the champion of the
three-mile limit.

CHAPTER VII

THE NINETEENTH CENTURY
GROWTH OF THE THREE-MILE LIMIT

The year 1#15 represents one of the truly important
watersheds of history. With the defeat of Napoleon and the
Congress of Vienna there commenced a century of relative
calm — at least by the standrds of the foregoing centuries
— throughout Europe and the world. The "Concert of Europe,"
a peace-keeping alliance, was organized among the great
powers. But it was soon discovered that the great powers
could not always agree on how to keep the peace, and the
Concert of Europe fell into disuse. It was Great Britain,
instead, with her great strength and her "balance of power"
diplomacy, which provided the stabilizing influence which
kept the peace from 1815 to 1914, which has come to be
known as the "Pax Britannica."

I. GREAT BRITAIN AS CHAMPION OF THE
THREE-MILE LIMIT

Of the so-called great powers of 1315 — Austria,
France, Great Britain, Prussia, and Russia — Great Britain
was supreme. Her empire extended to every inhabited con-
tinent and British interests were manifest on the shores
of every ocean and principal sea. She had developed an

125

126

intricate network of islands and enclaves which served as

communication and coaling stations. The Royal Navy boasted

ninety-five capital ships after 1815, enough according to

Lord Strang, ". . .to meet any conceivable combination

. . ."of foreign opposition. Lord Strang continues:

In manufacture, in merchant marine, in foreign
trade, in international finance, we had no rival.
... As we came, by deliberate act of policy, to
adopt the practice of free trade and to apply the
principle of "all seas freely open for all," we
moved towards the Pax Britannica. using the Royal
Navy to keep the seas open for the common benefit,
to suppress piracy and the slave trade, and to pre-
pare and publish charts of every ocean. No other
of our western rivals now had an empire. 2

It was this situation — a superpower, in control of the
seas, adopting the three-mile limit — that was chiefly re-
sponsible for the rise of the three-mile limit to status
as a rule of international law. During the nineteenth cen-
tury, Britain took many deliberate steps to put the three-
mile rule into effect and other states commenced to follow
suit.

British Treaties and Conventions

Twenty-one years after the 1#18 convention with the
United States, England concluded the first in a series of

Lord William Strang, Britain in World Affairs :
The Fluctuation in Power and Influence from Henry VIII
to Elizabeth II iNew York: Frederick A. Praeger, 1961)
p. 99.

2Ibid., pp. 99-100.

127

five treaties with France, establishing a three-mile limit
for fisheries. The Convention of 1339 established the
three-mile limit along the coast of the two states.** The
Convention of 1357 relaxed some of the eighteenth century-
treaty restrictions imposed on French fishermen in Canada,
establishing a three-mile limit for Newfoundland.^ Another
Convention was concluded at Paris in 1359, refining the pro-
visions of that of 1339; however, the treaty was not rati-
fied by France and its provisions were placed in effect
only in British waters. Then, in 1367, another Convention
between the two states, with similar terms, did receive the
necessary ratifications. Lastly, in 1332, Britain and
France both became signatories to the multilateral three-

•'Great Britain and France, "Convention for defining

and regulating the limits of the exclusive right of the
oyster and other fisheries on the coasts of Great Britain
and France, August 2, 1339," reproduced in Henry G. Crocker*
(ed.), The Extent of the Marginal Sea, U. S. Department of
State (Washington: U. S. Government Printing Office, 1919),
p. 524, citing British and Foreign State Papers, vol. 27,
pp. 936, 933-93?:

^Great Britain and France, "Convention relative to
the rights of fishing on the coast of Newfoundland and the
neighboring coasts, January 14, 1357," reproduced in Crocker,
op. cit . , p« 525«

^Carlos Calvo, Le droit international theorique et
pratique (fifth revised edition; Paris: A. Kousseau, l3po") ,
vol. I, para. 353, pp. 430-431, citing unratified treaty
between Great Britain and France of August 2, 1359.

Great 3ritain and France, "Convention relative to
fisheries in the seas between Great Britain and France,
November 11, 1367," reproduced in Crocker, 0£. cit., pp.
525-526, quoting from British and Foreign State Papers,
vol. 57, pp. 9-10.

128

mile North Sea Fisheries Convention, to be discussed sub-
sequently o

These international instruments all contained simi-
lar provisions, namely that the limit was fixed at three
nautical miles, to be measured from the low-water mark, and
in the case of bays the mouths of which did not exceed 10
miles in width, to be measured from a line drawn 'from head-
land to headland.

British Domestic Legislation

Between 1319 and lo52 there were enacted a series
of Acts, Parliamentary and colonial, establishing a three-
mile limit for the Canadian colonies; Newfoundland and

7 &

Labrador, 1819; K°va Scotia, IS36; Prince Edward Island,

1343 ;9 and New Brunswick, 1353. 10 Likewise, in 1877, the

'Great Britain, "Act of Parliament, to enable His
Majesty to make regulations with respect to the taking and
curing of fish on certain parts of the coasts of Newfound-
land, Labrador, and His Majesty's other possessions in North
America, according to a convention made between His Majesty
and the United States of America; June 14, 1319," repro-
duced in Crocker, ojd. cit., pp. 544-545 •

Province of Nova Scotia, "An Act relating to the
fisheries, and for the prevention of illicit trade in the
Province of Nova Scotia, and the coasts and harbors thereof,
March 12, 1236"; Statute of Nova Scotia, 6 William IV,
chap. 3, reproduced in United States Congress, Senate, Pro-
ceedings in the North Atlantic Coast Fisheries Arbitration,
Senate Document No. 870, 61st Cong., 3rd Sess. (Washington: U.S.
Government Printing Office, 1912), vol. V, p. 1033.

^Council and Assembly of Prince Edward Island, "Act
relative to the American right of fishing under the Conven-
tion of illicit trade in the Province of Nova Scotia, and

129

British fixed a three-mile territorial sea limit for the
Empire's Pacific Islands. In 1881, a one-league fish-
eries limit was enacted for New South Wales, Australia,1
and a three-mile neutrality zone was ordered in the case
of Cyprus.1"*

Not only did Britain meticulously legislate a three-
mile limit throughout the Empire, but she also took care
to advise her subjects concerning the three-mile limits of

the America, April 15, 1843 i" (confirmed by British Order
in Council, Sept. 3, 1#44) , reproduced in Crocker, op.
cit. , pp. 547-54&.

Government of New Brunswick, "Act relating to the
coast fisheries, and for the prevention of illicit trade,
May 3, 1853," 16 Victoria, chap. 69, reproduced in Crocker,
op. cit. , p. 549.

Great Britain, "Order in Council, for the Regula-
tion of British Jurisdiction in the Western Pacific Islands
(Friendly Islands, Navigators' Islands, Union Islands,
Phoenix Islands, Ellice Islands, Gilbert Islands, Marshall
Islands or Archipelago, Caroline Islands, Solomon Islands,
Santa Cruz Islands, Rotumah Island, part of Island of New
Guinea, Islands or Archipelago of New Britain and New
Ireland, Louisade Archipelago, etc.) and the Water within
Three Miles of Every Island or Place above Mentioned,
August 13, 1877," reproduced in Crocker, 0£. cit. , p. 567,
quoting from William Lewis Hertslet, et al. (eds.J, Herts-
let's Commercial Treaties (London: Foreign Office 1827-
1925), vol. XIV, p. 874.

12,,The Fisheries Act of New South Wales, 1881,"
reproduced in Crocker, ojd. cit. , p. 569.

^Great Britain, "Order in Council, for regulating
the conduct of the inhabitants of Cyprus and others during
hostilities between States with which Her Majesty is at
peace, and for the control by the High Commissioner over
recruiting in Cyprus for the service of any State, May 18,
1B81," reproduced in Crocker, ojd. cit., p. 570, quoting
from British and Foreign State Papers, vol. 73, p. 358.

other states. For example, in 1366, the British government
issued instructions to all owners and masters of British
fishing vessels not to fish within three miles of the
Belgian coast. Like instructions were issued in the case
of the German coasts in 1863, 1874, and 1880.1-5

As far as the British Isles themselves were concerned,
several important Acts of Parliament were passed' which
enhanced the legal status of the three-mile rule -in England.
The Act of July 31 » 1868 conferred admiralty jurisdiction
on British county courts, so far as maritime jurisdiction,
salvage, collisions at sea, and slave trade were concerned,
out to a distance of three miles. The Territorial Waters
Jurisdiction Act of August 16, I878 extended the Common

Law to all offenses committed in British waters within the

three-mile limit. The Sea Fisheries Act of August 2,

I883 made it a criminal offense for a foreign fishing

^""Notice of June 20, 1366," reproduced in Crocker,
ot>. cit. , p. 553, citing Hertslet, 0£. cit. t vol. XIV,
pt 1577

^"Notices of November 1868, December 1374, and
July 1830," reproduced in Crocker, 0£. cit., pp. 555, 558,
and 569, citing Hertslet, 0£. cit., vol. XIV, pp. 1055 and
1057, and vol. XV, p. 209."

1 f)

Reproduced in Crocker, 0£. cit., p. 555, citing

Hertslet. on_. cit., vol. XIII, p. 1115 (31 and 32 Victoria,

chap. 7l) °

'Reproduced in John Bassett Moore, A Digest of In-
ternational' Law (Washington: U.S. Government Printing '
Office, 190677~vol. I, p. 714, citing 41 and 42 Victoria,
chap. 73. (This Act applied also to the dominions.)

131
vessel to enter the three-mile limit of the British Isles.

British Court Cases

The courts, too, took an active role in the strength-
ening of the three-mile rule throughout the nineteenth
century. In several cases — The King v. 49 Casks of Brandy

(1836?) ,19 The Leda (i860) ,20 Gammell v. Commissioners of

21
Woods and Forests (l86l?) , and the Whitstable Fishery

22
Case (1865) — the bench emphasized in its dictum the ter-

Reproduced in Crocker, op_. cit . , p. 573 > citing

British and Foreign State Papers, vol. 74, p. 200.

19The King v. 49 Casks of Brandy, 3 Haggard's Ad- '
miralty Reports, 259 TT836?) • Cited in Sir Edward Creasy,
First Platform of International Law (London: J. Van Voorst,
1876) , p. 241. Admiralty Judge Sir John Nicoll found:
"As between nation and nation, the territorial right may,
by a sort of tacit understanding, be extended to three
miles."

2QThe Leda, Swabey's Reports, 40 (i860), cited in
Thomas Baty, "The Three-Mile Limit," American Journal of
International Law, XXII (July, 1928), p. 520. In his '
dictum, Dr. Lushington declared that the term "United
Kingdom" included the waters to a distance of three miles
from the shore.

Gammell v. Commissioners of Woods and Forests,

3 McQueen's House of Lords Reports, 419 (I80T?) , Baty,
op. cit. , p. 522. Lord Wensleydale referred to the distance
or three miles as belonging, by the acknowledged law of
nations, to the coast of the country.

22The Company of Free Fishers of Whitstable v.
Gann, 11 Common Bench Reports LNew Series], 387 and 11
House of Lords Cases, 192 (I865), ibid., pp. 521-522; and
Creasy, loc. cit. Ex-Lord Chancellor (Chelmsford) is .
quoted as saying: "The three-mile limit depends upon a
rule of international law, by which every independent
state is considered to have territorial property and ju-
risdiction in the sea which washes their coast within
an assumed distance of cannon-shot from the shore."

132

ritorial or property right of the Crown out to the three-
mile limit. In other decisions, such as those rendered in
the cases of The General Iron Screw Collier Company (lS60),2^
The Annapolis (1864),2^ The Franconia (1376), 25 and The
Chishima and the Ravenna (1395), the court stressed the

^General Iron Screw Collier Company v. Schurmanns,

1 Johnson and Hemming* s Reports, 180 (I860), reproduced in
Crocker, op_. cit . , p. 551. Vice Chancellor Sir W. Page
Wood held that: ". . • every country may, by the common
law of nations, legitimately exercise jurisdiction over
that portion of the high seas which lies within the dis-
tance of three miles from its shores,"

TThe Annapolis, 1 Lushington's Reports, 356, (I864),
Baty, op_. cit., p. 522. Dr. Lushington described British
territorial waters as those "... within British juris-
diction, namely, within British territory, and at sea within
three miles of the coast."

The Franconia (Regina v. Keyn) , Law Reports, 2

Exchequer Division, 63 ( 1876 ) , reproduced in British In-
stitute of International and Comparative Law, British
International Law Cases (London: Stevens and Sons, and
Dobbs Ferry, N. Y., Oceana Publications, Inc., 1965), vol.
II, p. 704. Sir Robert Phillimore's dictum included this
language: "As I understand the contention on behalf of
the Crown, the answer is, international law; in other
words, by the consent of all civilized states, England
has become entitled to include within her realm a marine
league of sea, and therefore has jurisdiction over a foreign
vessel within that limit."

2f>

The Imperial Japanese Government v. the Peninsular
and Oriental Steam Navigation Company Con appeal from the
Supreme Court for China and Japan at Shanghai, in Admiralty),
Law Reports, 20 Appeal Cases, 644 (1895), reproduced in
part in Crocker, 0£. cit., pp. 579-581. This case was de-
cided "... upon the ground that the collision had occurred
within three miles of the coast of Japan, in the terri-
torial waters of that country; that the liability of the^
Emperor of Japan, as owner of the Chishima, for the negli-
gent acts of the officers and crew of that vessel must
therefore be regulated by the law of Japan. „ V

point that the three-mile boundary was the maximum limit
of the coastal state's jurisdiction, particularly in admir-
alty matters.

British Publicists

Just as consistent as the British courts in defend-
ing the three-mile rule were the British publicists. In
fact, this writer was unable to find any British publicist
writing during the nineteenth century period that did not
endorse the three-mile rule. The earlier writers, such

as Sir Robert Phillimore27 (1310-1355) and Sir Edward

23
Creasy (1312-1373) understandably equated the three-mile

rule with cannon shot. The later publicists, however —

Phillimore served as a member of Parliament, as

a judge of the High Court of Admiralty (see note 25 supra),
and as Judge Advocate General, His 1379 edition of Commen-
taries reads: "But the rule of law may be now considered
as fairly established — namely, that this aboslute property
and jurisdiction does not extend, unless by the specific
provision of a Treaty or an unquestioned usage, beyond a
marine leage (being 3 miles), or the distance of a cannon-
shot, from the shore at low tide. ..." Sir Robert Joseph
Phillimore, Commentaries upon International Law (third
edition; London: Butterworths, 1879-1889), vol. I, p. 263.

Sir Edward Shepherd Creasy, an accomplished his-
torian and professor of history, was appointed and served
as Chief Justice of Ceylon, following which he wrote on
the subject of government and international law. In his
work on international law, published in 1376, he observed
that the extent of territorial waters, as a function of
artillery range, had been fixed at three miles. He then
speculated that a territorial sea limit of five miles .
might be adopted in the future as a result of improvements
in cannons. Creasy, loc. cit.

13*

Sir Travers Twiss29 (1309-1897), William Edward Hall30

(1336-1394), and Thomas Joseph Lawrence31 (1349-1919)—

«
came to the conclusion that the three-mile rule had become

29
'Twiss was so highly esteemed and renowned as a

jurist, professor, and public servant, the King of Belgium
requested Twiss to draw up the constitution for the Congo
Free State. Writing on territorial seas Twiss declared:
"Beyond the distance of a sea-league from its coast the
territorial laws of a nation are, strictly speaking, not
operative." Sir Travers Twiss, The Law of Nations Con-
sidered as Independent Political Communities (revised
second edition; Oxford: Clarendon Press, 1884) , p. 292.
(First edition, 1361).

Hall's Treatise was first published in 1830, and

has gone through eight editions. In it, he concluded that
the three-mile limit is so well-fixed that it must be
assumed that a state adheres to it in the absence of an
express notice to the contrary. In a footnote, however,
he acknowledged the existence of foreign claims to great
limits: "It is felt, and growingly felt, not only that
the width of three miles is insufficient for the safety
of the territory, but that it is desirable for a state
to have control over a larger space of water for the pur-
pose of regulating and preserving the fisheries in it. . •
At the same time, Hall seems quite satisfied with the
consistency of British adherence to the three-mile limit
by pointing out a singular departure, the Treaty of Wash-
ington of 1346, dividing the 15-mile wide Strait of Juan
de Fuca equally between Britain and the United States.
William Edward Hall, A Treatise on International Law (sev-
enth edition by A. Pearce Higgins; Oxford: The Clarendon
Press, and London and New York: H. Milford, 1917), pp.
154, 156.

* T. J. Lawrence taught international law first
at the Royal Naval College, Cambridge, and later at the
University of Chicago. On the extent of territorial seas,
he succinctly stated that ". . .a state's territory in-
cludes the sea within a 3-mile limit of its shores." He
then considered certain contemporary proposals for a six-
mile and a ten-mile territorial sea, but predicted that
the British Government would probably successfully resist
any change. Thomas Joseph Lawrence, The Principles of
International Law (sixth edition; Boston: D. C. Heatn~and
Co., 1915), pp. 141-142. Lawrence published his first
edition in 1895.

135

established on its own merits and that the extent of ter-
ritorial waters was no longer a function of cannon range.

The Customs Consolidation Act of 1&76

Of all the factors influencing the growth of the
three-mile rule — treaties, laws, court decisions, and
writings of the experts — the Customs Consolidation Act of
1876 probably went the furthest in establishing the three-
mile limit as a rule in the law of nations. The signifi-
cance of this legislation, however, is not fully appreci-
ated without a brief review of the events which led up to
it.

The early "Hovering Acts" were mentioned in Chap-
ter VI where it was noted that the Act of 1736 established

32
a customs zone of two leagues. The two-league zone was

strictly enforced by customs officials and upheld in court,

but Great Britain found that even so, smuggling was on the

increase. Tobacco, alcoholic beverages, and tea were the

major items, and the smugglers were especially busy on and

around the Isle of Man. Accordingly, Parliament passed an

Act in 1765 which extended customs jurisdiction to three

33
leagues around the Isle of Man. But this Act, too, was

3 See supra. Chapter VI, p. 102.

33The Act, 5 George III, chap. XXXIX, sec. VII, "An
Act for more effectively preventing the mischiefs arising
to the revenue and commerce of Great Britain and Ireland,
from the illicit and clandestine trade to and from the Isle

136

ineffective against the amazingly efficient and complex
organization between the smugglers afloat and their armed
gangs ashore. To give enforcement authorities even greater
flexibility, Parliament, by its Act of 1734 increased the
customs zone to four leagues. ^ Still, smuggling continued
unabated, and in 1802 another in the series of "Hovering
Acts" was passed, increasing the zone to eight leagues .
Yet in spite of this Act, which extended customs juris-
diction to 24 miles, the first quarter of the nineteenth
century saw smuggling reach its zenith; Masterson calls it
the "Golden Age of Smuggling," In seeming exasperation,
Parliament enacted legislation in 1805 extending the zone
to 100 leagues!3

But then, the situation began to change. During
the next half century, the British Coast Guard greatly im-

of Man," in William E, Masterson, Jurisdiction in Marginal
Seas with Special Reference to Smuggling INew^fork; The
Macmillan Co., 1929), pp. 31^14, 41-42,

34The Act, 24 George III (2- session), chap. XLVII,
"An Act for the more effectual prevention of smuggling,"
ibid., pp. 58-60 ; Crocker, 0£. cit., pp. 539-540.

^The Act, 34 George III, chap. L, "An Act to alter,
amend, and render more effectual an act, made in the 24th
year of the reign of His present Majesty, for the more
effectual prevention of smuggling in Great Britain" [The
Act of 1784], Masterson, 0£. cit., pp. 73-74; Crocker, op.
cit., p. 541»

36The Act, 45 George III, chap. CXXI, July 12, 1805,
"An Act for the more effectual prevention of smuggling,"
Masterson, p_£. cit., pp. 72-78,

137
proved its record of dealing with smugglers. In a report
of 1S51, the Commissioners of Customs noted that smuggling

was on the decline in most districts and had been entirely

37
suppressed in others. Also, by mid-century the 100-league

customs zone had become a source of friction and disagree-
ment— both externally and internally — for the British Govern-
ment. For example, in 1S50, the Coast Guard seized a
French smuggler, the Petit- Jules, 25 miles from England,
laden with spirits and bound for the English coast. A
fight ensued and the craft escaped. The Lords of the Trea-
sury asked the Queen's advocate General for an opinion as
to what steps Britain might take to apprehend and prosecute
the French crew. The Advocate General surprisingly advised
Treasury that such would be illegal on the basis that
British jurisdiction extended to sea only a distance of
three miles.

Moreover, the extensive customs legislation of Great
Britain had not gone unnoticed abroad. Laws extending
domestic customs jurisdiction to ten or twelve miles ap-
peared in Belgium, France and the United States, to mention
a few. These actions concerned the British Foreign Office,
which began to press for revision of the maritime limit
down to one league. The British merchant fleet was large,

3?Ibid., p. 115 citing Parliamentary Papers, 1351,
vol. LIIIV no. 454.

3^Ibid., pp. 125-127.

138
and on the basis of reciprocity, it might be expected that
British merchant ships could be subjected to the annoyance

of being stopped and searched outside the three-mile limit

39
of foreign states.

In the end, the issue was decided in favor of the
Foreign Office in the form of the Customs Consolidation
Act of 1^76. The Act repealed all the customs or "hover-
ing" acts in force up to that time. In their stead, the
new Act adopted a three-league customs zone only as con-
cerned vessels belonging in whole or in part to British
subjects and as concerned vessels of which half the persons
on board were British subjects. The Act excluded from the
three-league authority vessels which were not British,
applying to those vessels a zone of one league, or three
miles.

By this Act, together with the Territorial Waters
Jurisdiction Act of I878, and the Sea Fisheries Act of 1883,
Britain publically and intentionally limited herself to a
three-mile limit for all purposes. From that time, she
maintained the policy that the territorial sea within three
miles was the maximum extent for state jurisdiction, ir-
respective of the state's ability or power to extend its

39Ibid., p. 149.

^°The Act, 39 and 40 Victoria, chap. 36 (July 24,
1876), "An Act to Consolidate the Customs Laws," ibid.,
pp. 150, 155; Crocker, op_. cit. , 563-564.

159
authority farther., This position, taken by the "Mistress
of the Seas" was held out as the legal standard for the
other states to follow.

II. NINETEENTH CENTURY STATE PRACTICE
Great Powers

France. As noted in the preceding section on Eng-
land, France became a subscriber to the three-mile limit
with respect to fishing. In addition to the five conven-
tions fixing a limit of three miles for fishing, regula-
tions issued in 1843, an imperial decree of 1862, and
laws of 1885 and 138S^ confirmed the French position.
The law of 1&&8 is representative:

Article 1. Fishing is forbidden to foreign boats
in the territorial waters of France and Algeria within

^ "Regulations for the guidance of the fishermen
of Great Britain and of France in the seas lying between
the coasts of the two countries, May 24, 1#43," reproduced
in Crocker, op_. pit. , p. $24, citing British and Foreign
State Papers, vol. 31, P» loo.

^ "Decree of the French Emperor relative to coastal
fishing, May 10, 1862," translated by Crocker, ojd. cit.,
p. 525, quoting Hertslet, o_£. cit. , vol. XIII, p. 400.

^"Law prohibiting fishing privileges to foreigners
in the territorial waters of Algeria and France, for a
distance of three miles, November 24, l£#5," Crocker, op0
cit. , p. 526.

^"Law in regard to fishing in territorial waters,
March 1, l££8," translated by Crocker, 0£. cit., p. 527,
citing Hertslet, 0£. cit., vol. XVIII, p. 393.

l40

a limit set at three nautical miles from low-water
mark. 45

With respect to customs, in 1S17 France established
a zone of two myriameters (approximately 11 nautical miles)#
She, unlike Britain, maintained this limit the rest of the
century. For purposes of neutrality, on the other hand,
France continued to adhere to her very old cannon shot
practice,, As late as 1#54 this was confirmed by the Min-
ister of Marine. Not until 1#96 was the practice modi-
fied. In that year, a decree was issued for purposes of
war, regulating the approach of vessels within three miles
of the French coast; and four years later instructions

were issued to naval officers which expressly redefined

a Q
neutral waters as those within a three-mile limit. *7

45Ibid.

"Law establishing a customs zone of two myria-
meters, March 27, 1#17 »" translated and reproduced in
Crocker, 0£. cit. , p. 523. The customs zone had previ-
ously been four leagues, or 12 nautical miles, under a
law of March 24, 1794. Ibid., p. 522.

^"'"Instructions addressed by the Minister of Marine
and the Colonies to general naval officers, etc., March 31»
1#54>" translated and reproduced in Crocker, 0£. cit.,
pp. 524-525 •

^ "Decree regulating conditions of admission to,
and sojourn at, the anchorages and ports of the French
coast for ships, French and foreign, in time of war, June
12, I896," translated and reproduced in Crocker, 0£. cit.,
p. 527»

^Philip C. Jessup, The Law of Territorial Waters
and Maritime Jurisdiction (New York: G. A. Jennings Co.,
Inc., 1927), pp. 20-21; Crocker, 0£. cit., p. 528; Arnold

Austria (after 1867, Austria-Hungary), Austria's
only sea frontier was that of the Adriatic, During the
nineteenth century her interests focused on the Balkans
and the decaying Ottoman Empire. There is very little
record of Austrian pronouncements and practice in matters
of territorial seas; but that which is available indicates
that Austrian claims were quite modest.

By an ordinance of 1803, Austria established cannon
range as the extent of her seas for neutrality purposes.^0
However, in a decree of August 23, 1346, and then in a
circular of April 28, 1849, the government explained that
the expression "within cannon range" was equivalent to the

distance of three marine miles. In 1881 a customs zone

52
of four miles was adopted, and in 18#4 an exclusive fish-
ing zone of three miles was ordered. '' .

Raestad, La mer territoriale (Paris: A. Pedone, 1913), p.
148, note l.~"

"Ordinance respecting the observance of neutrality,

August 7, 1803," translated and reproduced in Crocker, op.

cit., p. 509, citing Georg Friedrick von Martens (ed.5,"~

Recueil de traites Tsecond edition; Gottingue: Dieterich,

1817-18337, vol. VIII, p. 109.

' Sir Thomas Barclay (reporter), "Report of the Third
Commission: Definition et regime de la mer territoriale,"
Annuaire de l'Institut de Droit International, vol. XIII
(1894, Paris session), p. 3oTT"

52»«0rder Qf ^e Minister of Finance, establishing a
customs zone of four marine miles, March 23, l#8l," trans-
lated and reproduced in Crocker, pj>. cit., p. 510,

" "Decree of the Ministry of Commerce, December 5,

Prussia (German Empire after 1371). In 1866 Prussia
adopted the cannon shot limit for her territorial waters. 5Zf
Then in 1862, Germany became a signatory to the North Sea
Fisheries Convention, and in 1888, to the Suez Convention,
both of which featured the three-mile limit. (These will
be discussed more fully in a subsequent section.)

Russia. In 1821 Tsar Alexander I took a radical
departure from the cannon shot rule:

Paragraph 2. It is therefore prohibited to all
foreign vessels not only to land on the coasts and
islands belonging to Russia as stated above, but also,
to approach them within less than 100 Italian miles.
The transgressor1 s vessel is subject to confiscation
along with the whole cargo. 55

This Ukase was occasioned by Russia's fear that foreign

fishermen would deplete the seal fisheries in Alaska and

Siberia, and especially those in the Bering Sea. In another

paragraph the Ukase barred all foreign vessels from the

1884," Thomas W. Fulton, The Sovereignty of the Sea (Edin-
burgh and London: W. Blackwood and Sons, T^lUT P* 659.

^"Decree of the Supreme Court of Prussia establish-
ing the extent of the territorial sea at cannon range,
November 28, 1866," translated and reproduced in Crocker,
op. cit • , p. 619.

""Ukase establishing Russian sea boundaries at a

distance of 100 Italian miles from the Asiatic and American

continents, September 4/lo, 1821," United States Congress,

Senate, Proceedings of the Alaskan Boundaries Tribunal ,

Senate Document No. To"2, 58th Cong., 2nd Sess. ^Washington:

Government Printing Office, 1904) > vol. I, part 2, pp.

9-10. (The term "Italian mile" was used here to specify

a standard nautical mile as opposed to the longer "German

mile" or "Norwegian mile.")

1*3

Bering Sea, the Gulf of Alaska, and the Sea of Okhotsk by-
prohibiting them north of a line drawn between 45° north
on the Asian shore and 51° north on the American shore.
The Russian Representative in Washington advised the United

States government that the entire sea area involved was

56
considered Russian territory. This aroused heated re-
sistance not only in Washington, but also in London, for
the British had fishing interests in western Canada., Mean-
while, in 1822, a Russian sloop seized the United States

57
brig Pearl en route to Sitka. Negotiations bewteen the

three states resulted in conventions between the U. S. and

Russia (1824) and Britain and Russia (1825) in which Russia

58
gave up her 1821 Ukase pretentions. In 1829 the Pearl

was released by Russia with compensation; this appears to

be the only case in which Russia attempted to enforce the

Ukase.59

During the remainder of the century Russia conformed

generally to the three-mile rule. This was manifested on

a number of occasions in a number of ways. In 1868, the

Russian Foreign Minister informed the United States that

foreign whalers were forbidden within a distance of less

^ Hall, 0£. cit.9 p. 149 •

^'Baty, 0£. cit., p. 520 „

^ Hall, 0£. cit. 9 p» 150,

' Baty, loc. cit.

3M
than three miles from the Russian shore, where that right
was reserved for Russian subjects. In 1869, Russia leg-
islated the three-mile limit with respect to neutrality.
This was reaffirmed by Russia's 1893 Instructions to Cruis-
ers which established Russian territorial waters at three
miles, but in the same paragraph claimed the entire White

Sea as a closed Russian territorial sea within an 89-mile

62
cape-to-cape baseline. Then, finally, in May of the

same year, Russia succeeded in obtaining a degree of inter-
national approval of her efforts to protect the seal fish-
eries. In agreements negotiated with the United States
and Great Britain, those powers agreed to a prohibition
against seal fishing within ten miles of the Russian main-
land and within thirty miles of the Komandorsky Islands
and of Tulenew Island. ^

United States Government, Fur Seal Arbitration;
Proceedings of the Tribunal of Arbitration Convened at Paris
under the Treaty Between thelTnited States of America and
Great Britain, Concluded at Washington, February 29 » 1892
(Washington: Government Printing Office, 1895), British Case,
p. 88.

Mr. Lothrop to Mr. Bayard, St. Petersburg, April 11,
1887, quoting Article 21, chap. Ill, of Russian Prize Law
of 1869, in United States Department of State, Papers Re-
lating to the Foreign Relations of the United States, l8~87
(Washington; Government Printing"Uffice, 1862-present) ,
Po 957*

"Instructions to Cruisers," Revue ggnerale de droit

international public I (1894), p« 440, translated ancTre-

produced in Crocker, op. cit., p. o21.

•^Great Britain and Russia, "Agreement of May 10,

1^5

The Lesser Powers

Europe . Many of the lesser states of Europe fol-
lowed Britain1 s lead. Denmark, who had traditionally mea-
sured her territorial sea at one league of four miles ,
became a party to the three-mile North Sea Fisheries Con-
vention of 1882. She thereby accepted the three-mile limit
— for fishing — with regard to the six other littoral signa-
tory states. * Belgium * and the Netherlands, also signa-

22, 30, 1893 relative to Seal Fisheries," Hertslet, 0£.
cit., vol. XIX, p. 818; and United States and Russia,
"Agreement for a modus vivendi in relation to the fur-seal
.fisheries in Bering Sea, May 4, 1894," British and Foreign
State Papers, vol. 86, p. 272.

6/fSee infra, p. 162.

65
^In 1832, Belgium enacted a rather complicated

customs law which called for two seaward boundaries: one
at one myriameter (about six miles), and one at one-half
myriameter (about three miles). Within the outer zone,
visit and search was authorized, but vessels, could be
seized only in the inner zone when within two and one-half
kilometers of the land, and then only if they were under
30 tons. (Belgium, "Law of June 7, 1832." translated and
reproduced in Crocker, op_. cit. , p. 511- 5 This multiple
zone arrangement has been evaluated as a three-mile terri-
torial sea by a number of publicists: Calvo, op_. cit. , p.
477; Jessup, ap_. cit., pp. 87-88; Baty, op_. cit., p. 520;
and Fulton, op_. cit. , p. 658.

The Dutch advised Great Britain in 1874 that they
regarded the seaward limit as being fixed at three miles
under international law. (C. B. V. Meyer, The Extent of
Jurisdiction in Coastal Waters (Leyden, Netherlands, 1977),
p. 204, citing an Intergovernmental Letter from the Foreign
Minister of Norway and Sweden, dated November 17, 1874;
and Herbert A. Smith, Great Britain and the Law of Nations
(London: P. S. King and Son, 1935), vol. II, p. 2567T~
Eight years later, the Netherlands signed the 1882 North
Sea Fisheries Convention. The Dutch government then

tories, had previously adopted the three-mile limit in
1832 and 1874, respectively, Greece followed suit with a
three-mile fishing limit in 1869. Italy signed the three-
mile Suez Convention of 1888, but that was her only nine-
teenth century association with the three-mile limit.
The Ottoman Empire was also a signatory to the Suez Con-
vention, and in 1693 she went a step further and .fixed a
three-mile fishing limit around the island of Crete. ^

issued a Royal decree, confirming her earlier actions, and
fixing three miles as the limit of her territorial waters©
("Royal decree of March 20, 1834," cited in Fulton, ojd.
cit., p. 658.)

67
'Fulton, 0£. cit., p. 66l ; Jessup, 0£. cit. , p. 45;

and Baty, oj>. cit., p. 523.

Italy adhered quite closely to the cannon shot rule

throughout the century. At the time of the North Sea Fish-
eries Convention the Italian Fisheries Commission had rec-
ommended adoption of the three-mile limit, but the govern-
ment did not implement the recommendation until after the
turn of the century, and then only with respect to coastal
dredging in the Tyrrhenian Sea. (Fulton, 0£. cit. , p. 660,
citing Decree of September 4, 1908.) For customs, Italy
preferred a wider zone. In 1874, Italy advised Great Brit-
ain that "... the political dominion which creates complete
jurisdiction extends over the sea to a distance within
reach of cannon shot; but that following the example of
most other states, including England, Italy has carried
the limits within which operations for the protection of the
Customs Revenue may be effected to a distance of ten thou-
sand meters from the coast." (Italian diplomatic note of
October 15, 1874, Herbert A. Smith, loc. cit.) This was
formally confirmed in 1892 when Italy concluded a conven-
tion with Egypt, calling for a ten-kilometer customs zone.
("Commercial Convention of February 1, 1892," translated
and reproduced in Crocker, 0£. cit., p. 599, citing British
and Foreign State Papers, vol. 83, pp. 165-166.)

^"Notice by the Governor General of Crete respect-
ing the coast fishing, April 10, 1893, M British and Foreign
State Papers „ vol. 85, p« 1286,

1*7
Spain, too, experimented with a three-mile limit, but only-
brief ly, between 132$ and 1330. 70

The Orient. Colonization of the Orient by the three-
mile maritime powers of Europe reached its peak during the
nineteenth century. The few oriental states which retained
their independence and which made claims to territorial seas

opted for three miles. Japan proclaimed a three-mile neu-

71
trality zone during the Franco-Prussian War.' Hawaii, an

independent monarch between 1844 and 1393, did likewise.
During both the Crimean War and the Russo-Turkish War (1377-
1373), King Kamehameha issued proclamations declaring neu-
trality and advising that the extent of Hawaiian jurisdic-

On March 31, 1328, a Spanish Royal order was issued

adopting a three-mile anti-smuggling zone. (Smith, op.
cit. , pp. 183-134.) Only two years later, however, the law
of May 3» 1830 was passed, adopting a six-mile zone in its
place (ibid. , pp. 174, 17o) . Thomas Fulton reported that
Spain and Portugal later concluded a treaty, in 1885, pre-
scribing a three-mile limit for exclusive fishing rights
with respect to the coasts and fishermen of the two states.
(Fulton, 0£. cit. , p. 666.) But Fulton^ statement about
the 1885 treaty cannot be corroborated with any other source
and is doubtful. His footnote cites the Treaty of October
2, 1835 which contains no three-mile provision. See infra,
Chapter VIII, p. 173.

'The Japanese proclamation of July 28, 1870 reads:
"The two nations may not engage in battle between ports
and inland seas, nor within three miles from land on the
high seas. Their warships or merchant vessels may, how-
ever, pass as heretofore." (Crocker, 0£. cit., p. 603.)
Although the proclamation was later revised, changing "three
miles" to "three ri [about 6 miles] . . . such being the
range of the cannons," subsequent decisions by the Sasebo
Prize Court upheld the three-mile limit. (Ibid., pp. 603-
604.)

lH-8

tion over the sea was one league from low water.

The Western Hemisphere. Possibly because of Chile1 s
particularly extensive maritime frontier, she led the way
for the other Latin American states in making pronounce-
ments concerning the territorial seas. The Civil Code of
Chile, enacted in 1855 , provided for the dual zone concept .
—an inner zone of territorial seas and an extended zone
for other purposes — practiced by several of the northern
hemisphere countries:

Article 593 • The contiguous sea to the distance
of a marine league counted from the low-water lines
is a territorial sea appertaining to the national
domain; but the right of police, in all matters con-
cerning the security of the country and the observance
of the customs laws, extends to the distance of 4 marine
leagues counted in the same manner, 73

Within the next twenty-five years, four other Latin American

' "Proclamation of the King of the Hawaiian Islands

declaring the neutrality of his dominions in the war between
Great Britain, France, Turkey, and Russia, May 16, 1854,"
Hertslet, op_. cit . , vol, 14, p. 380, reproduced in Crocker,
op. cit., pp. 595-596; "Proclamation of neutrality in the
war between Russia and Turkey, May 29, 1877," British and
Foreign State Papers, vol. 68, p. 785.

'-^Chilean Civil Code, December 14, 1855, translated
and reproduced in Crocker, op_. cit . , p. 512; and United
Nations, Laws and Regulations on the Regime of the High Seas
(New York: United Nations, 19 5U, vol. I, p.Tl. During
the Franco-Prussian War of 1870, Chile declared a neutrality
zone of 150 miles. (Albert G. de Lapradelle, "Le droit de
l'Stat sur la mer territoriale," Revue ggnerale de droit
international public, V (1898), p. 338.) This nineteenth
century anomaly in Chilean practice is more interesting when
considered in the light of Chile's 200-mile claim the fol-
lowing century* See infra. Chapters XI and XII.

1^9

states followed suit with civil codes in language virtually
the same: Ecuador in 18577S El Salvador in i86075; Argen-
tina in ld697 ; and Honduras in 1880. 77 Without giving a
date, Jean Pierre Francois states that Brazil, too, adopted
the three-mile limit during the "nineteenth century."7

In the north, the Dominion of Canada was constituted
in 186? with the merger of New Brunswick, Nova Scotia and
Quebec (formerly Upper and Lower Canada). One year later,
Canada adopted a three-mile limit for fisheries.

n 1

'^Ecuadorian Civil Code of November 21, 1857, Article
582, United Nations, Laws and Regulations on the Regime of
the High Seas, vol. I, p. 67.

'^El Salvadorian Civil Code of i860, Article 574,

ibid., p. 71.

Argentinian Civil Code of September 29, 1869,

Article 2340, ibid., p. 51.

"Honduran Civil Code of August 27, 1880, Article

671, ibid., p. 80.

United Nations, Second Report on the Regime of the

Territorial Sea, J. P. A. Francois, Reporter (U.S. Doc. No.

A/CN.4/61, February, 1963) in United Nations, Yearbook of the

International Law Commission, 1953 (U.N. Doc. A/CN . 4/

Ser. A/1953/Add. i; (New York: United Nations, 1959), p. 60.

' 7"Act by the Government of Canada Respecting Fishing

by Foreign Vessels, May 22, 1868," Hertslet, op. cit. , vol.
13, p. 1107. In 1888, Canada proposed to the Foreign Of-
fice that "... all salt water within three miles of the
shore . . • should be considered within the absolute juris-
diction of Canada." (Memorandum, General Cameron to Colon-
ial Secretary, 1888, Baty, 0£. cit., pp. 525-526.) The
British responded that "... the right of the American
Government to make regulations ... in the waters within
the three-mile limit, is not disputed." (Letter, Sir Charles
Tupper (Canadian High Commissioner in London) to Colonial
Secretary, August 9, 1889, ibid., p. 525.)

150

United States, Although the United States did not
become an avid proponent of the three-mile limit until the
twentieth century, she did not waver, at least on a formal,
official basis, from her 1793 position. On several occa-
sions, in fact, she protested violations of, or departures
from, the three-mile limit. The protest against the Ukase
of 1321 has already been mentioned.

During the American Civil War, Secretary of State
William Seward chided the British Charge for what he con-
sidered to be a veiled suggestion by the British to turn
back the clock to the cannon shot rule:

. , . Her Majesty's government have through you,
expressed a hope that the United States will concur
with the British government in opinion that vessels
should not fire towards a neutral shore at less dis-
tance than that which would insure shot not falling
in neutral waters, or in neutral territory. . • .

. . . Are Her Majesty's government to be understood
as proposing that cannon shot shall not be fired within
a distance of eight miles from neutral territory?©0

The United States was also concerned that its fish-
ing interests might clash with those of Russia in the North
Pacific. In a diplomatic note the United States reminded
the Russians of the practice of nations whereby:

... No nation would claim exemption from the
general rule of public law which limits its maritime

Secretary of State Seward to Mr. Burnley, British
Charge, October 16, 1364, reproduced in Crocker, op_. cit. ,
pp. 062-664, quoting U. S. Diplomatic Correspondence, 1864,
vol. 2, p. 708.

151

jurisdiction to a marine league from its coast. We
should particularly regret if Russia should insist on
any such pretension. 81

On a later occasion in 1879 , the United States pro-
tested to Mexico, in the case of a Mexican attack on an

American merchant vessel, more than three miles distant from

82
the Mexican coast. An even stronger protest had been made

in 1862 against Spain; this will be considered in the next

chapter.

III. NINETEENTH CENTURY PUBLICISTS

The English publicists have already been noted.
Unlike them, the publicists of other states were not gener-
ally so unanimous in their approval of the three-mile limit.
Those who acknowledged the three-mile limit — whether they
approved of it or not — will be mentioned here. They are
more numerous than those who did not acknowledge it, and
who will be considered in the next chapter.

Publicists Preferring the Cannon Shot Rule

Quite a number of the nineteenth century publicists
— other than British — were still partial to the cannon shot

"Secretary of State Fish to the United States
Minister to Russia, December 1, 1875, Moore, Digest, vol.
I, pp. 70 5-706.

Secretary of State Evarts to Mr. Foster, April 19,
1879, Francis Wharton, A Digest of International Law of the
United States (second edition; Washington; GovernmentTrint-
ing Office, 1887), vol. I, p. 106.

152
doctrine of the previous century. Although this group
acknowledged that the three-mile rule had become commonly
accepted in the practice of states, they recommended that
territorial waters should be extended proportionally with
the increase in the range of coast artillery. One of the
most distinguished publicists in this group was the Russian
professor, diplomat, arbitrator, and member of the Perma-
nent Court of Arbitration, Fedor Fedorovich de Martens
(1845-1909). Writing in 1894, he advocated increasing the
territorial seas from three miles to ten miles. ^ A few
years earlier (I887), the Spanish publicist, Marquis de
Ramon de Dalmau y de Olivart (1861-1928), had used the same
logic to justify Spanish and Portuguese claims to six miles. *

83
■'In 1882, de Martens had written that "... the

majority of treaties and authors recognize as a formal
limit of the littoral seas a distance of three English
miles." (Fedor Fedorovich de Martens, Traite de droit in-
ternational, trans, from Russian by Alfred LeoTParis:
Chevalier-Marescq and Co., I883-I887) , vol. I, p. 500,
translated and reproduced in Edwin M. Borchardt (ed.),
North Atlantic Coast Fisheries Arbitration: Coastal Waters
I Washington: Government Printing Office, 1910 J , p. 225. )
A few years later de Martens wrote: "We must recognize,
however, that the limits of the territorial sea ought to
change with the modification in the range of cannon. • . .
If at present cannons carry to 12 or 15 miles, the territor-
ial sea of modern adjacent States ought also to extend to
15 miles. ... In our opinion the limit of 10 miles is more
in accord with the mean range of modern cannon, and a more
efficacious protection of the interests of the adjacent
population which live upon maritime fishing." (Fedor
Fedorovich de Martens, "Le tribunal d* arbitrage de Paris
et la mer territoriale," Revue Generale de Droit Intern-
ational Public, I (1894), pp. 39, 43J

8^L

ike de Martens, de Olivart, a Madrid lawyer, ad-

153

The Argentinian publicist, Carlos Calvo (1824-1906), prob-
ably the leading modern-day Spanish language publicist,
had similarly suggested a five-mile territorial sea based
on the contemporary cannon range in 1868. -> Most of the
French publicists of the century, including Jean Felicite
Theodore Ortolan (lSOS-1874) ,86 Antoine Louis Nuger,87

mitted that generally practiced international law had set
the limit at three miles, but he argued that the limit
should not be considered as invariable. (Marquis de Ramon
de Dalmau y de Olivart, Tratado de derecho internacional
publico (fourth edition revised ;~Mardid: V. Suarez, 1903-
1904), vol. I, p. 204-205.) Translated by author. (De
Olivart' s first edition of this work appeared in 1887.)

^Calvo, who had served successively as Argentinian
Minister to Paris and to Berlin, acknowledged that the
". . . general doctrine of international law concerning
the coastline is that territorial jurisdiction ceases 3
miles from shore." He then held that the three-mile limit
was not unalterable, as it no longer agreed "... with the
range of the newly perfected guns, whose balls can be pro-
jected to a distance of 5 miles; it is only just, then, that
this limit should be proportionally extended." Calvo, op.
pit. , pp. 47#,4#4. ( Calvo* s first edition appeared in
1863.) Translation by author.

Theodore Ortolan, a French naval officer, noted
that the range of cannon shot had been commonly accepted
as three miles. He believed, however, that the rule of
cannon shot was better founded, and advocated the idea that
when cannon range increased, that the treaties and laws
ought also to increase proportionally. Theodore Ortolan,
Regies internationales et diplomatie de la mer (second
revised edition; Paris: Plon freres, 1833 7T vol. I, p. 169,
translated and reproduced in Borchardt, North Atlantic Coast
Fisheries Arbitration, pp. 284-285.

'Nuger wrote only one book, a doctor's dissertation,
which has been cited with approval by many publicists since.
He shared the view of Ortolan, supra, but felt more strongly
about it: "We are satisfied to have shown that the fixed
measure of 3 miles is common to all nations, and has a
tendency to become more generally adopted every day. . • .
The truth is that this identification, correct at one time

15^

Paul Louis Ernest Pradier-Fodere (1827-1904) ,^ and Joseph
B. Irabart de Latour (1859-1924), 9 shared much the same
opinion on the matter. And at least one German language

publicist, the Austrian Franz von Liszt (1851-1919), num-

90
bers among the group. The German, Georg Friedrich von

when the range of cannon did not exceed 3 miles, -is today
nonsense. Antoine Louis Nuger, De 1' occupation: Pes droits
de 1'efrat sur la mer territoriale~TParis: Impr. Moauet.
I3"87J, pp. 178-179, translated and reproduced in Borchardt,
North Atlantic Coast Fisheries Arbitration, pp. 237-238.
The dates of Nuger* s birth and death could not be found in
Washington, D. C. The Bibliotheque Nationale, Paris similarly
was unable to determine them. Jean Bruno, Conservateur,
Bibliotheque Nationale, Paris, letter to author JB/AKA-
78596/70-035, 19 January 1970.

Pradier-Fodere, professor of international law,
vrote an eight-volume treatise on European and American
international law. Writing concurrently with Nuger, supra,
he took almost the same position, but in terms not quite
as harsh: "The distance adopted by the majority of States,
calculated from low-water mark, is 3 geographic miles, 60
to the degree of latitude, and one may therefore see how,
in view of the perfection in the art of artillery, it would
become necessary to modify this mode of limiting the maritime
territory. . . • [Njothing prevents States from fixing a-
mong themselves by treaty a different limit to the territor-
ial sea." Paul L. E. Pradier-Foder6, Traite de droit intern-
ational public europeen et americain, suivant les progr5s
de la science et de la pratique contemporaine {8 vols • ;
Paris: G. Pedone-Lauriel, 1885-1906), vol. II, p. 154, trans-
lated and reproduced in Crocker, op_. cit. , p. 396.

Joseph B. Imbart de Latour, French advocate and

doctor of law, acknowledged the popularity of the three-
mile rule but preferred a seaward boundary which would
vary with the increases in cannon range. Joseph 3. I. de
Latour, La mer territoriale au point de yue theorique et
pratique~TPari s: G. Pedone-Lauriel, lH8"9), p. 34, trans-
lated and reproduced in Borchardt, North Atlantic Coast
Fisheries Arbitration, p. 178.

Hn I898, von Liszt wrote that the three-mile limit
had become established in modern practice as a result of

155
Martens (1756-1821), also seemed to favor the cannon shot

principle, but his work preceded the period of popular ac-
claim for the three-mile rule. Moreover, he equated can-
non shot with three leagues, probably through a printing
or translating error, which makes it difficult to ascertain
and assess von Martens* position.

the laws and treaties of states. He felt, however, that
territorial seas had as a purpose the defense of a state
and were reckoned as a function of the stated ability to
defend itself. He pointed out that cannon range had in-
creased to from five to seven miles and that it would be
"... advisable to return to the old rule . . ."of cannon
shot. Franz von Liszt, Das Volkerrecht, systematisch
dargestellt (fifth edition; Berlin: 0. Haring, 1907), pp.
86-87, translated by Karoline Klager and reproduced in
Borchardt, North Atlantic Coast Fisheries Arbitration,
pp. 216-217.

Von Martens, a prolific publicist and jurist, is

most well known for his monumental, multi-volume Recueil
des traites. He published the first edition of his Precis
in 1789, only seven years after Galiani. In it there ap-
pears a most interesting passage: "The sea surrounding
the coast, as well as those parts of it which are land-locked,
such as the roads, little bays, gulphs, &c. as those which
are situated within cannon shot of the shore (that is,
within the distance of three leagues), are so entirely the
property, and subject to the dominion, of the master of the
coast. ... In short, these parts of the sea surrounding
the coast, ought to be looked upon as forming a part of the
territory of the sovereign. ..." (Georg F. von Martens,
Summary of the Law of Nations (Precis du droit des gens) ,
trans, from French T>y William Cobbett "["Philadelphia! Thomas
Bradford, 1795], pp. 165-166.) This equation of cannon
shot to three leagues is inconsistent with everything that
can be determined from available documents concerning ar-
tillery and ordnance of that period. As pointed out in
Chapter III, supra, artillery of von Martens' day was just
under three miles. Wyndham Walker, in his essay on the
cannon shot rule, comments on this paragraph of von Martens,
stating ". . .it appears that in the first edition of the
Precis (1789) a curious error has crept in, making three
leagues equivalent to cannon shot." (Wyndham L. Walker,
"Territorial Waters: The Cannon Shot Rule," British Year-
book of International Law, XXII [1945], p. 229.) Bernard

156

Publicists Preferring the Three-Mile Rule

An even greater number of the nineteenth century-
publicists wrote approvingly of the three-mile rule.
Certain of them such as the Italian Domenico Alberto
Azuni (1760-1S27)92 and the Austrain Felix Stoerk (1S51-

G. Heinzen observes that this appears to have been straight-
ened out by 1796, when there was published a German edi-
tion, acknowledging that no cannon could shoot as far as
three leagues. (Bernard Heinzen, "The Three-Mile Limit:
Preserving the Freedom of the Seas," Stanford Law Review,
XI [July, 1959] t P« 6l6.) In any event, the French second
edition reads: "Can a nation acquire an exclusive right
over . . . parts of an adjacent sea which exceed the range
of cannon or even the distance of 3 miles?" (Georg F. von
Martens, Precis du droit des gens modern de 1* Europe [sec-
ond edition by Ch. Verge"; Paris: Guillaumin, 1864J » P« 144»
translated and reproduced in Borchardt, North Atlantic
Coast Fisheries Arbitration, p. 219.) This edition, although
edited and published after von Martens' death, seems to re-
solve the problem. The latter rhetorical question, inci-
dentally, was answered in the affirmative with the proviso
that in order to do so, the coastal state must possess a
maritime police force or fleet strong enough to guarantee
the extended claim.

" Azuni, jurisconsult and expert on maritime affairs,
followed closely, as might be expected, the lead of Galiani.
He commented very favorably on Bynkershoek's opinion that
a territorial sea the width of human sight was too variable.
Azuni examined the mare clausum claims of the Venetians
and English, but sided with the mare liberum concept held
by the Dutch and French: "In this conflict of opposite
opinions, I adopt that of Galliani [sic]. ..." (Domenico
Azuni, The Maritime Law of Europe, trans. William Johnson
[New York: George Forman, for I. Riley and Co., 1S06], p.
204.) Then, in language practically identical to that of
Galiani, he faulted the cannon shot rule for its imprecision,
and adopted the three-mile rule: "It would be reasonable,
then, in my opinion, without enquiring whether the nation,
in possession of the territory, has a castle, or battery,
erected in the open sea, to determine, definitively, that
the jurisdiction of the territorial sea shall extend no
farther than three miles from the land, which is, without
dispute, the greatest distance to which the force of gun-
powder can carry a ball, or bomb." (Ibid., p. 205. Cf. with
author's translation of Galiani on p. 103.

157

1908) espoused the position that the three-mile rule was
a substantial improvement over the cannon shot rule, which
they considered obsolete. Others, including the American
Henry Wheaton (1785-I848) , and the Germans, August Wilhelm
Heffter (1796-1880) ,95 Heinrich Bernard Oppenheim (1819-

'^Stoerk earned renown as the translator and editor

of von Martens epic Nouveau recueil des traites. He also
wrote considerably on his own, contributed several essays
to von Holtzendorff 's Handbook. In one of these essays he
points out that submarines, mines, dirigibles, and tor-
pedoes have made the principle of cannon shot obsolete and
that the three-mile limit has logically taken its place.
Felix Stoerk, "The Legal Regulation of the International
Maritime Traffic outside of the Territory of the Adjacent
State," in Franz von Holtzendorff, et al.. Handbuch des
Volkerrechts (Berlin: C. Habel, I885-IM9), vol. II, p.
473 , trans, by J. Mattern and reproduced in Borchardt,
North Atlantic Coast Fisheries Arbitration, p. 95.

94
^Wheaton, American diplomat and lawyer, wrote his

first edition of Elements in 1336. It has since been
acclaimed as one of the Classics of International Law.
On the subject of territorial waters, he wrote that the
general usage of nations extends "... territorial juris-
diction a distance of a marine league, or as far as a
cannon-shot will reach from the shore, along all coasts of
the state." Within these limits, Wheaton declared, the
rights of property and territorial jurisdiction of a state
are absolute. Henry Wheaton, Elements of International
Law (eighth edition by Henry Dana, Jr., ; Boston: Little,
Brown and Co., 1866) , p. 255.

"^Heffter, a Saxon professor and jurist, as early
as I844 cited the practice of Great Britain, France, the
United States, and Belgium as evidence that the three-mile
limit had become law. August Wilhelm Heffter, Le droit
international de 1' Europe (fourth edition; Berlin: H. W.
Muller, and Paris: A. Cotillon and Co., I883). p. 171,
translated and reproduced in Borchardt, North Atlantic
Coast Fisheries Arbitration, p. 80. (First edition, 1844.)

158

lSSO),y ' and Ludwig Gessner (IS2S-IS90) ,97 observed that the
states had abandoned the cannon shot rule in favor of the three-
mile rule as a matter of simple evolution. Still others, such
as the Swiss publicist Johann Kaspar Bluntschli (1303-13#1) ,^

Heinrich Oppenheim, German publicist and political

economist, writing in 1345 (one year after Hef f ter) , stated
that territorial seas had traditionally been measured by
cannon shot, but, citing the l3lS Anglo-American and the
1^39 Anglo-French treaties, observed the trend toward fix-
ing the territorial sea at three miles. Heinrich B. Oppen-
heim, System des volkerrechts (second edition: Stuttgard
and Leipzig, 1866;, p. 127, translated by Karoline Klager
and reproduced in Borchardt, North Atlantic Coast Fisheries
Arbitration, p. 277. (First edition, 1845.)

"Gessner' s logic concerning the evolution of the

three-mile limit is difficult to follow. He states that

the "... proposition of Bynkershoek has been generally

adopted. This is why the rights of riparians have been

augmented by the invention of rifled cannon. Formerly this

distance was estimated at two leagues. To-day we ordinarily

take as a basis three geographic miles." (Ludwig Gessner,

Le droit des neutres sur mer (Berlin: Stilke et van Muyden,

1^65J, p. 17, translated and reproduced in Borchardt, North

Atlantic Coast Fisheries Arbitration, p. 70.) This remark

about two leagues could have been prompted by any one of

several two-league claims of the seventeenth or eighteenth

centuries, but, appearing where it does in this passage, it

seems to be a non sequitur.

^Bluntschli, legal scholar, statesman, professor,
and founder and president of the Institute of International
Law, took exception to Calvo's views on extending the terri-
torial sea with increases in cannon range: "The perfecting
of cannon is of importance for the defense of the country
and has no effect upon the utilization of the territorial
waters for fishing, oyster beds, etc. In this respect we
must consider the distance of ... 3 English miles, as
continuing to exercise its effect and the extension of the
sovereignty of the State over the high seas is not justi-
fied." Johann K. Bluntschli, Le droit international cod-
jfie, trans, from German by M. C. Lardy C fifth edition
revised; Paris: Guillaumin, 1#95), para. 302, translated
and reproduced in Crocker, 0£. cit., p» 3.

159

the Italian Pasquale Fiore (1337-1914)," and the French-
man B. Castel, strongly supported the three-mile rule
on the basis that it was an all-purpose rule serving well
all the national requirements for territorial waters.

Publicists Preferring Various Limits for Special Purposes

There was still a third group of publicists, con-
versely, who approved of the three-mile rule, but only for
certain purposes. They believed that states' needs would
be best served by various limits for various purposes.
The most articulate of these was Albert Geouffre de Lapra-
delle (1871-1955). Writing in I898, he departed from the
traditional French adherence to the cannon shot rule. In

77Fiore, writing in 1$90, agreed expressly with

Bluntschli's codification efforts, and similarly "codi-
fied" the law concerning the extent of the territorial
sea: "By customary law, the territorial sea extends to
three miles from low water mark." Pasquale Fiore, Inter-
national Law Codified and its Legal Sanctions (trans, from
fifth Italian edition by Edwin M. Borchardt; New York:
Baker, Voorhis and Co., 191S), p. l&L.

Castel, in his doctor's dissertation published in
1900, declared the limit of three miles to be adequate for
all the needs of a state. (B. Castel, Du principe de la
liberte des mers et de ses applications dans le droit
commun internationalTToulouse: Impr. Causse,"T900) , p.
86, translated and reproduced in Borchardt, North Atlan-
tic Coast Fisheries Arbitration, p. 43.) Neither the
dates of Castel 's birth and death, nor his first name could
be ascertained. Conservateur Bruno of the French National
Library advised the author that Castel was "... not well
enough known to be mentioned in the current annuals or
dictionaries. Neither Castel *s thesis, nor the Catalogue
of Theses gives his first name." Bruno, loc. cit. , trans-
lation by author.

i6o

its place he elaborated a sophisticated system including
a three-mile limit for neutrality, "three or four" miles
for fishing — accommodating the Scandanavians, and four
leagues for customs. At least two United States pub-
licists should be listed in this category. James Kent
(1763-1847) recommended a much wider belt — over 100 miles

in certain coastal areas—for purposes of security and

102
neutrality. Likewise Henry Wagner Halleck (1315-1372)

advocated that a state was competent to exercise customs

and security jurisdiction beyond the three-mile limit. 10^

Albert G. de Lapradelle, 0£. cit., pp. 340-343 .

102

Kent, professor of law and later Chief Justice

of the Supreme Court of New York, published the first
edition of Commentaries in 1#26. It has since gone through
fourteen editions. He recognized the marine league to be
the established legal extent of territorial seas. But he
was not satisfied with so narrow a limit in view of the
extensive American coasts and the problems of defending
them. He suggested that the government assume control of
all coastal waters "... within lines stretching from quite
distant headlands, as, for instance, from Cape Ann to Cape
Cod, and from Nantucket to Montauk Point, and from that
point to the capes of Delaware, and from the south cape of
Florida to the Mississippi [ ! J" (James Kent, Commentaries
on American Law [fourteenth edition by John M. Gould;
Boston: Little, Brown, and Co., 1896J, vol. I, p. 29.)
Such a baseline would enclose waters of the Gulf of Mex-
ico as far as 140 nautical miles from land.

•'General Halleck served as Secretary of State of
California and as Chief of Staff of the Army in addition
to writing many volumes on politico-military matters and
international law. On territorial waters, he stated the
cannon shot maxim poetically:

Far as the sovereign can defend his sway,
Extends his empire o'er the wat'ry way:
The shot sent thundering to the liquid plain
Assigns the limits of his just domain.

(cont°d)

161

IV. INTERNATIONAL ARBITRATIONS AND
MULTINATIONAL CONVENTIONS

In addition to the writings of publicists and the
practice of individual states, several international ar-
bitrations and multilateral conventions of the nineteenth
century contributed to the growth of the three-mile rule.

The Schooner Washington (1855)

The three-mile limit was supported by international
arbitration as early as 1855- A United States-British
Claims Commission was appointed under a Convention of
February 8, 1853 between the two countries. The Commis-
sion was to consider the case of the American fishing
schooner Washington, which, on May 10, 1843 > had been seized
while fishing ten miles from the shore in the Bay of Fundy,
taken to Yarmouth, Nova Scotia, forfeited to the Crown by

(Henry Wagner Halleck, Halleck' s International Law [fourth
edition by Sir G. Sherston Baker; London: K. Paul. Trench,
Trubner, and Co., Ltd., 1908], vol. I, p. 168.) (The poem
also appears in Azuni's Maritime Law of Europe (1795) >
English translation (1806), p. 204. Azuni quotes the poem
as "Del Diritto della Natura," lib. 5» by an anonymous
author.) halleck then notes that the cannon shot range,
by general usage, had become standardized at a distance of
one marine league or three miles. Then he added: "And
even beyond this limit States may exercise a qualified
jurisdiction for fiscal and defensive purposes — that is,
for the execution of their revenue laws and to prevent
•hovering on their coasts*." Halleck, 0£. cit., p. 168.

162

the vice-admiralty judge, and ordered sold. The United
States was pressing a claim on behalf of the owners. The
United States' contention was simply that the Washington
had been fishing on the high seas outside the three-mile
limit specified in the Convention of 1818. The British
contention was that the Bay of Fundy was one of the bays
that the United States had renounced its right to fish in
under the terms of that treaty.

The Umpire, Mr. Joshua Bates, pointed out that the
Franco-British fishing treaty of 1839 had defined closed
bays as those which measured ten miles or less from head-
land to headland. Conversely, he noted that the Bay of
Fundy was 65 to 75 miles wide and therefore could not be
considered as a bay under the treaty of 1818, but rather
as high seas, just as the Bay of Bengal and the Bay of
Biscay are high seas bays. Accordingly, on January 13,
1855, he decided the case on the basis of the three-mile
rule in favor of the American owners of the Washington. *

The North Sea Fisheries Convention (1832)

Earlier in this chapter several references were made
to the North Sea Fisheries Convention. The full, formal
title is: "Hague Convention of 1882 for the Regulation of

^John Bassett Moore, History and Digest of the

International Arbitrations to which the United States

Has Been a Party (Washington: Government Printing Office,
139877vol. IV, p. 4342.

163

the Police of the Fisheries in the North Sea outside Terri-
torial Waters." The Convention had an important influence
on the views and practice of its signatories. For example,
Denmark, the only Scandinavian signatory to the Convention,
later adopted a three-mile territorial limit, the only
Scandinavian country to do so. Other signatories, too,
adopted the three-mile limit, if they had not already done
so, or clarified ambiguities in their practice.

The important provisions of the Convention are as
follows :

Article 2. The fishermen of each country shall
enjoy the exclusive right of fishery within the dis-
tance of 3 miles from low water mark along the whole
extent of the coasts of their respective countries,
as well as of the dependent islands and banks.

As regards bays, the distance of 3 miles shall be
measured from a straight line drawn across the bay
in the part nearest the entrance, at the first point
where the width does not exceed 10 miles. • . .

Article 3. The miles mentioned in the preceding
article are geographic miles whereof sixty make a
degree of latitude. 105

The signatory powers included Great Britain, Germany, Bel-
gium, France, Denmark, and the Netherlands. Norway and
Sweden (one state under the Swedish king at the time) was
the only state littoral to the North Sea which did not sign
the Convention.

Under the Convention all fishing vessels were to be

•^Foreign Relations of the United States, 1387 1
439.

164

registered and were to display an identifying emblem, which
was to distinguish them from vessels of non-signatory states
The Convention went as far as authorizing the naval vessels
of all six signatories reciprocally to visit, search, and
seize vessels of their several nationalities in order to
enforce the rules.

The Suez Canal Convention (1888)

Not as significant in its development of the three-
mile rule, but nevertheless worthy of mention, is the Suez
Canal Convention. The most important provision of the Con-
vention was its neutralization of the Suez Canal, guarantee-
ing that the Canal would be open in time of peace as well
as in time of war to the merchantmen-, and warships of all
states. In doing so it recognized the three-mile rule:

4. The Maritime Canal remaining open in time of
war as a free passage, even to the ships of war of
belligerents, according to the terms of Article 1 of
the present Treaty, the High Contracting Parties agree
that no right of war, no act of hostility, nor any act
having for its object to obstruct the free navigation
of the Canal, shall be committed in the Canal and its
ports of access, as well as within a radius of three
marine miles from those ports, even though the Ottoman
Empire should be one of the belligerent Powers. 107

The Convention was signed on October 29, 1888 in Constan-
tinople. Great Britain, Austria-Hungary, France, Germany,

Ibid. , and British and Foreign State Papers,
vol. 73, p. 39.

'Crocker, ojd. cit. , p. 4&7.

165

Russia, Italy, the Netherlands, Spain, and Turkey ratified
the Convention.

The Bering Sea Arbitration (1893)

By the Seward Convention of 1367, Tsar Alexander II
sold to the United States all the Russian territory and
dominions on the continent of America, together with the
adjacent islands. The western boundary of the area ceded
passed south through the Bering Strait, and then south-
westerly so as to pass midway between Attu (the westernmost
of the Aleutians) and the Komandorski Islands.10^

By this treaty, Russia ceded not only Alaska, but
also half of her problems in conservation of the fur seals.
The substance of the problem was this: open sea (or pelag-
ic) sealing was a most efficient way of catching the seals,
very valuable for their fur. Yet because of the habits of
the animals, the catches consisted of 80$ to 90$ females
(cows), searching the surface of the high seas for food for
their pups, which died if their mothers did not return.

The fur seals were in real danger of complete extinction

109
as a result of the unrestricted pelagic fishing. 7

108

United States and Russia, "Convention ceding

Alaska, March 30, 1867," William M. Malloy (ed.), Treaties,

Conventions, International Acts, Protocols and Agreements

between the United States of America and""Uther Powers, 1776-

1909 (Washington: Government Printing Office, 1910), voTTTl,

pp. 1521-1522.

^William Williams, "Reminiscences of the Bering

166
Both the Russians, in 133 5, 110 and the United States,
in 1369, passed laws which strictly forbade the taking
of cows. But the Japanese and British (Canadians) were not
affected by Russian and American domestic legislation, and
continued to take seals. In a bold attempt to exclude for-
eigners, in 1331 the U. S. Treasury Department interpreted
the U. S. conservation legislation as applying to- all waters
of the Bering Sea east of the 1367 treaty boundary and sent
Coast Guard cutters to enforce the new interpretation.112
At first, foreign seal fishermen were only warned. But in
1836 the Coast Guard commenced seizing British vessels.
Fourteen were seized between 1336 and 1390 at distances
from 15 to 115 miles from land, in the United States "sec-
tor" of the partitioned Bering Sea. •* The ships were con-
fiscated and their crews were fined and imprisoned. The

Sea Arbitration," American Journal of Internatioal Law,
XXXVII (October, 1$43), p. WT7

Gordon Ireland, "The North Pacific Fisheries,"
American Journal of International Law, XXXVI (July, 1942),
p. 400.

Fur Sea Arbitration Proceedings, op. cit., vol. I,
pp. 33-39, quoting text of legislation.

vifilliaras, 0£. cit. , p. 563.

113

"'U. S. Treasury Department, Acts of Congress,

Presidents' Proclamations, Regulations Governing U . S".

Vessels, Acts of Parliament, Orders in Council, Pertaining

to the Fur Seal Fisheries in Bering Sea and North Pacific

Ocean, U. S. Treasury Department Document No. 1850 (V/ash-

ington: Government Printing Office, 1396), pp. 21-22.

167

British protested vigorously, and the United States agreed

to negotiate the matter. A modus vivendi was concluded in

1891, and renewed in 1892, to the effect that the British

would not permit seal fishing in the Bering Sea and that the

United States would not confiscate British vessels until the

matter could be arbitrated.

An arbitration convention was concluded in 1892.

The two governments submitted five questions to arbitration,

the key question being:

5. Has the United States any right, and if so,
what right of protection or property in the fur-seals
frequenting the islands of the United States in the
Behring Sea when such seals are found outside the or-
dinary three-mile limit?ll>

The tribunal met in 1893, handing down its award in August,

and deciding that the United States "... has not any right

. . ."in the seals of the Bering Sea when "... found out-

1 -1 s

side the ordinary three-mile limit." The tribunal recom-

"Agreement between the Government of the United
States and the Government of Her Britanic Majesty for a
Modus Vivendi in Relation to the Fur-Seal Fisheries in
Behring Sea, June 15, 1891," and "Convention Between the
United States of America and Great Britain for the Renewal
of the Existing 'Modus Vivendi* in Behring* s Sea, April 18,
1892," ibid., pp. 4-5, and 11-13.

IIS

^"Convention Between the Governments of the United

States and Her Britanic Majesty, Submitting to Arbitration

the Questions which Have Arisen Between those Governments

Concerning the Jurisdictional Rights of the United States

in the Waters of Behring Sea, February 29, 1892," ibid.,

pp . 6-10 .

1 "Award of the Tribunal of Arbitration Constituted
under the Treaty Concluded at Washington, the 29th of Feb-

l6S

mended certain conservation measures, which were put into
practice, but were discovered to have little effect in sav-
ing the seal herd. Only the two United States members of
the seven-member tribunal, Justice John Harlan and Senator
John Morgan, dissented from the Award. The French, Italian,
Swedish, and British members constituted the five-man ma-
jority. The Award was at once a defeat for the Americans
and for the fur seals and a victorious step forward in the
development of the three-mile rule.

Thus, the nineteenth century saw the three-mile rule
become a fairly well— established rule of international law.
All the great powers, and most of the lesser powers, had
adopted the rule in some form. Those states which had not
yet accepted it will be considered in the next chapter.

ruary, l£92, Between the United States of America and Her
Majesty the Queen of the United Kingdom of Great Britain
and Ireland," Fur Seal Arbitration Proceedings, vol. I, p.
73.

CHAPTER VIII

EARLY CONTRADICTIONS TO THE THREE-MILE LIMIT

The nineteenth century witnessed a steady rise in
the acceptance of the three-mile rule. Resistance to the
rule and deviations from it steadily decreased. Some coun-
terpractices were abandoned as having served their purpose.
A few competing claims were suppressed by great power poli-
tics, only to surface again in the twentieth century. But
even so, the contradictions to the three-mile limit did not
disappear entirely. Those which most directly related to
the history of the three-mile limit will be discussed in
the ensuing sections.

I. CLAIMS OF STATES TO DIFFERENT LIMITS

Four-Mile Limit

The four-mile limit was conceived by the Scandinavians
as pointed out in Chapter V. It was adopted by those states
and only by those states. Denmark alone abandoned it in
1882 when she signed the North Sea Fisheries Convention.
For most of the nineteenth century the four-mile limit served
Norway and Sweden as an all-purpose limit — fishing, customs,
neutrality — just as the three-mile limit served England.

^•Norwegian Resolution of February 22, 1812," trans-

169

170
This policy was maintained until 1377 when the Swedish mon-
arch approved a customs zone of approximately six miles,2

Six-Mile Limit

Spain was the recognized leading protagonist for the
six-mile limit, with Portugal giving her support. The Span-
ish six-mile (two-league) claim, interestingly, antedates
the three-mile rule. In royal decrees of 1760, 1775, and
1852 repressing contraband trade, and in a 1799 treaty with

Morocco establishing a neutrality zone, Spain adopted a two-

3
league or six-mile limit. In 1330, Spain enacted a new fis-
cal law which, among other things, defined the crime of
smuggling as the mere approach within six miles of the Span-
ish coast by any vessel under 200 tons which had on board

lated and reproduced in Henry G. Crocker (ed.), The Extent
of the Marginal Sea, U. S. Department of State (Washington:
Government Printing Office, 1919), p. 609. The Resolution
read: "We will most graciously to establish as a rule in
all instances where there is question as to the limit of our
territorial sea, that it shall extend to a distance of one
marine league from the outermost islands or islets which are
not submersed by the sea."

2"Customs Statute of November 2, 1377," translated
and reproduced in ibid., p. 627. This law, following the
example of most continental states extended the territorial
sea for customs purposes: "Article 1 counts as territorial
waters in all customs matters ... a distance of one Swed-
ish league (one and one-half geographical league) from the
coasts or from its outermost rocks." This zone amounted to
six nautical miles in width, inasmuch as the geographical
league in Scandinavian usage was equal to four nautical
miles.

^Crocker, 0£. cit, pp. 622-625, quoting decrees of
December 17, 1760; May 1, 1775; and June 20, 1352; and the
Spanish-Moroccan Treaty of March 1, 1799.

171
any dutiable goods. This led to direct confrontation with
England in I84O and I84I during which time Royal Navy war-
ships were deployed to protect British ships outside the one-
league distance from the Spanish coast. As a result of this
British pressure, Spain capitulated. But the situation
was never formally resolved. The Spanish ignored pressure
from England and France to change her laws from six to three
miles, and the maritime great powers ignored the Spanish six-
mile limit. Knowing they would be protected by the Royal
Navy, French, German, and English fishermen fished the Span-
ish coast up to within three miles during the rest of the
century and into the twentieth. Philip Jessup nicely sum-
marized the situation as one in which Spain was desirous
of extending the three-mile rule but unable to do so.

^"Spanish law of May 3, 1^30, cited in Herbert Arthur
Smith, Great Britain and the Law of Nations (London: P. S.
King and Son, 1935), vol. "IT, "pp. T7 4, 176.

^Ibid., pp. 178-181, citing a British Foreign
Office Memorandum of April 14, 1#53. The Spanish government
cancelled its contract with a private Spanish firm, hired
to enforce the Spanish law of I83O, which had been over-
zealous in doing its job. The coastal protective function
was assumed by a government agency, and an informal modus
Vivendi between Spain and England was reached wherein Spain
stopped seizing British vessels. But the Spanish did not
make any formal change in their laws or treaties which
claimed a six-mile limit. The dispute lay dormant until
1853 when Spain again seized a British craft beyond the
three-mile limit. In reply to the British protest, Spain
claimed that hot pursuit had commenced within the three-
mile limit. Ibid., pp. 193-194 citing an Opinion of the
Queen's Advocate, dated August 10, 1853.

Philip C. Jessup, The Law of Territoral Waters and
Maritime Jurisdiction (New York: G. A. Jennings , Co . , Inc.,
1927;, pp. 42-43.

172
The Spanish, unable to defend a six-mile claim in
Europe, then tried to do so in America; this led to a pro-
tracted dispute (1S56-1SS2) with the United States. The
claim by Spain to a six-mile maritime belt around Cuba led
to confrontation between the two powers particularly during
the American Civil War. The Spanish complained to the United
States that American warships had committed hostilities
within Spanish territorial waters — between three and six
miles — basing their claim to six miles on the range of
modern cannon. The United States vigorously and emphatically
rejected the Spanish claim to six miles, and advised the
Spanish Minister that the United States would not recognize

jurisdiction over any waters beyond the customary three-

mile limit. The Spanish threatened to use their navy to

enforce the claim, and during the period May through July
18S0 boarded and/or fired upon four American vessels on the
Cuban coast. The two states agreed to submit the matter to
arbitration by the King of Belgium but the question was never
submitted.

Undaunted by the consistent international opposition
to her six-mile claim, Spain negotiated a six-mile treaty

^Secretary of State Seward to Mr. Tassara, Spanish
Minister, letters of December 16, 1862 and August 10, I863,
reproduced in John Bassett Moore, A Digest of International
Law ( Washington s Government Printing Office, 1905), vol. I,
pp. 706-7U.

Ibid.

173

with Portugal in 1885. The arrangement provided for ex-
clusive fishing rights for Portuguese and Spanish subjects
within six miles, and for conservation measures, prohibit-
ing certain types of injurious trawling within 12 miles.
The treaty was renegotiated, retaining these six- and 12-
mile provisions in 1393. A year later, Spain enacted a
new six-mile customs law,

Nine-Mile Limit

Unlike the Scandinavian and Iberian states, Mexico
stood alone in her claim to a nine-mile territorial sea.
Her claim dates to I848, with the signing of the Treaty of

' Spain and Portugal, "Convention Regulating the Ex-
ercise of Fishing Rights on the Coast, October 2, 1885,"
Crocker, op_. cit . , p. 547 citing Great Britain, Foreign
Office, British and Foreign State Papers (London: H. M.
Stationery Office, 1841- ' J, vol. 77, p. 1132. This was
apparently Portugal's first formal adoption of the six-mile
limit. As indicated in Chapter III, supra , Portugal adopted
the cannon shot rule in 1737. In 1842, she concluded a
treaty with Great Britain dealing with the suppression of
slave trade and again fixed her territorial seas at the range
of cannon. (Portugal and Great Britain, "Treaty of July 3»
1842," translated and reproduced in Crocker, 0£. cit. , p.
547 , citing British and Foreign State Papers, vol. XXX, p.
533.)

Spain and Portugal, "Treaty of Commerce and Navi-
gation, March 27, 1893," ibid., p. 626, citing British and
Foreign State Papers, vol. 85, pp. 420 and 455.""

Customs Law of October 15, 1894, cited by League
of Nations, Committee of Experts for the Progressive Codifi-
cation of International Law, Report of the Sub-Committee on
Territorial Waters (Geneva: League oT""Nations, 192b), p. 77 -
reproduced in Special Supplement to American Journal of
International Law, XX (July, 1926), pp. 71-72.

17^

Guadalupe Hidalgo, settling the Mexican War, The Treaty

specified that the U. S. -Mexican boundary commenced ". . .
in the Gulf of Mexico, 3 leagues from land, opposite the
mouth of the Rio Grande. . . ."12 The British protested the
Treaty, suggesting that the boundary should have commenced
one league from land and not three. The United States de-
fended its actions, explaining that the Treaty only applied
to U. S. -Mexican relations and did not affect British rights.1^
It is almost humorous that a few years later the British con-
cluded a nine-mile customs zone treaty with Mexico. * Simi-
lar treaties were also negotiated by Mexico with Germany,
the Kingdom of Norway and Sweden, France, El Salvador, and

United States and Mexico, "Treaty of Peace, Friend-
ship, Limits, and Settlement, February 2, 184#," Article 5,
United States Congress, U. S. Statutes at Large (Washington:
Government Printing Office, l&5Q-present7, vol. IX, p. 926.
The three-league boundary terms were repeated, almost verbatim,
in the treaty formalizing the Gadsden Purchase of 1#53: United
States and Mexico, "Treaty of Boundary, Cession of Territory,
etc. . . ., December 30, 1S53," William M. Malloy (ed.), Trea-
ties, Conventions, International Acts, Protocols and Agree-
ments between the United States "of America and Other Powers,
1770-1909 t Senate Document No. 3T7, blst Cong., 2nd Sess.,
I Washington: Government Printing Office, 1910), vol. I, p. 1121..

^Secretary of State Buchanan to Mr. Crampton, the
British Minister, August 19, 1#48, Moore, p_£. cit., pp. 730-731.

^"Great Britain and Mexico, "Treaty of Commerce and Nav-
igation, November 27, lBSS," William Lewis Hertslet, et al.
(eds.), Hertslet1 s Commercial Treaties (London: Foreign UTfice,
1527-1925), vol. XVIII, p. 857" With respect to customs, the
treaty provided that "... the two contracting parties agree
to consider, as a limit of their territorial waters on their
respective coasts, the distance of three marine leagues,
reckoned from the line of low-water mark."

175
China.15

United States Practice

The American rejection of the Spanish six-mile claim
was one of several instances wherein the United States de-
fended the three-mile rule during the nineteenth century.
Others were noted in Chapter VII. But American practice was
ambivalent during the century. Thomas Jefferson's opinion
that United States1 territorial seas should extend to the Gulf
Stream, James Kent's view that extensive baselines should be
drawn to delimit the Atlantic coast territorial sea, the
three-league boundary treaty of I848 with Mexico, and the
United States claims in the Bering Sea have already been men-
tioned. These, coupled with several other cases, acts and
pronouncements lead logically to the conclusion that the
United States spent the nineteenth century unofficially "re-
penting at leisure" for the hasty decision of adopting a
three-mile limit in 1793*

^Germany and Mexico, "Treaty of Friendship, Commerce
and Navigation, December 5, 1382," Crocker, 0£. cit., p. 532;
Kingdom of Norway and Sweden and Mexico, "Treaty of July 29,
1885," ibid., p. 605; France and Mexico, "Treaty of Amity,
Commerce, and Navigation, November 27,^1886," G. F. von Mar-
tens, Nouveau recueil general de traites (second series, ed.
Felix Stoerk, et al . ; Gottingue : Dieterich, 1876-1903), vol.
XV, p. 844; Ell>alvador and Mexico, "Treaty of Friendship,
Commerce, and Navigation, April 24, 1893," British and For-
eign State Papers, vol. 95, p. 1362; China and Mexico, 77Trea-
ty of Friendship, Commerce, and Navigation, December 14,
1899," ibid., vol. 92, p. 1061. The treaties with France
and El Salvador called for a zone of twenty kilometers, or
about 11 nautical miles.

176
Bays. That very year, 1793, and even before Jefferson
delivered his notes adopting a three-mile limit, there occurred
the first of the several inconsistencies with the three-mile
limit. The French frigate L 'Embuscade had captured the British
ship Grange in Delaware Bay. The capture took place near the
mouth of the Bay, between headlands ten miles apart, and not
within cannon shot or three miles of the land. United States'
Attorney-General Randolph rendered an opinion that, in view
of American proprietorship of both the New Jersey and Delaware
headlands and shores, the entire Bay was territorial. He ar-
gued that in the days of British rule, navigation of the Dela-
ware had been "peculiar to the British Empire" and with the
American Revolution this right had passed to the Americans.
He concluded that in such a situation there was justification
in ". . • attaching to our coasts an extent into the sea be-
yond the reach of cannon shot." On this basis, he held that
the capture of the Grange had been a violation of the neu-
trality of the United States. Randolph's opinion was not con-
sistent with the concept of delimitation of bays prevailing
at the turn of the eighteenth century, namely, that bays could
be closed off as part of a state's territory at the point where
their mouth narrowed to a point equal to twice the extent of

"Opinion of Attorney General Randolph on the Capture
of the Grange by the L 'Embuscade for the Secretary of State,
May 14, 1793, Crocker, 0£. cit., pp. 632-636.

177

17
the territorial sea. Nevertheless, it appears that the

United States contention was not disputed by either England
or France, thus assuring Delaware Bay its status as an "his-
torical" territorial bay.

Customs. The United States, during John Adams1 admin-
istration in 1799, enacted legislation extending its juris-
diction for purposes of customs to a distance of four leagues,
This was quite in keeping with the desire of Thomas Jefferson
— then Vice-President — for a wider maritime zone. The new
law prohibited transshipment of foreign goods once inside the
four-league limit and authorized United States officials to

board vessels at four leagues (twelve miles) for inspection

1#
of manifests and examination of cargos. Five years later,

'Thomas W. Balch, "Is Hudson Bay a Closed or an Open

Sea?" American Journal of International Law, VI (April, 1912),
p. 41 7" Balch claimed tEat the six-mile closing line for bays
was formulated as a natural corollary to the three-mile rule.
In the early years of the three-mile limit, the British shared
this view. They applied it in their interpretation of the
Convention of 181& with the United States. As late as 1#70,
instructions to this effect were issued by the Foreign Office
to the Governor General of Canada: "Her Majesty's Govern-
ment hopes that the United States fishermen will not be for
the present prevented from fishing, except within three miles
of land, or in bays which are less than six miles broad at
the mouth." (Dispatch from Lord Granville, British Foreign
Secretary to the Governor General, June 16, 1#70, Crocker,
op. cit., p. 556.) However, in her dealings with other states,
Britain was shifting to the ten-mile bay closing line. See
supra » Chapter VII, pp. 162-163 .

^Sections 27 and 54 of the Act of March 2, 1799, "An
Act to Regulate the Collection of Duties on Imposts and Ton-
nage," United States Congress. The Public Statutes at Large,
ed. Richard Peters, Esq. (Boston: Charles C« Little and James
Brown, 1S50), vol. I, pp. 647 and 668.

17*

the United States Supreme Court upheld this law by their de-
cision in Church v. Hubbart . which also acknowledged the right
of other states to a similar zone.

Neutrality. Two years after Church v. Hubbart, the
United States negotiated with England a treaty which called
for a five-mile neutral zone off the American coast. The
United States, most anxious to avoid involvement in the Anglo-
Napoleonic hostilities, signed the treaty with England on

December 31 » 1306. But influential forces in England, notably

in the Admiralty, resisted ratification on the grounds that

three miles was the greatest extent justifiable under the law

21
ex" nations. In 1307, Great Britain refused to ratify the

19Church v. Hubbart 2 Cranch 137 (1304), PP- 187, 23^»
Herbert W. Briggs (ed.), The Law of Nations (second edition;
New York: Appleton-Century-Crof ts , Inc., 1952), p. 356; Charles
G. Fenwick (ed.), Cases on International Law (second edition;
Chicago: Callaghan and Co., 1951), p. 496; and Manley 0. Hud-
son (ed.), Cases and Other Materials on International Law (St.
Paul: West PublisKing Co., 1929), p. 527" An American trad-
ing ship, the Aurora, had been seized four leagues off the
coast of Brazil and confiscated for having engaged in illicit
trade in violation of Portuguese law. The Supreme Court up-
held the seizure as legal, holding that a state's "...
powers to secure itself from injury may certainly be exer-
cised beyond the limit of its territory," and offered as an
example, "... the right given to our own revenue cutters,
to visit vessels four leagues from our coast. ..."

Great Britain and the United States. "Treaty of Amity,

Commerce and Navigation, December 31, 1306" (unratified), re-
produced in United States Congress, Senate, Proceedings in the
North Atlantic Coast Fisheries Arbitration, Senate Document
No. 870, 61st Cong., 3rd Sess. (Washington: Government Print-
ing Office, 1912), vol. IV, appendix, p. 42.

Stefan A. Ries^otfeld, Protection of Coastal Fisheries

179
treaty, and it never became effective.

This notwithstanding, the United States remained in-
terested in a wider neutrality zone throughout the century.
In 1896, the Secretary of State advised the Dutch that the
United States was interested in a six-mile neutral zone,
and after the turn of the century, the U. S. Naval War Col-
lege proposed the adoption of such a limit. ^

under International Law (Washington: Carnegie Endowment for
International Peace, 1942), p. 138.

In 1895 the Netherlands Minister delivered a letter

to the American Secretary of State, suggesting the adoption
of a six-mile limit. (G. de Weckherlin, Netherlands Minister
to Secretary of State Olney, Washington, November 5, 1895,
reproduced in Crocker, 0£. cit., pp. 606-607.) The United
States returned a favorable reply: "This Government would
not be indisposed, should a sufficient number of maritime
powers concur in the proposition, to take part in an endeavor
to reach an accord having the force and effects of interna-
tional law as well as of conventional regulation, by which
the territorial jurisdiction of a State, bounded by the high
seas, should henceforth extend 6 nautical miles from low
water mark, and at the same time providing that this six-mile
limit shall also be that of the neutral maritime zone."
(Secretary of State Olney to the Netherlands Minister, G.
de Weckherlin, Washington, February 15, 1896, Moore, Digest,
vol. I, p. 734.)

"^United States Naval War College, International Law
Topics and Discussions, 1913 (Washington: Government Print-
ing Office, 1914), p. 11. The Naval War College, responding
to the stimuli of the 1899 and 1907 Hague Conferences, con-
ducted a study, "Marginal Seas and Other Waters," to deter-
mine what regulations should be made in regard to the use of
marginal seas in time of war. The studv proposed codifying
the extent of the territorial sea: "(a) Marginal Sea. - The
jurisdiction of an adjacent State over the marginal sea ex-
tends to 6 miles (60 to a degree of latitude) from the low
water mark." The study cautioned that such an extension
would necessarily involve a corresponding reduction in the
area of the high seas, and accordingly, that it could not
be accomplished except by the general agreement of the mari-
time states.

ISO

II. CLAIMS OF STATES FOR SPECIAL PURPOSES

Claims to different limits such as the six-mile limit,
discussed above, were not the only type of contradiction to
the three-mile limit. Another type of contradiction was that
of claiming an area of the sea for a special purpose. Claims
over special zones for customs — four miles, four leagues, ten
kilometers, two myriameters, etc. — are one type of such claims
and have already been mentioned in connection with the prac-
tice of several states. Special purpose claims did not, in
the eyes of the claimant states, necessarily conflict with
the three-mile limit. In fact, Great Britain, the most per-
sistent defender of the three-mile limit, advanced the great-
est number and the widest variety of claims for special pur-
poses.

Sedentary Life of the Seabed

Legislation to protect fisheries, the sea grass feed-
ing grounds, and sea bottom life is not new. As early as
1829, the French enacted an ordinance to restrict harmful
trawling within three leagues of the French coast. In 1868

^""French Marine Department Ordinance of January 15,
1829," Thomas Baty, "The Three-Mile Limit," American Journal
of International Law, XXII (July, 1923), p. JJIT. TEis ordi-
nance prohibited trawling within three leagues of the shore
between April 15th and September 1st, and within two leagues
from September 1st to April 15th. Thomas Fulton writes that
the law was enforced against foreigners, but does not cite
the instances. (Thomas W. Fulton, The Sovereignty of the Sea
[Edinburgh and London; W. Blackwood and Sons, 19ll], p. 608.)

181

the British Parliament empowered the Irish Commissioner to

regulate or restrict the dredging for oysters as far as 23

25
miles from the coast. ' A similar act in 1895 enabled the

Fishery Board to prohibit "... the methods of fishing known
as beam trawling and otter trawling . . . within thirteen miles
of the Scottish coast. . . ."

Not all of the special purpose claims extended beyond
three miles. Austria-Hungary and Italy modestly claimed ex-
clusive sponge and coral fishing zones only one mile wide. '

5"Sea Fisheries Act of July 13, 1369," 31 and 32
Victoria, chap. 45, reproduced in Crocker, 0£. cit., p. 554.
The Act protected oyster beds and banks located "... with-
in the distance of twenty miles measured from a straight line
drawn from the eastern point of Lambay Island to Carnsore
Point on the Coast of Ireland, outside of the exclusive fish-
ing limits of the British Islands ..." The protected area
included 1300 square nautical miles outside the three-mile
limit, and projected in places as far as twenty miles beyond
that limit. Sir Cecil Hurst, "Whose is the Bed of the Sea?"
British Yearbook of International Law, IV (1923-1924), p. 41;
and Jessup, 0£. cit., p. 13.

"Act for the Better Regulation of Scottish Sea Fish-
eries, July 6, 1895," 5# and 59 Victoria, chap. 42, William
Lewis Hertslet et, al. (eds.), Hertslet1 s Commercial Treaties
(London: Foreign OfTice, 1827-1925), vol. 20, p. 60S" The"
Act provided that there would be no enforcement of the Act
against subjects of the signatories of the North Sea Fisher-
ies Convention of 1882 without the express prior agreement of
the signatories.

'Austria-Hungary and Italy, "Treaty of Commerce and
Navigation, December 6, 1891," translated and reproduced in
Crocker, op. cit., p. 599, citing British and Foreign State
Papers, vol. ^JT P- 655. The TreatY provided that the sub-
jects of Austria-Hungary and those of Italy were authorized
to fish along the coasts of each state "... with the ex-
ception, however, of coral and sponge fishing, as well as the
fisheries, to the distance of one nautical mile, which are
reserved exclusively to the inhabitants of the coast."

182

The British, however, were not so modest in their efforts to
protect the pearl and chank fisheries of Ceylon. Those fish-
eries were claimed from early times, first by the Rajahs, and
then successively by their Portuguese, Dutch, and British co-
lonial masters. By a series of three acts, Great Britain laid
claim to the Ceylonese pearl, chank, coral, b@che-de-mer and
shell fishing grounds — excluding all foreigners — within the

twelve-fathom curve, the twelve-mile limit, and the twenty-

28
mile limit, successively. But the British did not feel that

these claims conflicted with the three-mile limit, as they

were based on prescriptive rights of long standing. Even

The fisheries are located in the Gulf of Manaar and
Palk's Bay, the two coral bays that divide India from Ceylon.
These bays are separated by the long stretch of islets between
India and Ceylon known as Adams Bridge. The British Colonial
Act of 1811 authorized the seizure and confiscation of any
boat hovering or anchoring in the pearl banks or in waters
between four and twelve fathoms deep. ("Regulation No. 3 of
1811 for the Protection of H. M. Pearl Banks of Ceylon, March
9, 1811," reproduced in Crocker, op_. cit. , p. $44; see also
Jessup, o£. cit., pp. 14-16, and Hurst, op. cit., pp. 40-41.)
Another protective ordinance was passed in 1843 prohibiting
chank fishing or even the possession of fishing and dredging
equipment within twelve miles of the low-water mark between
the towns of Talaivilla and Talaimanaar. ("Ordinance to De-
clare Illegal the Possession of Certain Nets and Instruments
within Certain Limits, November 30, 1843," reproduced in
Crocker, op_. cit., pp. $48-549.) A third, even more restric-
tive, ordinance was passed in 1890, making it unlawful to
fish, dive for, or collect chanks, b§che-de-mer, coral, or
shells in the area "... eastward of a straight line drawn
from a point six miles westward of Talaimanaar to a point six
miles westward from the shore two miles south of Talaivilla."
("Chank Ordinance of November 19, 1890," reproduced in Crocker,
op. cit., p. $77.) This ordinance created an irregularly
shaped geographic protective area extending as far as 20 miles
from the shore. (Baty, 0£. cit, p. $12.)

1S3

Vattel, the Swiss publicist, supported this view: "Who can
doubt that the pearl fisheries of Bahrein and Ceylon may be
lawful objects of ownership?"29 In Australia, too, Great
Britain instituted protective measures for the pearl shell
and b§che-de-raer fisheries. Acts of Parliament in 1#£3 and
18B9 authorized the respective Colonial Parliaments to regu-
late fisheries in the Coral Sea to a distance of 250 miles
and in the Indian Ocean to a distance of 600 miles .-*

Minerals of the Subsoil

Another special purpose claim to maritime areas arose

as a result of the very rich and important tin and copper

31
mines at Cornwall, England. The ore there was found in

veins along the coast, beneath both the peninsula and the sea-

29
' Emmerich de Vattel, The Law of Nations or the Prin-
ciples of International Law: Applied to the Conduct and to
the Affairs of NationsTand of Sovereigns, trans. Charles~G~.
Fenwick in Classics of International Law, ed. James Brown
Scott; New York: Oceana Publications, Inc., and London: Wildy
and Sons, Ltd., 175# edition reprinted 1964 ) , p. 107.

J "The Queensland pearl-shell and beche-de-mer fish-
eries (extraterritorial) Act of January 20, 1388," reproduced
in Crocker, op_. cit., pp. 574-575; and "The Western Australia
pearl-shell and b§che-de-mer fisheries 'extraterritorial* Act
of February 4, 1899," reproduced in ibid., pp. 576-577.
Neither of these two Acts was made applicable to any except
British ships and boats.

' See "Cornwall," Encyclopaedia Britannica (1953 ed-
ition) VI, 452-453. The tin mines of Cornwall had been worked
as early as the Age of Bronze. Later, Cornish copper became
equally important, and by the middle of the nineteenth cen-
tury, the area was producing one-third of the copper mined in
Europe.

lglj-

"bed. In exploiting the veins, the tunnel complex gradually
worked its way beyond the shoreline and beneath the open sea.
A dispute arose between the Crown and the Duchy of Cornwall
over the ownership of the minerals taken from beneath the
seabed. The matter was arbitrated by Judge John Peterson
of the Court of Queen's Bench, and his award was enacted as
the Cornwall Submarine Mines Act of 1858. The Act assigned
the right to all mines and minerals between the high and low-
water marks in the County of Cornwall to the Prince of Wales
and the right to all mines and minerals seaward of the low-
water mark and under the open sea, to the Queen.32 The Act
did not set a seaward limit as to how far the Queen's rights
to the minerals in the seabed extended. Although the Cornish
tin and copper mines did not extend beyond the three-mile

32Hurst, og. cit., pp. 34-35 quoting from Cornwall Sub-
marine Mines Act of August 2, 1858. In defense of this action,
the British publicist Lassa Oppenheim explained that the sub-
soil under the open sea is "no-man's-land" and can be acquired
by occupation; occupation, he writes, takes place ipso facto by
a tunnel or mine being driven from the shore, through the sub-
soil of the territorial sea, and beyond, into the subsoil of
the open sea. Lassa Francis Lawrence Oppenheim, International
Law, a Treatise (sixth edition by H. Lauterpacht; New York and
London: Longmans Green and Co., 1940), vol. I, p. 630. It is
an interesting sidelight to note that this 1858 case was al-
most a blueprint for the century-later contests in the United
States between the Federal Goverment and the states of Calif-
ornia, Louisiana, and Texas over off-shore petroleum resources,
wherein the Supreme Court similarly decided that the mineral
rights beyond the low-water mark were vested not in the indi-
vidual states, but in the U. S. Federal Government. (United
States v. California, 332 U.S. 19 (1947); United States v.
Louisiana, 539 U. S. 699 (1950J; and United""States v. Texas,
599 U. s: 707 (1950;, Marjorie M. Whiteman, Digest of Inter-
national Law (Washington: Government Printing Office, 1963-
JTrvc-TT"IV (1965), PP. 769-783.)

1S5
limit, underwater coal mines elsewhere in England did.^

Criminal and Admiralty Jurisdiction

In 1833 and 1343, Great Britain established courts of
justice in Canton and Hong Kong, respectively, to try British
subjects for criminal and admiralty offenses committed in
China or within 100 miles thereof. ^ The result was a very

33The publicist Paul Fauchille (1853-1926) writes
" . . • Great Britain ... exploits beneath the sea, to sev-
eral [plusieurs] kilometers from her coast, tin and copper
mines in Cornwall, and coal mines in Cumberland County as well
as between Folkestone and Dover." (Paul Fauchille, Traite de
droit international public [eighth edition by Henri Bonfils;
Paris: Rousseau and Co., 19253, vol. I, part 2, p. 205, trans-
lated by author.) Burdick Brittin writes: "Coal mines of
Great Britain, whose tunnels commence on dry land, extend far
beyond the 3-niile limit." (Burdick Brittin, International
Law for Seagoing Officers [Annapolis: United States Naval
Institute, 1956J, p. 80.) With respect to the Cornish copper
and tin mines, Mr. G. Bisson reports that "[t]he Levant Mine
worked just less than one mile to seaward of the extreme west
coast of Cornwall in the vicinity of St. Just, and this I be-
lieve was the greatest seaward penetration by any of the mines,
i . ." (Letter by Mr. G. Bisson, District Geologist, Insti-
tute of Geological Sciences, Exeter, Devon, England to author,
dated 5 December 1969.) With respect to the coal mines, Mr.
W. B. Evans writes that "... [tjhe maximum extension of coal
raining beneath the sea-bed from collieries near Whitehaven
is a little over 3 2 miles. (nearly 6 Km). Although reserves
exist beyond this line, it seems unlikely that it will ever
be economic to develop them." (Letter by Mr. W. B. Evans,
Institute of Geological Sciences. Leeds, Yorkshire, England
to author, dated 5 January 1970.) This is corroborated by
the Encyclopaedia Britannica, which diagrams the coal de-
posits at Whitehaven, Cumberland County as extending about
nine statute miles to seaward and those at Dover, Kent County,
to about five statute miles. ("Coal and Coal Mining," Ency-
clopaedia Britannica [1953 edition], V, 873).

^British Order in Council, Appointing a Court of Jus-
tice at Canton, for the Trial of Offenses Committed by British
Subjects in China, December 9, 1833," British and Foreign
State Paoers, vol. XX, p. 262; and Act of Parliament, "For
the Better Government of Her Majesty's Subjects Resorting to

1S6 -
unique type of maritime jurisdiction wherein a British subject
might commit a crime in violation of Chinese law, aboard a
Chinese ship, against a Chinese citizen, 100 miles off the
Chinese coast, but still be subject to British, rather than
Chinese, jurisdiction,

III. VIEWS OF PUBLICISTS AND
LEARNED SOCIETIES

The writings of several publicists were reviewed in
the previous chapter; those reviewed all recognized that the
three-mile limit had been generally accepted as the law of
nations. The present chapter will consider those nineteenth
century publicists who did not acknowledge that the three-
mile limit had become law, but either rejected it in favor of
another limit of territorial seas, or ignored it altogether.
These writers, by and large, were still loyal to the rule of
cannon shot which had been very popular. There can be de-
tected a general tendency among the nineteenth century pub-

China, August 22, lS43t ibid., vol. XXXI, p. 1231. The courts
had authority to try British subjects for offenses committed
". . . within the dominion of the Emperor of China, or being
within any ship or vessel at a distance of not more than one
hundred miles from the coast of China." Ibid. Here again,
Britain did not consider herself departing from the three-
mile limit. The arrangement for extraterritorial jurisdic-
tion or "capitulations," dating from the Middle Ages, was
still commonly practiced by European powers in non-Christian
states, generally of the Near East and Far East, as late as
the nineteenth and early twentieth centuries. Hence, no mari-
time or great power would have had occasion to protest the
British 100-mile jurisdiction law.

187 -
licists to adhere fairly closely to the contemporary practice
of their native states. There were several exceptions, of
course, and the publicists of landlocked Switzerland had to
base their opinions on the practice of other states — which
incidentally might well make them the most objective of all.

Publicists

Publicists who rejected the three-mile limit. The Swiss
publicist Alphonse Rivier (1335-139$) rejected not only the
three-mile limit, but also the four- and six-mile limits in

favor of a standard, scientifically and internationally deter-

35
mined cannon range. ' The Frenchman, Laurent Basile Haute-

feuille (1305-1875), believed it impractical to attempt to

quantify the cannon range at any fixed "mathematical" dis-

tance.-* Four other French publicists, Theophile Funck-

' 'Alphonse Pierre Octave Rivier, Principes du droit des

gens (Paris: A. Rousseau, 1396), vol. I, p. 146, translated and
reproduced in Crocker, op_. cit . , pp. 419-420. Rivier, pro-
fessor of international law and Swiss Consul General in
Brussels, proposed a belt of territorial seas the width of a
standard cannon range, as determined by ". . . the state of
science and industry . • ." on a world-wide basis, and not
left up to the various cannon ranges of the several individu-
al maritime countries. (Ibid., p. 420.) He did not go into
any further detail on how this standard cannon range would be
determined.

Laurent Basile Hautefeuille, Des droits et des

devoirs des nations en temps de guerre maritime (tHird edi-

tion, corrected and modified; Paris: Guillaumin, 1363), vol.

I, p. 52, translated and reproduced in Edwin M. Borchardt

(ed.), North Atlantic Coast Fisheries Arbitration, Coastal

Waters (Washington: Government Printing Office, 1910;, p. 76.

Hautefeuille, a jurist and prolific authority on maritime law.

1SS

Brentano (1330-1906), Albert Sorel (1342-1906) ,37 Robert
PiedeliSvre (1859-1939) , and Baron Ferdinand de Cussy

published the first edition of his major work on the subject
in 1843. In it, he made an articulate defense of the classic
cannon shot doctrine. (Ibid.) He then commented on the
prospect of equating cannon range to a fixed distance: "A
modern author (Boucher) has expressed the wish that all na-
tions may agree to determine exactly and mathematically the
extent of the territorial sea or rather the range of cannon
shot. ... It would certainly be very desirable . . . that
the territorial seas of each country be fixed in a definite
manner. However, I do not believe that it is possible to
reach this result. Besides, the experienced eye of mariners
and coast guards can pretty well determine the range of can-
non shot." (Ibid., p. 53.) Hautefeuille was quoting the
French publicist Pierre B. Boucher (1758-1814?), author of
Institution au droit maritime (Paris: Levrault, Schoell, et
Cie., 1803), diplomatic official, jurisconsult, and pro-
fessor of maritime law. The year of Bouchers death is an
estimate by the author, based on information furnished him
by the Bibliotheque Nationale, Paris. (Jean Bruno, loc. cit.)

^'Theophile Funck-Brentano and Albert Sorel, Precis

du droit des gens (third edition; Paris: E. Plon, Nourrit,
1^00), p. 375, translated and reproduced in Borchardt, North
Atlantic Coast Fisheries Arbitration, p. 68, Funck-Brentano,
Professor of Political Science, and Sorel, professor and his-
torian, collaborated in 1877 (first edition) to produce a
work on international law, strongly oriented towards Euro-
pean practice. Concerning the three-mile limit treaties,
they wrote: "Conventions concluded between States may more
exactly delimit the territorial seas on their respective
coasts. This has, for example, been effected between France
and Great Britain in the matter of fisheries. These conven-
tions naturally bind only the States which contract them.
For other States the territorial sea is determined by usage."

3 Robert Piedelievre, Precis de droit international
public ou droit des gens (Paris: F. Flchon, 1894-1895J, vol*
I, p. 3Jo", translated and reproduced in Borchardt, North
Atlantic Coast Fisheries Arbitration, p. 299. PiSdeTTIvre,
professor of international law and essayist wrote: "This
extreme range of canon is usually considered by treaties
both of fishing and neutrality as 3 miles, but this is neither
general nor universal. ... It is certain that in the ab-
sence of all conventions the extent of the marginal sea is
measured by the greatest range of cannon placed on shore 9

189

39
(1795-1866), maintained that it was the range of cannon

shot, and not three miles, which was the basic, universal

rule. The Germans, Ferdinand Paul Perels (1836-1903)^° and

Walther Schucking (1375-1935) ^ were of the same opinion,

whatever that range may be." (The year of Piedelievre's
death was ascertained by correspondence between the author
and Professeur Rene PiedeliSvre, of the Paris Academy of
Medicine, dated 19 November-4 December 1969, son of the de-
ceased publicist.)

^Baron Ferdinand de Cussy, Phases et causes celebres

du droit maritime des nations (Leipzig: F. A. Brockhaus,
1356), vol. I, p. 93, translated and reproduced in Borchardt,
North Atlantic Coast Fisheries Arbitration, p. 50. Baron de
Cussy, who served as French Consul General in Palermo, re-
jected the three-mile limit in favor of the cannon shot rule
for purposes of neutrality. But he agreed that "... the
surveillance which ought to be exercised in the matter of
customs to prevent smuggling, may extend still further."

^ Perels, professor at the Imperial Naval Academy,
legal advisor to the admiralty and privy councilor, pub-
lished his first important work in 1882. In it, he stated
that it is a mistake to equate cannon shot with three miles
on the grounds that it is the cannon shot, and not three
miles, which is the rule of law. He congratulated the "Ger-
man publicists and the majority of French and Italian" pub-
licists who "... have not fallen into this error." He
believed, like Rivier, supra, that: "The extent of the terri-
torial sea is therefore fixed according to the cannon range
of each epoch; but in each epoch it is the same for all seas,
for the matter cannot depend upon each particular country's
establishing batteries upon its coast. ..." Ferdinand Paul
Perels, Manuel de droit maritime international, trans, from
German by Leo Arendt (Paris: Guillaumin, 1884J , p. 26, trans-
lated and reproduced in Borchardt, North Atlantic Coast Fish-
eries Arbitration, p. 292.

^Schucking, member of the Reichstag and a judge of
the Permanent Court of International Justice, wrote a great
number of volumes on law, including one on the territorial
sea (kustenmeer) . He examined the various claims, including
the three-mile rule, and then recommends a definition of the
law of territorial seas: "... [E]very adjacent State has
the right to extend its boundaries as far over the sea as it

190
holding that the territorial sea should extend as the range
of cannons increased.

Publicists who ignored the three-mile limit . The Ger-
man publicists Theodor Schmalz (1760-I83l)if2 and Johann Kluber
(1762-1837) both supported the cannon shot rule. Neither
of them mentioned the three-mile limit, even though Great
Britain had already adopted it at the time of their writings.
The French publicist Eugene Cauchy (1802-1877),^ even though

thinks necessary for its protection against disease, smuggling,
etc . , but it shall not trespass in the limit marked by a can-
non's range" [at the time, about ten miles]. Walther M. A.
Schucking, Das Kustenmeer im internationalen rechte (Gbttingen:
Dieterich • sche univ.-buchclr., 1897), p. 10, translated by J.
Mattern and reproduced in Borchardt, North Atlantic Coast
Fisheries Arbitration, p. 328.

Schmalz, an appellate judge and professor of juris-
prudence, must have been influenced either by the 1789 edition
of von Martens' Precis or by the three-league provision of
the 1763 Treaty of Paris, because in 1817 he wrote that
". . . the sea ought to belong to the nation as far as the
defence of the coasts may extend, taking as the standard of
measurement the range of cannon shot, but since then it has
been fixed quite aribtrarily at three marine leagues." Theo-
dor Anton Heinrich Schmalz, Le droit des gens europeen, trans,
from German by Leopold de Bonn (Paris: N. Maze, 1823), p.
144, translated and reproduced in Borchardt, North Atlantic
Coast Fisheries Arbitration, p. 322.

^Johann Ludwig Kluber, Droit des gens mode me de
1' Europe (second edition; Paris: Guillaumin, 1874), p."T80,
translated and reproduced in Borchardt, North Atlantic Coast
Fisheries Arbitration, p. 103. Kluber, whose first edition
was published in 1809, was a professor of law, a ranking civil
servant and was a member of the Prussian delegation to the
Congress of Vienna. His writings adhere strictly to the can-
non shot rule.

^Eugene Francois Cauchv, Le droit maritime internat-
ional (Paris: Guillaumin, 1862), vol. I, p. 40, translated

191
writing several decades later, took the same approach. The
Italian, Giuseppe Carnazza-Amari (1837-1911), proposed a belt
of territorial waters, the width of cannon range, measured
from a series of straight cape-to-cape baselines. ^ The
Portuguese writer, Carlos Testa (1823-1891), also ignored
the three-mile limit but utilized the doctrine of cannon shot
to justify the Iberian six-mile claims.

and reproduced in Borchardt, North Atlantic Coast Fisheries
Arbitration, p. 54. Cauchy, a ranking civil servant in the
French Ministry of Justice and maritime lawyer, asked rhetor-
ically "... will not the improvements made daily in this
formidable art of artillery modify in the future the limit
of the imaginary line which is thus drawn upon the seas?"
Ibid.

^Giuseppe Carnazza-Amari, Traite du droit internat-
ional public en temps des paix, trans, from the Italian
Trattado di diritto internazionale pubblico by Montanari
Revest (Paris: L. Larose, 1880-1882), vol. II, p. 64» trans-
lated and reproduced in Borchardt, North Atlantic Coast Fish-
eries Arbitration, pp. 39-40. Carnazzi-Amari, a judge and
professor, formulated a system of measuring the territorial
sea using baselines, 84 years ahead of its time: "In order
to stifle all contests which the irregularities of the shore
might give rise to, we measure the range of cannon fire as
if they were discharged from the headlands which project
into the sea. We thus obtain a curved or straight line with-
out any sinuosities mapped out from one promontory to another.
The territorial sea extends from this line as far as the range
of cannon." Cf . post, Anglo-Norwegian Fisheries dispute,
Chapters X. and XII.

^"Carlos Testa, Le droit public international maritime,
trans, from Portuguese by Ad Boutiron (Paris: A. Durand et
Pedone-Lauriel, Editeurs, 1886), p. 72, translated and repro-
duced in Borchardt, North Atlantic Coast Fisheries Arbitration,
p. 342. Testa, a naval officer and professor at the Lisbon
Naval Academy, referred to the limit of territorial waters at
extreme cannon range as the "line of respect," i.e., the limit
to which a state could command the respect of other states.
Then, presumably in defense of the six-mile fishing conven-
tion with Spain, he added that "although the greatest range

192
Learned Societies

Institute of International Law. The Institute of In-
ternational Law was organized in Ghent in September, 1873.
Its work has included extensive research and codification on
nearly all aspects of international law. Its members are
specialists in international law. Most of the. nineteenth
century publicists mentioned heretofore were members of the
Institute. At its Paris session in 1894, the Institute a-
dopted a set of rules on the territorial sea, proposing a

six-mile limit.

International Law Association. The International Law

of cannon is the measure usually adopted, nothing prevents
powers from conventionally agreeing upon a greater extent to
their territorial sea, with the object of common utility or
for the better regulation of their respective commercial in-
terests."

^'Sir Thomas Barclay (reporter), "Report of the Third
Commission: Definition et regime de la mer territoriale,"
Annuaire de l'Institut de Droit International » XIII (Paris,
1894 session^, pp. 517-3>T9~ The proposed article on the
territorial sea readi "The Institute: Considering that there
is no reason to confound in a single zone the distance nec-
essary for the exercise of sovereignty and for the protection
of coastwise fishing and that which is necessary to guarantee
the neutrality of non-belligerents in time of war; That the
distance most generally adopted of three miles from low-water
mark has been recognized as insufficient for the protection
of coastwise fishing; That this distance, moreover, does not
correspond to the actual range of guns placed on the coast;
Has adopted the following provisions: • . • Art. 2. The
territorial sea extends 6 marine miles (60 to a degree of
latitude) from the low-water mark along the full extent of
the coasts •"

193
Association was also organized in 1873 » but in Brussels, Its
object was to reform and codify international law, but most
of its efforts were directed towards popularizing questions
of international law by public discussion. Its membership
was not limited to international law specialists, but included
men of any profession who were interested in international
affairs. Many international lawyers, of course, Were members
of both organizations. Sir Thomas Barclay, who had been Re-
porter of the Territorial Sea Commission of the Institute,
served also as Secretary of the Special Committee on Terri-
torial Waters of the Association. The Association adopted
in 1895 a set of rules identical, for all practical purposes,
to the 1^94 rules of the Institute.

IV. INTERNATIONAL TRIBUNALS AND
MULTILATERAL AGREEMENTS

The Saint Helena Hovering Act of 1816

Certainly one of the most unique contradictions to the
three-mile rule was the Saint Helena Hovering Act of 1816.
It might fairly be said that this was not a genuine contra-
diction to the three-mile rule inasmuch as the three-mile rule
had not yet become established as a rule at that early date.
However, the Saint Helena Act would have been a contradiction

^ The International Law Association, Report of the
Seventeenth Conference of the International Law Association
(Brussels, 1895 SessionTT PP- 102, 109-110.

194
to any of the three-mile limits antecedents so it is noted
here.

Napoleon had escaped from the Mediterranean Island of
Elba in January, 1B15 and returned to Europe again to lead
France against the other Great Powers. After his defeat at
Waterloo he was banished to the South Atlantic British Island
of St. Helena. On this occasion the powers took more effec-
tive precautions to prevent a recurrence. With the approval
of the "Concert of Europe," the British enacted the Act of
I6l6. The Act prohibited British vessels from approaching
St. Helena without license, and non-British vessels from re-
maining within twenty-four miles of St. Helena, after being
warned to leave. Apparently no state ever objected to the
arrangement, and in any event, it only lasted five years until
Napoleons death in 1821.

Three-League Declaration of 1874-

Henry Crockets State Department compilation of doc-
uments on the extent of the territorial sea cites a multi-
lateral declaration by seven states in 1874. The declara-
tion, signed by the United States, Germany, Austria, Italy,
Denmark, Holland, and Belgium, provided "... that if the
limit of the territorial sea should be determined by an in-

49Baty, op., cit., p. 513, and W. E. Hilbert, "The
Three-Mile Limit of Territorial Waters," U.S. Naval Insti-
tute Proceedings, LXIV (June, 1938) » p. 809 .

195

territorial agreement three sea leagues should be the mini-
mum,"

The Alleganean (1385)

During the century that followed the seizure of the
Grange (1793)» the three-mile rule and the ten-mile bay base-
line rule had become fairly well established among the mari-
time states. Then in 188 5, there came before the bench a very
similar test case, that of the Alleganean. During the Amer-
ican Civil War, Confederate naval officers had captured the
ship Alleganean, anchored in Chesapeake Bay more than four
miles from the nearest land. The mouth of Chesapeake Bay is
twelve miles wide. Consequently, the claimant contended the
ship was seized on the high seas, and thus, that the seizure
was illegal. The United States, defendent in the case, held
that the Chesapeake Bay was entirely within U. S. territory.
The case was referred to international arbitration. The ar-

J Crocker, op_. cit., p. 485. The year 1874 was also

the year that the British Government, exasperated with Spain's
claim to six miles, sent out a Circular Inquiry to the sev-
eral maritime states requesting their views toward the Span-
ish six-mile claim. (Crocker, op_. cit. , p. 557, reproduces
the copy of the Circular Inquiry sent to the United States,
citing British and Foreign State Papers, vol. 70, p. 186;
and Heinzen, op_. cit., p. 6jj, notes 1^4 and 155.) This
writer found no direct tie between the British Circular In-
quiry and the Declaration of 1874, but the timing of the two
suggests a possible connection. Walther Schlicking writes
that the Declaration of 1874 was made on the occasion of an
international conference on the regulation of the Sound
fisheries. (Schlicking, op_. cit., pp. 427-428.) Hence, it
seems possible that the Circular Inquiry may have triggered
the interest, and the conference forum provided the oppor-
tunity.

196

bitral tribunal decided in favor of the United States:

The [Chesapeake Bay] headlands are about twelve miles
apart and the bay is probably nowhere more than twenty
miles in width. The length may be two hundred miles.
To call it a bay is almost a misnomer. It is more a
mighty river than an arm or inlet of the ocean. 51

The tribunal then examined the case of the Grange, seized in

Delaware Bay, and compared the two cases:

It will hardly be said that Delaware Bay is any less
an inland sea than Chesapeake Bay. Its configuration is
not such as to make it so • • .5*

Finally, after citing the British claim to Conception Bay,

Newfoundland with its twenty-mile entrance, the tribunal held

that Chesapeake Bay was no part of the high seas, a distinct

victory for the United States, but a contradiction to the

three-mile limit.

Congress of Montevideo (1889)

The first South American Congress on Private Inter-
national Law met in Montevideo from August, 1888 to February,
1889, on the invitation of Argentina and Uruguay. Five other
states accepted the invitation: Bolivia, Brazil, Chile,
Paraguay, and Peru. The Congress approved eight draft trea-

^ The Alleganean, Stetson v. United States, No. 3993 »
Class 1, Second Court of Commissioners of Alabama Claims,
John Bassett Moore, History and Digest of the international
Arbitrations to which the United StateVTIas Been a Party
(Washington: Government Printing Office, 1898}, vol. IV,
p. 4332. The tribunal was that which had convened in the
case of the Alabama claims in 1872, and was reestablished
to sit in the case of the Alleganean, with United States,
British, Swiss, Italian, and Brazilian members on the court.

52Ibid., p. 43U-

197

ties and a protocol on several aspects of private interna-

53
tional law. " Some of the draft treaty articles touched on

public international law. In particular, article 12 of the

Treaty on International Penal Law, adopted a territorial sea

of five miles:

For the purpose of penal jurisdiction, declared as
territorial waters, are those which are included within
the extent of five miles from the terra firma- and from c
the islands which are part of the territory of each State. ^

"Inter-American Institute of International Legal

Studies, The Inter-American System (New York: Oceana Publi-
cations, Inc., 1966;, p. xix.

^"Article 12, Traite de droit penal international,
Treaty of Montevideo, January 25, 1839," reproduced in Paul
L. E. Pradier-Fodere, "Le CongrSs de droit international
Sud-Americain et les traites de Montevideo,11 Revue de droit
international et de legislation comparee, XXI (1869, number
b), p. 563 t translation by author; and Antonio Sanchez de
Bustamente y Sirven, La Mer Territoriale trans, from Spanish
by Paul Goule (Paris: Librairie du Recueil Sirez, 1930) ,
p. 2*1. The Treaty was signed by Argentina, Bolivia, Paraguay
and Uruguay, but only Uruguay followed through on the five-
mile limit, declaring the same in a neutrality decree:
"Article 2. In accordance with the principles established
by the Treaty of Montevideo in 1889 (Penal Law, article 12),
and with the principles generally accepted in these matters,
the waters will be considered as territorial waters to a
distance of five miles from the coast. ..." ("Presidential
Decree Establishing Rules of Neutrality to Be Observed in
the Ports, Roadsteads and Territorial Waters of Uruguay,
7 August 1914," reproduced in United Nations, Laws and Reg-
ulations on the Regime of the High Seas [U. N. pub. ST/LEG/
SER. B/lf"Tl~3anuary 193TJ71^ew~YorIcninited Nations, 1951) j
vol. I, p. 130.) This claim by Uruguay encountered British
opposition during World War I. (Jessup, 0£. cit. , p. 49.)
Nevertheless, Uruguay has upheld her five-mile claim for
neutrality purposes since that time.

198

Costa Rica Packet Case (1897)

In 1891, the Australian master of the whaling ship
Costa Rica Packet was arrested by order of a Dutch court in
the Dutch East Indies for an offense committed in 1888, and
later shown to have been committed outside Dutch territorial
seas. The claim for damage was referred by England and Holland
to an arbitrator, Fedor F. de Martens, the well-known Russian
publicist, diplomat, and jurist. His award properly called
upon Holland to pay damages. But the case attained some no- -
toriety because of the dictum rendered with the award. De
Martens, fully aware that both England and Holland claimed a
three-mile limit of territorial waters, completely ignored

the three-mile limit, and decided the case on the basis of

55
the rule of cannon shot. That he used the arbitration to

give effect to his well-known personal view was all the more
obvious because the alleged offense had taken place outside
both the three-mile limit and the ten-mile limit, which de
Martens claimed the range of cannon shot currently to be.

In summary, by the end of the nineteenth century,
Mexico, Spain, Portugal and Sweden and Norway were still re-
sisting the mounting pressures to adopt the three-mile limit.
All other countries had adopted the three-mile limit in one
or more of its forms. A majority of publicists recognized

^Great Britain and Netherlands, Claims Arbitration,
February 13/24, 1397, Crocker, 0£. cit., pp. 582-584; Moore,
International Arbitrations, vol. 5, pp. 4952-4954.

199
the three-mile rule as law but a considerable number still pre-
ferred the rule of cannon shot. There were several instances
of special claims for special purposes, but in most cases the
claimants believed their claims not to be in contradiction of
the three-mile limit. Lastly, towards the end of the century,
there was evidence of significant interest in the possibility
of a six-mile limit.

CHAPTER IX

THE FIRST QUARTER OF THE TWENTIETH CENTURY:
THE THREE-MILE LIMIT BECOMES PARAMOUNT

It was noted in Chapter VII that Britain enjoyed
maritime supremacy in 1815, She continued to enjoy that
position throughout the century and even at the outbreak
of World War I there was no state that approached British
strength in either merchant or naval shipping. It must be
pointed out, however, that Britain's maritime strength via-
a-vis the other powers was declining. Whereas in 1815 Brit-
ain^ navy was larger than all others combined, by 1914 the
combined navies of Germany, France, and the United States
exceeded that of England, as indicated in Table I on the
following page.

The decline of the Royal Navy in relative numerical
superiority was Just that, and only that — a relative decline.
The nineteenth century, with the invention of the Armstrong
gun, the naval steam boiler, and steel armored ships, sounded
the death knell for the modern battleships and navies of
1815, By 1914 the Royal Navy had been converted to steam and
steel with the construction of the well-known "Dreadnaught "
battleship fleet. In fact, in 1914 the British fleet was

200

201

TABLE I

COMPARATIVE NAVAL STRENGTHS OF
SELECTED STATES IN 1914

STATE

CAPITAL

SHIPS

AND

BATTLE

CRUISERS

TOTAL
MAJOR
WARSHIPS

(MAJOR
WARSHIPS
UNDER
CONSTRUCTION)

Great
Britain

120

192

(19)

Germany

(16)

United
States

(4)

France

(3)

Japan

(6)

Italy

(5)

Russia

(17)

NOTE: Data in this table from "Great Britain,"
Encyclopaedia Britannica (1953 edition), X, 633. Figures
for Great Britain include three major warships of Australia.

202
at its highest state of efficiency and strength.1 But the
other powers were able to take advantage of the mid-century
mass obsolescence of the British wooden fleet, and commenced
building modern fleets of their own late in the nineteenth
century. And although they did not keep pace with Great
Britain, as the figures show, they did narrow the gap some-
what •

With respect to merchant shipping, the picture was
much the same in 1914. In 1886, over half the merchant ton-
nage of the world sailed under the Union Jack.2 Of the world's
total tonnage at that time, about one-half was still under
sail. By 1914, however, when the world's total tonnage had
more than doubled to 49 million gross tons, 92$ of it was
steam powered. The British still claimed 21 million tons of
that 1914 total, or four times as much as either of her
closest competitors, Germany and the United States, as shown
in Table II, page 203.

In both Table I and Table II there appear two non-
European powers, the United States and Japan. Whereas only
European states had figured as important maritime powers at
the beginning of the nineteenth century, events at the end
of the century heralded the debut of non-European states as

1 "Great Britain," Encyclopaedia Britannica (1953
edition), X, 688.

2
"Shipping: Merchant Ships of the World," Encyclo-
paedia Britannica (1953 edition), XX, 548, table I.

TABLE II
WORLD'S MERCHANT SHIPS IN 1914

205

STATES

WHERE OWNED

STEAM

United Kingdom 18,892

British Dominions 1,632

Empire Total 20,524

Germany 5,135

United States 4,330

Norway 1,951

France 1,922

Japan 1,708

Italy 1,430

Netherlands 1,472

Sweden 1,015

Spain , 884

Greece 821

Denmark 770

Other States 3»436

Grand Total 45,404

SAIL

364
157

121

325

1,038
547
397

238
25

103
15
16
50

411

3,686

TOTAL

19,256
1*789

21,045

5,460

5,368

2,504

2,319

1,708

1,668

1,497

1,118

899

837

820

3,847

49,090

NOTE: Figures are to the nearest 1000 tons, and
include only ships of 100 tons or more. Source: "Shipping:
Merchant Ships of the World," Encyclopaedia Britannica
(1953 edition), XX, 548, Table I, citing various editions
of Lloyd's Register. The United States did not take the
lead in merchant shipping until World War II,

201-
principal members of the cast on the stage of world politics.
First, there was the Spanish-American War of 1898. Much of
the nineteenth century had seen the United States pursuing
her policy of "manifest destiny" which, in the end, provided
her with frontiers on two oceans. That accomplished, she
was ready, in the words of Rudyard Kipling, to "take up the
white man's burden; and the United States' adventure in the
Spanish- American War added her to the roster of imperial
powers. In losing that war, Spain forfeited most of her
remaining colonies. The Spanish claims to six-mile terri-
torial seas around Cuba, the Philippines, and Puerto Rico
were replaced by United States' three-mile claims.

In the far east, there followed shortly a similar
event. The Japanese surprised the world with a brilliant
military victory over Russia in the Russo-Japanese War of
1904-1905. For the second time in seven years, a non-Euro-
pean state had defeated a European state. Not only did this
war serve as the harbinger of the development of the Japa-
nese Empire, it signaled the decline of Imperial Russia as a
leading world power; and the government of the Tsars never
recovered from that blow. Interestingly, to settle the war
Russia accepted the mediation of the United States, further
enhancing the international prestige of the latter country.
The Peace of Portsmouth in 1905 resulted in Russia's cession
of the southern half of Sakhalin to Japan; consequently,
roughly a thousand miles of Russian coastline with a ten-

205

mile fishing limit became Japanese coast with a three-mile
limit.

A glance at a world map of 1900 reveals that most of
the world's coast lines were three-mile limit coast lines.
England, France, Germany and the Netherlands — three-mile
states — had colonized or absorbed within their sphere of
influence most of the coasts of Africa, southern Asia, and
Oceania. The non-three-mile limit coast lines — Uruguay,
Scandinavia, Iberia, and Mexico — accounted for very little
of the world's total, and the ships of those states for less
than 10$ of the global aggregate. The events of the first
quarter of the twentieth century strengthened even more the
three-mile rule, bringing it to its zenith in the 1920* s.
These events will be taken up in the remainder of this
chapter.

I. THE PRACTICE OF STATES

Great Britain

The British continued to press the three-mile rule
against states which favored greater limits. Uruguay had
asserted a claim to control fishing in the mouth of the Rio
de la Plata, an area more than 60 miles wide and including
some 5000 square miles. A Canadian sealer, the Agnes G.
Donohoe was arrested in 1905 for fishing in those "Uruguayan"
waters in violation of a presidential decree. The British
protested the Uruguayan claim to exercise Jurisdiction be-

206
yond the usual three-mile limit and the vessel was released.3

The same year, 1905, the British reaffirmed their
earlier position against the Spanish and Portuguese six-
mile limit. Bolstering the activities of British, French,
and German fishermen, still fishing up to within three
miles of the Iberian coast in defiance of local regulations,
the British Foreign Office declared "... that His Majesty's
Government did not recognize any claims of the Spanish or
Portuguese Governments to exercise jurisdiction over British
vessels beyond the three-mile limit."4 In July, 1908, Sir
Edward Grey, the British Foreign Secretary, summed up the
policy of Great Britain in this regard as being not only
". . .to uphold the three-mile limit, but to protect against
and to resist by every means in our power the pretension of

any foreign country to enforce its own jurisdiction on the

5
sea beyond the three-mile limit.

However, the British government was careful to insure
that her diplomatic pressure abroad was matched by recipro-
cal treatment of foreigners in British waters. For example,

3Thomas W. Fulton, The Sovereignty of the Sea (Edin-
burgh and London: W. Blackwood and Sons, 11JTl77~p7~6~63 .

4
Ibid., p. 667, citing the National Sea Fisheries

Protective Association, Twenty-fourth Annual Report of the

Committee of Management (1905), p. 7.

5Ibid., p. 732, citing Great Britain, Parliament,
[Hansard' sj Parliamentary Debates (fifth series; London:
H. M. Stationery Office, 1909- ' ), vol. 170, p. 1383.

207
in 1889 there had been passed the Herring Fishery (Scotland)
Act which prohibited "otter-trawling" or "beam trawling" in
certain areas. These areas were extended in 1892 by the
Fishery Board for Scotland to include all of Moray Firth,
the headlands of which are over seventy miles apart. In
1906, the Danish master of a Norwegian fishing vessel was
convicted by the Scottish High Court of Justiciary for "otter-
trawling" in Moray Firth, even though beyond the three-mile
limit. Six more Norwegian trawlers were similarly arrested
and fined in 1907. The Norwegian and Swedish governments
protested the practice to the British government which in turn
directed that those arrested be released. The Foreign Office
held that the conviction violated international law. and thence*
forth the Act was interpreted as applying only to British
subjects. 6

In marked contrast to the case of the Alleganean,
wherein Chesapeake Bay was held to be an "historic" terri-
torial bay, was the case of the Fagernes . In 1926, there
occurred a collision between the steamship Cornish Coast and
the Fagernes, the latter being sunk. The collision occurred
in the Bristol Channel, about midway between the English and

Morten sen v. Peters, 8 Session Cases, 5th Series,
93 (1906), Herberts. Brfg'gs (ed.J, The law of"Nations:
Cases, Documents, and Notes (second edition ;~TTew York:
Appleton-Century-Crofts, Inc., 1952), pp. 52-57; and 14
Scots Law Times Reports 227 (1906), Charles G. Fenwick
(ed. J,""TTases on International Law (second edition; Chicago:
Callaghan and""Cb., 1951 J, p. 2"5T~

20S

Welsh coasts, where the width of the channel was 20 miles.
In 1927, a British Court of Appeals, following an instruction
from the Home Secretary, held that the point at which the col-
lision occurred was not within territorial jurisdiction. ^
This was a most striking instance of upholding the three-
mile rule. There had "been many precedents wherein such "bodies
of water had been assimilated as national territory; Britain
herself had done it earlier in the case of Conception Bay.
Yet in this case, out of ardor for the three-mile limit,
Britain abstained from claiming as territorial waters, waters
which by legal standards of the 1960 's would be considered
not only territorial waters, but internal waters 1

Germany

Although Germany had been a signatory to the 1882
North Sea Fisheries Convention and the 1888 Suez Conven-
tion, she had not formally legislated the three-mile limit
during the nineteenth century. The cannon shot decree of
1866 remained effective until 1909 when Germany redefined
her neutral territorial waters as those "... within the
sea area 3 nautical miles in breadth from the coast line
at low water, extending along the coast and the islands and

7The Fagernes, Probate 311 (1927), British Institute
of International and Comparative Law, Bri ti sh In t ernational
Law Cases (London: Stevens and Sons, and New York: Oceana
Publications, 1965), vol. II, pp. 907-923.

209

bays belonging thereto." The three-mile limit was upheld

by the German Supreme Prize Court at Berlin in 1915 in the

9
case of the Elida.

Following the war, Germany continued to observe the

three-mile limit. In 1924, she protested a Finnish customs

zone beyond three miles, which Germany regarded as the only

limit recognized under international law.10 That- same year,

in a treaty with the United States, Germany pledged her " • . •

firm intention to uphold the principle that 3 marine miles

. . . constitute the proper limits of territorial waters."

Italy

Italy, too, had waited until the twentieth century
to declare specifically a three-mile limit. This came in

^German Naval Prize Regulations of September 30,
1909, translated and reproduced in Henry G. Crocker (ed.),
The Extent of the Marginal Sea, U.S. State Department
TWashington : Government Printing Office, 1919), p. 533.

g
The Elida, German Imperial Supreme Prize Court, I
Entscheidungen des Oberprisengerichts, 9 (1915), Briggs,
op. cit., pp. 27^280. The Swedish ship Elida had been
captured between three and four miles from the Swedish
coast. Germany claimed three miles; Sweden claimed four.
The Court rejected Sweden's claim to four miles, noting
that the German three-mile limit was more in accord with
international law, inasmuch as the Swedish claim was sup-
ported only by Norway.

Note of February 24, 1924 cited in Philip C. Jessup,
The Law of Territorial Waters and Maritime Jurisdiction (New
York: G.T. Jennings Co., Inc., 1927 /, p. 24.

United States and Germany, "Convention for the
Prevention of Smuggling of Intoxicating Liquors, May 19,
1924, " cited in ibid.

210

1908 in the form of naval instructions:

.... [P]or the purposes of the law of war terri-
torial waters have the extent to cannon range from the
shore. The said extent, by customary law must be held
to be fixed at three marine miles from the coast, be-
ginning at low water mark. 12

Netherlands

Like Germany and Italy, Holland confirmed her nine-
teenth century treaty commitments to the three-mile limit by
domestic acts in the twentieth century, namely neutrality
declarations of 190413 and 1914, the latter of which reads:

The State territory comprises the coastal waters
to a distance of three nautical miles . . . .14r

Portugal

The diplomatic pressure from the great powers, most
notably England, finally influenced Portugal to adopt the
three-mile limit. In 1909, she "accepted the inevitable,"
in the words of Thomas Fulton, ^ and passed a new law which

120ffice of the Chief of Staff, Italian Ministry of
the Navy, "Rules of International Maritime Law in Time of
War, 1908," translated and reproduced in Crocker, op_. cit .,
pp. 600-601, quoting paragraph 14 of the rules.

■^"Proclamation of Neutrality in the Russo-Japanese
War, February 12, 1904, " United States Department of State,
Foreign Relations of the United States (Washington: Govern-
ment Printing Office, ~TB~6?= ), 1904 vol., p. 27.

14: "Declaration of Neutrality in the War between Bel-
gium and Germany, and between Great Britain and Germany,
August 5, 1914," Crocker, op_. cit., p. 607.

Fulton, 0£. cit. a p. 668.

211

read:

Article 1. Foreign vessels are prohibited from
fishing in Portuguese territorial waters within the
limit of three nautical miles measured from the line
of extreme low water. 16

Portugal did not, however, abandon her six-mile claim with

respect to customs-^ and to neutrality.

Spain

Although Portugal had adopted a three-mile. fishing
limit while retaining a six-mile zone for neutrality, the
Spanish government did just the opposite. Spain tenacious-
ly held on to her six-mile fishing limit but adopted a neu-
trality zone of three miles early during World War I.
Three years later she announced a similar three-mile mari-
time boundary for the neutrality of Spanish Morocco. 20

16Portuguese Fishery Law of October 26, 1909, trans-
lated and reproduced in Crocker, 0£. cit., p. 619.

Portuguese customs decree of May 27, 1911, arti-
cles 211 and 216, cited in Arnold Raestad, "Tableau des lois
et regies actuellement en vigueur dans les pays d' Europe
et aux Etats-Unis drAmerique en ce qui concerne l'etendue
de la mer territoriale, ,r Revue General e de Droit Internat-
ional Public, XXI (May-June, 1914;, p. 41B7

U. S. Naval War College, "Marginal Sea and other

Waters, " International Law Topics and Discussions 1915 (Wash-
ington: Government Printing 0ffice7T914j, p. 24.

19Bernard G. Heinzen, "The Three-Mile Limit: Pre-
serving the Freedom of the Seas, " Stanford Law Review, XI
(July 1959), p. 635 and Stefan A. Riesenfeld, Protection of
Coastal Fisheries under International Law (Washington:
Carnegie Endowment for International Peace, 1942), p. 176.

Neutrality Regulations for the Spanish Zone in

Morocco, July 18, 1917, cited in Jessup, ojd. cit., p. 42.

212
Denmark

As pointed out in Chapter VII, the Danes departed
from the historic Scandinavian league practice with their
signing of the three-mile North Sea Convention of 1882.
Denmark went a step farther and adopted the three-mile rule
for Danish territorial waters in her domestic legislation in
1900. 21 Then, the following year, she gave up her long stand-
ing claim to a greater extent of exclusive fisheries in her
colonies by granting the British permission to fish within
three miles of Iceland and the Faeroes.22

Sweden

The case of the Elida had been unpleasant for Sweden.2*5
Desirous of maintaining her neutrality, Sweden chose to come
into line with the laws of the belligerent states so as to
reduce the chances of friction and possible hostile involve-
ments. In 1916 she adopted a three-mile neutral zone:

Submarines belonging to foreign Powers and equipped
for use in warfare may not navigate or lie in Swedish
territorial waters within three nautical minutes (5,556

Denmark, "Law Respecting Illegal Trawling in
Territorial Waters, April 7, 1900, " translated and repro-
duced in Crocker, op. cit., pp. 516-517.

Great Britain and Denmark,, "Convention for Regu-
lating the Fisheries outside Territorial Waters in the Ocean
Surrounding the Faerjzf Islands and Iceland, June 24, 1901, "
William L. Hertslet et_ al. (eds.), Hertslet's Commercial
Treaties (London: Foreign Office, 1827-1925), vol. XXIII,
p. 425.

See supra, p. 209, note 9.

213

\ 24

meters; from land. ...

Norway

The personal union of Sweden and Norway under the
King of Sweden was dissolved in 1905 and Norway became an
independent monarchy. The new Norwegian monarchy also re-
mained neutral in World War I and found the four-mile limit
too difficult to defend. In 1918 she followed the lead of
Sweden and declared:

1. The Norwegian Government, who have in the past
claimed that the territorial waters of Norway extend to
4 miles from the shore, have recognized the difficulty
of upholding this claim during the war, since it is
not recognized by either the British or the German
Governments . 25

The declaration went on to redelimit the Norwegian territor-
ial sea at three miles for neutrality purposes.

Mexico

Even Mexico, who had claimed a three-league limit
for many decades, adopted the three-mile limit at" the be-
ginning of the twentieth century. In 1902 — just after the
United States had defeated Spain in the Gulf of Mexico and

24 "Royal decree, comprising additions to the Royal
decree of December 20, 1912, with certain regulations with
respect to the neutrality of Sweden during war between for-
eign Powers, July 19, 1916, " translated and reproduced in
Crocker, op. cit., p. 628.

"Norwegian Declaration of June 18, 1918, United
States Naval War College, "Maritime Jurisdiction, " Inter-
national Law Situations with Solutions and Notes, 1928
(Washington: Government Printing 0ffice"7~T928J, p.T9T

21k

Caribbean — a three-mile Act was passed by the Mexican govern-
ment. This was probably done reluctantly, under the
mounting international pressure in favor of the three-mile
rule; at least the fact that she later reverted to her nine-
mile claim, when the opportunity presented itself, would
make it seem so.

United States

As the United States grew stronger as a maritime
power, her interest in the three-mile limit seemed to grow.
Following her success in the war with Spain, the United
States took several steps indicating this to be the case.
In 1900, a code of naval warfare was adopted which featured
the three-mile limit.27 In 1901, incident to the planned
construction of the Panama Canal, a treaty was concluded
with Britain specifying a three-mile limit for the proposed
canal. In 1902, the United States issued a policy decla-

6 "Law of Immobile Properties of the Nation, Decem-
ber 18, 1902,", Article 4, section I, Heinzen, op. cit., p.
634: Reisenfeld, op. cit., p. 235.

27"United States Naval War Code, June 27, -1900,"
in United States Naval War College, International Law Dis-
cussions 1903 (Washington: Government Printing Office, 1904),
pp. 18, 101, 103 .

United States and Great Britain, Treaty to

Facilitate the Construction of a Ship Canal, November 18,
1901," William M. Malloy (ed.), Treaties, Conventions,
International Acts, Protocols, and Agreements between the
United States of America and OtTTer Powers, T776-19Q"37 "Senate
Document No. 35T, 61st Cong. , 2nd Sess. (Washington: Govern-
ment Printing Office, 1910), vol. I, p. 783.

ration on the three-mile rule: 215

The Government of the United States claims and
admits the jurisdiction of any State over its terri-
torial waters only to the extent of a marine league,
unless a different rule is fixed by treaty between
two States: even then the treaty States are alone af-
fected by the agreement ,29

Several years later, the United States brought Cuba and Pan-
ama formally into the three-mile "club" by signing smuggl-
ing treaties with those states, each treaty affirming the
three-mile limit.30

II. INTERNATIONAL ARBITRATIONS AND
MULTILATERAL AGREEMENTS

Individual state practice during the first quarter
of the century clearly attested to the paramountcy of the
three-mile limit. Virtually all opposition to, and devia-
tion from, the three-mile limit either disappeared or was
effectively suppressed by the unanimity of the great powers.
International and multilateral practice, too, strongly en-

29 "Declaration Relative to the Extent of Jurisdic-
tion Claimed over the Bordering Waters of the Bering Sea,
July 4, 1902," (Declaration of Mr. Herbert H. D. Peirce,
agent of the United States, in the C.H. White case, Russian
Arbitration, in reply to the question asked by Mr. T. M. C.
Asser, arbitrator. It was made under the specific authority
received by him from the Secretary of State of the United
States on July 3, 1902), Crocker, 0£. cit., pp. 680-681;
Foreign Relations of the United States"T302J Appendix, I,
pp. 440-461.

Jessup, op. cit., p. 49, citing Treaty of June 6,

1924 with Panama,~*tr. ST*Treaty Series No. 707, and Treaty

of March 4, 1926 with Cuba, U.S. Treaty Series No. 738.

216
hanced the status of the three-mile rule. The period lead-
ing up to World War I was one of great popularity for the
practice of international arbitration. The Permanent Court
of Arbitration had been established at the First Hague
Peace Conference of 1899. Subsequently, dozens of bilateral
and multilateral arbitration treaties were signed. Scores
of international disputes were submitted to arbitration,
and several of them involved territorial waters and the
three-mile limit. The most pertinent of these, inter alia,
will be considered in this section.

Second Hague Peace Conference (1907)

Although the Second Hague Peace Conference had not
had as one of its purposes the codification of the law of
territorial waters, the issue of the three-mile limit did
arise. The Conference had met at The Hague with the task
of codifying the rules of war and neutrality. The Con-
ference's Third Commission was tasked with preparing the
Eighth Convention, dealing with the laying of automatic
submarine contact mines. The Committee of Examination, in
preparing the draft convention, included several references
to the territorial sea. The article concerning the three-
mile limit appeared as follows:

Article 2

It is forbidden to lay anchored automatic mines,
beyond a distance of three nautical miles from low-
water mark, throughout the length of the coast-line,

217

as well as along the islands and Islets adjacent
thereto ,31

This draft was essentially the British version which,
surprisingly, encountered the resistance of the United States,
Rear Admiral Charles S. Sperry, speaking for the United
States' delegation, proposed that references to any specific
width, such as three miles, be deleted. 2 While Admiral
Sperry and the United States may have regretted this later,
they had their reasons for this position at the time. They
argued that the draft convention was not specific enough on
baselines, and that until the determination of baselines
could be agreed upon, there was no point in fixing an exact
limit. It must be recalled that the United States had re-
cently acquired the Philippines. Admiral Sperry pointed
out the problem of delimiting and measuring territorial seas
in an area like the Philippines with its extensive labyrinth
of coral islets and reefs, some of which appear only at
low tide. Sperry added that it had not been ascertained
under international law or under the draft convention whether
or not these partially and occasionally submerged islets
and reefs were considered part of the territory of the United
States, and consequently, that "low-water mark" was too elu-

31,1 Report to the Third Commission of the Second
Hague Peace Conference, September 17, 1907, " in James Brown
Scott, The Reports to the Hague Conferences of 1899 and
1907 (Oxford: The Clarendon Press, 1917 J, p.T6T:

32Ibid.

21S

sive a term upon which to construct baselines.33

There was also the matter of the contemporary dis-
pute with Great Britain over how to measure baselines off
eastern Canada. In this dispute, to be discussed presently,
the United States was attempting to obtain a more favorable
British interpretation of the Convention of 1818 as regarded
the baseline along the coast, bays, and inlets of. the Canadi-
an maritime provinces. The Americans were fully aware of
the British fondness for the three-mile limit, and the
negotiating tactic employed by Sperry may well have been
intended to apply additional pressure for the sake of this
latter matter.

The American argument prevailed and the final ver-
sion adopted by the Conference contained no reference to
three miles. The term "territorial waters," however, was
used frequently in the language of the Convention, in ef-
fect deferring the issue of extent until the problem of base-
lines was solved.34 In the Final Act of the Conference,
provision was made to schedule a Third Hague Peace Confer-
ence. Preparations and preliminary work were interrupted
by World War I and the Third Conferenence was never held.

33Ibid., p. 665.

Article 2 of the Eighth Convention reads: "It is
forbidden to lay automatic contact mines off the coasts
and ports of the enemy. ..." Ibid., p. 645.

219
International Settlement of the Pelagic Sealing Controversy

As noted In Chapter VII, the Bering Sea Arbitration
of 1893 provided only a partial, and Ineffective, solution
to the problem of pelagic sealing. In their subsequent en-
thusiasm and determination to prevent the extinction of the
fur seals, United States authorities boldly and liberally
interpreted the Bering Sea Award and Regulation as author-
izing the seizure of any vessel or person having on board or
in their possession any of several forbidden seal fishing ap-
paratus. This interpretation inevitably led to a confron-
tation with the British. In June 1909, three Canadian seal-
ing schooners were hunting sea otters outside the three-
mile limit near the Cherikof Islands. The craft were boarded
by an over-zealous United States revenue officer who locked
up their hunting weapons. The British protested the action
on behalf of the owners, and the case was submitted to ar-
bitration. The arbitration tribunal decided that the
American revenue officer had committed an error in Judgment,
and awarded indemnities for each of the British vessels.36

°°Bering Sea Fur Seal Arbitral Award and Regulations
of August 15, 1893, reproduced in John Bassett Moore, His-
tory and Digest of the International Arbitrations to which
the United States Has Been a Party (Washington: Government
"Printing Office, 1"8~98~), vol. I, p. 945. The Bering Sea Reg-
ulation, in fact, only prohibited the "... use of nets,
firearms, and explosives ... in the fur seal fishing."
(emphasis added) . Ibid.

The Jessie, the Thomas P. Bayard, and the Pescawha,

Great Britain v. United States, Claims Arbitration, 1921,

220
Nevertheless, the controversial situation continued
to deteriorate. Several other Canadian sealers were actually

seized on the high seas by American cutters attempting to

37
enforce seal conservation measures. After many fruitless

attempts at settlement, differences were resolved by means
of a multilateral convention between Britain, Russia, Japan,
and the United States, whereby a long-needed effective con-
servation program was placed into effect. In so doing, the
so-called Fur Seal Convention of 1911 acknowledged the three-
mile limit:

Article V. Each of the contracting parties agrees
it will not permit its citizens or subjects or their
vessels to kill, capture, or pursue beyond the distance
of three miles from the shore of its territories sea
otters. . • . 38

This Convention did solve the fur seal problem; the seal

herd thrived and within a few years its normal population

was restored.

Nielsen's Report 479 reproduced in part in Briggs, op_. cit.,
pp. 327-328. The United States revenue officer searched, the
three craft for seal skins but found none. Even so, he then
placed all the firearms found on board under seal and or-
dered that they not be reopened as long as the vessels re-
mained north of 35° north latitude and east of 180° west
latitude I

The Wanderer, the Favorite, and the Kate, Great
Britain v. United States, Claims Arbitration, 1921. Nielsen's
Report 4T>9, 472, 51b f cited in Briggs, op. cit., p. 328.

"Convention between Japan, Great Britain, Russia,

and the United States for the Protection of Fur Seals and

Sea Otters in the North Pacific Ocean, Washington, July 7,

1911," reproduced in American Journal of International Law

V (October, 1911), Supplement, pp. 267-274.

221

The North Atlantic Coast Fisheries Arbitration

Just as the year 1911 brought solutions to the fur
seal fisheries problem in the Pacific, the following year
witnessed the solution of the long standing North Atlantic
coast fisheries rivalry. The North Atlantic fisheries dis-
pute culminated in the second famous arbitration in as many
decades between the United States and Great Britain over
fishing rights. Both disputes had their roots in the same
two issues: conservation of fisheries and the delimitation
of territorial jurisdiction to seaward. Positions, however,
were reversed in the two cases. Whereas in the Bering Sea
Arbitration it was the United States that was attempting to
exercise controls to preserve the fur seals, in the latter
instance it was the Canadians who were trying to preserve
their fisheries against American encroachment.

Background. The early background, i.e., the Treaty
of Paris (1783), the Treaty of Ghent (1814), and the Con-
vention of 1818, have already ^oeen discussed. It will be
recalled that in the Convention of 1818, the United States
"... renounce[d] forever, any liberty heretofore enjoyed
. a . to take, dry, or cure fish on or within three marine
miles of any of the coasts, bays, creeks or harbors ..."
of the British American provinces.39 This wording caused

39
-See supra, p. 123.

222

more problems than It solved. In the century which followed
there were arrests, seizures, abortive negotiations, un-
ratified treaties, charges of breach of faith, and vexed
diplomatic relations. The Canadians felt they had sovereign
rights to protect and regulate the fishery, provided Amer-
ican and British subjects shared the same restrictive con-
servation measures "in common, " as the terms of the treaty
suggested. The Americans, instead, interpreted the "in
common" feature of the treaty to invest them with a share
of the sovereign control of these waters. In the absence
of agreement on this issue, the Canadians and Newfound-
landers resorted to imposing and enforcing discriminatory
regulations against United States fishermen. The case of
the David J. Adams provides a remarkable example of both the
extent of the deterioration of diplomatic relations, and
of the pettiness In the interpretation and implementation
of the 1818 Convention by the British authorities. In that
case, the American schooner, David J. Adams, had entered
the port of Digby, Nova Scotia In 1886 to purchase bait.
This right had not been expressly permitted under the Con-
vention of 1818, and the authorities at Digby seized, con-
demned, and disposed of the vessel.40 There occurred many
other disagreeable Instances such as this one before the

40The David J. Adams, United States v. Great Britain,
Claims Arbitration, 1921, Nielsen's Report 526, reproduced
in part in Briggs, 0£. cit., pp. 892-896.

223

two powers agreed to submit the Issue to The Hague Perma-
nent Court of Arbitration; a treaty was concluded to that
effect in 1908.

The contentions. The compromis d' arbitrage posed
seven question for the tribunal to consider. Only one of
them is closely germane to a study of the three-mile limit,
that being Question 5 of the compromis which dealt with
baselines.

Question 5. From where must be measured the "three
marine miles of any of the coasts, bays, creeks, or har-
bors" referred to In the said Article?^!

[Article I of the Convention of 1818]

This question referred to the coasts, the terri-
torial waters of which the United States had renounced its
right to fish. In order to obtain the greatest fishing area,
the United States desired strict application of the three-
mile rule, thus holding to a minimum the territorial waters
from which it would be excluded.

The British naturally espoused the position which
would enclose as great an area within exclusive jurisdiction
as possible, namely that the three-mile limit should be
measured from baselines drawn from headland to headland

41 tt

Special agreement for the submission of questions

relative to fisheries on the North Atlantic coast under the

general treaty of arbitration concluded between the United

States and Great Britain on the 4th day of April, 1908, "

United States Congress, Senate, Proceedings in the North

Atlantic Coast Fisheries Arbitration, SenateHSbcument No.

870, 61st Cong., 3rd Sess. ( Washington: Government Printing

Office, 1912), vol. I, p. 27.

22K

across all "bays, regardless of size and configuration. She
had earlier advanced this interpretation in the case of the
Bay of Fundy in defending her seizure of the schooner Wash-

A.?

ington. Having failed in that attempt, she wis now ap-
plying the interpretation to all the remaining, lesser hays.
The United States countered with the argument that American
fishermen could not, under the treaty, he excluded from bays
or indentations unless they narrowed to six miles, -except-
ing of course "historical" bays, such as Delaware Bay, which
was cited as an example.

The tribunal had been asked to address a western
hemisphere problem which had already found a solution among
the European powers. The North Sea Fisheries Convention had
adopted the ten-mile bay baseline formulated earlier in the
1839 Anglo-French Treaty. But the United States and Britain,
between themselves, had been unable, or unwilling, to agree
on the basis of that earlier formula. True, they had made
an attempt in this direction. In 1888 they had signed a
treaty, featuring the ten-mile baseline, but the treaty was
never ratified.43 At the time, the ten-mile baseline was at
once too long for the Americans and too short for the British.

^See supra, p. 161.

43United States and Great Britain, "Treaty for the
Settlement of the Fishery Question on the Atlantic Coast of
North America, February 15, 1888, " (unratified), British
and Foreign State Papers, vol. 79, p. 267.

225

One other of the seven questions was indirectly re-
lated to this study, namely Question 1, which asked the tri-
bunal to determine whether or not the British had the right,
independent of the United States, to regulate the taking of
fish, i.e., setting seasons and hours for fishing, and con-
troling the methods and implements to be used.

The award . The Permanent Court decided the latter
question in favor of Great Britain, by affirming the British
right to issue regulations which were "appropriate or nec-
essary for the protection and preservation" of the fisheries.
Seeing the desirability of international cooperation in con-
servation, the Court exercised its right of recommendation
conferred in the compromis and recommended the establishment of
a Permanent Mixed Fishery Commission to determine the reason-
ableness of regulations which might arise and create friction

44
in the future.

In its dictum as to Question 5, the Court paved the

way for a compromise solution:

The negotiators of the treaty of 1818 did probably
not trouble themselves with subtle theories concerning
the notion of "bays"; they most probably thought that
everybody would know what was a bay. In this popular
sense the term must be interpreted in the treaty. The
interpretation must take into account all the individual
circumstances which, for any one of the different bays,
are to be appreciated; the relation of its width to the

4%orth Atlantic Coast Fisheries Arbitration Pro-
ceedings, op. cit., vol. I, p. 87.

226

length of penetration inland. . . [etc.]4^

Offering that introductory explanation, the tribunal decided

and awarded:

In the case of bays, the three marine miles are to
be measured from a straight line drawn across the body
of water at the place where it ceases to have the con-
figuration and characteristics of a bay. At all other
places the three marine miles are to be measured follow-
ing the sinuosities of the coast.46

Realizing that this solved nothing, the Court again
drew on its recommendatory powers. Considering the multi-
lateral precedent of the North Sea Fisheries Convention, the
tribunal suggested that Britain and America adopt like pro-
cedures:

Now therefore this tribunal recommends for the con-
sideration and acceptance of the High Contracting Parties
the following rules and method of procedure for deter-
mining the limit of the bays hereinbefore enumerated:

1. In every bay not hereinafter specifically pro-
vided for the limits of exclusion shall be drawn three
miles seaward from a straight line across the bay in
the part nearest the entrance at the first point where
the width does not exceed ten miles.4'

The Court went on "specifically to provide " for Conception
Bay, confirming its "historic" status. But the Court failed
to define the term "bay," i.e., configuration, characteris-
tics, depth-to-breadth ratio, etc. Only the width of the
mouth of a bay was established. Nothing would have prevented

45
'ibid.

Ibid., p. 97
46.

47Ibid., pp. 97-98.

227
a littoral state from drawing a series of ten-mile lines
across even the shallowest indentations all along its coast,
if it chose arbitrarily to ascribe to them the status of
bays. Fortunately, this did not occur; and the ten-mile bay
practice gained wide acceptance among nations during the next
several decades.

The recommendations made by The Hague tribunal were
carefully considered by the contracting parties. On July
20, 1912, the two governments signed an agreement embody-
ing both the recommendation on the Permanent Mixed Fisheries
Commission, and that of the ten-mile rule for bays.48

The Arbitration enjoyed wide publicity and acclaim
and not only strengthened the three-mile rule but it also
enhanced the prestige of arbitration as a means of pacific
settlement of disputes.

El Salvador v. Nicaragua (1917)

In 1914, the United States concluded a treaty with
Nicaragua, which granted the United States the right to
construct a transoceanic canal through Nicaragua and to build
and operate a naval base on the Nicaraguan coast of the Gulf

Agreement between the United States and Great
Britain Adopting with Certain Modifications the Rules and
Methods of Procedure Recommended in the Award of September
7, 1910, of the North Atlantic Coast Fisheries Arbitration,
Washington, July 20, 1912" (Ratifications exchanged Novem-
ber 15, 1912), reprinted in Supplement to American Journal
of International Law, VI (January, 1913), pp. 41-46.

223
of Fonseca. The Gulf of Fonseca is surrounded by the coast-
lines of Nicaragua, Honduras, and El Salvador. The Gulf
opens to the Pacific with its western headland in El Salva-
dor and its eastern headland in Nicaragua. Because of a num-
ber of islands and sand banks between headlands, the 19-mile
headland distance is reduced, in effect, to four miles. The
bay is fifty miles long and averages thirty miles ;Ln width.

Certain Central American states opposed the 1914
treaty on the grounds that the Gulf of Fonseca was a closed
"historical" bay, owned jointly by the three littoral states.
They held that any rights granted to non-littoral states
must have the approval of all littoral states, and could not
be conferred unilaterally as had Nicaragua. Costa Rica and
El Salvador brought the matter before the Central American
Court of Justice in order to ascertain the legal status of
the Gulf with a view to having the treaty nullified.

Several questions were placed before the Court con-
cerning the status of the Gulf. The judges* replies to the
questions reflected unanimous approval of the three-mile
rule but they did not agree regarding the application of the
three-mile rule.

To the Ninth Question, the judges unanimously agreed
that the Gulf of Fonseca was an historic bay, possessing the

^Bryan-Charaorro Treaty of August 5, 1914, Malloy,
0£. cit., vol. II, pp. 2740-2741.

229

characteristics of a closed sea. The Fifteenth and Thir-
teenth Questions, respectively, asked if there need be a
marine league belt of territorial sea on the Gulf coast
in view of the Gulf's co-ownership, and if so, what should
be the configuration of the zone of territorial waters and
the adjacent customs inspection zone. The Fifteenth Ques-
tion was:

[alnswered in the affirmative by Judges Medal,
Oreamuno and Castro Ramirez; and in the negative by
Judge Gutierrez Navas, on the ground that in the inter-
ior of closed bays there is no littoral zone; Judge
Bocanegra answered in the affirmative on the ground
that the high parties litigant, having accepted the
Gulf of Fonseca as a closed bay, the existence of the
marine league of exclusive ownership becomes necessary,
since the Gulf belongs to three nations instead of
one.

With respect to the Thirteenth Question:

Judges Medal, Oreamuno, Castro Ramirez and Bocanegra
answered that the zone should follow the contours of the
respective coasts, as well within as outside the Gulf;
and Judge Gutierrez Navas that, with respect to the Gulf
of Fonseca, the radius of a marine league zone of terri-
torial sea should be measured from a line drawn across
the bay at the narrowest part of the entrance towards
the high seas, and the zone of inspection extends three
leagues more in the same direction. 51

The majority opinion of the Court, then, held that the Gulf
is a closed sea, co-owned by the three littoral states, ex-
cept for the littoral belt of a marine league which is the

The Republic of El Salvador v. the Republic of
Nicaragua, Central American Court of" Justice Opinion and De-
cision of the Court, San Jos§, Costa Rica, March 9, 1917, re-
producecPln American Journal of International Law, XI (July,
1917), p. 694. ■ • . ""—

51Ibid., p. 693.

230

exclusive property of each state. In the non-littoral por-
tion of the Gulf the three states share jurisdiction in
matters of customs and national security. Hence, for Nicara-
gua to invite United States' warships — subject exclusively to
United States Jurisdiction — would nullify or restrict the
Jurisdictional rights of Honduras and of El Salvador.

III. EFFECTS OF WORID WAR I ON THE
THREE-MILE LIMIT

Neutrality Claims

By deleting references to the three-mile limit, the
Hague Peace Conference of 1907 produced something of a prob-
lem for states that had traditionally adhered to the cannon
shot rule for neutrality purposes. The pertinent article
of the 1907 Hague Convention on rights and duties of neutral
powers reads:

Belligerents are bound to respect the sovereign
rights of neutral Powers and to abstain in neutral
territory or neutral waters, from any act which would,
if knowingly permitted by any Power, constitute a vio-
lation of neutrality. 52

Such vagueness left questions unanswered and invited re-
evaluation and liberal interpretation. The United States
Naval War College described the situation this way:

The World War made it necessary for many States to
pronounce what limits they proposed to fix for their

^Article 1, Convention XIII concerning the Rights
of Duties of Neutral Powers in Naval War, Scott, 0£. cit.,
p. 832.

231

neutral territorial waters as regards belligerent and
neutral rights.53

France, a three-mile state for fishing and a cannon

shot state for neutrality, seems to have been the first to

react. In 1912 she decreed:

For the application of the rules of the 13th Hague
Convention, dated October 18, 1907: — French territorial
waters extend out to a limit fixed at six marine miles.
.54

0 4 •

Italy followed suit. The Ambassador in Washington, in a note
of November 6, 1914, to the Secretary of State, stated that
his government had established a six-mile neutral zone.55
Similarly, Uruguay proclaimed a five-mile neutral zone the
same year. But as noted earlier in this chapter, World War
I had the opposite effect on certain other states, notably
Spain, Norway, and Sweden, which reduced their neutral zones
to three miles.

The Russian Twelve-Mile Claim

The Soviet claim to a twelve-mile territorial sea
had its origin in certain acts taken by the Tsarist govern-
ment in its last declining years Just before World War I.

53U. S. Naval War College, "Maritime Jurisdiction,"
op. cit.j p. 27.

54 "Decree Determining Certain Rules of Neutrality in
Case of Maritime War, October 18, 1912, translated and re-
produced in Crocker, op. ci_t., p. 529.

U. S. Naval War College, "Maritime Jurisdiction,"

op. cit., pp. 29-30.

232

Although Russia had adopted a three-mile territorial sea, she
was dissatisfied with that limit for fishing purposes. Pro-
fessor de Martens had long been advocating the extension of
the territorial sea. In an official capacity in 1898 he had
urged the Tsar to extend Russian waters to keep up with the
increasing range of cannon, Insisting that there was no good
reason to hold territorial waters at three miles when states'
best interests would be served by controlling areas beyond,
especially inasmuch as this was clearly within their capa-
bilities.56

The first step was the conclusion with Romania, in

1907, of a treaty establishing a ten-mile exclusive fishing

57
zone between the two states. Two years later the Russians

enacted a new customs law:

The surface of the waters for twelve marine miles
from extreme low-water mark from the seacoasts of the
Russian Empire, whether mainland or islands, is recog-
nized as the marine customs area, within the limits of
which every vessel, whether Russian or foreign, is sub-
ject to supervision by those Russian authorities in
whose charge is the guarding of the frontiers of the
Empire. 5°

This drew an Immediate protest from the British government,

56L. B. Shapiro, "The Limits of Russian Territorial
Waters in the Baltic, " British Yearbook of International Law,
XXVII (1950), p. 444. '

Thomas Baty, "The Three-Mile Limit, " American
Journal of International Law, XII (July, 1928), p. 556.

Enclosure to a dispatch from Mr. Rockill, American

Ambassador at St. Petersburg, to the United States Secretary

of State, September 30, 1910, quoted in Jessup, op. cit .,

p. 29.

2?3

whereupon the Russian Ambassador in Washington inquired of
the State Department whether the British had made such a pro-
test concerning the similar United States twelve-mile
customs law "... either when it was originally passed or
at a later date." The State Department reply was in the

negative. Whereas the British had repealed their twelve-
mile customs laws in 1876, the United States' Act -of 1799
was still on the law books.

This Russian customs law was followed in 1911 by a
bill to reserve exclusive fishing rights for Russians out
to twelve miles. Russian Foreign Minister Sazanoff stated
the Tsar's position to the American Ambassador:

[ T] erritorial Jurisdiction over marginal seas is based
on the theory of control from the land, and . . . the
delimitation of this area of control at twelve miles
now corresponds more nearly with actual conditions than
does the three-mile limit which represented the effective
range of cannon at the time when this limitation of control
over the seas was recognized as a principle of interna-
tional law.60

The bill went into effect in May, 1911 but applied only

to Pacific and not to European waters. It should be recalled

that in 1893 the Russians had successfully negotiated American

and British approval of a ten-mile fishing zone on the Russian

59Foreign Relations of the United States, 1912, p.
1287. :

i •• -

Dispatch from Mr. Rockill, American Ambassador at
St. Petersburg to the Secretary of State, February 13, 1911,
Jessup, op. clt., p. 27.

23^

Pacific mainland.61 Another bill was drafted which would have
created a similar twelve-mile fishing zone along Russian Euro-
pean coasts; British protests again followed and the bill failed
to pass in the Duma.6^ The American Ambassador to Russia in-
terpreted the situation in St. Petersburg in a message of
February 3:

M. Sazanov in a long interview last night assured
me that Russia proposed to maintain the 12-mile limit as
a permanent policy. „ . . Russia contends that- the 3-mile
limit is obsolete. The distance of 3 miles having been
set as the conventional range of a cannon, it is claimed
that with the extension of the range of modern ordnance
the limit of jurisdiction should be increased to cor-
respond.63

These Russian intentions became reality, not under

the Tsars, but under their successors, the Soviets. In

1921, the Soviet government decreed the twelve-mile European

exclusive fishing zones which had failed to pass in the

Duma.6^ Then in 1927, a statute was promulgated decreeing

the Soviet seaward boundary to include a twelve-mile belt

61See supra, Chapter VII, p. 144.

ocJessup, 0£. cit., p. 28. See Crocker, op_. pit . , pp.
592 and 593 for a record of the February 9 and l3y 19TT debates
in the House of Commons concerning the proposed Russian law and
the British protests.

63Dispatch from Mr. Guild, American Ambassador at
St. Petersburg to the Secretary of State, February 3,
1912, reproduced in U. S. Naval War College, International
Law Situations with Solutions and Notes, 1928 I Washington;
Government Printing Office, 19"2~9j, PP . 26-27.

p. 28

64Soviet decree of June 1, 1921, Jessup, op_. cit.,

235

of waters.65

Political Consequences of the War

The Russian twelve-mile claim must be considered in
the context of Its timing with relation to the events just
before, during, and just after World War I. The Russian
claims between 1907 and 1912, while they at first annoyed
the maritime powers, especially the United States, Britain,
and Japan, were soon eclipsed by the pre-World War I naval
rivalries among the Western powers over armaments and ton-
nage. Russia may have been considered a nineteenth century
great power in terms of land, army, and population, but
never in terms of naval or maritime strength. Russia had
been interested in the sea strictly for fishing purposes.
Then came World War I . Russia suffered a military- defeat
at the hands of the German and Austrian armies in 1917 and
accepted the humiliating terms of the Treaty of Brest-
Li tovsk on March 3, 1918. Simultaneously, the country
was undergoing the bloody and disruptive Bolshevik Revolution.
Following that, from 191S to 1920, the Bolsheviks were en-
gaged in civil war with the pro-tsarist counterrevolution-
aries, who were abetted by expeditionary forces of France,
Great Britain, Japan, the United States, and Romania. Too,

65Soviet Statute of June 15, 1927, cited in France
de Hartingh, Les conceptions sovietiques du droit de la
mer (Paris: R. Pichon et R. Durand-Auzias, I960;, pp.^8-

236

Estonia, Latvia, Lithuania, Finland and the Trans Caucasian
states revolted against the Bolsheviks and declared their
independence. The new Soviet government had such monumental
internal problems, conditioned by external fears, that they
withdrew into diplomatic isolation. They had no means
whereby to give effect to their twelve-mile decrees of 1921
and 1927; hence, they were meaningless at the time, and went
vitually unnoticed by the great powers, most of which had
not even extended diplomatic recognition to the Soviet regime.
Hence, with Russia's collapse, disappeared the twelve-mile
limit, so it seemed, leaving the three-mile limit supreme,
virtually without competition or challenge.

Other political consequences included the defeat and
break-up of the Austro -Hungarian, German, and Ottoman Em-
pires. The dominions of those empires were either granted
independence or were mandated to the victors. Once powerful
Austria even lost its seacoast, becoming a small, land-
locked state. Among the imperial remnants there commenced
a movement which may well be termed the era of self-determi-
nation among colonial populations. This, too, as will be
shown in a later chapter, was to play an important role in
the history of the three-mile limit.

Moreover, once again the two non-European powers,
the United States and Japan, had played key roles in the
affairs of Europe. Many historians agree that although the
world did not realize it, Europe had collapsed politically,

2?7
and the future lay in the hands of non-European powers.66

This was especially significant In view of the gradual as-
sumption by the United States of the maritime and great
power role once played by Great Britain. It remained to
be seen how enthusiastically the United States would carry
on the defense of the three-mile limit.

IV. VIEWS OF LEARNED SOCIETIES AND PUBLICISTS

Learned Societies

So widely accepted was the three-mile limit by 1924,

the International Law Association revised its 1895 Draft

Convention which had proposed setting the limit at six miles.

The Committee's report included the following language:

With regard to the extent of territorial waters,
your Committee, by a majority, have adopted the three-
mile limit, as, In their opinion, it has been so gen-
erally approved by the usage of states that it ought
to be preserved.6'

The Institute of International Law, too, four years later

^?or a brief but lucid presentation of this thesis,
see Hajo Holborn, The Political Collapse of Europe (New
York: Alfred A. KnopT, 1962;, passim.

C . John Colombos (Secretary of the Neutrality Com-
mittee), "Report of the Neutrality Committee," Report of
the Thirty-Third Conference of the International Law Asso-
'cTation, XXXIII (September, T$2TT7 p. 260. A"rETcTe~6 was
modified to read as follows: "The territorial jurisdiction
of each state shall extend over the waters along its coast
for three marine miles from low-water mark at ordinary spring
tide." In "Amended Draft Convention: Laws of Maritime Juris-
diction in Time of Peace, " Report of the Thirty-Third Confer-
ence of the International Law Association, XXXIII (September,
1924) , pT"2"86.

modified its 1894 position to provide for a "qualified" three-
mile limit:

Article 2. The extent of the Territorial Sea is
three marine miles. International usage may Justify
the recognition of an extent greater or less than three
miles.68

Publicists

Well-known British and American publicists -of the first
quarter- century such as John Westlake69 (1828-1913) and Hannis
Taylor'0 (1851-1922) emphatically declared the paramountcy of

6QInstitute of International Law, "Project de regle-
ment relatif a la mer territoriale en temps de paix, " Annu-
aire de l'Institut de Droit International, XXXIV (1928
StockKolm Session;, p. 755. Translation by author.

UJJohn Westlake, English legal scholar, professor
of law at Cambridge, and member of the Hague Permanent Court
of Arbitration, wrote that the three-mile limit "as a mini-
mum is universal: no State claims less." He claimed that
only Spain and Norway stood in the way of the three-mile
limit being universal also as a maximum, and added: "Of
course a power which had admitted the 3-mile limit by inter-
national engagements could not extend it in its own favor
without the consent of the parties to those engagements."
John Westlake, International Law (second edition; Cambridge:
The University Press, 1910-19137, vol. I, p. 189. (First
edition: 1904-1907).

Hannis Taylor, lawyer, publicist, and U. S. Minister

to Spain, represented the United States before international
tribunals. Writing in 1901, he adhered closely to the three-
mile limit, much more so than Kent, Halleck, and Wheaton be-
fore him, writing: "It is asserted by a few publicists that
with the increasing range of great guns States should have the
right of their own motion to extend the limits of their Juris-
diction over littoral seas. . . . It is very difficult to con-
ceive upon what theory or by what authority any State acting
alone could do any such thing, as the existing Jurisdiction
rests solely upon common consent as manifested by usage."
Hannis Taylor, A_ Treatise on International Public Law (Chicago:
Callaghan and Co., 1901 J, pp. 137-138.

239

the three-mile limit. Others, like Lassa Oppenheim'1 (1858-
1919) and Philip Jessup72 (born 1897), although equally im-
pressed with the popularity and strength of the three-mile rule,
speculated that territorial seas might be extended in later
years by general agreement between the states.

It was also during this period that the French publicist
Alexander Merignhac (1857-1927) broke with the traditional view
of his predecessors which favored, recommended, and/or pre-
dicted the extension of territorial waters as a function of

cannon range. Rather, he seemed completely content with the

three-mile limit. The distinguished Belgian, Ernest Nys

71Lassa Francis Lawrence Oppenheim, born and educated
in Germany, became a naturalized English citizen in 1900. A
professor both on the continent and in England, and a prolific
writer in both English and German, he noted that three miles
had become generally recognized as the breadth of the maritime
belt. He prophesied: "And although Great Britain, France,
Austria, the United States of America, and other States, in
municipal laws and international treaties still adhere to a
breadth of one marine league, the time will come when by a com-
mon agreement of the States such breadth will be very much ex-
tended." Lassa F. L. Oppenheim, International Law, a Treatise
(second edition; New York and London: Longmans Green and Co.,
1912), vol. I, p. 256.

Philip C. Jessup, contemporary publicist, wrote many

volumes on international law, and until 1970, served as the
United States member on the International Court of Justice.
Commenting on the three-mile limit in 1927, Jessup wrote:
"When it ceases to be generally convenient, it will probably be
changed by general convention. But today, it is believed, the
three-mile limit for the marginal sea stands as a rule of inter-
national law." Jessup, ojd. cit., p. 7. This is believed to be
a fair statement of the condition of things in 1927.

Alexander Giraud Jacques Antoine Merignhac observed:

"The older jurists extended the limit excessively, which, in

our day, has been reduced by a sorts of tacit international

240

(1851-1920) wrote in much the same vein, rejecting the
cannon shot rule. And the Norwegian, Arnold Raestad
(1878-1945), while acknowledging the three-mile limit as
a rule of law, wrote a scholarly defense of the Scandinav-
ian four-mile fishing limit.,75

understanding to three marine miles or a marine league."
Although he looked with approval on the 1894 proposal of
the Institute of International Law to extend the limit to
six miles, he balked at the idea of extending the limit up
to the range of cannon shot ". . .as leading to an uncer-
tainty in the [maritime boundary] line, by reason of the
essentially variable range of cannon." A. G. J. A. Meringhac,
Trait § de droit public international (Paris: F. Pichon et
Durand-A"uzi as , 1905), pp. 378-379, translated and reproduced
in United States Congress, Senate, Supplement to British Ex-
tracts: Coastal Waters and Territorial Sovereignty, Proceed-
ings in the North Atlantic Coast Fisheries Arbitration (Wash-
ington: Government Printing Office, 1912 J, translation number
106, p. 2.

Ernest Nys, professor of international law, member

of the Permanent Court of Arbitration, and associate author
of Revue de Droit International , wrote: "The greatest range
of cannon shot has been criticized as uncertain, changeable,
and as necessarily subservient to the improvements of inven-
tions in the art of ballistics. . . . Thus ... in our day,
authors insist on having a definite measurement adopted, and
governments in their decrees and international conventions
have established such a measurement. . . . It is to this mea-
surement of this number of miles that we must have recourse
when there is no special convention. . . . The greatest range
of cannon has ceased to be in force as the general rule. . . .
Up to the present time the distance of 3 miles has been most
generally adopted." Ernest Nys, Le droit international:
les princlpes, les theories, les Taits (Brussels: A. Uastaigne,
1904J, vol. I, pp. 504-505, translated and reproduced in Edwin
M. Borchardt (ed.), North Atlantic Coast Fisheries Arbitration:
Coastal Waters (Washington: Government Printing Office, 1910;,
pp. 266-"27B~;

Arnold Christopher Raestad, prolific Norwegian pub-
licist and Norwegian Foreign Minister, writing in 1912,
pointed out that the Scandinavian four-mile limit antedated
the three-mile limit. He conceded to the great maritime

2*U

Probably no publicist, however, before or since, has

written so enthusiastically and eloquently in favor of the

three-mile limit as the Briton, Thomas Baty (1869-1954) :

After any close inquiry into the present authority of
the rule of the three-mile limit of territorial waters,
the candid observer will probably come to the conclusion
that the rule, while not infrequently attacked in theory,
is supreme in practice. Diplomatists seldom or never
question it; professors occasionally do. In the actual
conduct of affairs, it is seldom challenged, and never
successfully so. . . .It has, what is still more impor-
tant, sunk into, and become firmly rooted in, the con-
sciousness of all seafaring men, who are not experts in
law and whose ideas it is dangerous to unsettle. 76

Baty was writing in 1928, one of the years the three-
mile rule was enjoying its peak of popularity. The events
of the following two years were to deal a crippling blow to
the three-mile limit, triggering its decline. These will be
discussed in the next chapter.

It would seem that the greatest years for the three-
mile limit were those from 1876 to 1926, quite coincidentally
exactly half a century. The year 1876 brought Great Britain
squarely in support of the three-mile limit with the passage

powers their option voluntarily to restrict themselves to a
three-mile exclusive fishing zone but argued on behalf of the
four-mile zone: "[w]hen a reserved fishery zone more than 3
miles wide existed and was recognized before the adoption by
the Powers of the 3-mile limit, then they are really obliged
to respect it, for a rule which was originally legal does not
become illegal simply because a majority of the Powers adopted
another one." Arnold Raestad, La mer territoriale, etudes
his tori que s et juri digues (Paris: A. Pedone, 1913 j, pp. 169,
173, translated and reproduced in Crocker, op. cit., pp. 410,
414.

'%aty, op_. cit., p. 503.

242
of the Customs Consolidation Act. After that, the rule grew
steadily and surely, overcoming virtually all opposition and
competition. If domestic legislation, international instru-
ments, court decisions, and the writings of publicists are
a fair measure, then by 1926, the three-mile limit was in
every sense a rule of international law.

CHAPTER X

THE INTER-WAR PERIOD? THE THREE-MILE
RULE COMMENCES ITS DECLINE

Historians are generally in agreement that the period
between the two world wars was characterized by several
paradoxes in international affairs. One of these paradoxes
was the concurrent growth of nationalism on the one hand and
internationalism on the other.

The four defeated empires — Russian, Ottoman, Austro-
Hungarian, and German — were dissected. From out of the re-
mains, there emerged several independent states — Finland,
Latvia, Estonia, Lithuania, Poland, Arabia (Nejd and Hedjaz),
Egypt, Yemen, Czechoslovakia, and Yugoslavia. Elsewhere, the
imperial spoils were partitioned into mandates — Iraq, Pales-
tine, Trans Jordan, Syria, and Tanganyika for example — pending
their readiness and preparation for later independence.

The victorious powers, of course, retained their pos-
sessions. But one of the ironical necessities of World War
I had been the introduction onto European soil by the Western
Powers of non-Western colonial troops in considerable num-
bers? Senegalese, Indian, Algerian, and Indo-Chinese, for
example, not to mention those from the Western British Domin-
ions. These troops fought side by side, dug in, and slept
in trenches with, the armies of their colonial masters. When

2*0

they returned to their native colonies, they did not forget
what they had seen, heard, and learned about the strengths,
weaknesses, and institutions of their European overlords.
Moreover, President Wilson's Fourteen Points, notably as they
concerned self-determination, had become indelibly imbedded
in the minds of the leaders of colonial populations. Na-
tionalism flourished widely as both newly independent states
and motivated colonists sought greater freedom of action and
control in determining their future.

Simultaneously, among the great powers there had
developed a dissatisfaction with the traditional means of
conducting foreign affairs. International law and diplomacy
had failed to prevent the world's being plunged into its most
costly and devastating war to date. A new approach was
sought whereby the states might settle their differences by
peaceful means, and the League of Nations was created as the
instrument for the new experiment into internationalism.
Each sovereign state would have its due say, and decisions
would not be taken on any major issue without the unanimous
approval of the members. It was hoped that states could
mutually agree on the rules by which they were to conduct
their relations with one another, renounce the use of force,
and achieve lasting peace.

I. THE HAGUE CONFERENCE OF 1930

This concurrent growth of nationalism and interna-

245
tionalisra had its impact upon the three-mile limit : young
states wished to assert their independence from the old sys-
tem, and in some instances from its rules, and the old states
— the great powers — had agreed to invite them into their
councils and hear them out. Previously, many rules of in-
ternational law, such as the three-mile limit, had essen-
tially been dictated through the consensus of the .great
powers. But to illustrate how rapidly this "international
democracy" grew following World War I, at the Hague Con-
ference of 1930 a new, non-maritime, landlocked state —
Czechoslovakia — was given an equal voice in the attempt to
codify the international law of the territorial sea. As
a result, the Hague Conference opened up the previously
fairly well-settled issue of the extent of territorial seas
like Pandora's box, and served as the first of five major
developments which contributed directly and substantially
to the demise of the three-mile rule.

The Preparatory Role of the League of Nations

With Utopian hopes, the members of the League of
Nations set about the task of codifying the law of nations.
The first step was taken by the Assembly of the League in
September, 1924 in requesting the League Council to convene
a committee of experts which would carefully determine those
rubrics of international law which should be considered for
codification.

Fifth Assembly of the League of Nations, Resolution

2^6

The Committee of Experts. This was done, and the
Committee of Experts for the Progressive Codification of
International Law, thus organized, met for its first session
in April, 1925 and selected eleven subjects for investigation,
and appointed a sub-committee to conduct an inquiry into
each subject. "Question (b)" dealt with territorial seas and
its Sub-Committee was directed ". . .to examine "whether there
are problems connected with the law of the territorial sea

. . . which might find their solution by way of conventions.

2
..." The Sub-Committee was chaired by publicist Walther

Schttcking of Germany and included Professor Barbosa de

Magalhaes of Portugal (formerly Portuguese Minister of Foreign

Affairs, Justice and Education), and George W. Wickersham

of the United States (formerly U. S. Attorney General). The

full committee met for its second session in January, 1926

to study the reports of its sub-committees. The result of

that study was a decision to send questionnaires concerning

seven of the subjects to the various governments, both League

of September 22, 1924, "Development of International Law,"
reproduced in Special Supplement to American Journal of
International Law, XX (July, 1926), pp. 2-3 »

League of Nations, First Session of the Committee

of Experts for the Progressive Codification of International
Law (Geneva: League of Nations, l_May 22 J, 1925), reproduced
in Special Supplement to American Journal of International
Law, XX (July, 1926), p. 14.

2^7

members and non-members. Questionnaire number two dealt

with territorial waters. Attached to the questionnaire was

a draft convention which adopted the three-miles

ARTICLE 2

Extent of the rights of the riparian State

The zone of the coastal sea shall extend for three
marine miles (60 to the degree of latitude) from low-
water mark along the whole of the coast. Beyond the
zone of sovereignty, States may exercise administrative
rights on the ground either of custom or of vital nec-
essity. . . .4-

This three-mile draft convention notwithstanding, it was

the questionnaire itself which opened the "Pandora's box."

The basic question asked of the governments was essentially

whether or not the law of the territorial sea should be

made the subject of an international convention. However,

the members of the Sub-Committee on Territorial Waters had

not been able to agree on the extent of the territorial seas.

The choice of sub-committee members had been most unfortunate

as far as the three-mile rule was concerned. Professor

Schtlcking for years had opposed the three-mile limit as

being inadequate. Instead, following the 1S94 codification

^League of Nations, Second Session of the Committee

of Experts for the Progressive Codification of International
Law (Geneva: League of Nations, [.January 29 J 1926), repro-
duced in Special Supplement to American Journal of Inter-
national Law, XX (July, 1926), p. 19 •

^Ibid., p. 141, (Report of the Sub-Committee on
Territorial Waters) .

Ibid. , p. 62.

See supra, Chapter VIII, p. 189 f note 41.

24g

by the Institute of International Law, in which he had par-
ticipated, he recommended a six-mile territorial sea with a

7
customs, sanitary, and police zone beyond. Professor de

Magalhaes, reminiscent of the traditional Portuguese prefer-
ence for a six-mile fishing zone with additional jurisdiction
out to twelve miles, proposed one single zone of twelve

miles in order to satisfy all the needs of states,7 It was

only the articulate arguments of Mr, Wichersham that resulted

in a draft convention incorporating the three-mile limit.

But because of the divergence of opinions, the dissenting

views of Schttcking and de Magalhaes were appended to the

questionnaire, with the explanation that if an international

conference were to be called, certain questions would have

to be resolved:

(a) Whether several zones of diverse legal character
should be recognized as territorial waters or this desig-
nation be reserved for the zone within which the powers
of the coastal State are most complete.

'League of Nations, Second Session of the Committee
of Experts, p. 79 •

See supra, Chapter VIII, p. 173.

^League of Nations, Second Session of the Committee
of Experts, p. 129 •

10Ibid., pp. 134-141.

Ibid,, p. 63

2^9
As a result, a lengthy, controversial questionnaire was cir-
culated to the governments of the world, under League auspices,
in effect, inviting them to take sides in the debate between
the members of the Sub-Committee. This 1926 decision to
circulate such a questionnaire marks, in this writer1 s view,
the dividing watershed in the rise and decline of the three-
mile rule.

One other of the seven questionnaires impinged on the
matter of territorial seas. Questionnaire number seven asked
simply "[wjhether it is possible to establish by way of

international agreement rules regarding the exploitation of

12
the products of the sea."

The replies to these questionnaires were studied in

detail by the Committee of Experts at their third session in

March and April, 1927. Twenty-five states replied that a

convention to codify the law of territorial waters would be

possible and desirable. These included Great Britain, Ger-

13
many, the United States, and Japan.

Ibid., p. 230 (Report of the Sub-Committee on Ex-
ploitation of the Products of the Sea, Dr. Jose Leon Suarez
of Argentina, Rapporteur).

13
^League of Nations, Third Session of the Committee

of Experts for the Progressive uodiii cation ornrnoernational
Law (Geneva: League of Nations , 1927J i, reproduced in Special
Supplement to the American Journal of International Law,
XXII (January, 1928 J, pp. 8-11 ("Report to the CouncIT"of the
League of Nations on the Questions which Appear Ripe for
International Regulation"). The other 21 states included
Australia, Brazil, Bulgaria, Cuba, Denmark, Egypt, Estonia,
Finland, Greece, India, Irish Free State, Netherlands, New

250
Three states — France, Italy, and Poland— replied that
they felt the time was inopportune for such a convention.
Landlocked Austria and Switzerland abstained, and Spain ob-
jected to the questionnaire because it included a three-mile
draft convention, ". • • contrary to Spanish Law." ^

On the question of the exploitation of the products
of the sea, twenty-two states, including the United States,
France, and Italy, favored a convention. But six states,
including Great Britain — because of her strict interpreta-
tion of the three-mile limit — and Japan, voted negative.

15
Again Austria and Switzerland abstained.

After studying the replies, the Committee of Experts
reported to the Council of the League that seven subjects
were "ripe for codification." In September 1927, the Assembly
acted on the report and resolved that conferences should be
held, starting in 1929 to examine three subjects, including
that of territorial waters. The resolution also referred
the question on exploitation of sea products to the League's
Economic Committee for further study. Finally the resolu-
tion provided for the appointment of a Preparatory Committee
to prepare detailed bases of discussion for the conference

Zealand, Norway, Portugal, Romania, El Salvador, Yugoslavia,
Sweden, Czechoslovakia, and Venezuela.

14Ibid., pp. 12-13.

15Ibid., pp. 34-35.

questions .

251
16

The Preparatory Committee. The Preparatory Committee
met in February, 1928 and prepared a "Schedule of Points"
which was circulated to the governments on February 15th,
with the request that comments be provided. Point III re-
quested each state1 s views on the "breadth of territorial
waters subject to the Sovereignty of the State (three miles,
six miles, range of cannon, etc.)", and its claims, if any,
to jurisdiction beyond territorial waters. '

The Preparatory Committee met again in January and
February, 1929 to examine the replies of twenty-two states.
Although not unanimous, the majority favored the three-mile
limit. Great Britain and Japan refused to recognize claims
of other states beyond three miles. France rejected the idea
of one breadth for all purposes. Germany neither claimed
nor recognized any claims beyond three miles, but indicated
her willingness to consider a change. The United States
claimed a certain amount of control over foreign ships within

Eighth Assembly of the League of Nations, Resolution
of September 27, 1927, "Codification of International Law,"
reproduced in Special Supplement to American Journal of
International Law, XXII (January, 1928), pp. 231-233 «

17
'League of Nations, Conference for the Codification

of International Law, Bases of Discussion Drawn up for the

Conference by the Preparatory Committee (League of Nations

Document C.73.M.38.1929.V.) (Geneva: League of Nations,

1929), reproduced in Supplement to American Journal of

International Law, XXIV (January, 1930), p. 27.

252

four leagues of the coast for fiscal and customs purposes.

18
Italy claimed "special rights" within twelve miles »

On the strength of these replies, the Preparatory
Committee drew up bases of discussion for use by the confer-
ence delegations, including the following:

Basis of Discussion No. 3
The breadth of the territorial waters under the sover-
eignty of the coastal State is three nautical miles.

Basis of Discussion No. 5
On the high seas adjacent to its territorial waters, the
coastal State may exercise the control necessary to
prevent, within its territory or territorial waters, the
infringement of its customs or sanitary regulations or
interference with its security by foreign ships.

Such control may not be exercised more than twelve
miles from the coast. 19

This latter Basis of Discussion formally introduced on an

international level the concept, already practiced by many

states, of a twelve-mile zone for special jurisdiction, a

concept which Great Britain strongly opposed, and one which

was to deadlock the Conference, that of the contiguous zone.

The Harvard Research. One of the most comprehensive
and valuable contributions to the codification and under-
standing of international law was precipitated by the League's

Ibid., pp. 27-28 J J. L. Brierly, "The Doctrine of
Contiguous Zone and the Dicta in Craft v. Dunphy," British
Yearbook of International Law, XIV (1933), p. 1?6.

^League of Nations, Bases of Discussion, pp. 28-29

25?
Committee of Experts. In 1927, the faculty of the Harvard
Law School, collaborating with experts invited from numerous
other universities and institutions, undertook to draft in-
ternational conventions on each of the subjects to be con-
sidered by the Codification Conference. Virtually every
well-known American expert on international law — forty-four
jurists and scholars — contributed to the research. The work
of the research was conducted with reference to the "Schedule
of Points" circulated by the Preparatory Committee, but with-
out regard to the replies by the governments. The draft
conventions were based on international practice and usage
and included extensive documentation and commentary. Perti-
nent articles are excerpted as follows:

Article 2
The marginal sea of a state is that part of the sea
within three miles (60 to the degree of longitude at the
equator) of its shore measured outward from the mean
low water mark or from the seaward limit of a bay or
river-mouth.

Article 20
The navigation of the high seas is free to all states
On the high seas adjacent to the marginal sea, however,
a state may take such measures as may be necessary for
the enforcement within its territory or territorial wa-
ters of its customs, navigation, sanitary, or police
laws or regulations, or for its immediate protection. 20

Unlike the Bases of Discussion, the Harvard Research draft

Harvard Law School, Research in International Law,

Manley 0. Hudson, director (Cambridge, Mass.: Harvard Law

School, 1929), reprinted in Special Supplement to American

Journal of International Law, XXIII (April, 1929), pp. 250,

333-334.

25^

convention did not set this zone at twelve miles, but in its
annotation, documented fully the numerous twelve-mile prece-
dents in the practice of states.

The Conference

With such meticulous and exhaustive preparation as
the Bases of Discussion and the Harvard Research, the dele-
gates from forty-eight governments assembled at The Hague in
March, 1930. While fifteen members of the League did not

participate, nine non-members were represented, including

21
an observer from the Soviet Union. The rules of procedure

provided that drafts would be approved by a two-thirds major-
ity of the delegates voting in the committee, although only
a simple majority would be required in plenary session of
the Conference for final approval.

By the time the delegates met, having fully digested
the controversial preliminary paper work, and those of the
small, new, and non-maritime states having come to the
realization that they were actually being given the option to
vote as they saw fit, there was little chance to obtain the
required two-thirds majority required in committee. Although
a majority of the state delegations did prefer three miles,

League of Nations, Final Act, Conference for the

Codification of International Law, The Hague, March-April,

1930 (Publication of the League of Nations. V. Legal

Questions, 1930. V. 7.) (Geneva: League of Nations, 1930),

reproduced in Supplement to the American Journal of Inter-

national Law. XXIV (July, 1930, pp. 159-181.

255
some delegations flatly refused to consider claims beyond
three miles. Others refused to establish a single extent of
territorial sea for all purposes. When it was proposed as a
compromise to establish a contiguous zone adjacent to the
territorial sea for special controls out to twelve miles,
still other states objected. Several states found this
compromise attractive but it failed due to the strong oppo-
sition of Great Britain, The British position advanced by
Sir Maurice Gwyer was as follows:

The British Delegation firmly supports Basis No. 3
— that is to say, a territorial belt of three miles
without the exercise, as of right, of any powers by the
Coastal State in the contiguous zone, and they do that
on three grounds, which I will express in as few words
as I can: First, because in their view the three-mile
limit is a rule of international law already existing
adopted by maritime nations which possess nearly 80f» of
the effective tonnage of the world; secondly, because we
have already, in this committee, adopted the principle
of sovereignty over territorial waters; and thirdly,
because the three-mile limit is the limit which is most
in favour of freedom of navigation,22

The positions of the states. Because of the widely
divergent views, formal voting was not attempted in the
Conference's Second Committee (Territorial Sea). On the
occasion of the last meeting of the Committee, however, the

Japanese delegate proposed;

I do not think that we should vote, I think how-
ever . • • that it is desirable to learn the views of
the different delegations. I propose, therefore, that
each delegation should in turn state its attitude on

22Ibid., p. 254.

256
the question without any vote being taken, . , . ^
This was agreed upon and thirty-seven states, in order, an-
nounced their "position in principle." Ten states declared
for the three-mile limit: Union of South Africa, United
States, Great Britain, Australia, Canada, China, Denmark,
India, Japan, and the Netherlands, Two states, Greece and
the Irish Free State, also declared for the three-mile limit,
but added that they could accept a contiguous zone. Seven
states voted for three miles provided a contiguous zone was
added: Germany, Belgium, Chile, Egypt, Estonia, France, and
Poland, Three states chose four miles: Iceland, Norway,
and Sweden. Finland also voted for four miles but insisted
on a contiguous zone beyond. Six states chose six miles:
Colombia, Italy, Romania, Uruguay, Yugoslavia, and Brazil,
and six others voted for six miles and a contiguous zone:
Cuba, Spain, Latvia, Persia, Portugal, and Turkey. Czecho-
slovakia and the Soviet Union did not vote. In summary,

the tally stood at: three miles: 19; four miles: 4; six

2.L.
miles: 12; and two absentions.

It should be noted that none of the states which voted

for six miles were major maritime states, and three of them

— Cuba, Latvia, and Yugoslavia — were newly independent .

Some of the individual state positions are worthy of specific

23Ibid., p, 253.
24Ibid., pp. 253-257.

257
comment. Portugal's first choice was twelve miles but her
delegation was willing to accept six (territorial) and six
(contiguous). Chile, similarly, chose six miles but would
have accepted three with a contiguous zone. The German po-
sition, from the advantage of hindsight, was probably the
most reasonable:

The German Delegation is in favor of the three-mile
rule, together with the existence of an adjacent zone,
in the hope that the acceptance of the principle of the
adjacent zone may facilitate the acceptance of the three*
mile rule by other countries .25

Had the British not been so fervent in their opposition to
the contiguous zone, and had they been able to accept the
German view, it seems altogether possible that the three-
mile limit, together with a contiguous zone of nine addi-
tional miles, might have been codified.

Such was not the case, however, And no doubt it gave
the Soviet Union a fair measure of satisfaction to observe
the inability of the Western states to obtain agreement on
a rule of three miles. Yet, not being in a position to sup-
port or enforce their own twelve-mile claim at the time, the
Soviet delegation abstained, but not without taking the op-
portunity to comment on ". • • the great diversity of views

coo

" and to cite the existence of claims to three, four,

26
six, ten, and twelve miles. Czechoslovakia, also abstain-

25Ibid., p. 254.
26Ibid.» p. 257.

25S
ing, frankly stated her position:

The Czechoslovak Delegation desires the greatest
possible freedom of navigation, but not having any
coast line they consider that they should abstain from
proposing a definite extent for the zone of territor-
ial waters. 27

It is not difficult to read into this statement Czechoslo-
vakia's support of the three-mile limit, especially with
knowledge of the fact the 1919 Peace treaties gave her
guaranteed access to the sea via internationalized rivers,
but without coastlines of her own.

The Final Act. The draft presented by the Second
Committee to the plenary session was stripped of the sub-
stance which was included in the Bases of Discussion with
which the Conference began. The residual articles were ap-
pended to the Final Act as an Annex entitled . "The Legal
Status of the Territorial Sea." Some are quoted below:

Article 1
The territory of a State includes a belt of sea
described in this Convention as the territorial sea.

Sovereignty over this belt is exercised subject to
the conditions provided by the present Convention and
other rules of international law.

Article 2
The territory of a Coastal State includes also the
air space above the territorial seas, as well as the
bed of the sea, and the subsoil. . • .

eeeeoaeoeeeoeoc.ee.ee ••••••

Article 4
A Coastal State may put no obstacle in the way of the

27Ibid., pp. 256-257.

259

innocent passage of foreign vessels in the territorial
sea • • • •

Article 5
The right of passage does not prevent the Coastal
State from taking all necessary steps to protect itself
in the territorial sea against any act prejudicial to
the security, public policy or fiscal interests of the
State. • • .28

The Final Act then recommended to the Council of the
League that it convene "a new conference , , , on all ques-
tions connected with the territorial sea, • . " But such
a conference was never held.

The Aftermath and Effects of the Conference

The utter failure of the conference surprised many
of the participants. The delegates had gone to The Hague
with a spirit of international cooperation and goodwill,
generated in part by the conclusion of the Kellogg-Briand
Pact of Paris, only two years earlier. But this turned to

disillusionment and disappointment as was evidenced by sev-

30
eral of the United States delegates such as Jesse Reeves,

2gIbid., pp. 184-185. 29Ibid., p. I84.

^ Jesse S. Reeves (1872-1942), professor and publi-
cist, attributed the failure of the Conference primarily to
the unwillingness of the states to compromise. He added
another reason: "This failure may be ascribed in the second
place to what is believed to have been an erroneous view of
the work and aim of the Commission. Following the instruc-
tions to the conference, the Commission did not undertake to
agree upon statements of existing international law, and so
to limit itself, but it proceeded into the field of interna-
tional law-making." Jesse S. Reeves, "The Codification of
the Law of Territorial Waters," American Journal of Interna-
tional Law, XXIV (July, 1930), p. 488.

260

31 "}?

Manley Hudson, and David Hunter Miller^ who, writing after

the Conference, offered various explanations for its failure.
Of the reasons offered, that of unwillingness to compromise
appears the most valid. There seems to have been a naivete
on the part of the great powers in assuming that if given the
chance to "vote" on the three-mile limit, the lesser powers
would rubber-stamp approval of the rule in respectful obed-
ience. There is no other logical explanation for their will-
ingness to permit the matter to be thrown open to discussion
so unrestrictedly. Following this, the great powers failed,
once they had seen the fragmenting effects of such a discus-
sion, to recoup their losses by accepting a compromise. In-
stead, they permitted the conference to fail and in so doing
the great maritime powers ended their oligarchical maintenance

^Manley Hudson (1886-1960), publicist, member of the

United States delegation, and director of the Harvard Re-
search, attempted vainly to show the brighter side as He
wrote: "In conclusion, it may be said that the conference
did not wholly fail in its dealing with the subject of terri-
torial waters; it conducted a very useful exploration; it
brought into the open the existing divergencies of views.
..." Manley 0. Hudson, "The First Conference for the Cod-
ification of International Law." American Journal of Inter-
national Law, XXIV (July, 1930), p. 458. The title of this
essay reflected the contemporary, but unwarranted, optimism
that a subsequent conference would be held, presumably with
more favorable results.

^2David Hunter Miller, Editor of Treaties, U.S. De-
partment of State, and Chairman of the U. S. Delegation,
explained the Conference's failure in these terms: "The pro-
gram of the Conference was too extensive. The time allotted
for its work was one month. ... It is not desirable that
international conferences should be conducted under such pres-
sure." Hunter Miller, "The Hague Codification Conference,"
American Journal of International Law, XXIV (October, 1930),
p. 693.

261

of the maximum mare liberum. The Conference suggested to
all that the great powers were no longer committed to en-
forcement of the three-mile limit. From 1930 on, the rule
was subjected to increasing criticism and its significance
became diminished by the rapid development of the concept
of the contiguous zone.

The contiguous zone. The doctrine of the contiguous
zone is as old as the British Hovering Acts and the case of
Church v. Hubbart. Nevertheless, it was not known by that
name until the Hague Conference; and the Conference can be
credited with coining the phrase and popularizing the con-
cept. The term "contiguous" used in this sense is not gen-
erally found in writings before the 1920* s. It was not used,
for example, by either Fulton or Jessup in their very thorough
monographs on territorial and adjacent waters, written in
1911 and 1927 respectively.35

It was, however, adopted for use by the Preparatory
Committee for the Hague Conference. And in 1928, the Insti-
tute of International Law adopted the principle of a ". . •
contiguous, supplementary zone ..." adjacent to territor-
ial waters for the purposes of ". . • security, neutrality,
sanitation, customs, and fishing ..." the extent of which

•^Robert W. Fulton, The Sovereignty of the Sea (Edin-
burgh and London: William Blackwood and Sons, 1911) » and
Philip C. Jessup, The Law of Territorial Waters and Maritime
Jurisdiction (New Yorks G. A. Jennings Co., Inc., 1927) «

262

"... cannot exceed nine miles. ""^ Since that time the
term has become standard parlance, used widely in interna-
tional instruments and in writing on international maritime
law. The rapid adherence of states to the concept during
the inter-war period will be shown in the following section.

II. THE INTER-WAR PRACTICE OF STATES.- THE
CONTIGUOUS ZONE

The United States and the Contiguous Zone

The inter-war experiences and practice of the United
States, more than anything else, influenced the growth of
the doctrine of the contiguous zone. The 1920 's gave the
Americans a taste of what the British had been through a
century earlier during their "Golden Age of Smuggling. n"
The American smuggling problem centered around alcoholic
beverages and was triggered by the ratification of the fa-
mous Eighteenth Amendment ' to the United States Constitu-

•3 I

^Institute of International Law, "Projet de rSgle-
ment relatif & la mer territoriale en temps de paix," (Art-
icle 12) Annuaire de l^nstitut de Droit International, XXXIV
(1923 Stockholm Session), p. 753. Translation by author.

-^See supra » Chapter VII, p. 136.

•* The Amendment was proposed by Congress December 19,
1917 and was proclaimed adopted on January 29, 1919 • Sec-
tion I provided s "After one year from ratification of this
article the manufacture, sale, or transportation of intoxi-
cating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory
subject to the jurisdiction thereof for beverage purposes is
prohibited." Thomas James Norton, The Constitution of the

26?

tion. The ensuing "Prohibition Era" was one of the most
colorful periods of American history. Its rumrunners cre-
ated many problems for the U. S. Coast Guard, the courts,
and for the U. S. Department of State. '

National Prohibition Act of 1919. The United States

enacted several laws in order to implement the Eighteenth

Amendment, the first of these being the National Prohibition

Act of 1919 > also known as the Volstead Act, introduced by

Andrew J. Volstead. The Act provided that:

No person shall . . • manufacture, sell, barter, trans-
port, import, export, deliver, furnish, or possess any
intoxicating liquor ... and all provisions of this
Act shall be liberally construed to the end that the use
of intoxicating liquor as a beverage may be prevented. 38

The Act also gave enforcement officials authority to seize
any boat or vehicle unlawfully employed in the transporta-
tion of liquor, and if the transporter were convicted, to sell

of the United States (New York: Committee for Constitutional
Government, Inc., 1943), p. 254*

J ' Considerable legal literature appeared during the
1920* s and 1930' s dealing with these problems, bearing the
names of such eminent scholars as Philip C. Jessup, William
E. Masterson, T. S. Woolsey, James Brown Scott, Edwin D.
Dickinson, J. L. Brierly, H. A. Smith, and others. For ci-
tations, see Bibliography appended to this study.

^ Section 3, Title II of "National Prohibition Act
of October 28, 1919," 41 U. S. Statutes at Large 305, repro-
duced in Jessup, 0£. cit., p. 212. In 1921 a loophole was
covered by the passage of a supplemental law by which the Vol*
stead Act was made applicable "... not only to the United
States, but to all territory subject to its jurisdiction."
(including territorial waters] . Section 3, "Act of November
23, 1921," 42 U. S. Statutes at Large 222,

261*

the boat or vehicle at public auction. "

In 1922, enforcement of the law against foreigners
was put to the test. Thirsty Americans had become willing
to pay exorbitant prices for a bottle of liquor, prices high
enough to make the risks seem worthwhile to enterprising
British subjects from nearby Canada, Bermuda, and the West
Indies, who became smugglers to capitalize on such a lucra-
tive and demanding market. In February of that year, the
British vessel Grace and Ruby was seized by U. S. coastal
authorities four miles from land after having transshipped
liquor to a small boat and thence to the Massachusetts shore
under cover of darkness. The United States court denied the
claims for damages by the vessel's owners on the grounds that
the participation by the crew of Grace and Ruby in the act
of delivering the liquor ashore by small boat amounted to
"constructive presence" of the mother vessel within the ter-
ritorial jurisdiction of the United States. The justice
delivering the findings of the court referred to the United
States' position in Church v. Hubbart, in defending its
position:

-^"National Prohibition Act," 0£. cit., Section 26,
in Jessup, loc. cit.

^0The Grace and Ruby, 233 Federal Reporter 475 (1922),
in Charles G. Fenwick (ed.) , Cases on International Law
(second edition; Chicago: Callaghan and Co., 195U, p. 501;
and Manley 0. Hudson (ed.), Cases and Other Materials on In-
ternational Law (St, Pauls West Publishing Co., 1929;, p.~o"33.

^*See supra. Chapter VIII, p. 17#0

265

The line between territorial waters and the high seas
is not like the boundary between us and a foreign power.
There must be, it seems to me, a certain width of de-
batable waters adjacent to our coasts. • . .**-2

The Tariff Act of 1922. The British protests which
logically followed brought about an attempt by the United
States to legalize such seizures and to define further those
"debatable waters" contiguous to the territorial 'sea. This
was accomplished by passing another statute, the Tariff Act
of 1922, which in effect would enable American authori-
ties to enforce the Volstead Act within a zone of twelve
miles. Specifically, the new Act authorized federal offi-
cials at any time to

• • . go on board of any vessel . • • within four
leagues of the coast of the United States, to examine
the manifest and to inspect, search and examine the
vessel • • . and every part thereof, and any person,
trunk or package on board, and to this end to hail and
stop such vessel or vehicle, if under way, and use all

norocsn-mr fr>Y»re t.n r.nmnfil rnmnliflnfift. « - .44

...

necessary force to compel compliance,
This Act obviously went a good deal further than the four-
league Act of 1799 and it led to the seizure of many Brit-
ish vessels, and also vessels of other foreign flags. In
the period of one single year — fiscal year 1924-1925 — the

^ The Grace and Ruby„ loc. cit.

43.,Tariff Act of September 21, 1922, 42 United States
Statutes at Large 35#«

^Ibid. , Section 581, reproduced in part in Jessup,
op. cit. , pp. 212-213, and in Masterson, 0£. cit., pp. 228-
2J3.

See supra, Chapter VIII, p. 177.

266

.46

following seizures of foreign vessels were made:

British . • • • 28 Italian 1

French • • . . 4 Cuban 1

Honduran ... 2 Costa Rican ... 1

Norwegian ... 2

This action by the Treasury Department was the source of
much international friction and created serious problems
for the State Department,

Another related source of international friction had
developed concurrently. United States courts had interpreted
the law as prohibiting foreign ships from transporting liquor
through American territorial waters, even under seal. This
came into direct conflict with the laws of certain states
such as Denmark, Belgium, and Italy which required the sup-
ply of drink to the crew and passengers. The lead case
in this regard was Cunard v. Mellon (1923) wherein the U. S.
Supreme Court upheld the action of the New York authorities
in confiscating the liquor aboard a British luxury liner,
the liquor having been intended for passenger consumption.
This decision drew foreign criticism as being inconsistent
with the time-honored practice under international law wherein

^ U. S. Department of Justice, Annual Report of the
Attorney General, December 9» 1925 cited in Masterson, op..
cit . , p. 211.

^C. John Colombos, The International Law of the Sea
(fifth revised edition; New York: David McKay Co., Inc.,"
1962), p. 129 p and Jessup, ojd. cit., p. 217 •

^Cunard Steamship Company et al. v. Mellon et al.
(1923) 262 U.S. 100; Fenwick, Cases, p. 3^4."

26?

states abstained from interfering with the internal disci-
pline or administration of a ship unless the peace , tran-
quility, or public safety of the host state was involved.

The Anglo-American Treaty of 1924. In the days shortly
after this Supreme Court decision, there was considerable
activity in Washington with respect to negotiations with for-
eign powers to settle the differences. On June 12, 1923,
draft treaties proposing means whereby United States author-
ities might search vessels out to twelve miles were urgently
circulated to the British, Spanish, Japanese, French, and
Italians. This rush appeared to some as a United States plan
to adopt a twelve-mile limit, and was quite annoying to the
British. ' Although they too had once zealously enforced
their customs laws well beyond the three-mile limit, in
1876 they had abandoned all their former claims to jurisdic-

tion June 12, 1923 the New York Herald printed: "Pro-

posed Extension of Three Mile Limit — In the midst of the
confusion over the ship liquor ruling of the U. S. Supreme
Court and the Treasury regulations, the Harding Administra-
tion has formulated a plan which, its authors hope, may wipe .
out international complications and solve the problems of
smuggling along American shores." A few days later, the
British Foreign Secretary, Lord Curzon, speaking in the
House of Lords on June 28, 1923 » also interpreted the Ameri-
can draft treaty as a proposed extension of territorial
waters and declared: "There is no chance of our agreeing
in any circumstances whatever to the American proposal for
a twelve-mile territorial limit." Allan Wescott, "British
Reject Twelve-Mile Limit," editorial in U. S. Naval Institute
Proceedings, XLIX (September, 1923), pp. 1579-1580; and
Jessup, op. cit., p. 234«

' See supra c Chapter VII, pp«» 135-136,,

26S

tion beyond three miles. In responding to the American draft
treaty, the British somewhat sarcastically rebuked the United
States for proposing a twelve-mile customs zone by citing
the 1876 Customs Consolidation Act ". . .by which British
Municipal legislation is made to conform with international
law."51

Nevertheless, negotiations were undertaken which
cleared up the misunderstandings and led to the conclusion
of the Anglo-American Treaty of 1924> wherein the two states
reached a compromise. The opening article declared that
both states upheld the principle of the three-mile limit
for territorial waters. For their part, the British agreed

that United States authorities could board, search, and

52
seize offending British vessels, provided that this right

was not to be exercised

... at a greater distance from the coast of the
United States, its territories or possessions than can

British Government memorandum of July 14, 1923,
Ms. Records, Department of State, cited in Jessup, ojo. cit. »
pp. 79, 283.

' United States and Great Britain, "Convention be-
tween the United States of America and Great Britain to Aid
in the Prevention of Smuggling of Intoxicating Liquors into
the United States, Washington, January 23, 1924," reprinted
in Supplement to American Journal of International Law, XVIII
(July, 1924), pp. 127-130 and in Masterson, 0£. cit. , pp.
346-352. The Convention included this language: "His Bri-
tannic Majesty agrees that he will raise no objection to the
boarding of private vessels under British flag outside the
limits of territorial waters by the authorities of the United
States, its territories or possessions. • ." and permitted
examination of the vessel's papers, a search if warranted,
and if the law was found to be broken, seizure of the vessel.

269

be traversed in one hour by the vessel suspected of en-
deavoring to commit the of fence. 53

The quid pro quo of the treaty was the United States* con-
cession that foreign flag vessels might be allowed to enter
American territorial waters with liquor for passenger con-
sumption provided it remained under seal as long as the ship
remained within territorial waters.

Between 1924 and 1930 fifteen such treaties were con-
cluded between the United States and other maritime states. '*
These treaties greatly reduced the friction. In Cook v.
United States (1933)» the Supreme Court upheld the sanctity
of the new treaties by declaring illegal the U. S. seizure
at a distance of eleven and one-half miles from shore of a
vessel capable of only ten knots, in spite of the fact that

the Tariff Act of 1922 provided jurisdiction out to twelve

56
miles. Without a doubt, another "limit" of jurisdiction

to seaward for a special purpose had been introduced — a vari-

Ibid., Article II (3)» in Masterson, op_. cit.,
pp. 347-348. Such a provision was not entirely novel; in
lo74 Loccenius had recommended a territorial sea equal to
two day's journey. See supra , Chapter III, p. 56.

5/fIbid., p. 343, Article III.

^Colombos, op. cit. , p. 130, and Masterson, ojd. cit.,
pp. 352-353. The o'dTer-sTates were: France, Germany, I^aTy,
Norway, Sweden, Denmark, Holland, Spain, Belgium, Poland,
Greece, Cuba, Chile, Panama, and Japan.

56Cook v. United States, 288 U.S. 102 (1933), in
Herbert W. Briggs led. J, The Law of Nations : Cases, Docu-
ments and Notes (second edition; ITew York: Appleton-Century-
CroftsTTnc, 1952), pp. 362-371.

270

able limit depending on the speed of the craft. A thirty-
knot craft could be seized thirty miles from shore 5 whereas
a boat under oars, probably no more than a mile or two.
Another link had been forged, moreover, in the development
of the concept of the contiguous zone.

The Anti-Smuggling Act of 1935. The Roosevelt Admin-
istration, as one of its first orders of business, took to
the task of repealing prohibition. The Twenty-first Amend-
ment repealing the Eighteenth, was proposed by the Congress

February 20, 1933 » and proclaimed adopted on December 5,

57
1933 • Although repeal of prohibition essentially put an

end to liquor smuggling, customs enforcement officials did
not fancy loosing their newly gained authority for enforce-
ment of laws in the case of the other dutiable items. As
it worked out, they lost no authority. In fact, a U. S.
District Court in 1934 held that repeal of prohibition did
not abrogate the right of the United States to search under

the Anglo-American Treaty of 1924. Then the following

''Norton, ojd. cit., p. 26l. Section 2 of Article XXI
reads: "The transportation or importation into any State,
Territory, or Possession of the United States for delivery
therein of Intoxicating Liquors, in violation of the laws
thereof, is hereby prohibited." This left the door open for
individual states to remain "dry" and to continue to enforce
anti-smuggling procedures locally; some dido

5^The Golmaccam, 8 F. Supp. 338 (D. Maine, N.D. 1934),
in Green HTliackworth, Digest""of International Law (Washing-
tons Government Printing Office, 1940 J , vol. I, p. 690*

271

year, the United States enacted the Anti-Smuggling Act of

59
193 5 , giving even greater flexibility and authority to

customs enforcement officials. This law was remarkably bold
in its scope of jurisdiction over the high seas. The law
provided for the proclamation of "customs-enforcement areas"
on an as-required basis. A customs-enforcement area was a
mobile zone, changing in size, shape, and location, at the
President's discretion, ordered upon detection of a smug-
gling vessel hovering off the coasts of the United States.
The spatial extent was prescribed as follows:

... No customs-enforcement area shall include any
waters more than one hundred miles from the place or
immediate area where the President declares such vessel
or vessels are hovering or are being kept • • . and
• • • shall not include any waters more than fifty nau-
tical miles outwards from the outer limit of customs
waters.0^

Only five customs-enforcement areas were proclaimed under
the act, all in 1935. Sixteen vessels were seized under its
provisions. Fifteen seizures were in conformity with inter-
national law, i.e., ships of United States registry, or for-
eign ships within twelve miles of the coast. The other, a
British flag vessel, was seized between fifteen and thirty-
six miles off the coast; the British offered no protest.

^United States Anti-Smuggling Act of August 5, 1935,
49 U.S. Statutes at Large 517, reprinted in Briggs, 0£. cit . ,

pp."T7T-T7^

60Ibid.

6lPhilip C. Jessup, "The Anti-Smuggling Act of 1935,"

272

Norway and the Contiguous Zone

Just as the United States locked horns with Great
Britain when the former sought to enforce its customs laws
beyond three miles, the Norwegians locked horns with the
British when Norway undertook similarly to exclude foreign
fishermen from the contiguous high seas.

Norway had traditionally claimed as "historical bays"
several fairly large fjords such as Varanger-Fjord and Vest-
fjord, One of the reasons the Kingdom of Sweden and Norway
had been unwilling to adhere to the North Sea Fisheries
Convention of l£82 was the refusal of the other powers to
accept Norway's position on the fjords* Norway, on the other

hand, was unwilling to accept the ten-mile baseline for bays

62
as being inadequate in the case of her coastline.

Her claim to Varanger-Fjord started creating inter-
national problems in 1934* During that year, the Norwegian
Supreme Court upheld the conviction by a lower court in the
case of a German national for "illegal" fishing in Varanger-
Fjord. The prosecution and conviction was adjudged proper
by the high court inasmuch as the German had been fishing
within three miles of a baseline drawn thirty and one-half

American Journal of International Law, XXXI (January, 1937) »
pp. 101-lDo^

ft?

Jessup, The Law of Territorial Waters and Maritime

Jurisdiction,, p. 421."

miles across the fjord from cape to cape.

273
63

The following year Norway issued her famous Royal
Norwegian Decree of July 12, 1935, wherein her territorial
waters — those from the Soviet border in Varanger-Fjord to
Traena just south of Vestf jord — were delimited by a series
of arbitrary straight baselines drawn between forty-eight

fixed points, consisting of rocks, spits, islands -9 capes

65
and the like, the longest of which was forty-four miles.

To seaward of these baselines, then, the Norwegians mea-
sured their four-mile belt of territorial waters. Landward
of the baselines, according to the decree, the waters were
internal waters. With this baseline construction, certain
areas of the high seas more than twenty miles from the near-
est land were designated as internal and/or territorial wa-
ters.

These Norwegian claims for areas beyond traditional
territorial waters were occasioned by their concern for fish-

^Varanger-Fjord Case, Norway, Supreme Court, August
24, 1934 Norsk RetstidendeTl934) t 727, in Briggs, 0£. cit.,
pp. 2&&-2W*

United Nations. Laws and Regulations on the Regime
of the Territorial Sea (United Nations Legislative Series,
FubTTcation ST/LEG/5EE. B/6; New York: United Nations, 1957)
pp. 35-38.

^Aaron L. Shalawitz, Shore and Sea Boundaries, U. S.
Department of Commerce, Coast and Geodetic Survey (Washing-
ton: Government Printing Office, 1962), vol. I, pp. 68-69.
This work provides a chart showing each of the 48 points
and the connecting baselines.

27^

eries, not customs enforcement as in the United States case.
The Decree led to a protracted dispute with Great Britain
which was not settled until after World War II, and which
will be discussed in Chapter XII.

Other States and the Contiguous Zone

The foregoing instances — United States* Prohibition
and the Norwegian Decree of 1935 — were the two most celebrated
inter-war extensions of national jurisdiction to seaward.
But to illustrate how widely and rapidly the doctrine of the
contiguous zone was accepted during the decade following
the Hague Conference, several examples of national laws, regu-
lations and treaties have been compiled and arranged in Table
III, on the following page. The claims varied in extent be-
tween five miles and one hour's sailing distance, but the
most common claim was twelve miles. The purposes were many
and diverse, but the majority had to do with customs. At
least two of the states — Ecuador and France — utilized the
vehicle of the contiguous zone doctrine, like Norway, to ex-
tend fishery zones. Five states capitalized on the political
climate by actually increasing their territorial waters beyond

the three-mile limit. Although the list in Table III is by
no means complete, it is definitely representative of the
variety of claims, both in extent and purpose.

One other inter-war claim should be noted before mov-
ing on. Mexico, who had claimed a nine-mile territorial sea

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276

during the nineteenth century, and who had adopted the three-

mile limit in 1902, abstained from expressing any view at

the 1930 Hague Conference. ' But afterwards, feeling the

time was opportune to revert to her nine-mile limit, issued

Ad
a decree to that effect in 1935.

III. INTER-WAR PUBLICISTS

The damage rendered the three-mile limit by the 1930
Hague Conference and its after effects was soon reflected in
the writings of publicists. The British writers, as might
have been expected, went on the defensive. Herbert A. Smith

(1885-1961) challenged the actions of states which had ex-

69
tended their fisheries into the contiguous zone. • J. L.

See supra, Chapter IX, p. 213.

67
'Bernard G. Heinzen, "The Three-Mile Limit: Preserv-
ing the Freedom of the Seas," Stanford Law Review, XI (July
1959), p. 638.

"Mexican Decree of August 30, 1935," in Hackworth,

op. cit . , vol. I, p. 639; Charles G. Fenwick, International
Law I New York: Appleton-Century-Crofts, Inc., 1952), p. 376.
The United States protested against this decree which read:
"Sole Article. Section I of Article k of the Law of Immo-
bile Properties of the Nation of December 18, 1902 is amended
to read as follows: I. The Territorial Waters, for a dis-
tance of nine nautical miles (16,668 kilometers), counted
from the mark of the lowest tide on the coasts of the main-
land or on the shores of the islands forming part of the
national territory."

%. A. Smith, "The Contiguous Zone," British Yearbook
of International Law, XX (1939), p. 123. Smith declared
flatly that "... the doctrine of the contiguous zone cannot
be interpreted to justify a claim to monopolize the fisheries
outside territorial limits •"

277
Brierly (1881-1955) criticized the doctrine of the contigu-
ous zone because it created uncertainties as to the inten-

70
tions of states. After the United States repealed Prohi-
bition, C. John Colombos (born 1886) wrote of the United
States' inter-war deeds rather like those of a prodigal son
returned home, pretending he had never gone astray.

The French publicist, Gilbert Charles Gidel (1880-
1959), like several other French writers, and following
French national practice, strongly supported the concept of
a contiguous zone with special limits for special purposes ,

J. L. Brierly, who served as a member of the League's

Committee of Experts, published the first edition of his
well-known Law of Nations in 1928, the second edition in
1936, and the fifth edition in 1955, just before his death.
(A sixth, posthumous edition, edited by Sir Humphrey Waldock,
appeared in 1963.) In commenting on the growing competition
between the contiguous zone and the three-mile limit Brierly
wrote: "Great Britain has always resisted the doctrine of
the Contiguous Zone, though some of the powers which we
claimed in the Hovering Acts of the last century, for the
protection of the customs, are difficult to reconcile with
this attitude. . . . [I]t is not always clear in these cases
whether a state is claiming a width of marginal sea exceed-
ing three miles as its territorial waters, or whether it is
satisfied with that limit and merely claiming certain special
rights of jurisdiction outside its territorial waters. At
the Hague Codification Conference of 1930 no agreement on
the matter could be reached. J. L. Brierly, The Law of Na-
tions (fourth edition; Oxford: Clarendon Press, 1949) , pp«
To3::I66.

' Colombos used the following language: "Another

striking illustration of the American adherence to the mar-
ginal belt of three miles is to be found in the fact that
when the United States government sought to extend its liquor
Prohibition Laws ... it sought and obtained the consent of
the other maritime nations by the conclusion of . . . treaties,
..." C. John Colombos, "The Unification of Maritime Inter-
national Law in Time of Peace," British Yearbook of Interna-
tional Law, XXI (1944), p. 97

27S

and rejected the sanctity of the three-mile limit.

Charles G. Fenwick of the United States (born 1880)
acknowledged the three-mile limit as the "more authoritative

practice," but matter-of-factly observed that the consensus

73
was withering away. In marked contrast were the vividly

expressive writings of certain other Americans. Philip Mar-
shall Brown (1875-1966) colorfully described it ridiculous
for states to restrict themselves to a three-mile limit.

Gilbert Charles Gidel was one of the most active and

prolific of all publicists on the law of the sea. He had
published three volumes of his multi-volume work on the law
of the sea (La haute mer [1932], Les eaux interieures [1932],
and La mer territoriale [1934]) when, ironically, the manu-
script and notes for the remaining volumes, including one on
maritime warfare, were lost at sea, sunk in a ship carrying
them to England early in World War II. ("Gilbert Gidel — In
Memorium," Proceedings of the Society of International Law
at its Fifty-third AnnuaX Meeting ( WasETngton : American Soci-
ety of International Law, 1959) , p. 328.) He subsequently
published a volume on the continental shelf (see Bibliogra-
phy). Concerning the three-mile rule, he would go only so
far as to allow that the three-mile limit "is a rule of in-
ternational law ... of negative content," in the sense that
"no State can refuse to respect the zone of territorial wa-
ters established by another State when the width of the zone
does not exceed three miles." Gilbert Charles Gidel, Le
droit international public de la mer (Chateauroux: Les
Etablissements Mellotlee, 1^J2^T95aT, vol. Ill, pp. 123, 134,
as translated and reproduced in Briggs, 0£. £it. , p. 283.

'-^Charles G. Fenwick, contemporary publicist, profes-
sor of political science, and Director of the Pan American
Union's Department of International Law, published the first
and second editions of his International Law during the inter-
war period. Concerning the extent of territorial waters,
Fenwick wrote: "At the Hague Conference of 1930 no agree-
ment could be reached upon a fixed distance; and the conclu-
sion must be drawn that there was then and is now no generally
acknowledged width of the marginal sea. • . «" Fenwick, In-
ternational Law, op. cit., p. 376.

'Philip Marshall Brown, writing in his capacity as

279

Joseph Walter Bingham (born 187S) denounced the three-mile

limit in strong language, claiming that it served only the

selfish, short term interests of the great powers, and was

completely inadequate for conservation of fisheries. He went

so far as to say:

To an unprejudiced student of history and of present
world affairs, it is abundantly apparent . • . that there
never has been and is not today any general agreement on
the extent of territorial waters . . . [and] . . . that
it always has been the opinion of realistic experts that
if definite limits are set to marginal seas jurisdiction
over those limits should be different for different pur-
poses. • . • ' 5

one of the editors of the American Journal of International
Law, attacked the three-mile rule: "[.The tKree-mile limit J
. . • would seem to be regarded as a kind of floating fence
patrolled by a lone and lonely policeman who is forbidden
to act until someone attempts to step through, very much like
a small boy at a baseball game. But this attempt to apply
a single arbitrary limit of jurisdiction to utterly different
situation results, as the Institute of International Law has
pointed out, in much needless confusion. ... A strict ad-
herence to the 3-mile limit as in the case of a spawning bed
extending 4 or 5 miles out to sea would render this task of
protection impossible. The extension of the right of juris-
diction to six miles recommended by the Institute of Inter-
national Law would of course aid materially in the conser-
vation of fisheries on which the livelihood of the poor in-
habitants of the neighboring shores may depend. • . • States
should not be required to adhere to an interpretation which
would reduce them to the undignified, impotent, ridiculous
role of playing hide-and-seek within an imaginary three-mile
limit with swift craft waiting a favorable opportunity to
dart through, violate national laws, and slip out immediately
with impunity." Philip Marshall Brown, "The Marginal Sea,"
a signed editorial in American Journal of International Law,
XVII (January, 1923), pp. 90-91, 93-94.

^Joseph Walter Bingham, Report on the International
Law of Pacific Coastal Fisheries (Stanford: Stanford Univer-
sity Press, and London: Oxford University Press, 1933), p. 9.
Professor Bingham, a contemporary publicist, made several
astute, interesting observations in this book, including the

220

On first reading, the above passage seems to overstate
the case. Certainly the three-mile limit existed as a rule
of international law by the mid-1920' s. True, it may well
be that it had been a law for the many dictated by the few.
The great maritime powers had been in a position to manipu-
late adherence, or at least compliance, with the three-mile
rule. Doubtlessly there were several, perhaps many, states
who did not necessarily agree with the rule which they o-
beyed; for in 1930, when given a gentlemen's chance to be
heard, the lesser countries spoke out against the rule. Pro-
fessor Bingham was saying that there never had been general
agreement, and in this latter sense, he was probably right.

following: "The chief pragmatic reasons for advocacy of the
three-mile limit today are: (1) fullest range for operations
of belligerent naval powers; (2) free fishing on foreign
coasts; and (3) freedom of commerce on the seas — but this
third reason could be satisfied by liberal exemptions of
commerce from restrictions within a wider territorial zone
under the limiting doctrine of free innocent passage. . . .
Indeed the utter failure of the sanguine effort under the
auspices of the League of Nations at the Hague in 1930 to
codify the international law of territorial waters . . . was
in large part due to irreconcilable fishery claims. Claims
on the part of great states interested in fishing off foreign
coasts, and therefore supporting the British doctrine limit-
ing territorial control to a narrow sea zone of three miles
and control over coast fisheries to territorial waters, op-
posed claims by other states to control of fishing off their
coasts over a wider zone of the sea." Ibid. , pp. 1, 9.

7 FE§73
28 FEB73

ED 74

29 MAY79

JtO.

,r^.

Swarztrauber

The three-mile 1 unit
of territorial seas:
a brief hi story -

9JUN70 ^
7 f €**? *

CB74

29MAY79

70'& 7

Thesis
pt.l

11754:

Swarztrauber

The three-mi le limit
of territorial seas:
a brief history.

i limit of territorial st\is

3 2 '68 002 06023 I

;' lUDLI - KNOX t IBRARV

■ f 1
■

i\ TV\

tfft^ v '•.

THE THREE-MILE LIMIT OF TERRITORIAL SEAS
A BRIEF HISTORY

Commander Sayre A. Swarztrauber
United States Navy

Part II (Pages 281 to 564,
Chapters XI through XV and
Bibliography)

Washington, D. C, 1970

Q Copyrigh l Ls)7u

the Department of the Navy and
bound by the U.S. Government Printing Office,
Washington, D. C, 1970

IAVAL POSTGRADUATE SCHOOL
TEREY, CALIF. 93940

AON

CHAPTER XI

WORLD WAR TV/0 AND THE THREE-MILE LIMIT

The events during the years of World War Two, 193&-
1945, impacted greatly on the three-mile limit, significantly
accelerating its decline which had commenced during the inter-
war period. The practice of states — both in proclaiming
extensive neutrality zones and in making far-reaching claims
over the resources of the sea and its bed — further eroded
the concept of a narrow limit of territorial seas. Moreover,
out of the many major political upheavals of the war there
re-emerged the once-obscure twelve-mile claim of Russia, and
there occurred an unprecedented proliferation of new, under-
developed, independent states, which, in general, were not
especially kindly disposed to the past and its international
legal practice, and who wished to make their own way and their
own decisions. These several developments will be addressed
in this chapter.

I. NEUTRALITY AND SECURITY ZONES

The Declaration of Panama

Early during the war, there was held the first meeting
of the Ministers of Foreign Affairs of the American Repub-
lics. The conference was held in Panama during September
and October, 1939. On October 3, the foreign ministers of

2S1

2S2

the tv/enty-one states adopted a general declaration which

" . . . solemnly ratified their neutral status in the conflict

which is disrupting the peace of Europe." The ministers,

who could see ". . .no justification for the interests of

the belligerents to prevail over the rights of neutrals . . .

which by their neutrality in the conflict and their distance

from the scene of events, should not be burdened with its

[the war's] fatal and painful consequences," resolved and

declared:

As a measure of continental self-protection, the
American Republics, so long as they maintain their
neutrality, are as of inherent right entitled to have
those waters adjacent to the American continent . . .
free from the commission of any hostile act by any
non-American belligerent nation, whether such hostile
act be attempted or made from land, sea, or air. 2

The waters were then defined as those enclosed by ten rhumb '

lines starting at the Maine-New Brunswick boundary, proceed-
ing south, around Cape Horn and then north, terminating at
the Washington-British Columbia border. Plotting these lines
discloses an open sea neutrality belt generally between 500
and 900 miles in width, and at one point off the Chilean and

United Nations, Laws and Regulations on the Regime of
the Hi^h Seas (United Rations Legislative Series, publication
ST/LRG/SRR. o/l; New York: United Nations, 1951), p. 144.

"Declaration approved at Panama, at the First Meet-
ing of the Ministers of Foreign Affairs of the American
Republics, 3 October 1939," Article 1, in ibid., p. 145, cit-
ing Pan American Union, Congress and Conference Series, No.
29, p. 19.

-'A rhumb line is a navigational line, drawn on a chart

2&p

Peruvian coasts, to 1200 miles. ^ Although Canadian coasts
and waters were expressly excluded in the Declaration, its
promulgation caused an immediate reaction in Great Britain.
In a note dated ten days later, the Admiralty recalled the
position taken by the British in opposition to the Ameri-
can Prohibition laws, and made the point that the 1939 Pan
American Neutrality Declaration was not to be construed as

intending to extend the three-mile limit of territorial wa-

5
ters. The Declaration was invoked by its authors on at

least three occasions to protest hostile incidents within
the zone. Joint notes were submitted to the European bel-
ligerents by the American Republics on December 23, 1939,
March 16, 1940, and May 24, 1940. 6

or map, which maintains a constant compass direction and
crosses all meridians at the same angle.

^"Several writers have described this zone as extend-
ing to a limit of only about three hundred miles, including:
C. John Colombos, The International Law of the Sea (fifth
revised edition; New York: David McKay Co., Inc., 1962),
p. 627; F. V. Garcia Amador, The Exploitation and Conser-
vation of the Resources of the Sea (Leyden: A. W, Sythoff ,
1959) , p. 62; and Joseph"~¥alter Bingham, "The Continental
Shelf and the Marginal Belt," American Journal of Interna-
tional Law, XL (January, 1946), p. 174. It is surmised that
they took this information from a common erroneous source
without troubling to plot the coordinates and measure the
width of the zone.

^British Admiralty Note of October 13, 1939, repor-
duced in U. S. Naval War College, International Law Situa-
tions 1939 (V/ashington: Government Printing Office, 1940) ,
pp. 08-69.

United Nations, Laws and Regulations on the Regime
of the High Seas, p. 146.

2&k

United States Special Security Zones

■!■— ■ I ■!■ ■■ ■■ ™ -Ml. . ... — H^—H- ■!■■■■■.. I.I ■ ' | | |

Under the Hague Convention of 1907, a neutral power
was obligated to be impartial to the several belligerent
powers with respect to the use of its harbors and road-
steads. The right of innocent passage could normally be
assumed with the understanding that:

... a neutral Power may forbid a belligerent vessel
which has failed to conform to the orders and regula-
tions made by it, or which has violated neutrality, to
enter its ports or roadsteads. 7

The practice of the United States while still a neutral
during early World War II seems somewhat inconsistent with
the Hague rules. Under the Act of March 4, 1917, the Presi-
dent had been authorized to establish "defensive sea areas"
by executive order "for purposes of national defense."
Invoking this authority, between May, 1939 and November,
1942, the President ordered naval defensive sea areas (some
were called simply "defensive sea areas") at no less than

thirty-four naval installation sites in the United States

q
and its overseas bases. The executive orders establishing

'Article 9, Hague Convention XIII, Concerning the

Rights and Duties of Neutral Powers in Maritime War, U. S.
Department of the Navy, Law of Nayal Warfare (NWIP 10-2)
('Washington: Government Printing Office, 1955), p. tf-3-

Marjorie M. Whitman, Digest of International Law
(Washington: Government Printing Office, 1903- ) , vol.
IV (1965), p. 339, citing 39 U. S. Statutes at Large, 1194.

"*J. S. Naval War College, International Law Documents
1948-49 (Washington: Government Printing Office, 1950), pp.
157-159. The sites included Kiska, Unalaska, and Kodiak,
Alaska; Manila Bay and Subic Bay, Philippines; Pearl Harbor,

2S5

these areas went considerably further than the Hague Conven-
tion rules:

At no time shall any person, other than persons or
public vessels of the United States enter any of the
naval defensive sea areas herein set apart and reserved,
nor shall any vessel or other craft, other than public
vessels of the United States, be navigated into any of
said areas, unless authorized by the Secretary of the
Navy.lU

Concurrently, airspace reservations were established at the

same locations, similarly restricting air navigation:

At no time shall any aircraft, other than public air-
craft of the United States, be navigated into any of the
naval airspace reservations herein set apart and re-
served, unless authorized by the Secretary of the Navy. ^

The defensive sea areas and the airspace reservations
conformed fairly closely to territorial waters within the
three-mile limit; hence, their significance was in their
denial of free navigation in areas normally open for inno-
cent passage. The so-called "maritime control areas," how-
ever, established after U. S. entry into the War, were not

Honolulu and Kaneohe, Hawaii; Culebra, Puerto Rico and
Guantanamo, Cuba in the Caribbean; at the islands of Pal-
myra, Johnston, Midway, Wake, Kingman Reef, Rose, Tutuila,
and Guam in the Pacific; and at Portland, Maine, Portsmouth,
New Hampshire, Narragansett Bay, San Diego, San Francisco,
Columbia River Entrance, Puget Sound, Juan de Fuca Strait,
New York, New London, Delaware 3ay-River, Chesapeake Bay-
Norfolk, Charleston, Buzzards Bay and Vineyard Sound, Mass-
achusetts, and Matagorda Bay, Texas.

U. S. Navy Department, Defensive Sea Areas and Air-
space Reservations (General Order Number 13 of 21 September,
1948) (Washington: Government Printing Office, 194&), P« 7.

"■Ibid.

2S6

limited to waters within the three-mile limit. By six
proclamations issued between December 1941 and November 1942,

President Roosevelt established seventeen maritime control

12
areas all of which included waters of the high seas. As

shown in Table IV on the following page, the seaward extent

varied between 11 miles (Portsmouth, New Hampshire) and 65

miles (Prince William Sound, Alaska). The Hawaiian Maritime

Control Area proclamation served as the model for the others

and imposed restrictions as follows:

A vessel not proceeding under United States naval or
other United States authorized supervision shall not
enter or navigate the waters of the Hawaiian Maritime
Control Area except during daylight, when good visi-
bility conditions prevail, and then only after specific
permission has been obtained. . . .

Even though permission has been obtained, it is in-
cumbent upon a vessel entering the said Area to obey
any further instructions received from the United States
Navy, or other United States authority.

Should any vessel or person within the said Area dis-
regard these regulations . . . such vessel or person may
be subjected to the force necessary to require compli-
ance, and may be liable to detention or arrest, or pen-
alties or forfeiture, in accordance with law. . . .13

U. S. Naval War College, International Law Docu-
ments 194&-49 (Washington: Government Printing Office,
1950) , p. 170T These areas were justified by the President
in terms of national defense " . . .by virtue of the author-
ity vested in me as President of the United States, and as
Commander-in-Chief of the Army and Navy of the United States,
and in accordance with the principle of self-defense of the
Law of Nations." Ibid.

13Ibid., pp. 170-171.

2S7

TABLE IV

SEAWARD EXTENT OF U. S. MARITIME CONTROL AREAS
(WORLD WAR II)

Maritime Control Area Seaward Extent*

Hawaiian 53

Cristobal (Panama) 36

Gulf of Panama $0**

Boston 24

San Francisco 24

Columbia River 50

Puget Sound 50

Southeastern Alaska 50

Prince William Sound (Alaska) 65

Kodiak (Alaska) 50***

Unalaska 50

Casco Bay (Maine) 12

Portsmouth, New Hampshire 11

Cape Hatteras 17

Key West 3*5

Los Angeles 15

San Diego 12

*Distances in nautical miles, determined by plotting
coordinates of latitude and longitude prescribed in the
several proclamations, as reproduced in U. S. Naval War
College, International War Documents 1948-49 (Washington:
Government Printing Office, 1950), ppTT70^L76 .

**More accurately, the Gulf of Panama Maritime Con-
trol Area included all waters north of 8 N latitude (which
passes 50 miles south of the Pacific entrance to the Canal) .
The Panama Maritime Control Areas proclamation (Proclama-
tion No. 2536 of 16 January 1942, 56 Stat. 1932) also cited,
as authority, Article 10 of the General Treaty of 2 March
1936 (U. S. Treaty Series No. 945) which provided: "In
case of an international conflagration or the existence of
any threat of aggression which would endanger the security
of the Republic of Panama or the neutrality or security of
the Panama Canal, the Governments of the United States of
America and the Republic of Panama will take such measures
of prevention and defense as they may consider necessary
for the protection of their common interests." Ibid. , p. 169.

***A11 waters within a 50-mile radius of Kodiak [City].

2SS

All of the maritime control areas were discontinued by-
proclamations issued in September 1945 and May 1946.

II. THE TRUMAN PROCLAMATIONS

With the end of the War, there ended the usefulness
for the wide neutral zone and the maritime control areas.
But the end of the War also brought new types of claims over
areas of the high seas to take their place. The two Truman
Proclamations of 1945 concerning the continental shelf and
fisheries conservation stimulated a voluminous international
legal literature. Both of these subjects are generally
beyond the parameters of this study. Yet they both impinge
on the three-mile rule in the negative sense that they con-
tributed to its demise. These aspects, plus certain back-
ground information for purposes of continuity, will be pre-
sented in this section.

Background

The idea of states reserving certain rights for them-
selves in the adjacent seabed was not new in 1945. The
British nineteenth century claims to the pearl banks in
Ceylon, the oyster beds in Ireland, the offshore coal de-
posits at Cumberland, and the shell and b§che-de-mer fish-
eries of Australia have already been mentioned.

14Ibid., pp. 169-171.

2S9

Portugal appears to have been the next state to stake

a claim in the resources of the continental shelf:

Whereas deep trawling by steam vessels at depths of
under 100 fathoms within the limits of the continental
shelf is extremely harmful to fisheries, because this
method destroys the feeding grounds on the sea bed and
therewith the young fry feeding, sheltering and de-
veloping there, a process rapidly leading to the des-
truction of the marine life along the coasts affected
since, as a consequence, it becomes impossible to re-
place the stocks of fish at depths of over 100 fathoms,
the habitat of the fully developed fish, so that an
important source of wealth is destroyed;

Whereas deep trawling by steam vessels is not harmful
at depths of over 100 fathoms;

• • •

Article 2. Fishing by this method may only be car-

ried out beyond the bathymetric line of 100 fathoms.

This enlightened .1910 enactment by Portugal occured "forty
years too soon," The nations of the world did not become
generally and collectively concerned about the matter until
mid-century.

Publicists. In 1923 — the same year that the oil
drilling industry was automated with the successful intro-
duction of the electric rotary deep oil well drill in Cali-
fornia— Philip Marshall Brown wrote concerning the British

^Portugal, "Decree Regulating Fishing by Steam
Vessels, 9 Nov., 1910," in United Nations, Laws and Regu-
lations on the Regime of the High Seas, pp.' 19-20, citing
"Colecao oficial de Legislacao Portuguesa," 1910, vol. 2,
p. 7-6. (Translation by United Nations Secretariat.)

290
submarine mines and the California coastal oil fields:

A strictly technical interpretation of the three-
mile limit in these instances' would doubtless lead to
serious complications .16

The British publicist Cecil Hurst concurred in the coastal

states' exploitation of the riches of the continental shelf,

provided such exploitation were based on prescription. Also

writing in 1923, he held:

So far as Great Britain at any rate is concerned
. . . where effective occupation has been long main-
tained of portions of the bed of the sea outside the
three-mile limit, those claims are valid and subsist-
ing claims, entitled to recognition by other states. 17

The French publicist, Gilbert Gidel, writing in 1932, seemed
to be of the opinion that the construction of offshore de-
vices and rigs — presumably such as the "Texas Towers" —
should not be undertaken unilaterally:

Their establishment [installations more or less fixed
which for purposes other than fishing occupy a certain
amount of the high seas other than the subsoil seabed]
ought to be subject to agreement, express or tacit, of
all States. I©

Action by the U. S. Congress. Meanwhile, fishing

interests in the United States were beginning to be heard.

1 c

Philip Marshall Brown, "The Marginal Sea." American
Journal of International Law, XVII (January, 1923), p. 91.

17Sir Cecil Hurst, "Whose is the Bed of the Sea,"
British Yearbook of International Law, IV (1923-24), p. 43.

Gilbert Charles Gidel, La haute mer (vol. I of Le
droit international public de la merT J vols.; Chateauroux:
Les Etablissements MellotJ.ee, 1^32), p. 502, translated and
quoted in Whit email, op_. cit. , p. 741.

291

In 1937, identical bills were introduced in both houses

which would have excluded foreign fishermen from the Alaskan

continental shelf:

The salmon which are spawned and hatched in the wa-
ters of Alaska are hereby declared to be the property
of the United States, and it shall be unlawful for any
person . • . to fish for, take, or catch any of the
said salmon in the waters adjacent to the coast of
Alaska . . . east of the international boundary in
Bering Sea between the United States and the Union of
Soviet Socialist Republics, the depth of which is less
than one hundred fathoms. . . .19

These bills would have been a drastic departure from inter-
national law not only from the standpoint of ownership of
the fish but also from that of the extent of seaward juris-
diction. The Alaskan continental shelf — within the 100
fathoms line — covers about half the Bering Sea east of the
international boundary, and extends over 400 miles from the
Alaskan mainland. But neither bill passed. The following
year, however (193$), a watered down version did pass in
one house, the Senate. That bill explained that "the shal-
low depth of the Bering Sea must be regarded as a slightly
submerged margin of the American Continent" and that "geol-
ogists have concluded that this part of the Bering Sea does
not partake of the qualities of a true ocean basin and that
the so-called "continental shelf" is no more or less than

19H. R. S344, November 1$, 1937, supplanting H. R.
7552 of June 17, 1937, both introduced by Mr. Dimond, the
delegate of Alaska, reproduced in Philip Jessup, "The Pa-
cific Coast Fisheries," American Journal of International
Law, XXXIII (January, 1939), p. 130.

292

another of the several old Alaska beach deposits." The bill

then recited the need to protect the fish and minerals of

the area and provided:

. . . that jurisdiction of the United States is
hereby declared to extend to all the waters and sub-
merged land adjacent to the coast of Alaska lying east
of the international boundary in the Bering Sea . . .
and lying within the limits of the continental shelf,
the edge of such continental shelf having a depth of
water of one hundred fathoms, more or less. 20 .

Philip Jessup disapproved of both attempts:

It would be immediately apparent to any student of
international law that the enactment of either of the
above bills would raise a very serious question of the
infringement of the traditional freedom of the seas.
It scarcely needs to be argued that under existing in-
ternational law a state . . . has no right to endeavor
to exclude aliens from fishing on the high seas. 21

Action by Louisiana and Texas. The failure of the

U. S. Congress to enact continental shelf legislation did

not discourage individual states of the Union. In June,

1933 t the Legislature of Louisiana enacted the following:

Section 1. Be it enacted by the Legislature of
Louisiana, that the gulf ward boundary of the State
of Louisiana is hereby fixed and declared to be a
line located in the Gulf of Mexico parallel to the
three-mile limit as determined according to said an-
■ cient principles of international law, which gulfward
boundary is located twenty-four marine miles further
out in the Gulf of Mexico than the said three-mile
limit. 22

20S. 3744, May 5, 1932 » introduced by Senator Cope-
land, reproduced in ibid. , p. 129.

Jessup, on. cit. , p. 131.

"Act No. 55, to declare the sovereignty of Louisi-
ana along its seacoast and to fix its present seacoast bound-

293

Three years later, a similar 27-mile limit law was

passed by Texas, and like that of Louisiana, employed the

rationale of increased cannon range[!].

Since the said three (3) mile limit was so estab-
lished as the seaward boundary of each sovereign State,
modern cannon have been improved to such an extent that
now many cannon shoot twenty-seven (27) miles and more,
and by the use of artillery located on its shores a
State can now make its authority effective at least
twenty-seven (27) marine miles out to sea . .' .23

The oil rich continental shelf of Louisiana and Texas ex-
tends roughly from $0 to 130 miles into the Gulf; that of
California's oil producing coast extends only to about 10
or 15 miles. California's State Constitution of 1349 had
provided for ownership of the seabed out to three miles;
consequently, that state felt no pressing need to pass ad-
ditional legislation at the time. ^

But several years later, and following the 1945 Tru-
man Proclamation, California (in 1947), Louisiana (in 1950),
and Texas (in 1950) all failed in their attempts to uphold

ary and ownership, 30 June 1933," United Nations, Laws and
Regulations on the Regime of the High Seas, pp. 114-115,
citing Acts Passed by the Legislature of the State of Louis-
iana, 19317 P. 169.

"Act Declaring the Sovereignty of Texas along its

Seacoast, 16 May 1941," in ibid., p. 41, citing General and

Special Laws of the State of Texas, 47th Legislature (1941) ,

chap. 268, p. 454.

24
^Constitution of the State of California, Article

XXI, Section 1, 1&49, reproduced in United Nations, Laws

and Regulations on the Regime of the Territorial Sea (United

Nations Legislative Series publication ST/LEG/SER. B/6; New

York: United Nations, 1957), pp. 56-57.

294
their maritime claims. In three decisions, the Supreme
Court held that the Federal Government, not the states,

possessed the paramount rights over the lands and minerals

25
beyond the low-water mark. '

United Kingdom and Venezuela. In 1942, England and
Venezuela divided between themselves the petroleum resources
of the continental shelf in the Gulf of Paria. The Gulf is
a shallow area of the high seas measuring about 150 miles
long and 40 miles wide between the coast of Venezuela and
the island of Trinidad. The treaty provided for "sovereignty
or control" of the "sea-bed and sub-soil outside of terri-
torial waters" of the Gulf of Paria.

^See supra, Chapter VIII, p. 1#4. For an excellent
coverage of the arguments advanced by both sides in the
Texas case, which is representative of all three, see Baylor
University Law School, "Symposium on the Texas Tidelands
Case," Baylor Law Review, III (Winter, 1951). So unpopular,
and alledgely inconsistent with the law, was the Texas case
that a joint memorandum was submitted to the U. S. Supreme
Court, urging that the case be reheard. The memorandum was
signed by United States, British, French, .Spanish, and Aus-
trian publicists including: Joseph Walter Bingham, C. John
Colombos, Gilbert Gidel, Manley 0. Hudson, Charles Cheney
Hyde, Hans Kelsen, William E. Masterson, Roscoe Pound,
Stephan A. Riesenfeld, Felipe Sanchez Roman, and William
W. Bishop, Jr., "Joint Memorandum of July 14, 1950," in
ibid., pp. 319-335- See also Gordon Ireland, "Marginal
Seas Around the States," Louisiana Law Review, II (1939-
40), pp. 252-293, 436-473; and F. ATTallot, "Ownership of
the Sea-Bed: United States v. California," British Yearbook
of International Law, XXIV "0.947), pp. 3B2-3S5. See p. 443.

United Kingdom and Venezuela, "Treaty Relating to
the Submarine Areas of the Gulf of Paria, 26 February 1942,"
reproduced in United Nations, Laws and Regulations on the
Regime of the High Seas, p. 44, citing British Treaty Series,
No. 10 TT942T, cma."~o400.

295

Proclamation on the Continental Shelf

World War II emphasized to both Allied and Axis pow-
ers alike the great importance of oil. By the end of the
War, oil interests in the United States had made it clear
to the government that the oil resources offshore must be
tapped. In 1945, the Executive branch was prepared to ac-
complish by proclamation what the Congress had chosen not
to do before the War. Two proclamations were prepared by
the Departments of State, Justice and Interior in collabo-
ration. The first of these declared:

Whereas the Government of the United States of Amer-
ica, aware of the long range world-wide need for new
sources of petroleum and other minerals . • . and . • .

Whereas it is the view of the Government of the
United States that the exercise of jurisdiction over
the natural resources of the subsoil and sea bed of
the continental shelf by the contiguous nation is rea-
sonable and just, since the effectiveness of measures
to utilize or conserve these resources would be con-
tingent upon cooperation and protection from the shore,
since the continental shelf may be regarded as an ex-
tension of the land-mass of the coastal nation and thus
naturally appurtenant to it, since these resources fre-
quently form a seaward extension of a pool or deposit
lying within the territory, and since self -protection
compels the coastal nation to keep close watch over
activities off its shore which are of the nature neces-
sary for utilization of these resources;

[T]he Government of the United States regards the
natural resources of the subsoil and sea bed of the
continental shelf beneath the high seas but contiguous
to the coasts of the United States as appertaining to
the United States, subject to its jurisdiction and con-
trol. . . . The character as high seas of the waters
above the continental shelf and the right to their free

296

and unimpeded navigation are in no way thus affected. '
The width of the continental shelf varies widely
from about one-half mile to over 600 miles. By way of defi-
nition, it is the shallow, gently sloping, almost flat area
of the seabed rimming the continents. At its seaward edge,
the sea bottom drops off sharply to the ocean floor, this
sharp incline being called the continental slope." The depth
of water at the edge of the continental shelf is generally
about 100 fathoms, and this depth figure — or that of 200

meters — has become commonly accepted, although somewhat im-

28
precise, as the outer limit of the continental shelf.

The Fisheries Proclamation

The fisheries industry, too, continued to press the

United States Government during the War. This is reflected

in a 1943 letter from the Secretary of the Interior to the

White House:

The Continental Shelf extending some 100 or 150 miles
from our shores forms a fine breeding place for fish of
all kinds; it is an excellent hiding place for submarines;
and since it is a continuation of our continent, it
probably contains oil and other resources similar to
those found in our States.

^Proclamation n0. 2667, "Policy of the United States
With Respect to the Natural Resources of the Subsoil and Sea
Bed of the Continental Shelf," September 28, 1945, 10 Fed.
Reg. 12303, 3 CFR, 1943-1948 Comp., p. 67, reproduced TrT
Whiteman, o£. cit. , pp. 756-757.

28M. W. Mouton, The Continental Shelf (The Hague:
Martinus Nijhoff, 1952), pp. 6-7, 22-32.

297

I suggest the advisability of laying the ground work
now for availing ourselves fully of the riches in this
submerged land and in the waters over them. The legal
and policy problems involved, both international and
domestic, are many and complex. In the international
field, it may be necessary to evolve new concepts of 2q
maritime territorial limits beyond three miles. . . .

President Roosevelt agreed:

I think Harold Ickes has the right slant on this
[continental shelf]. For many years, I have felt that
the old three-mile limit or twenty-mile limit" should
be superseded by a rule of common sense. . • .30

An inter-departmental board was set up to study the matter.

Its efforts culminated in the Fisheries Proclamation of 1945;

Whereas for some years the Government of the United
States of America has viewed with concern the inadequacy
of present arrangements for the protection and perpetu-
ation of the fishery resources continguous to its coasts
• • • ; and

Whereas such fishery resources have a special impor-
tance to coastal communities . . . ; and

Whereas there is an urgent need to protect coastal
fishery resources from destructive exploitation, having
due regard to conditions peculiar to each region and
situation . . . :

[T]he Government of the United States regards it as
proper to establish conservation zones in those areas
of the high seas contiguous to the coasts of the United
States wherein fishing activities have been or in the

^Secretary of the Interior Harold L. Ickes letter
to President Roosevelt of June 5, 1943, in Whiteman, ibid.,
p. 946, citing MS. Department of State, file 811.0145/367.

^ President Franklin D. Roosevelt letter to Secre-
tary of State Cordell Hull of June 9, 1943, in ibid., citing
MS. Department of State, file Sll. 0145/11-2844.

25S

future may be developed and maintained on a substantial
scale. . . . The character as high seas of the areas in
which such conservation zones are established and the
right to their free and unimpeded navigation are in no
way thus affected. 31

The Proclamation provided, in addition, that the conserva-
tion zones would be established and maintained through agree-
ment with those states whose subjects traditionally fished
the areas in question.

Professor Joseph Bingham, who before the War had
strongly advocated conservation measures, quickly lauded
the Truman Proclamations:

These two proclamations radically alter the practice
of our Government for over a century and a quarter. . • .

Both as a wise preparation for protection of impor-
tant American interests and as a contribution .to the
economic and social welfare of the international com-
munity, the fisheries proclamation should be commended
heartily.

The proclamation concerning the minerals and other
bedded resources of the continental shelf also should
meet with approval. • . .33

International Reaction to the Proclamations

Whatever good or bad may be said concerning the Tru-

^Proclamation No. 2668, "Policy of the United States
With Respect to Coastal Fisheries in Certain Areas of the
High Seas," Sept. 28, 1945, 10 Fed. Re&. 12304; 3 CRF, 1943-
1948 Comp., p. 68, in Whiteman, p_p_. cit., pp. 954-956.

•3?

J See supra, Chapter X, p. 279.

^Joseph Walter Bingham, "The Continental Shelf
and the Marginal Belt," American Journal of International
Law, XL (January, 1946), pp. 173,' 177.

299

man Proclamations, it must be said that they dealt a crip-
pling blow to the three-mile limit, and in this writer's
view, they were the second in the series of five major de-
velopments or events leading to the demise of the three-
mile rule. They precipitated a series of claims by states
to jurisdiction over wide expanses of the high seas which
in turn led to protracted international fisheries' disputes
in both hemispheres. Moreover, as a result, several states
abandoned their claims to a three-mile territorial sea in
favor of a much greater width.

Argentina. Mexico was the first state to react,
issuing a declaration much like that of the United States
the following month. But Argentina, one year later,
issued a most far-reaching decree. She described the wa-
ters over her continental shelf as "transitory zones of min-
eral reserves ... characterized by extraordinary biologi-
cal activity, owing to the influence of the sunlight, which
stimulates plant life (algae, mosses, etc.) and the life of
innumerable species of animals, both susceptible of indus-
trial utilization." Then in an obvious misconstrual of the
United States and Mexican declarations, she proclaimed:

^"Presidential Declaration with Respect to Conti-
nental Shelf, 29 October 1945," in United Nations, Laws and
Regulations on the Regime of the High Seas, p. 13. citing
El UniversaYTMexico City), voTT 1X67 UoT~10,541 (30 Octo-
ber 1945), pp. 1, 17.

300
Whereas • . •

[T]he Governments of the United States of America
and of Mexico have issued declarations asserting the
sovereignty of each of the two countries over the re-
spective peripheral epicontinental seas and continen-
tal shelves . . . ,

It is hereby declared that the Argentine eipconti-
nental sea and continental shelf are subject to the
sovereign power of the nation. . • .35

Argentina is favored with one of the most extensive con-
tinental shelves in the world. It averages about 200 miles
in width, varying between 100 and 300 miles. Hence, this
was a most sweeping assertion of sovereignty; and in July,
19 4^ the United States protested the scope of the decree,
especially Argentina's use of the word "sovereignty" as ap-
plied to "epicontinental seas.""^

During the next decade, eight other states declared
sovereignty over the continental shelf and the superjacent
waters. These claims, as listed in Table V on the follow-
ing page, involved shelves as narrow as 35 miles (Costa Rica)
and as wide as 200 miles (Korea).

^ ^"Decree No. 14, 70S concerning National Sovereignty
over Epicontinental Sea and the Argentine Continental Shelf,
11 October 1946," in United Nations, Laws and Regulations on
the Regime of the High Seas, pp. 4-5 •

^United States note of July 2, 19 4^ to Argentina,
in ibid. , p. 5.

>01

TABLE V

POST-WORLD WAR II CONTINENTAL SHELF CLAIMS
'■■OF SELECTED STATES*

YEAR STATE WIDTH OF SHELF**

5-SO miles
5-40 miles
15-60 miles
5-35 miles
30-45 miles
30-50 miles
5-200 miles
140 miles

*See Marjorie M.. Whiteman, Digest of International
Law (Washington: Government Printing Office, 1963- ~T7~
vol. IV (19&5), pp. 22-24, 27, 29-30.

**Figures for the continental shelf are approximate
measurements in statute miles from National Geographic Atlas
°f the World (Washington: National Geographic Society,
1963) , passim.

1946

Panama

1947

Chile

1947

Peru

1949

Costa Rica

1950

Nicaragua

1950

El Salvador

1952

South Korea

1957

Cambodia

>02

The two hundred-mile limit. This assertion of sov-
ereignty over the continental shelf was not sufficient, in
the view of certain west coast Latin American states, to
provide for adequate fishery conservation measures. Along
the Pacific coast of South and Central America the conti-
nental shelf is very narrow, in most places only about 10
miles. Accordingly, between 1947 and 1955, five states de-
clared two hundred-mile limits for exclusive fishing rights:

Chile, Peru, Costa Rica, Ecuador, and El Salvador. The

following example is taken from the Chilean decree:

Protection and control [of whaling and deep sea
fishery] is. hereby declared immediately over all the
seas contained within the perimeter formed by the
coast and the mathematical parallel projected into
the sea at a distance of 200 nautical miles from the
coasts of Chilean territory. 38

In 1951 the Honduran Congress decreed a similar 200-mile

39
limit, but only with respect to her Atlantic waters.

Chile, El Salvador, and Guinea. Three states, it

-^'Chilean Presidential Declaration of 23 June 1947;
Peruvian Presidential Decree Mo. 7&1 of 1 August 1947;
Costa Rican Regulation No. 363 of 11 January 1949 as amended
by Decree No. 739 of .4 October 1949; Ecuadorian Decree No.
10o5 of 14 May 1955; and El Salvadorian Decree No. 1961 of
25 October 1955, in United Nations, Laws and Regulations on
the Regime of the Territorial Sea, pp. 4, ""37, To 27"£9u, ancT"
491.

3^Ibid., p. 5.

-^Honduran Congressional Decree No. 25 of 17 January
1951 approving Presidential Decree No. 96 of 2B January 1950
in ibid. , pp. 22-23.

seems, used the issue actually to assort claims to increased
territorial seas. It may or may not be a coincidence, but
the Chilean continental shelf extends in its widest part
(Magallanes State) to an average width of about 50 kilom-
eters; and in 19 4^ Chile enacted:

Article 3. The adjacent sea, up to a distance of
fifty kilometers, measured from the low-water mark,
constitutes the territorial sea and belongs to the
national domain; but the right of policing, with re-
spect to matters concerning the security of the country
and the observance of fiscal laws, extends up to a dis-
tance of 100 kilometers measured in the same manner. 40

Thus, Chile abandoned her claims of three and twelve miles

vador, in 1950, dropped her three-mile claim:

Article 7. The territory of the Republic within
its present boundaries is irreducible; it includes the
adjacent sea within a distance of two hundred marine
miles measured from the line of lowest tide, and it em-
braces the air space above, the subsoil, and the cor-
responding continental shelf. 41

Under this law, SI Salvador* s territorial sea measures al-
most 36,000 square miles, or about four and one-half times
the landed portion of the state itself (3268' square miles).
Some years later, the newly independent state of Guinea de-

^ Chilean Water Code, annexed to Law No. £,944, 21
January 1948, in United Nations, .Laws and Regulations on
the Regime of the High Seas, p. 6l, citing Diario (JTicial,
vol.-yf7~Ho. 2(57275 (TlTebruary 194S) , p. 25'b.

^Constitution of the Republic of El Salvador of 7
September 1950 in United Nations, Laws and Regulations on
the Regime of the Territorial Sea, p. 14, citing Pan Amer-
ican Union, Law and Treaty Series (Washington: Pan American
Union, 1950), p. 1.

). 9

clared a territorial sea of 130 miles •..ic.-ol"..~,"~ Her conti-
nental shelf extends to 130 miles at its widest point.

Santiago Declaration c:\ ::': i .aritime I 3 (1952) .

Following their tri -partite conference in Santiago, on

August 19, 1952, Chile s Ecuador, and Peru issued a joint

declaration which specified aa i"cs purpose the conservation

and preservation ". . . for their respective peoples, the

natural riches of the zones of the sea which bathed their

coasts." In order to accomplish this, the Declaration

stated:

The Governments of Chile. Ecua .< r, and Peru pro-
claim as the standard of their international maritime
policy, that to each one of them belongs the sovereignty
and exclusive jurisdiction over the sea that washes
their respective coasts, up to the minimum distance
of two hundred (200) nautical miles from the said
coasts. 43

Although the contracting parties used the term "maritime
zone" rather than "territorial sea," their resolve to en-
force their newly claimed sovereignty was manifested in

1954 when the three states commenced seizing vessels as far

L '■

from shore as loO miles. ^

* Guinean Presidential Decree Mo. 224, June 3, 19o4
cited in Whiteman, pjo. cit . , p. 34»

^"La Declaracion sobre Zona Maritima de Santiago,
19 de Agosto, 1952, in Teodoro Alvarado-Garaicoa, El Domino
del Mar (Guayaquil, Ecuador: Universidad de Guayaquil, l9ob) ,
pp. 89-90, translation by author.

^\In November, 1954, Peruvian naval and air units
seized five of Mr. Onassis' whaling vessels flying the

305

i ev/s of the Contemporary Publicists

F. V. Garcia Amador, Cuban publicist and member of
the International Lav; Commission, justifies the 200-mile
"maritime zone" from both a scientific and a moral approach.
Ke cites the existence of a complex ecological system, aver-
aging 200 miles in width off the coast of vie stern South
America, the whole of which must be considered as one fish-
ery for purposes of conservation. His moral argument is
even more convincing. It is commonly theorized that a mas-
sive inter-continental evolutionary shifting process has
been going on for millions of years. This theory has also
served hypothetically to explain why there are generally
wide continental shelves on the east coasts of the Ameri-
can continents and virtually none on their western coasts.
The more fortunate, east coast states with continental
shelves have understandably undertaken to exploit them for
the common well-being of their subjects. But Amador says:

There can be no reason in justice . . . why many
countries should have a broad submarine zone as a re-

Panamanian flag. Two were captured 160 miles off the
Peruvian coast. The other three were attacked at 300 and
364 miles from the coast. Peru claimed that these latter
ships had been pursued from within the 200-mile limit,
invoking the doctrine of the right of "hot pursuit."
Colombos, 0£. cit. , p. 89. See also Chapter XII, infra.

^F. V. Garcia Amador, The Exploitation and Conser-
vation of the Resources of the Sea (Leyden: A. W. SythofT,
1959), pp. 75-76; also see infra, Chapter XII, p. 336.

306

suit of prehistoric geological upheavals while others
should have none. 46

He points up the argument that the 200-mile limit may be

considered compensation to those countries which have no

continental shelf (keeping in mind that the Argentinean

continental shelf averages about 200 miles in width) :

The important thing is not the contour of the sub-
marine areas but the maritime resources that will pro-
duce that wellbeing* , . , In the case of the countries
of the west coast of South America, we know that these
countries have a narrow continental shelf but that, at
the same time, a broad current running parallel to their
coasts creates one of the most prodigious sources of
fish, in the wo rid. 47

It was inevitable that this politically charged issue
would draw sharply contrasting views from the publicists
of various states. The United States position, as defined
in the Truman Proclamations themselves, was defended by
Myres McDougal and William Burke who held that the conti-
nental shelf can be best exploited only by the littoral state
while offshore fisheries can be exploited by any one.

4°Ibid., p. 74.

4 'Ibid., p. 75, quoting La Plataforma Submarina:
Falso Limite Marftimo de los Estados, an Ecuadorian Tech-
nical Study, Document oU, p. o.

4&Myres S. McDougal and William T. Burke, The. Public
Order of the Oceans (New Haven and London: Yale University
Press, 1962)', p. 6~6"2. Concerning the Latin American argu-
ment that exploitation of fisheries should be placed on the
same basis as exploitation of mineral resources, they write:
"The reasons for* rejecting the purported similarity between
oil exploitation and fishery activity need not be reviewed
again, but at least it bears repetition that in the absence
of exploitation by means of more or less permanent installa-
tions the above position can have no basis whatsoever."

307

And although the United States had clearly disavowed any
sovereignty over the waters above the continental shelf,
the distinguished Briton, Sir Hersch Lauterpacht, expressed
his doubt that exploitation of the resources of submarine
areas could be accomplished without contradicting the con-

L Q

cept of freedom of the seas* The Argentinean professor,
Teresa H. I. Flouret, went a step further, arguing that
sovereignty over the subsoil and the waters above were in-
separable and accused the United States of duplicity in her
announced policy.

yH. Lauterpacht, "Sovereignty over Submarine Areas,"
British Yearbook of International Law, XXVII (1950), p. 3&9.
On the issue of "sovereignty,'6 he writes: "It is probable
that while for reasons of its constitutional law and of
attachment to consistency in its diplomatic practice the
United States may have resorted to a terminology intended
to dispel the appearance of assumption of sovereignty, it
used words and assumed powers which in fact can have no
other result." Then, concerning the Latin American claims,
he observed: "... the claim to sovereignty over submarine
areas may be — and has been — abused for the purpose of ad-
vancing pretensions to sovereignty over the high seas as
such or the exclusive exploitation of their resources. . . .
It was perhaps unfortunate that the United States on the day
on which it issued the Proclamations as to the continental
shelf also issued the Proclamation relative to the conser-
vation zone in the matter of fisheries." Ibid., p. 412.

J Teresa Flouret, La Doctrina de la Plataforma Sub-
marina (Madrid: Artes Graficas Arges, 1932), pp. 03-o4»
Here, Flouret writes: "The distinction between the legal
status of the soil and that of the waters is in our opinion,
practically impossible. 'The sovereignty over the subsoil
of the continental shelf would demand correlative rights
over the respective waters ,• says Mateesco, 'even if these
rights were attenuated by the necessity to reconcile the
national interest with that of international freedom of nav-
igation.' He considers also that vin spite of the affirma-
tion in the proclamation, it is difficult to believe that

2 OS

Another publicist, the Ecuadorian Teodoro Alvarado-
Garaicoa, contends that the 200-mile limit is the product
of a logical legal evolution and traces its development
through cannon shot, three miles, and the continental shelf.
The Trinidadian, Barry 3. L. Augusts, agrees with Amador's
thesis that the Latin Americans have a strong moral basis

the waters can remain absolutely free when the subsoil of
the continental shelf is extensively exploited.' And in a
footnote, he adds: "On the day when the U.S.A. in conduct-
ing submarine petroleum operations,6 wonders Mr. Feith,
'will they permit Japanese or Russian cruisers to pass
freely through their oil fields?''

"Nevertheless, the United States has been careful to
establish it clearly that they do not intend by their proc-
lamation, to extend their sovereignty beyond territorial
waters over the high seas. Consequently, on 2 July, 194&,
they sent separate notes of protest to the Governments of
Argentina, Chile, and Peru, expressing disagreement with the
extent of their declarations.

"These notes maintained that while the fundamentals
of the declarations were identical to those of the United
States, the declarations greatly exceeded the principles
of international lav/, for which reason that Government re-
served its rights, previously exercised, over the waters
of the continental shelves of each of the three countries.
It is necessary to point out that the United States has
important fishing interests endangered by these State decla-
rations which they are challenging." (Translation by author.)

' AIvarado-Garaicoa, op. cit. , pp. 70-71. Alvarado-

Garaicoa, Ecudorian jurist and prolific writer on interna-
tional affairs, published this monograph on the law of the
sea in 1963, strongly oriented toward Latin American prac-
tice. In it he contends that: "International law, in-
fluenced by the progress of modern armaments, and now by
the discovery of new natural resources, has become obliged
to modify the classic delimitation of the territorial sea,
at the same time, to incorporate within its fundamental
rubrics the so-called submarine platform or continental
ledge. . . . The zone of the territorial sea, fixed at three
miles — at the initiative of Galiani — has remained unalter-
able for many years. . . . With the passage of time, how-
ever, the fixed limit has come to be considered illogical,
relegating it to the status of an historic fact." (Trans-
lation by author.)

309

for their claims, but he cautions that a legal basis is lack-

52
ing. The Spaniard, Juan A. C. Salcedo, makes the inter-
esting suggestion that the American continental shelf and
200-mile claims, based as they are on unilateral proclama-
tions may represent a new source of customary international
law. 53

There appears at least one common feature in the
writings of the proponents of the 200-mile limit; they all
point to the wide divergence in contemporary international

5 Barry B. L. August e, The Continental Shelf: The
Practice and Policy of the Latin American States with Spe-
cial Reference to Chiles, Ecuador, and Peru (Geneva: Editions
Droz, and Paris: Minard, 19601, pp. 355-356. He writes:
[l]t must be stated that the Latin American practice in
terms of the continental shelf is unlawful, because, when
all is said and done, it does involve unilateral claims to
exercise jurisdiction over areas that are admittedly high
seas; and even though the concept of the Maritime Zone is a
realistic entity and marks the development of a new legal
tendency, this does not per se make it lawful. The reason-
ability of the concept of the Maritime Zone only alleviates
the basically unlawful situation. . . ." Ibid. , p. 356.
Mr. Auguste's nationality was established by personal cor-
respondence. (Christophe Senft, Editions Droz, Geneva,
letter to author dated 7 January 1970.)

^Juan Antonio Carrillo Salcedo, "Funciones del Acto

Unilateral en el Regimen Juridico de los Espacios Marlti-
mos," in Luis Garcia Arias (ed.), Estudios de Derecho ln-
ternacional Maritimo (Zaragosa, Spain: Universidad de Zara-
gosa, 196JT > p» 26. Salcedo, a professor of international
law at the University of Seville, Spain, writes: "Outside
of conventional procedures, there has appeared a new cus-
tomary international rule, product of a series of unilateral
declarations: that of the "continental shelf. The acquies-
cence of third states, the limited forcefulness of their
protests, and the effectiveness of the pretensions are the
basis of this new customary international rule." (Trans-
lation by author.)

}10

practice as to the extent of the territorial sea, some even
to the point of relying on the divergence as a veiled de-
fense of the 200-mile limit. One is led to the conclusion
that the very existence of the 200-mile limit is a conse-
quence of, and dependent upon, the major powers' inability
to agree, even between themselves, as to what the extent of
the territorial sea should be.

Impact of the Truman Proclamations

Whatever may have been the motives and the legal ra-
tionale underlying the 1945 Truman Proclamations, and no
matter how emphatically the United States may deny any in-
tention to have extended her sovereignty or jurisdiction
over the high seas thereby, those proclamations provided
the basis for the 200-mile limit, virtually on a cause and
effect basis. The Latin Americans had become concerned
about the modern United States fishing vessels seen off
their coasts. Whether or not their concern was well-founded,
they feared that their waters might be "over fished" by for-
eigners, and were desirous of extending their exclusive fish-
ing boundaries to elimintate the outside competition. But
such a bold departure from customary law would require a
suitable pretext; it was fortuitous for them that the Truman

Proclamations came when they did.

The United States* arguments rejecting the two hun-
dred-mile limit did not impress the Latin Americans. To them,

311

the arguments seemed selfish and lopsided in favor of indus-
trialized states with continental shelves. What, they may
challenge, is the criterion which determines who may exploit
any particular area of the continental shelf? Is it the prox-
imity of the exploited area to the mainland? If this be the
case, then Cubans could exploit the western part of the
Floridian continental shelf because their mainland is closer
to it. For the same reason, Norway could exploit the Brit-
ish shelf under the North Sea; Italy, that of Tunisia; Japan,
that of China; ad absurdum. And what cf the Greek Islands
located on the continental shelf of Turkey? In short, it is
difficult for the Latin American jurist or politician to
discern the legal or moral difference, for example, in deny-
ing a Mexican oil firm the right to drill an oil well on the
shelf 130 miles off the Texas coast and in denying an Argen-
tinean tuna boat the right to work the fishery 130 miles off
the coast of Chile.

III. RESURGENCE OF RUSSIA'S TWELVE-MILE CLAIM

World War II made it clear to all that the United
States stood supreme among the great powers. Hers was the
greatest fleet, both naval and merchant. She had inherited
from the British the role as "mistress of the seas," and if
there were to continue to be a strong champion of the three-
mile limit it would have to be the United States. During
the initial years after the War, the United States' position

J12

of strength was much like that of England after the Napol-
eonic wars. Her atomic weapons gave her unprecedented rela-
tive military superiority. But Russia, too, had emerged
from the War a victor. After the War, rather than demobi-
lize, Russia maintained in the field the world's most for-
midable army. Within a short time she managed to achieve a
centuries-old goal of securing her western frontier by means
of a belt of subservient buffer satellites. And in 1949
Russia satisfactorily tested her own atomic bomb — in the
parlance of the early American West, "the great equalizer."
America's nuclear monopoly was broken and her military su-
periority was greatly reduced. The world had entered its
Cold War and many of the nations tended to polarize around
one or the other of the then two superpowers.

But the superpower Soviet Russia was different in
several respects from the superpower United States. Of sig-
nificance to this study, Russia had been a "land power," not
a sea power. During the 1940* s she had virtually no merchant
fleet, especially when compared with the U. S. and the U. K.
Table VI, on page 313, shows the Soviet Union in seventh
place among the maritime states in 1946. However, much of
that 1946 merchant fleet was U. S. lend-lease assets, and
even counting those ships, the total came to only one thir-
tieth of the American figure. Virtually the same was true
with respect to her navy. It was by and large a coastal
patrol force, suitable only for policing the fisheries. Sev-

513

TABLE VI

WORLD MERCHANT FLEETS AT THE CLOSE OF
WORLD WAR II (1946)

STATE TONNAGE

United States 3^587

British Commonwealth 16,055

Norway 2,752

Netherlands 1,563

Sweden 1,43^

France 1,277

U.S.S.R. 1,235

Japan 1,083

Spain S79

Germany £01

Panama 687

Denmark 641

Italy 576

Greece 519

Others 2,904

Total 71,000

NOTE: Data in this table from "Shipping: Merchant
Ships of the' World," Encyclopaedia Britannica (1953 edition),
XX, 549. Figures (in thousands of gross tons) include
privately owned vessels of 1000 gross tons and over. The
U. S. figure includes 3i million gross tons operating under
foreign flags. U. S. Maritime Commission is quoted as
source.

31*

enty-five percent of the vessels were under 100 feet in
length. Table VII, on page 315? compares this unimposing
1946 Soviet Navy with those of the other contemporary powers.

Under such conditions of maritime and naval infer-
iority, it is understandable that Russia would loudly re-
assert her 1927 twelve-mile claim, in the interest of secu-
rity, to keep the ships and aircraft of her adversaries as
far from her coasts as possible. To give real meaning to
her twelve-mile claim, the Soviet Union commenced seizing
foreign vessels. Between 194& and 1950 she seized several
Swedish fishing boats in the Baltic. Cf these, the Larex
and Marion were seized at eleven and ten and one-half miles,
respectively, from the Soviet coast, taken into port under
threat of arms, confiscated, and their crews were imprisoned.
This led to a bitter exchange of diplomatic notes, culmi-
nating in a Soviet refusal to submit the Swedish charges to

the International Court of Justice. Not long afterwards,
Russia started shooting down foreign aricraft over her
twelve-mile belt; this will be discussed in the following
chapter.

In 1951 Bulgaria and Romania parroted the Soviet

55
twelve-mile claim in the form of state acts. "^ During the

•^Gene Glenn, "The Swedish-Soviet Territorial Sea
Controversy in the Baltic," American Journal of Interna-
tional Law, L (October, 1956), pp. 942-949.

5 Whiteman, op_. cit. , pp. 21 and 30.

TABLE VII
WARSHIPS OF THE POWERS IN 1946

^15

State

Battleships , Frigates,
Carriers, Destroyers,
Cruisers Escorts

Patrol
Submarines Craft

U.S.A.

197

U.K.

U.S.S.R.

France

China

Italy

Japan

Germany

663

400

104

200

423

119

943

100

409

132

—

NOTE: Figures in this table from Jane's Fighting
Ships 1946-47 (London: Sampson Low, Marston and Co., Ltd.,
and New York and Toronto: Macmillan Co., 1947) , pp. 23-77,
146-151, 175-197, 213-220, 263-285, 329, 373-331, 413-421.
The figures for Italy do not include 3 battleships, 6
cruisers, 8 destroyers, 7 submarines and 46 patrol craft
surrendered to allies. The figures for Japan are the ships
surrendered to the United States. The figures for Germany
are the surviving seaworthy ships surrendered and divided
between the U.S.A., the U.K., and the U.S.S.R.

316
ensuing decade, the Soviet Union organized a communist block
of votes in the United Nations' in support of her twelve-mile
policy: Ukrainian S.S.R., Yugoslavia, Albania, Bulgaria,
Byelorussian S.S.R., Czechoslovakia, Hungary, Poland, and
Romania. In addition, communist non-members of the United

Nations, specifically China and North Korea, declared a

56
twelve-mile zone of territorial seas* But even more im-
portant, in her international diplomacy the Soviet Union

actively encouraged the emerging states of the world not to

consider themselves as bound by the three-mile rule.

Many of them, recently released from Western colonial status
and wishing to industrialize and modernize, were influenced
by the Soviet example and adopted the twelve-mile limit, as
will be pointed out presently.

^ U. S. Department of State, Sovereignty of the Sea
(Geographic Bulletin No. 3? April) (Washington: Government
Printing Office, 196$), p. 27. Communist China's, "Declara-
tion on China's Territorial Sea" of September 4, 195$ reads:
"The breadth of the territorial sea of the Peoples Republic
of China shall be 12 nautical miles. This provision applies
to all the territories of the Peoples Republic of China,
including the Chinese mainland and its coastal islands, as
well as Taiwan and its surrounding islands. ..." Tao
Chen, "Communist China and the Lav/ of the Sea," American
Journal of International Law, LXIII (January, 19^9 ) , pp .
47 and 53 citing Peking Review, No. 28 (September 9, 1953),
p. 21. Although no specific state act can be found docu-
menting the North Korean 12-mile claim, it is listed as such
in P. D. Barabolya, et al., [Soviet] Manual of International
Maritime Lav/ (U. S. Navy Department translation of ±9o6~~
Moscow edition; Springfield, Va.: Clearinghouse, U. S. De-
partment of Commerce, 1968), vol. II, pp. 386-387.

57See infra, Chapter XII, pp. 329-330. See also
p. 455.

317

Nothing in Soviet practice, however, enhanced the twelve-
mile limit so much as did her rise to status as a first rank
maritime power. By 1968, as shown in Table VIII on page 3 IS1,
Russia had worked her way up to second place in naval strength.
Her program in developing a merchant fleet was equally im-
pressive. Table IX on page 3 19 shows that by 1967* she had
risen to fifth place, with a merchant marime half the size
of that of the United States. And from the following com-
parative tonnage figures, it is easy to see that the Soviet
merchant fleet could overtake that of the United States during
the 1970,s if the present trend continues:

1946 1956 1965 1970
U.S.A. 46, 753 33*674 2B,283 13,400
U.S.S.R. 2,699 3,439 9,561 13,900
This situation, wherein Russia had risen to status as a mar-
itime superpower and had reasserted her claim to twelve miles,
is considered by this writer to be the third in the series of
five major events or developments leading- to the demise of
the three-mile rule. The Soviet claim had created for the
United States — the new defender of the three-mile rule — a set

5 Irwin M. Heine, Muriel W. Coe, and J. W. Gulick
(U. S. Maritime Administration), "The Soviet Merchant Marine,"
Naval Review, 1969 ed. Frank Uhlig, Jr. (Annapolis: United
States Naval Institute, 1969), p. 3o6. Figures (in thousands
of gross tons) include privately-owned and government-owned
merchant-type ships. Russian figures include, and U. S.
figures exclude, ships transferred under lend-lease. 1970
figures are projections based on inventory, construction
deliveries, and scheduled scrappings.

313

TABLE VIII
WARSHIPS OF SELECTED NAVIES IN 1968

Frigates,
Carriers, Destroyers, Patrol

State Cruisers Escorts Submarines Craft

U.S.A.

613

201

U.S.S.R,

200

380

775

U.K.

France

Italy

Japan

—

Germany

(West)

—

China

312

NOTE: Data taken from Raymond V. "B. Blackman (ed.),
Jane's Fighting; Ships 1968-1969 (London: Sampson Low, Mars-
ton and Co., Ltd., and New York and Scarborough, Ontario:
McGraw-Hill Book Co., 1969), p. 520. Figures include ships
in reserve but not those under construction.

TABLE IX
WORLD MERCHANT FLEETS IN 1967

519

State

lonnage

State

Tonnage

United Kingdom

21,716

United States

20,333

Norway

18,382

Japan

16,333

U.S.S.R.

10,617

Greece

7,433

Italy

6,219

West Germany

5,990

France

5,576

Netherlands

5,123

Panama

4,756

Sweden

4,635

Denmark

3,014

Spain

2,571

Canada

2,306

India

,837

Brazil

,305

Argentina

,240

Poland

,211

Yugoslavia

,196

Finland

1,064

Belgium

940

Austr^li^

303

Communist China

772

East Germany

756

Portugal

755

Philippines

720

Israel

683

Others

?203

Total

155

,099

NOTE: Data taken from "Transportation," Britannica
Book of the Year 1969 (Chicago, Toronto, London, Geneva,
Sydney, Tokyo, Manila: Encyclopaedia Britannica, Inc.,
1969), p. 74o« Figures (in thousands of gross tons) in-
clude merchant shiDS of 100 tons and over. Lloyd's Regis-
ter, Statistical Tables (1967) is cited as source, it is
interesting to note that the fourteen states listed in the
1946 table, supra, o. 313, were still the top fourteen
in 1967; but the ranking had changed considerably.

320
of circumstances far more preplexing than those facing Great
Britain in 1815.

IV. THE PROLIFERATION OF SOVEREIGN STATES

Just as there occurred a proliferation of states
after World War I, many new states made their debut in the
world community after World War II, and in most cases, as a
direct product of the War. Only forty-nine states signed
the United Nations Charter in 1945. By 1970, there were over
130 sovereign states with forty some small territories — the
last remnants of the colonial empires — being considered for
statehood and membership in the community of nations. One
of the issues each new state has had to consider is whether
or not it will claim a territorial sea, and if so, 00 what
extent. Not all the new states have made claims. Some of
the new states followed the practice of their colonial sov-
ereigns and adopted a three-mile rule. But more of them,
feeling no particular obligation or attachment to the tradi-
tional body of international lav;, chose a limit greater than
three miles, many of them selecting twelve miles. Certain
of them will be mentioned to illustrate the trend. -

Remnants of the Axis Powers

Mussolini's inter-war imperial adventures won Italy

several protectorates, none of which selected the three-

mile limit following their liberation. Instead, Ethiopia,

Ethiopian Maritime Proclamation No. 137 of 1953,

321
Libya, and Somalia adopted the twelve-mile limit, and
Albania — showing something of a flair for originality — pro-
claimed a ten-mile limit in 1952. Japan also lost her
territories acquired by earlier conquests. The southern
portion of Sakhalin, taken from Russia in the Russo-Japanese
War of 1904-1905 was returned to Russia. In addition, the
Kurile Islands were also awarded to Russia, placing in all
some 2000 miles of former three-mile coastlines under Rus-
sian twelve-mile rule. Moreover, Japan lost Korea, both the
North and South of which subsequently adopted the twelve-
mile limit — and more. Even though Germany had no colonial
possessions, she herself was partitioned, following which,

West Germany abandoned the three-mile rule. (East Germany

fit
retained the three-mile limit. ) The Bonn Government made

a most ingenious diplomatic move considering her particular

in United Nations, Laws and Regulations on the Regime of
the Territorial Sea, pp. 128-134.

Whiteman, op. cit • , p. 28.

U. S. Department of State, Office of the Special

Assistant to the Secretary of State for Fisheries and Wild-
life, Breadth of Territorial Sea and Fishing Jurisdiction
Claimed by Memb"ers of the United Nations System (Washington:
State Department, 15 August, 1969), p. 2. (J^eroxed.)

Whiteman, ojd. cit. , p. 21.

•%. S. Department of State, Sovereignty of the Sea,
loc. cit. See also infra, Chapter XII, pp. 3 51 > 375.

64Ibid.

322

situation, with coasts on both the North Sea and the Baltic.

She advised the United Nations:

There are no national laws and re ;ulations in force
which define the territorial sea. The practice as re-
gards the territorial sea is determined by the rules of
international law. . . .°5

In this way West Germany placed herself out of the terri-
torial waters dispute and into a position whereby she could
enjoy the best of both sides in the dispute. Her subjects
could fish the coasts of three-mile states up to three miles,
twelve-mile states up to twelve miles and she could expect
reciprocal treatment along her own coasts from states of
both limits.

Colonies of States Defeated by the Axis

The colonial states defeated by Germany — Netherlands,
Denmark, and France — were so badly devastated and weakened
that they had little chance of retrieving and holding their
former colonies after liberation. The East Indies which
had figured so prominently in the Seldon-Grotius dispute
during the seventeenth century achieved independence from
Holland in 1950, and seven years later as Indonesia adopted
a twelve-mile limit. In 1944? even before Denmark was

^Note of 9 February 1956 from the Permanent Observer
of the Federal Republic of Germany to the United Nations, in
United Nations, Laws and Regulations on the Regime of the
Territorial Sea, p. 17.

whiteman, pj>. cit . , p. 26.

323

liberated from German occupation, Iceland renounced the
Danish crown and proclaimed herself a republic. In 19 53,
she turned the clock back more than a century to the days
when Denmark had claimed four leagues around Iceland; that
year Iceland dropped the four-mile zone and adopted a twelve-
mile fishing limit. Of the former French mandates and
colonies, virtually all of them adopted the twelve-mile
limit with the exception of Cameroon who claimed a terri-
torial sea of eighteen miles.

Possessions and Colonies of Victorious Pc ~~rs

Although England "won" the War, she was so exhausted
that it was only a matter of time before the Empire would
dissolve. She did have an advantage that France did not
have, enough time to grant independence to her colonial
possessions on a reasonable time schedule. Even so, better
than half of them rejected the traditional British three-
mile practice. This included India and Israel, the most

69
significant maritime states among them. The United States

67Ibid.

Two former French mandates (Togo and Syria) and
nine former colonies (Algeria, Dahomey, Gabon, Ivory Coast,
Madagascar, Mauritania, Morocco, Senegal, and Tunisia)
adopted the twelve-mile limit. In the case of Ivory Coast,
Morocco, and Tunisia, the twelve-mile zone was for fishing
only, Morocco claiming three and the other two, six miles
for territorial seas. U. S. Department of State, Breadth
of Territorial Sea • • • , op_. cit., pp. 1-2, 5.

%ine former British colonies, mandates, and pos-

32^

granted independence to the Philippines in 1946. Later the
Philippines adopted the archipelago doctrine, wherein she
claimed as internal waters the entire area enclosed within
a line drawn about the outermost islands of the archipelago.
This will be discussed further in the next chapter.

Other States

Newly independent states were not the only ones to
adopt the twelve-mile limit. Several of the older states
increased their limits, apparently influenced by the Soviet
example and/or a desire to extend their exclusive fishing
zones. Table X, on the following page, lists twelve states
which took such action during the Cold War decades; still
others will be discussed in Chapter XIV.

In summary, the events of World War II provided the
basis for the resurgence of the twelve-mile limit and gave
rise to the two hundred-mile limit. This in turn triggered
an international controversy concerning territorial seas
which was to trouble the states for at least a quarter of

sessions retained the three-mile limit: Gambia, Guyana,
Jordan, Kenya, Malaysia, Maldive Islands, Malta, Singapore,
and Trinidad and Tobago. Two adopted the six-mile rule:
Ceylon and Israel. Ten opted for twelve miles: Burma,
Cyprus, Ghana, India, Jamaica^ Kuwait, Nigeria, Pakistan,
Sierre Leone, and Tanzania. Ibid., pp. 1-5? Ghana's Ter-
ritorial Waters and Continental Shelf Act of 1963 also pro-
vided for a 100-mile fishing and conservation area. White-
man, c_p_. cit., p. 34. Ceylon and Pakistan have claimed
similar conservation rights out to 100 miles.

325

TABLE X

POST-WORLD WAR II TWELVE-MILE CLAIMS
OF SELECTED STATES*

State Year Territorial Sea Fishery Zone

12**

*Data obtained from current "Country Files," Office
of the Special Assistant to the Secretary of State for
Fisheries and Wildlife, U. S. Department of State, Wash-
ington, D. C, 10 March 1970.

**Panama later increased her limits to 200 miles;
see Chapter XII, p. 344.

Venezuela

1956

Saudi Arabia

1953

United Arab

Republic

195$

Iraq

1953

Panama

1953

12**

Iran

1959

Sudan

I960

Thailand

1966

Yemen

1967

Dominican Re

ipublic

1967

Liberia

1967

Brazil

1969

>26

a century. The nature of this controversy will be consid-
ered in the following chapter. ■

CHAPTER- XII

THE POST-WORLD WAR II TERRITORIAL SEAS CONTROVERSY

In 1969 there appeared an article in the United States
Naval Institute Proceedings entitled, "The Great Territorial
Sea Squabble." In it, the author colorfully summed up the
territorial seas situation during the quarter-century fol-
lowing World War II with these words:

As 20th century men continue their seemingly intermi-
nable debate as to the width of their territorial seas,
there is more than a passing resemblance to the passen-
gers in the 15th century "Ship of Fools," who frittered
away the future in pointless bickering about the past.l

Certainly the period from 1945 to 1970 was one of bitter dis-
pute and controversy over the matter of the extent and nature
of territorial seas. Numerous states abandoned the three-
mile limit and announced claims to extensive areas of the high
seas; indeed, it seemed that the world was headed toward some-
thing of a neo-mare clausum. Every principal maritime area
and state was affected by the controversy. Its symptoms were
manifested in a great number and variety of international
incidents and confrontations, a representative selection of
which will be surveyed in this chapter. In virtually every
incident there appeared one of two key elements: concern over

1 James F. Meade, "The Great Territorial Sea Squabble."
United States Naval Institute Proceedings, XCV (April, 1969),

p. 45.

327

32S

fishing rights and concern over national security. Accordingly,
this study will consider the controversy from each of these
two standpoints.

I. THE FISHERIES CONTROVERSY

The fisheries controversy, it appears, was more bitter
and more widespread than that concerning security. The se-
curity controversy evolved largely around the differing views
and the mutual fears of the principal antagonists in the Cold
War. The fisheries controversy, however, not only involved
a clash of interests between Moscow-oriented and Washington-
oriented states, but it also divided and vexed relationships
between states who were military allies in the Cold War,
Professor Bingham, writing just before the War, had evaluated
the fisheries controvery thus:

Indeed, there is no phase of the history of interna-
tional affairs which evidences more strikingly the part
which selfish national interests play in the development
of the doctrines of international law than the history of
fishery claims and their effects on legal opinions con-
cerning the law of jurisdiction over sea areas.2

Ironically, this strongly worded passage was written after

a period of relative calm in the matter of international

fishing rights, i.e., as compared to that period following

World War II and the 1945 Truman Proclamations.

Joseph Walter Bingham, Report on the International
Law of Pacific Coastal Fisheries (Stanford, Calif.: Stan-
ford University Press, 1938) , p. 1.

329

Substance of the Fisheries Controversy

The eagerness of states to extend their exclusive
fishing rights beyond the three-mile limit was strongly
encouraged by the so-called communist bloc nations. Using
the forum of the United Nations Conference on the Law of the
Sea at Geneva in 195&» the Ukrainian delegate advanced the
position that each state should fix its own territorial
sea limit ". . .in accordance with historical and geograph-
ical circumstances as well as economics and security require-

3
ments." Even landlocked Czechoslovakia, who at the 1930

Hague Convention had logically indicated her preference

for as narrow a territorial sea as possible, obediently

recited the Cold War "party line" that:

Each state was competent to fix the breadth of its
own territorial sea in the exercise of its sovereign
powers, taking into account its genuine needs. 4

The other landlocked communist state, Hungary, took the sim-
ilar position that "the act of delimitation was necessarily

5
unilateral. . . ." Certainly, this- position was illogical

in the case of the landlocked states which, if they were

to take fish, would have to rely on the fisheries of other

coastal states, and clearly did not, in the Czechoslovak

^United Nations, Conference on the Law of the Sea,
Vol. Ill, First Committee (Territorial Sea and Contiguous
Zone) (New York: United Nations, 1958), p. 67, quoting
statement by Mr. Koretsky, March 19$ 1953.

^Ibid. , p. 61, quoting Mr. Zourek, head of the
Czechoslovak delegation, March 13, 195$.

5Ibid., p. 63, quoting Mr. Ustor, March IS, 1953.

330

delegate's own words, quoted above, take into account the

genuine needs of those two states. Communist China, too,

echoed the bloc view that each state was sovereign to fix

the extent of its territorial seas.

-.z Geneva in 1953, the Soviet, delegate noted that

there were many recently independent countries participating

"on an equal footing with other states, in the drafting of

international rules for the lav; of the sea," and implied that

dropping the three-mile limit and adopting a twelve-mile

limit might help them cure some of their domestic ills:

The attitude of the Soviet Union concerning the de-
limitation of the territorial sea was prompted not only
by the fact that it had itself adopted the twelve-mile
limit, but also by its policy of helping small and eco-
nomically less advanced countries to develop their
national economies and imorove their standards of liv-
ing.7

This "attitude," taken 'oy Soviet Prussia since the end of
World War II, found fertile soil among many of the under-
developed states, especially those which counted heavily on
the sea for their protein. At the third meeting of the Inter-
American Council of Jurists, meeting in Mexico City in Jan-
uary and February 1956, a resolution was adopted denouncing
the three-mile limit (15 in favor, 1 opposed [the United

D. Jay Edwards, "Chinese Communist Territorial Water
Claims," U. S. Naval Institute Proceedings LXXXIX (October,
1963), p. 15? citing a May 19610 editorial in Jen-min Jih-pao
(People's Daily) .

'United Nations, Conference on the Lav; of the Sea,
pp. 31-32, quoting Mr. Tunkin, March 12, 1958.

331

States], 5 abstentions):

1. The distance of three miles as the limit of terri-
torial waters is insufficient, and does not constitute

a general rule of international law. Therefore, the
enlargement of the zone of the sea traditionally called
"territorial waters" is justifiable.

2. Each state is competent to establish its terri-
torial waters within reasonable limits, taking into
account geographical, geological and biological factors,
as well as the economic needs of its population, and its
security and defense. °

This Latin American disaffection with the three-mile rule

was paralleled in other areas where underdeveloped states

sought to protect their fishing grounds from the fishing

fleets of the industralized nations.

Arguments to extend fishing; limits beyond three
miles. The states which argued the loudest against the
three-mile fishing limit were Iceland, Ecuador and Korea,
who wished, respectively, to exclude the fishermen from
Great Britain, the United States and Japan. Iceland com-
plained that the equipment, techniques, and nets used by
British fishermen had the effect of over-fishing the area
with ruinous results to her economy which relied on fishing

9 T,

to an extent five times that of any other state. Lcuaaor

Marjorie M. V/hiteman, Digest of International Law
Washington: Government PrintingOffice, 19&3- ) vol. IV
(1965), pp. 69 and 72, quoting "Principles of Mexico on the
Juridical Regime of the Sea," February 3, 1956.

'United Nations, Conference on the Lav/ of the Sea,
p. 59, quoting Mr. Anderson, delegate from Icelana.

?>2

insisted that its 200-mile zone was necessary for the pro-

tection of her fisheries. United States fishermen from

California had become fond of fishing in Ecuadorian waters

and the concern of the latter state may have been well- founded,

In 1967, following Ecuadorian seizure of certain United States

tuna boats, Senator Thomas Kuchel of southern California

proposed in Congress that U. S, Navy warships be deployed to

protect the tuna boats beyond the three-mile limit of

Ecuador. A tuna boat captain from San Diego, where most of

the tuna fleet is based, was interviewed concerning Senator

Kuchel1 s proposal:

"This is the thing owners and captains fear most.
They know Navy men would be so disgusted at the way
huge purse seiners are cleaning out off-shore fishing
grounds off Peru and Ecuador, that they would immediately
make those methods public," said "Capt. Nemo," a name
given him in this article to protect him and his family
from reprisals.

"I am sure the senator and the congressmen are pro-
testing in good faith," he said, "but no one will tell
them the real truth. They have run into a wall of
lies."

He said a large number of million-dollar vessels
carrying seines 600 fathoms in length are being built
in West Coast shipyards.

"And that means a circle 3j600 feet in circumference.
Everything within this circle," he said, "is caught:
tuna, all kinds of other fish, sharks, even small
whales. It is heart-rending to hear the squeals of
almost-human sounding porpoises as they struggle to get
out of the meshes of the net.

10Ibid., p. 62, quoting Mr. Ponce y Carbo, delegate

from Ecuador.

333

"Almost all of the creatures are smothered to death
by the time they are dumped on the deck," Nemo said.

"Then the tuna are sorted out, and the rest of the
dead fish are dumped back into the sea. ... Is it any
wonder that Peruvian and Ecuadorian seamen are furious
when they sail through miles of water covered with the
bodies of dead fish?

"Do you know what our fishermen call the big purse
seiners?" Nemo asked. "They call them 'vacuum cleaners.'
And when a vacuum cleaner gets through with an area,
there's nothing left."

V/illiam Bravo, Ecuadorian consul in San Diego, sub-*
stantially agreed with these statements.

Both countries [Peru and Ecuador] license American
fishing vessels to fish in their waters, more an attempt
to control methods of fishing than to make money. . . .

"But many captains won't buy licenses," he [Nemo]
said. "They are taking no chances. If they aren't
caught, they're ahead the cost of the licenses. If they
are caught, their fines will be repaid from funds autho-
rized by the Fisherman's Protective Act."

"The captains and owners don't give a hoot about
conservation," he claimed. "By the time the tuna's
wiped out, they'll be retired with nice fat nest eggs

"Last year, there were crew members who made more
than $20,000. . . .11

Korea, too, has been similarly concerned with the

"^Herbert W. Lockwood, "Tuna Boat Owners Fear Navy
Escorts," San Diego Independent, February 5, 1967 > p. !•

Japanese beam trawlers. Beam trawlers tend to destroy the
bottom feeding grounds and sea grasses. The Korean fisher-
men, conversely, do not trawl, but use the more primitive

methods of hand fishing which have no adverse effects on

12
the fishery. If follows that the Korean representative

at the United Nations Conference on the Law of the Sea would

meet Korea's economic needs.

Marine biological science has found that by and large
it is the shallow waters of the continental shelf adjacent
to the land masses which provide the most suitable combina-
tions of light, temperature, nutrient elements, and other
factors conducive to the development of intense fish concen-
tration. It is here that the world's great fisheries are
chiefly located. Coastal states littoral to wide conti-
nental shelf fisheries have increasingly asserted their
"right" and "obligation," by virtue of proximity, to estab-
lish and maintain conservation measures -throughout the
fishery. On this basis, Iceland in 1943, and Korea in 1952

1 2

Burdick H. Brittin and Liselotte B. Watson, Inter-
national Law for Seagoing; Officers (second edition; Annapolis
United States Naval institute, I960), p. 91.

■^United Nations, Conference on the Law of the Sea,
p. 44, citing Mr. Kim's statement of March 14, 1953.

•^yres S. McDougal and William T. Burke, The Public
Order of the Oceans (New Haven and London: Yale University
Press, 1962, p. 4b'5.

355

established protective conservation zones on their conti-

15
nental shelves.

Widening the littoral state's exclusive fishing zone
not only provides the obvious advantage of reducing compe-
tition, but it also provides a technical advantage. Certain
of the efficient fishing techniques require the fishing
vessel or vessels to proceed shoreward from the deeper into
the more shallow waters. With an exclusive fishing zone
as wide as twelve miles, for example, the littoral state's
fishermen could proceed from deep water all the way in to
the shore; whereas foreigners would be restricted to less
efficient sweeps outside the twelve-mile limit.

This argumentation supports the claims of states like
Iceland and Korea, but not the so-called CEP (Chile, Ecua-
dor, and Peru) states of Pacific coast Latin America where
there is very little continental shelf. To defend their

claim to their 200-mile wide fishery they propounded the

"bioma" theory:

15
^Iceland, "Law No. 44> Scientific Conservation of

the Continental Shelf Fisheries, 5 April 1943," United Na-
tions, Laws and Regulations on the Regime of the High Seas
(New York: United Nations, 1951) , vol. I, pp. 12-13; Republic
of Korea, "Presidential Proclamation of Sovereignty over
Adjacent Seas, 13 January 1952," United Nations, Laws and
Regulations on the Regime of the Territorial Sea (New York:
United Nations, 1957), pp. 30-31; see also Joseph L. Kunz,
"Continental Shelf and International Law: Confusion and
Abuse," American Journal of International Lav:, L (October,
1956), p. 833.

McDougal and Burke, otd. cit., p. 478.

17c

ee ; supra, Chapter XI, p. 304.

3^0

Modern biologists and ecologists have called the sum
of non-biotic factors, mainly climatological and hydro-
logical, which are capable of creating a particular
situation, that will permit an aggregate of vegetable
and animal beings to live within it, an "eco-systera."

sion, cc~5zz.z~j.zi.~z, a . wnich is :all = d a cicma."
Therefore the term "bioma" designates the whole of the
complex of living communities of a region, which under
the influence of the climate and .in the course of cen-
turies, becomes constantly more homogeneous, until, in
its final phase, it becomes a definite type.

An "eco-system" may sustain one or more "biomas,"
but each one of these will maintain its unity within
the system, except in the areas of contact where there
may be an intermixing. . ♦ . All the complexes that may
form a "bioma" are in a state of dynamic equilibrium
which is subject to the laws of Nature. ...

[Thus] a perfect unity and inter-dependence exists
between the communities that live in the sea, which
supports their life, and the coastal population which
requires both to survive.

This is, in short, the concept of biological unity
from which is derived, in the scientific field, the
preferential right of coastal countries. According to
this concept, the human population of the coast forms
part of the biological chain which originates in the
adjoining sea, and which extends from the microscopic
vegetable and animal life (fitoplankton and zooplankton)
to the higher mammals, among which we count man.

These :,biomas" are proper to each region . . . and
it is, therefore, a prime duty of every coastal State to
insure that they are not destroyed in the only way tn^t
this is possible, which is by the depredations of man.l°

Henry Reiff , The United States and the Treaty Law
of the Sea (Minneapolis: University of Minnesota Press,
1959), pp. 307-30B, quoting from Department of State, San-
tiago Negotiations on Fishery Conservation Problems, 1955,
pp. "31-32. For a discussion in defense of this "bioma"
theory, see Garcia F. V. Amador, The Exploitation and Con-
servation of the Resources of the Sea (Leyden: A. W. Sythoff,
1963), pp. 73-79.

In effect, this theory contends that to permit non-littoral
fishermen to catch fish, and to remove them from the "bioma"
or the "biomas" of the "eco-system" is in defiance of the
lav/ of nature.

Arguments against extending; the limits of fisheries.

During the Santiago Conference of 1955 > the United States

19
rejected the "bioma theory." The United States delega-
tion argued that stocks of fish, such as .the tuna, roam
widely over the oceans, and do net respect the limits of the
"biomas." Fish populations, being highly migratory, move
at random throughout wide ocean areas. Most fisheries do
not conform to three-mile, twelve-mile, or to 200-mile
limits. The fish concentrations are influenced by major
world-wide meterological and oceanographic forces such as
the Humboldt Current, the Equatorial Currents, and the
California Current, and as a result, migrate both in and
out of the coastal waters, and laterally along the coast
between the waters of various states. Additionally, fish
migrate vertically, from one depth to another.

This argument contends, then, that no uniform width
for the territorial sea could encompass the range within
which fish move in all their life phases, and that no uni-
lateral conservation or exploitation could make sense under

19Reiff, 0£. cit., p. 30S.

20
such circumstances. For any type of conservation to be

effective, measures must be taken throughout the entire
fishery, by multilateral agreement, if possible, and not
unilaterally within the narrow confines of the terriorial
waters of individual states. It would follow, then, that
the narrower the territorial sea, the greater the area which
might benefit from any multilateral measures.

The foregoing argument, simply stated, concludes that
there is no fixed limit which is better suited to solve the
fisheries conservation problem than is the three-mile limit,
presuming that a conservation problem exists. Another
argument against wider fishery zones is based on the premise
that there is no problem in the first place. This argument
rejects as invalid the claims that "over-fishing" will cause
"extinction" of the species, and that "... there need not
be concern with protecting them [the fish] against being
driven to such low levels that they can never recover. "
This argument "rests in part, on the fact that a fish pop-
ulation is an open-ended biological system which replenishes

itself from the effects of losses."

Ibid., pp. 303-309; and McDougal and Burke, op.
cit., Dp. 259-460, citing Netherlands Economic Institute,
The Development of Offshore Fisheries and the Economics of
Choice (1958), , p. 25.

21McDougal and Burke, op. cit., p. 467, quoting from
Milner B. Schaefer, "Scientific Investigation of the Tropi-
cal Tuna Resources of the Eastern Pacific" in United Nations,
Papers Presented at the International Technical Conference

r?9

Those who take this stand deny any validity in the
allegations that reduced catches are evidence of depletion
or "over-fishing," on the grounds that fish population in
any given area is subject to cyclical fluctuations. It is
suggested also that many of the state actions to extend their
fisheries have been based on political motives and have no
basis in economic fact. For example, in justifying her claim
to twelve miles for fisheries, Libya averred that she

faced a serious problem of foreign fishermen wrongfully

exploiting her coastal waters. Yet, investigation in

1953 by the United Nations Technical Assistance Program
revealed that the Libyan territorial sea is, in fact, under-
fished, and that the Libyans do practically no inshore

23
fishing.

The Fisheries Controversy in America

Latin America and the United States. In 1953, Mexico
embarked on a policy of enforcing her nine-mile zone. Shrimp

on the Conservation of the Living; Resources of the Sea,
(Home, 16 April to 10 May 1955 ) (U. N. Document Wo. A/CONF.
10/7,1956) (New York: United Nations, 1956), pp. 15-16.

United Nations, Official Records of the Second United
Nations Conference on the Law of the Sea (New York: United
Nations, 1961) ) , p. 53.

2^McDougal and Burke, op. cit . , p. 551. citing United
Nations, Technical Assistance Program, The Economic and
Social Development of Libya (U.N. Doc. No . ST/TAA/K/Li bya/3 )
(New York: United Nations, 1953), p. 51.

340

boats from the United States and other nations were seized

by Mexican authorities. Emboldened by her success and by

that of her neighbors to the south, in -969 Mexico increased

25
her territorial waters from nine miles to 12 miles. Pan-
ama, too, who has claimed exclusive fishing rights over
the continental shelf since 194c, seized the United States
tuna clipper Star Crest in 1953. But these were fairly
isolated cases and frictions of much greater magnitude de-
veloped between the United States and Ecuador. In 1952 the
CEP states had declared their sovereignty over a 200-mile
limit. In the spring of 1953 f Ecuador seized four American
tuna vessels; this led to a conference between the two states

which could agree only that the legal problem was too broad

23
in scope to be resolved at the U.S. -Ecuador level.

Rather than send warships to enforce the three-mile

"U.S. Shrimp Boats Seized by Mexico," news item
in New York Times, February 22, 1953.

^News item, "Mexican Waters," in Washington Post,

September 2, 1969, p. A21. Two years earlier, Mexico had
adopted a fishing zone of twelve miles: Law of January 20,
1967 cited in David \'I. Windley, "International Practice
regarding Traditional Fishing Privileges of Foreign Fisher-
ment in Zones of Extended Maritime Jurisdiction." American
Journal of International Lav:, LXIII (July, 1969;, p. 498.

V/hiteman, op. cit. , p. 30.

'News item, "Confiscated U.S. Ship Returned by
Panama," in New York Times, July 5, 1953.

pc?

"Conference on U.S .-Ecuadorian Fishery Relations,"
Department of State Bulletin, XXVIII (1953), pp. 759-761.

341

limit, and further to strain relationships with her allies,

the United States enacted the so-called Fishermen's Protec-

2Q
tive Act of 1954. Under this Act, the United States

government reimbursed fishermen for fines paid and for losses
sustained in connection with seizures under Latin American
laws adjudged by the United States as infractions of inter-
national law. The Act was intended to secure the speedy-
release of seized American vessels and to support United
States fishermen who wished to fish off Latin America.
After funding the fines and losses, the United States would
then seek reimbursement from the country imposing the fine
at the diplomatic level.

During the same year, the CEP powers put more teeth
into their 1952 Declaration by agreeing that the proceeds
from seizures of vessels and cargos, regardless of where
and by whom seized, would be distributed "in equal shares
among the Contracting Parties. . . ." In other words, an
Ecuadorian naval vessel could theoretically apprehend a
United States tuna boat in Feruvian waters, and the fine would
be split between Ecuador, Peru, and Chile! It was also
agreed that each party "undertakes not to enter into any
agreements, arrangements or conventions which would imply

^United States Congress, House of Representatives,
Protecting the Rights of Vessels of the United States on
the High Seas and in the Territorial Waters of Foreign
Countries, 83rd Cong., 2nd Sess., House Report No. 2449,
July 22, 1954 (Washington: Government Printing Office, 1954).

■zh

3^2

a diminution of the sovereignty over the said [200-mile]
zone. The agreements went on to provide for a twelve-mile
exclusive fishery zone for the nationals of the respective
states, within the multilaterally protected and policed
200-mile zone.

The following year, Ecuador seized two United States
vessels, the Arctic Maid and the Santa Ana, some 14 to 2$
miles west of the Ecuadorian Island of Santa Clara. An
American fisherman was seriously wounded by Ecuadorian gun-
fire; fines of $49 , 000 were imposed; strong U. S. protests

31
were ignored. Subsequently, the CE? states declined a

United States proposal to submit the dispute to the Inter-

32
national Court of Justice.

In May 1963, Ecuador seized the San Diego tuna boats

White Star and Ranger and levied fines of over £20,000. ^

In January, 1967? Peru seized the tuna boats Hornet and

^ United Nations, Laws and Regulations on the Regime

of the Territorial Sea (New York: United Nations, 1957),
pp. 729-735$ quoting Agreements between Chile, Ecuador, and
Peru, signed at the Second Conference on the Exploitation
and Conservation of the Maritime Resources of the South Pa-
cific, Lima, 4 December 1954.

^Herman Phleger, Legal Advisor of the Department

of State, "Recent Developments Affecting the Regime of the
High Seas," Department of State Bulletin, XXXII (1955),
pp. 934, 937.

32Reiff, op. cit., pp. 311-312.

i^Iews item, "Tuna Boats Are Fined by Ecuador," in The
'Washington Post, June 5, 1963, p. A15.

p^3

Caribbean 20 miles offshore and fined them $20,000. At the
same time, Ecuador seized the' Sea Prerr.e 60 miles from shore.
California Congressman Lionel Van Deerlin condemned the
Ecuadorians and Peruvians as "modern pirates on the high
seas" operating "under the thin cloak of legality. ..."
Senator George Murphy termed the seizure as "another out-
rageous affront to the integrity and honor of our nation."-^

In December, 1968, Ecuador seized the United States
fishing vessel Day Island; two months later, Peru seized
the Mariner. In reprisal, the United States suspended all
military sales to the two countries. This notwithstanding,

the following month, March, 19o9» Peru seized and fined the

36
United States tuna boats San Juan and Cape Anne. This

seizure provoked demands in the U. S. Congress for immedi-

ate recall of the U. S. destroyer Isherwood on loan to Peru.

In June 1969 » the CEP states issued a joint communique:

[Chile, Ecuador and Peru] see with profound concern

^^Tim Shepard, "Peru Gunboats Seize 2 S. D. Tuna
Clippers," San Diego Union, January 27 $> 1967, pp. A1-A2;
and* Tim Shepard, "Tunaboats Reported Fined, Released By
Peru, Ecuador," San Diego Union, January 28, 1967, pp.
Bl, B7.

•^News item, "Arms Ban on Ecuador, Peru, Lifted,"
in Washington Post, July 4, 1969, pp. Al, A12.

^6News item, "Feru seizes 2 U. S. Tuna Boats; Frees
Them After Levying Fine," in New York Times, March 20, 1969.

^ 'News Item, "Destroyer's Return Sought," in New
York Times, March 20, 1969.

3 44

the application by the United States government of
forceful measures aimed at obliging the countries of
the South Pacific region .to back down from their legal
position on the 200-mile territorial jurisdiction. 3o

Peru, speaking for the others, agreed to discussions with
the United States concerning the 200-mile limit fishing
controversy, provided the arms sanctions were terminated.
This was agreed upon and the ban was lifted.

Nevertheless, the problem was far from solved. Be-
tween 1961 and early 1968, over 50 U. S. fishing boats had
been seized by Ecuador and Peru. By early 1970 this figure

had risen sharply to 92, with fines, damages, and losses

39
totaling ^775 , 000. Moreover, those states seemed deter-
mined to defend their 200-mile limit. At the First Latin
American Parliament, representing the Congresses of 13 na-
tions, held in July 196$, a resolution was adopted, recom-
mending that all the southern republics with seacoasts adopt
a 200-mile limit of territorial waters. Nicaragua adopted
a new constitution that year which adopted the 200-mile
limit for exclusive fishing rights. Panama responded

News item, "Peru Offers to Discuss Fishing Limit,

in The Washington Post, June 19 9 1969, p. A29.

■^News item, "U. S. Offers Solution to Tunaboat
Seizures," San Diego Union, 19 April 1968; news item, "U.
S. Tuna Boats Fear New Clashes," New York Times, January 6,
1970.

^°News item, "Latins Ask Widening of Offshore Limits,"
in New York Times, July 20, 1965.

^ Windley, loc. cit.

345
in early 1967 when the Panamanian Congress passed legisla-
tion creating a 200-mile territorial sea, specifically citing
the CEP agreement and sharing its principles and purpose.
Next to respond was Uruguay in December, 1969 when she
extended her territorial sovereignty from 12 to 200 miles,
claiming jurisdiction over fishing, air space, and the con-
tinental shelf to that limit.

Canada. The Latin American fishery claims to the
south were not the only claims of concern to the United
States in the American hemisphere. As early as 1957 the
Canadian Parliament had favored the adoption of a twelve-
mile fishing limit. This limit would be applied to a series
of baselines from Atlantic to Pacific and including the
Canadian Arctic Archipelago. This scheme, which combined
features of the Norwegian Baseline Decree of 1935 and the
archipelago doctrine of Indonesia and the Philippines, to
be discussed presently, would have incorporated all the
waters within Queen Charlotte Sound, Hecate Strait, Dixon
Entrance, the Arctic Archipelago (all of the District of

^ Ibid., p. 499, citing Panamanian Law No. 31 of
February '2"7~TT9o7 (unnamed) in Gaceta Oficial, February 14,
1967.

News item, "200-Mile Limit," in The Washington Post,
December 4, 1969, p. A25.

United Nations, Conference on the Lav/ of the Sea,
pp. 51-52.

^See supra, Chapter X, p. 273.

Franklin of the Northwest Territories which includes the
Northwest Passage), Hudson Bay and Strait, Notre Dame Bay,
Placentia Bay, the Gulf of Saint Lawrence, the Bay of Fur.dy,
and other large areas traditionally regarded as high seas.

In. June, 1963, Canadian Prime Minister Lester Pearson
announced his government's plan to adopt the twelve-mile
fishing limit and the baseline principle, to be effective
the following May. The baseline principle encountered
the resistance of the United States during discussions which
were undertaken following Pearson's announcement. As a

result, only the twelve-mile fishing zone was placed into

47
effect, with adoption of the straight baselines being

held in abeyance.

The Fisheries Controversy in Europe

Swedish-Soviet dispute. The Soviet seizures of
194& to 1950 were noted in the preceding chapter. In those
cases, Swedish vessels were apprehended fishing for salmon
within the twelve-mile limit off the Soviet coast. The
fishermen were imprisoned and were not released until after
they had confessed to charges of espionage and had paid

^°News item, "Canada Sets 12-Mile Fishing Zone," in
The Washington Post, June 5, 1963, p. A17; and Whiteman,
op. cit. , pp. 1239-1240.

^Whiteman, op_. cit., p. 1240 quoting the Canadian
"Territorial Sea and Fishing Zones Act" of 1964, Section
4(1) and (2).

3^7

heavy fines. The Swedish note of protest pointed out that
for centuries the Baltic territorial sea had been 3 or 4
miles. The Soviet Union replied, denying the existence of
a three- or four-mile rule under international law, and

asserted that the Soviet territorial sea in the Baltic was

49
twelve miles. Then in April, 1955? Soviet fleet units

seized four Swedish trawlers, forced into Russian waters

in search of shelter from an unusually severe Baltic storm.

Although the fishermen denied they had fished within the

twelve-mile limit, they were imprisoned and fined and their

50
fishing catch and equipment were confiscated.

Anglo-Norwegian Fisheries Case. The dispute between
Great Britain and Norway originating with the Norwegian
Baseline Decree of 1935 came before the International Court
of Justice in 1951 • The Agent of the United Kingdom argued
that Norway was entitled only to the fixed width of four [l]
miles; that baselines could be drawn only across fjords and
bays ten miles wide and less; and that Norway should pay
compensation for certain arrests made under the 1935 base-

^Gene Glenn, "The Swedish-Soviet Territorial Sea
Controversy in the Baltic," American Journal of Interna-
tional Law, L (October, 1956), pp. 94^-943.

^9 Ibid. , dp. 944-945, citing exchange of notes between
May, 1950 and July 1951.

5QIbid., pp. 946-947.

3^3

51
line decree.

Professor C. H. M. Waldock refers to this British

recognition of Norway's claim to a four-mile limit as ". . .

something of a landmark in the lav/ of the sea, since it is

the first time that the United Kingdom has recognized any

52
limit larger than three miles." Nevertheless, it was not

Norway's claim to four miles that was on trial here; it was
Britain's charge that baselines were in conflict with cus-
tomary international law of territorial waters. Disregard-
ing a considerable body of customary law, opinions of
publicists, and judicial precedent, the Court held that

. . . the method employed for the' delimitation of the
fisheries zone by the Royal Norwegian Decree of July 12,
1935, is not contrary to international law; and . . .
that the base-lines fixed by said decree in application
of this method were not contrary to international law. 53

The Court added that along rugged coastal areas baselines

need not necessarily follow the low-water mark but may be

determined by lines "reasonably drawn" conforming to the

International Court of Justice, Reports of Judgments,

Advisory Opinions and Orders, 1951 (Leyden: A. \V. Sijthoxf's
Publishing Co., 195U » ??• 119-121 .

J C. H. M. Waldock, "The Anglo-Norwegian Fisheries

Case," British Yearbook of International Law, XXXIII (1951),
p. 126. Bernard Heinzen refers to this as an acknowledge-
ment on the part of the three-mile states that the four-mile
limit was as" valid as, and for all practical purposes,
tantamount to, the three-mile limit. Bernard Heinzen, "The
Three-Mile Limit: Preserving the Freedom of the Seas,"
Stanford Lav/ Review, XI (July, 1959), p. 619 .

^International Court of Justice, Reports 1951, p.
143.

3^9

general direction of the coast. Judge Green Hackworth of
the United States concurred in the judgment on the basis that
he considered that the Norwegian government had proved the
existence of an historic title to the disputed areas of
water. The British member, Sir Arnold McNair, dissented.
This was clearly a debilitating blow to the three-mile limit
and furnished legal precedent for the closing off of addi-
tional areas of the high seas. This decision was soon re-

fleeted in baseline claims by Iceland and Denmark.

Anglo-Icelandic "Fish '.var,,,'3 The considerable volume
of debate and dialogue in favor of the twelve-mile limit
during the 195$ United Nations Conference on the Law of the
Sea provided Iceland with adequate pretext to adopt a twelve-
mile limit. Two months after the Conference, Iceland adopt-
ed the twelve-mile limit fishing, together with a set of 47

baselines surrounding the entire country and its fringe

islands. British fishermen were the foreigners most af-

^Ibid., p. 144.

^Ibid., pp. 153-1B5.

5 Iceland, Regulations of 19 March, 1952 Concerning
Conservation of Fisheries off the Icelandic Coasts/' United
Nations, Laws and Regulations on the Regime of the Territor-
ial Sea, pp. 510-517; ancP^otice Wo~, 292 of 11 November
1953 Respecting Commercial Trapping, Fishing, and Hunting
in Greenland and Exports from Greenland," ibid., pp. 476-
477.

^Ibid. ; and Morris Davis, Iceland Extends its Fish-
eries Limits (Norway: Universitetsf orlaget , 19o3), pp.
2o-34. The baselines are plotted on a chart on p. 137.

350

fected, having fished those waters up to the four-mile
limit since I036. As a result, there began the eighteen
and one-half month Anglo-Icelandic "Fish War," during which
time British trawlers fished in groups under protective
naval escort. Reminiscent of the Anglo-Spanish "fish war"
a century earlier, forty-nine different British warships —
frigates and destroyers — were deployed to Iceland, spend-
ing 1854 ship-days on patrol through two gale-swept winters

and a foggy summer. They thwarted 59 attempts by Iceland's

58"
seven gunboats to board the "poaching" British trawlers.

The British declared a three-month "truce," withdraw-
ing all forces in March, i960, in order to clear the atmo- •
sphere for the Second United Nations Conference on the Law
of the Sea. The Conference did not, however, resolve the
controversy over the extent of territorial seas and fishing
rights, and Britain continued to deny recognition to the
Icelandic claim; nevertheless, since I960 the British have

strictly observed the twelve-mile limit applied along Ice-

59
land's cape-to-cape straight baselines.

The Fisheries Controversy in Asia

The Rhee-Line (Japan-Korea) dispute. During the

^ Frank Goldsworthy, "More Fun than Fury in the Fish
War," U.S. Naval Institute Proceedings, LXXXVII (February,
1961), pp. 58-59.

59Ibid., p. 67.

351

years that Korea was under Japanese rule, Japanese fishermen
had become accustomed to fishing along the Korean coasts.
During the years of American occupation, the occupation
commander, General MacArthur, had excluded Japanese fish-
ermen from a very large sea area surrounding Korea, Fol-
lowing the U. S. -Japanese peace treaty of 1952, modern
Japanese trawlers swarmed into the Korean waters denied them
for seven years. President Rhee of Korea immediately rein-
stituted the MacArthur protective zone and established a
Korean Coast Guard, utilizing ex-Japanese minesweepers, and
tasked with excluding foreigners from the protective zone,
seizing them if necessary for trial in Korean courts.

The new Korean fishery conservation zone was geograph-
ically the same as the former MacArthur protective zone, and
included all waters within a perimeter delimited by a series
of nine straight lines — the Rhee Line — from the Korean-
Soviet Border, through the Sea of Japan, the Korea Strait,
and the Yellow Sea to the Korean-Chinese border. The sea
area within this zone is more than three times greater than
South Korea itself, and at one point the Rhee Line boundary
is 175 miles distant from the adjacent South Korean shore-
line.

Brittin and Watson, p_p_. cit., pp. 39-91.
/■-,

Republic of Korea, "Fishery Resources Conservation
Law No. 293/' December 12, 1954, in United Nations, Laws and
Regulations on the Regime of the Territorial Sea, pp. 523-
524.

352
The Lav; defines the maritime area within the "Rhee
Line" as a fishery conservation zone and provides for three
years imprisonment or a fine of 500,000 Hwan and confisca-
tion of vessel, catch, and equipment in the case of any
person fishing within the conservation without permission
of the Korean government. The Rhee Line, needless to say,
has been the source of intense ill-feeling between Japan
and Korea since its inception in 1954.

Indonesia* In December 1957? Indonesia adopted the

archipelago doctrine, applying it as the delimitation of her

national frontiers:

. , . [T]he Government states that all waters around,
between and connecting, the islands or parts of islands
belonging to the Indonesian archipelago irrespective of
their width or dimension are natural appurtenances of
its land territory and therefore an integral part of the
inland or national waters subject to the absolute sov-
ereignty of Indonesia. . • o The delimitation of the
territorial sea, with a width of 12 nautical miles,
shall be measured from straight base lines connecting
the outermost points of the islands of the Republic of
Indonesia. °3

Connecting the outermost points with a series of baselines

as prescribed creates a geometric figure in the nature of

a parallelogram about 3000 miles in length and larger than

the area of the continental United States. The latter

Ibid., Articles 2 and 3.

•^Indonesia, "Announcement on the Territorial Waters
of the Republic of Indonesia, December 14, 1957," repro-
duced in part in Whit email, op. cit., p. 2&4.

>0>

government felt compelled to protest this remarkable assump-
tion of national sovereignty over areas of the high seas.o4:

A few months later, during the 1953 United Nations
Conference on the Law of the Sea., the Indonesian represen-
tative, Mr. Subardjo, commented that he had

♦ . . been distressed to hear the United Statas
representative assert that the actions of the Indo-
nesian Goverment amounted to unlawful appropriation
because the seas were held in common for the benefit
of all mankind. The fact that the seas were the common
property of all nations did not preclude the possibility
of a special regime for archipelagos of a unique nature.

He pointed out the complexity of attempting to determine

the limits of the territorial sea where some 13,000 islands

were involved and added:

In the opinion of the Indonesian Goverment, an
archipelago should be regarded as a single unit, the
water between and around the islands forming an inte-
gral whole with the land territory.65

Philippines. The policy of the Republic of the

Philippines, also an archipelagic state, has been almost

parallel to that of Indonesia, except that the Philippines

has not formally superimposed a twelve-mile limit about her

archipelago baseline.

The position of the Philippine Goverment in the
matter is that all waters around, between and connecting
the different islands belonging to the Philippine Arch-
ipelago, irrespective of their widths or dimensions,
are necessary appurtenances of its land territory,

f-\A.

-Ibid., citing United States note of December 31,
1957.

65United Nations, Conference on the Law of the Sea,
pp. 43-44.

35^

forming an integral part of the national or inland
waters, subject to the exclusive sovereignty of the
Philippines. All other water areas embraced in the
imaginary lines described in the Treaty of Paris of
December 10, 1&93" . . . are considered as maritime
territorial waters of the Philippines for purposes of
protection of our fishing rights, conservation of our
fishing resources, enforcement of revenue and anti-
smuggling laws, defense and security, etc. 66

This note antedated by two years the Indonesian announcement
of 1957. The similarity between the two suggests that the
Philippine position may have served as the model for that
of Indonesia.

During the 1958 Conference on the Law of the Sea the
Philippines* representative referred wO the three-mile limit
as one of the "old rules of international law," and dur-
ing the Second Conference the Filipino delegation explained
the reasoning behind their claim to all the waters of the
archipelago:

Countless generations of Filipinos had derived a
large part of their food supply from the waters between
and around the islands making up the archipelagoL; ]
and all those waters, irrespective of their width or
extent, had always been regarded as part of the inland
waters of the Philippines. oS

Philippine Minister of Foreign Affairs Note to
Secretary-General of the United Nations , December 12, 1955,
quoted in Whiteman, op. cit., pp. 282-283.

'United Nations, Conference on the Law of the Sea,
p. 5.

United Nations, Second United Nations Conference on
the Law of the Sea, Summary Puecords of the Plenary Meetings
and Meetings of the Committee of the Whole (U. N. Pub.
A/Conf . 19/8) (Geneva: United Nations, 19>o"0) , p. 52. The
Philippine delegation to the Conference did not conceal the

355
II. THE SECURITY CONTROVERSY

Those who have adopted the archipelago doctrine not
only defend it on the basis of providing sea food for the
islanders, but also claim that it is required in the inter-
est of their security. This introduces the second key
aspect of the post-World War II territorial seas controversy.
Security claims have generally been couched in vague terms
pointing to the inadequacy of the three-mile limit in meet-
ing security requirements of modern states in the nuclear
and space age, reminiscent of the nineteenth century French
publicists who recommended extending the territorial sea
continuously as the range of weapons increased.

Substance of the Security Controversy

Arguments to extend territorial seas beyond three
miles for security purposes. The Soviet Union — and the
entire Soviet Bloc — especially during the initial years
following the War held the view that three miles was in-
sufficient for security. As that of a land power, the Soviet
logic is not hard to follow. The United States made no
secret of its determination to maintain the principle of
mare liberum, depending on fleet mobility as one of the

Philippine preference for the twelve-mile limit. They voted
for the twelve-mile proposal and abstained in the voting
on the U. S. proposals. Ibid., pp. 30, 151.

3^6

main pillars in her national security structure. 3y widen-
ing the territorial sea from three to twelve miles, the
Soviet Union could frustrate that mobility, and restrict
visual and electronic surveillance.

A fundamental adjunct of the Soviet twelve-mile claim
is their view on innocent passage. The Soviet view on in-
nocent passage is relatively new, and although it has been
shared by some writers in this century, it is a break with
the traditional practice of previous centuries. To review,
the Hague Convention of 1907 seemed to offer no impediment
to the innocent passage of warships:

Article 10. The neutrality of a Power is not af-
fected by the mere passage through its territorial
waters of ships of war or prizes belonging to bellig-
erents. °9

This article reflected the historic concept of neutral waters
wherein belligerents were allowed to enter neutral ports,
but were prohibited from committing hostile acts under the
guns of neutral fortresses. Later, with the advent of sub-
marine warfare, international practice evolved to restrict
the activities of submarines within the neutral zone. Ar-
ticle 4 of the report of the Second Commission (Territorial
Sea) of the 1930 Hague Conference reads:

A coastal state may put no obstacles in the way

^Thirteenth Hague Convention of 1907, "Convention
Concerning the Rights and Duties of Neutral Powers in Maritime
War," in Department of the Navy, Law of Naval Warfare (tfash-
ington: Government Printing Office, 1955), p. B-3.

357

of the innocent passage for foreign vessels [other than
warships] in the territorial sea.

Submarine vessels shall navigate on the surface.

As a general rule, a coastal state will not forbid
the passage of foreign warships in its territorial sea
and will not require a previous authorization or notifi-
cation. '0

This article did not say enough to suit the Soviet Union.
To them, the twelve-mile limit and the right to control nav-
igation are inseparable. This was documented formally when
they ratified the 1958" Convention on the Territorial Sea and
the Contiguous Zone; they attached the following reservation:

The Government of the Union of Soviet Socialist Re-
publics considers that a coastal state has the right to
establish procedures for the authorization of the passage
of foreign warships through its territorial waters. 71

Each of the communist states which ratified the Convention

made a similar reservation. The intent was obvious, that of

keeping American warships, or those of her allies, out of the

communist states' twelve-mile territorial sea. India, one

of the Cold War "neutrals," adopted the Soviet view, while

Ghana advanced the view that innocent passage of warships

need be subject only to prior notification. Neither of these

positions was acceptable to the United States, who maintained

'League of Nations, Final Act, Conference for the
Codification of International Lav: (Geneva; League of Nations,
1930) , reproduced in Supplement to the American Journal of
International Law, XXIV "(July, 1930), pp. 241 and 240.

^VicDougal and Burke, op_. cit., p. 1180, quoting

J>D'o
no

that neither authorization nor notification was required.

Arguments against extending the territorial seas for
reasons of security . The principal argument against an ex-
tension of territorial seas is scarcely no more than a re-
jection of the preceding argument that national security is
enhanced by excluding foreign warships (and aircraft) from
an increased width of territorial seas. As pointed out by
Professors McDougal and Burke, the current state of ordnance

is such that no width of territorial waters — even 1000 miles

or more — could provide a safe measure of national security. ^

Even a resort to a papal bull-type partition of the ocean
surfaces — a la fifteenth century — could not protect a state
from Minuteman and SS-9 intercontinental multiple warhead
ballistic missiles. With such weapons in the arsenals of
states, territorial waters, in effect, has become an irrele-
vant concept in terms of providing military or naval security
to the littoral state. Likewise, the Bynkerskock maxim that
a state can claim the waters as far as its ordnance will carry

"Declarations and Reservations to the Convention" (U. N.
Document No. ST/LEG/3, Rev. I).

'United Nations, Conference on the Law of the Sea,
pp. 84-113 passim; and Arthur Dean, "The Second Geneva Con-
ference on the Law of the Sea: The Fight for Freedom of the
Seas." American Journal of International Law, LIV (October,
I960), p. 771.

McDougal and Burke, op_. cit. , pp. 4&2-4£5.

359

is equally irrelevant for the same reason.

It was argued by the United States delegation to the
Geneva Conferences that a twelve-mile limit would impose an
additional burden on neutral states in time of war. A
twelve-mile zone, it was contended, would provide a neutral
haven for belligerent submarines while the neutral state
faced the difficult problem of attempting to detect and pro-
hibit such violations. This argument, it is true, has legal
validity, but it is weak when examined on a practical basis,
and in consideration of the actual conduct of submarine war-
fare during both World Wars. It would be a futile mental
exercise to suppose that submarine commanders might volun-
tarily restrict their operations and deny themselves the
tactical advantage of stealth for which they were conceived

a — ,- Iqv - ~ -

The Security Controversy in America

Nuclear testing. In pursuit of national security,
in 1946 the United States embarked on a series of nuclear
tests involving the detonation of nuclear devices at, over,
and under several Pacific islands and atolls under U. S.
trusteeship. Elaborate safety and range clearance procedures
were instituted to minimize the possibilities of casualties
to shiDS and seamen due to the effects of the blast, radia-

1 L-

'^Dean, p_p_. cit., p. 755.

j>6o

tion, or fallout. Detailed warnings were published inter-
nationally by the Atomic Energy Commission and the U. S.

Hydrographic Office.

Nevertheless, these tests ran afoul of Cold War ad-
versaries, neutrals and allies. The Russian delegate to the
195& Geneva Conference declared that:

[n]uclear tests were a patent violation of the
principle of freedom of the seas and, consequently, of
the freedom of navigation and fishing, as well as of the
principle of conservation of the living resources of the
sea. They should, accordingly, be declared illegal in
order to reinforce that fundamental freedom, and, at the
same time, safeguard international peace and security. ?6

The Indian delegate brought up the admi-c-cedly unproven ar-
gument that "such explosions not only interfered with the
freedom of navigation on the high seas, but also destroyed

and contaminated the living resources of the sea and caused

extensive pollution of the water." The Indonesian dele-
gate pointed to the harmful effects of such devices as one
of the justifications for Indonesia's having adopted the

archipelago doctrine. On the occasion of one of the tests:

. . .[T]he Japanese Ministry of Foreign Affairs stated
that the Government and People of Japan regretted that
the United States continued its tests in the Eniwetok
area and that a new danger zone_would be further set up
in a wide area around Johnston Island, and requested once

'^Whiteman, op. cit . , pp. 543-631.
p. 32.

'°United Nations, Conference on the Law of the Sea,

77Ibid., p. 15.
7^Ibid., p. 44.

56l

again of the United States Government early suspension
of nuclear tests. 79

The United States responded to this widespread unfavorable

criticism by pointing out that the temporary use of areas of

the high seas for gunnery and bombing practice had never been

considered unlawful and insisted:

... that its nuclear weapons testing activities
in and around the Marshall Islands in the Pacific Ocean
have not violated the principle of the freedom of the
seas or any other principle of international law.°0

This was further amplied:

The United States has not closed any portion of the
high seas in the Pacific Ocean, and, in fact, has strongly
maintained the doctrine of the freedom of the seas. . . .

Closure of waters in the Eniwetok Proving Ground in
the Trust Territory of the Pacific Island [s] has been
specifically limited to territorial waters. 81

In any event, the problem ceased to exist with the conclusion

of the Nuclear Test Ban Treaty in Moscow on August 5, 1963.

Air defense identification zones. The Soviet Union
was not alone in its search for security along its maritime
boundaries. The United States, after VJorld War II, was still

'"The American Ambassador at Tokyo (MacArthur) to
Secretary Dulles, telegram, July 1, 195B, Ms. Department of
State, file 711. 5611/7-1 53 in Whiteman, op. cit., p. $93.

VJhiteman, op_. cit., p. 546, quoting a paper prepared
for the use of the United States delegation to the 19 5& Con-
ference on the Law of the Sea.

Whiteman, op_. cit., p. 596, citing a U. S. State
Department letter of April 25 » 19 5&.

mindful of the surprise attack at Pearl Harbor. Not long after
the beginning of the Cold War When there was great mutual
distruct and fear between the two superpowers, the United
States established an early warning system as a defense
against incoming aircraft. In December 1950, the Code of
Federal Regulations was modified to provide for Air Defense
Identification Zones (ADIZ) . These zones extend approxi-
mately 400 nautical miles into both Atlantic and Pacific
Oceans. Under the regulations no aircraft may fly in the
ADIZ without prior clearance. Foreign aircraft must:

make position reports as prescribed for United States
aircraft . . . when the aircraft, is not less than one
hour and not more than two hours average cruising distance
via the most direct route from the United States. ^3

Violators are subject to a $10,000 fine, one year imprison-
ment or both. United States military aircraft are routinely

82Part 620 (Security Control of Air Traffic), Title
14 (Civil Aviation), Code of Federal Regulations of the
United States of America, as modified by Executive Order
No. 10197 dated December 20, 1950 and printed in United
States Archives, Federal Register Division, The Federal
Register, Wednesday, December 27, 1950, vol. XV, pp. 9319-
1921; and U. S. Department of Commerce, Regulations of the
Administration, Part 620, reprinted in Brunson MacChesney
(ed.J, U. S. Naval War College, International Law Situations
and Documents., 1956: Situations, Documents and Commentary
on Recent Developments in the International Lav/ of the Sea
(Washington: Government Printing Office, 1957), pp. 578-
592. Diagrams plotting the ADIZ are available in ibid.,
p. 578 and in Brittin and Watson, op_. cit., p. 74.

^3Ibid., p. 9320.

3o3

employed to enforce and police the ADIz. "* if an unidentified
aircraft penetrates the ADIZ, fighters, based along the
coast, are '"'scrambled" to intercept the incoming aircraft
and to escort it to a landing site. The ADIZ is operated

in coordination with Canada who maintains a very similar

85
ADIZ system.

Although the Soviet Union has not objected specifically

to the ADIZ, at the 1958 Conference en the Law of the Sea,

the U.S.S.R., Albania, and Bulgaria submitted a joint proposal

that:

No naval or air ranges or other combat training areas
limiting freedom of navigation may be designated on the
high seas near foreign coasts or international routes. °6

The ADIZ is not an extension of territorial seas as such.
Nevertheless, under the regulations, foreign pilots are re-
quired to conform with U. S. and Canadian laws while flying

gi
^McDougal and Burke, op. cit., p. 626.

^MacChesney, op. cit., pp. 592-bOO, reproducing
Canadian Department of Transport, Air Services Branch,
22/55 Rules' f or the Security" Control of Air Traffic (Super-
seding NOTAM 22/54) effective December 1, 1955.

McDougal and Burke, op. cit., p. 786, citing U. N.
Doc. No. A/CONF. 13/C2/L. 32 in United Nations, Conference
on the Law of the Sea (Geneva: United Nations, 195d) » vol.
IV Second Committee ("High Seas), p. 124. It is interesting
to note that the Soviet Union has not proclaimed an ADiZ-type
security zone in the Pacific. Although Soviet strategic
bombers would be intercepted entering the U. S. ADIZ, U. S.
Strategic Air Command "fail safe" bombers could approach
unmolested within twelve miles, for example, of the Petro-
pavlovsk Naval Base.

over large areas of the high seas. Moreover, the declared
purpose of the regulation is :'. . . to identify, locate, and
control U. S. and foreign aircraft operated within . . .
Lthe] ADIZ."° (emphasis added). There can be no doubt,
therefore, that this does represent the extension of juris-
diction for special security purposes over a rather wide
contiguous zone.

Anti-submarine hydrophone array. Prompted by the
growing Soviet submarine fleet, the United States designed
and installed a complex underwater array of computer moni-
tored hydrophones. Arrays of linked hydrophones are installed
on the continental shelf of both the Atlantic and Pacific
coasts. Project Caesar, as it is called, is designed to
identify and locate, enemy submarines approaching the coast.

As in the case of the ADIZ, this is not necessarily
an extension of territorial rights. But it is another in-
stance of special actions taken by states in ocean areas
beyond territorial waters to enhance their national security.
In this case, as in the case of the installation of "Texas-
Tower" oil rigs, United States owned property is installed
on the continental shelf; presumably both would be defended

'The Federal Register, op. cit., vol. XV, p. 9319.

John ¥. Finney, "Secret Underseas System Guards
U.S. Against Hostile Submarines," New York Times, Septem-
ber 14, 1965.

po5

against hostile foreign action.

■o"

The Security Controversy in Europe

Corfu Channel Case. As early as 1946 there commenced
the post-war attempts on the part of certain littoral states
to exclude foreign warships from waters traditionally con-
sidered international. In that year, Albania mined the North
Corfu Strait, resulting in loss of lives and damage to ships
of the Royal Navy. The case was referred to the Interna-
tional Court of Justice — the Court's first contentious case.

The Strait is about two miles wide and is bounded on
the east by the Albanian mainland and on the west by the Greek
Island of Corfu. Albania claimed the Strait was a strait of
secondary importance and did not belong to the class of
international straits through which the right of passage
existed. They maintained that the British warships had no
right to pass through the Strait. The British contention
was that the Albanians had illegally mined an international
strait.

The Court decided in favor of the British and ordered

89
Albania to pay damages — damages which, in the Cold War

atmosphere, they refused to pay.

^The Corfu Channel Case, United Kingdom-Albania, In-
ternational Court of Justice, April 9, 1949, International
Court of Justice, Reports of Judgments, Advisory Opinions
and Orders, 1949 (Leyden: A. W. Sijthoff's Puolishing Co.,
1951), PP. 4 ff .

The Baltic Sea. The Soviet Union's enforcement of
her twelve-mile fishing limit in the Baltic has already been
discussed. In 1952, the Soviet government displayed its
resolve to defend her twelve-mile air space by force as well.
In June of that year, within a period of three days, two
unarmed Swedish reconnaissance planes were shot down with
the loss of one entire crew. The Russians charged that the
Swedish aircraft had penetrated to within four miles of the

shore; the Swedish declared that the aircraft did not ap-

90
proach closer than 15 miles.

The Soviet policy with respect to the Baltic was

more involved than a mere enforcement of her twelve-mile claim.

In 1947, the Soviet Union officially embraced the idea of a

Baltic mare clausum, closed to all states save those littoral

91
to the Baltic. This concept was elaborated by Dr. S. V.

Molodtsov in 1950. Molodtsov maintained that Baltic states
possessed the historic and legal right to blockade the en-
trance to all foreign warships. Baltic agreements should

be revised, he wrote, in order to " . • . throw a monkey

wrench into the British and American plans of conquest."

^ Glenn, op. cit., p. 946; Henry G. Morgan, "Soviet
Policy in the Baltic," U.S. Naval Institute Proceedings,
LXXXVI (April, I960), pp. Sb-dT.

^ Glenn, p_p_. cit., p. 947 citing Mezdunarodnoe Pravo
( I nt e r na t i o na I Lav/ ) "(Moscow, 1947), p. 2b2. The plan was
published in a Soviet Justice Department 1947 handbook.

"ibid., citing Molodtsov' s dissertation published in

36?
The project did not materialize , chiefly as a consequence
of the western orientation of Denmark and West Germany and
the neutrality of Sweden. Still, Soviet diplomacy con-
tinued to carry this theme at least as late as 1959, Speak-
ing in Riga, Latvia Premier Khrushchev proposed that the
Scandinavian states join with the Soviet Union in convert-
ing the Baltic into a "sea of peace . . . free of atomic and
rocket weapons."

The Arctic Ocean. The Soviet Union entered a head-on
confrontation with the United States on the issue of terri-
torial waters in I960. On July 1, the Russians shot down
an RB-47 reconnaissance aircraft in the Barents Sea. The
Soviet Union claimed that the aircraft was downed over Soviet
territorial waters after it disobeyed an order to land. The
United States countered that the aircraft had not approached
within thirty miles of the Russian coast and that Soviet

fighters had tried to force the RB-47 into Soviet airspace

95
before shooting it down.

the Russian Journal, Sovetskoe Gosudarstvo i Pravo, No. 6
(Moscow, 1950) .

^Similar Soviet diplomatic efforts were launched to
close the Sea of Japan and the Black Sea except to littoral
states. These, too, failed due to the resistance of Japan
and Turkey, supported by the United States. Frank M. Murphy,
"A Soviet Naval Goal: Satellite Seas," U. S. Naval Institute
Proceedings, LXXXYII (April, 1961), pp. 37-40.

'Murphy, p_p_. cit., p. 32, quoting a speech of June 11,
1959.

^Oliver J. Lissitzyn, "Some Legal Implications of

?6S

It is not clear in this case whether the Soviet Union

was enforcing their twelve-mile territorial sea or their

claim to all Arctic waters north of the Russian coast. This

latter claim dates to 1926 when Russia embraced the "sector

principle." The Soviet decree of April 15, 1926, provided:

Are declared forming part of the territory of the
Union of Soviet Socialistic Republics ail lands and
islands already discovered, as well as those which are
to be discovered in the future . . „ which lie in the
Northern Frozen Ocean north of the coast of the Union ofg/-
Soviet Socialistic Republics up to the North Pole. ...

This decree disturbed certain Soviet jurists and pub-
licists, especially E. A. Korovin, who noted that the wording
only included "lands and islands." He believed the intent

of the decree was to include also "the ice blocks and waters

washing the lands and islands." ' Following the War, Soviet

jurists developed theories to support government claims to
the whole of the Arctic "sector" north of their coasts. The
1966 Russian Naval International Law Manual lays complete and

the U-2 and RB-47 Incidents," American Journal of Interna-
tional Law, LVI (January, 1962), pp. 139-140.

9°W. Lakhtine, "Rights over the Arctic," American
Journal of International Law, XXIV (October, 1930 j , p. 709.

^William E. Butler, The Law of Soviet Territorial
Waters (New York. Washington, London: Frederick A. Praeger,
Publishers, 1967), p. SO, citing E. A. Korovin, "SSSR i
poliarnye zemli" (The USSR and Polar Lands) 1926 Sovetskoe
pravo (Soviet Law) , No. 3, p» 46.

3^9

98
sovereign Soviet claim to the entire Northern Sea Route.

At least two well-known contemporary Soviet publicists, A.

N. Nikolaev and S. A. Vyshnepolskii, have written that the

Kara, Laptev, East Siberain, and Chukchi Seas must all be

considered as closed, or "historic," seas or bays. In

1967, the Soviet Ministry of Foreign Affairs advised the
United States that passage of U. S. Coast Guard icebreakers
through the Yilkitsky Straits, between the Kara and Laptev
Seas, would be a violation of Soviet frontiers. It has
been speculated that the Soviet authorities in this instance
considered the icebreakers to be warships.

The Security Controversy in Asia

The Sea of Okhotsk. Soviet maritime policies with

Naval International Law Manau] (Moscow: Voenizdat, T^6o ) ,
pp. 238-289.

9%hiteman, op_. cit., pp. 240-241, citing A. N. Nikolaev,
Problema territorialnykh vod v mezhdunarodnom prave (The
Problem of Territorial waters in International Law) (Moscow:
Gosiurzdat, 1954), pp. 207-208; and Butler, The Lav; of Soviet
Territorial Waters, pp. 3 1-82, citing S. A. Vyshnepolskii,
"K probleme pravogo rezhim arkticheskoi oblasti," (On the Prob-
lem of the Legal Regime of the Arctic Region), Sovetskoe
gosudarstvo i pravo, no. 7 (1952), pp. 36-45.

100Donat Pharand, "Soviet Union Warns United States
Against Use of Northeast Passage," American Journal of ^In-
ternational Law, LXII (October, 1968), p. 927, citing U. S.
State Department Statement of August 31, 1967.

1Q1Ibid., p. 931.

370
respect to her Pacific coast have .been equally restrictive.
In 1956, the Soviet Union by unilateral action closed the

Sea of Okhotsk behind an artificial frontier known as the

102
Bulganin Line. This line runs from the Kamchatka Penin-
sula, along the Kuriles Island chain, and thence to Sakhalin.
Soviet jurists consider that the Okhotsk Sea is both a

closed and historic sea and would prohibit foreign warships

103
from navigating it, in spite 01 the lact that its southern

reaches wash the shores of Japan. When a United States flag

airliner misnavigated across the Bulganin Line on July 1,

1968, Soviet fighters forced it to land at a Soviet air base

on Iturup Island in the Kuriles. The airliner was released

following a United States apology.

Peter the Great ay. In 1957 the Soviet Union sim-
ilarly closed Peter the Great Bay, a shallow indentation
of the Sea of Japan, and the site of the port of Vladivostok.
The Decree of July 21, 1957 proclaimed that:

x ^ James Guill, "The Regimen of the Seas," U.S.
Naval Institute Proceedings, LXXXIII (December, 195D ,
p. 1317.

-'Butler, The Lav/ of Soviet Territorial Waters, p.
79. For a strategic appraisal of the Sea of Okhotsk, see
S. A. Swarztrauber, "Alaska and Siberia: A Strategic Analy-
sis," Naval Review 196.5 > Frank Uhlig, Jr., editor (Annapolis:
U. S. Naval Institute, 1964) , pp. 132-165.

\Tews item, "Chartered Airliner on a Flight From
U. S. May Have Strayed," in New York Times, July 1, 1963,
d. 1; and "U. S. Concedes Intrusion," In New York Times,
July 4, 1968, p. 2.

371

Navigation of foreign ships as '..-all as flights of
foreign planes in the region of Peter the Great Bay can
•cake T^lace only by permission of the competent author-
ities of the USSR. . . .105

The decree defined the closed portion of the Bay as those

waters within a cape-to-cape baseline 11$ miles long. Peter

the Great Bay does not have the configuration of a bay; it

does not even come close to satisfying the United Nations

definition of a bay, and by no stretch of the imagination

can it be conceived of as an "historic bay." This was

essentially the tenor of the notes of protest delivered by

the Japanese and Americans, and yet the Soviet Union replied

that she did in fact regard the Bay as "historic."

Gulf of Aqaba dispute. The Gulf of Aqaba is 9& miles
long and is from seven to 15 miles wide. It is bounded on
the west by Egypt, on the north by Israel and Jordan, and on
the east by Saudi Arabia. The Strait of Tiran, four miles
wide, connects the Gulf with the Red Sea. The Gulf gives to
Israel a sea access to the Orient, and to Jordan, its only
sea access.

Applying the three-mile limit to the Gulf of Aqaba
leaves a high seas passage from end to end; even a six-mile
limit leaves some high seas areas in the Gulf. However, under

^Whiteman, op_. cit. 9 pp. 250-251.

10° Japanese note of July 26, 1957; United States note
of August 12, 1957; Soviet note of January 7, 1953, in ibid.,
pp. 251-256.

372

the traditional rules of international law, the overriding
consideration is the international nature of the body of
water. All four littoral states would be free to transit
the Gulf; and the Strait of Tiran would be regarded as an
international strait. Yet the events since 1955 make it
appear that traditional rules of international law have become
irrelevant in the Gulf of Aqaba, having been replaced by
rules of sheer military force.

In 1955 t Egypt, replying to an inquiry by the Inter-
national Lav; Commission, had expressed its strong preference
for a six-mile territorial sea. A six-mile limit, the
Egyptian letter read, would

. . . safeguard the principle of the freedom of the
open sea, over which the international law forbids the
acquisition of sovereignty. 107

"Freedom of the open sea for everyone," the letter may well
have gone on to say, "except for Israel." For, that same year
President Nassar took steps to deny the Gulf of Aqaba to
Israel. In September, 1955, Egypt put into effect a regula-
tion requiring all ships desiring to enter the Gulf to ob-
tain a permit from the "Regional Boycotting Office for

'Letter from the permanent United Nations delegate
from Egypt to the International Law Commission, dated May
4, 1955, annexed to "Report of the Seventh Session," in
United Nations, Yearbook of the International Lav/ Commission
1955 (New York: United Nations, I960) vol. II, p. 45.

373

Israel." In 1956, Israel invaded Egypt and occupied

Sharm el-Sheikh, the Egyptian shore of the Tiran Strait.

Israeli forces did not withdraw until 1957 when it was agreed

that a United Nations Emergency Force would be stationed at

Sharm el-Sheikh, thus guaranteeing Israel's access to the

Gulf.10?

An intense build-up of Israeli port facilities and oil

pipe lines, on the Gulf of Aqaba, occasioned by President

Nassar's closure of the Suez Canal to Israeli ships, soon

provided an alternate Israeli route between the Mediterranean

and the Red Seas, adding fuel to the heated Israeli-Arab

dispute. On October 2, 1957? the Saudi representative to the

United Nations addressee the General Assembly:

The Gulf of Aqaba is a national inland waterway,
subject to absolute Arab sovereignty. . . . The Gulf is
so narrow that the territorial areas of the littoral
States are bound to overlap among themselves. . . •

. . .[T]he Gulf of Aqaba is of the category of his-
torical gulfs that fall outside the sphere of interna-
tional lav:. The Gulf is the historical route to the
holy places in Mecca.

110

Israel . . . has no right to any part of the Gulf."'

108V/hiteman, op. cit., p. 470 quoting "Egyptian Cir-
cular to Shipping No. 4," of September 5, 1955.

109-..

- - - — ' f

co. V/2-4/5.

— Charles 3. Selak, Jr., "A Consideration of the Legal

Status of the Gulf of Aqaba," American Journal of .international
Law, LII (October, 195#)» p. °?9 quoting from United Nations,
Official Records 12th Session, 697~th Plenary Meeting (U. N.

37^

The Saudi delegate rejected a proposal to submit the issue

to the International Court of Justice on religious grounds!

As Keeper of the Holy Places, His Majesty King Saud
is not prepared to expose to question any matter touch-
ing upon the Holy shrines and the free passage of pil-
grims to Mecca.m

Lastly, he rejected the suggestion that Israeli ships be

granted innocent passage in the Gulf- with his argument that

the C-ulf was internal waters where the right of innocent

passage does not exist.

Then, in 19 58, presumably to strengthen their legal

position, both Saudi Arabia and Egypt adopted the twelve-

113
mile limit of territorial seas.

Doc. No. A/P.V. 697) October 25 1957, p. 233. The Arab
states argue that the Gulf of Aqaba, like the Gulf of Fonseca
(see supra, p. 22$), consists of territorial waters of the
littoral states only, denying that Israel has any legitimate
right to be considered one of the littoral states, on the
grounds that Israel forcibly and illegally occupied her
present northern Gulf coast in 1949. Israel argues that she
is legally a littoral state according to the original par-
tition plan of 1947 and the Israel-Jordan armistice of 1949.

111Ibid.

112Ibid., p. 680.

-'-Saudi Arabia, "Decree No. 33 Defining the Terri-
torial Waters of the Kingdom," 16 February 1958 in United
Nations, Supplement to the Laws and regulations on the Re-
gime of the High Seas .Volumes I and ±±) ana laws Concern-
ing: tne i\ationa±ity ox bhips pew lork: Unite a nations,
1959), pp. 29-30, and Vjhiteman, op_. cit . , p. 32.

375
The dispute over the Gulf lay dormant for ten years.
Then in May 1967 the United Nations Emergency Force was
withdrawn. Egyptian troops immediately occupied the
positions at Sharm el-Sheikh, vacated by the U. N. troops,
and on May 22, President Nassar announced that the Gulf of
Aqaba would be closed to Israeli ships and to any others
carrying strategic gooas to Israel, In an announcement
the next day, Egypt declared:

There is a state of war between us and Israel. In-
ternational lav; gives us the right to ban the passage
of Israeli ships through our territorial waters. U. S.
and British talk about innocent passage is unacceptable
in a state of war.H6

The "state of war" of which Egypt spoke became a "shooting

war" less than two weeks later when Israel again invaded

2gypt, Jordan, and Syria in what became well-known as the

"six-day war." Again she occupied Sharm el-Sheikh, but this

time she did not withdraw. At the time of writing, Israeli

forces remain there to insure her access to the Gulf of

Aqaba.

North Korea. Although North Korea has apparently
not made a formal declaration as to the extent of her terri-

^"-•Issues Before the 22nd General Assembly" (Middle
East), International Conciliation No. 564 (September, 1967) »
pp . 14-16 .

115Ibid., p. 16 citing New York Times, 23 May 1967.

ll6Carl F. Salans, "Gulf of Aqaba and Strait of Tiran
— Troubled Waters," U. S. Naval Institute Proceedings, XCIV
(December, 1966), p. 60, quoting Egyptian announcement of
23 May 1967.

376

torial sea, both the United States and the Soviet Union

117

attribute to her a twelve-mile limit. But events of the

late 19o0's indicate that North Korea intends, obviously

in the name of national security, to exercise her jurisdiction

beyond twelve miles. The USS Pueblo was seized by North

Korean naval units on January 23, 1968 in the Sea of Japan,

118
between 1$ and 16 miles from the North Korean coast while

engaged in an electronic surveillance mission there. North

Korea rejected United States demands for the immediate return

of the ship and crew, claiming that the Pueblo had committed

"intolerable provocations" and charged that the ship had

"illegally infiltrated into North Korean waters on an espi-

119
onage mission." The following day the North Korean Com-
munist Party newspaper described the North Korean action as
a "proper self-defense measure" and warned that if there
were a repetition of such "provocation," North Korea would
"strongly punish the aggressor," adding:

The criminals who encroach upon other's sovereignty
and commit provocative acts must receive deserving

i:L^See supra, Chapter XI, p. 316, note $6.

1 Statement by Commander Lloyd M. Bucher, Commanding
Officer, USS Pueblo, December 23, 1968, in "Pueblo Captain
Tells His Story or Capture — and Captivity," U. S. News and
World Report, January 6, 1969, p. 30.

■^Statement by Major General Pak Chung-Kuk, senior
North Korean delegate to the United Nations Command, Pan-
munjom, January 24, 1968, news item, "North Korea Rejects
U. S. Demand For Seized Navy Ship's Return," San Dieg;o Union,
January 24, 1968, pp. A1-A2.

377

punishment.

120

These criminals must be punished by law.

The Pueblo's Commanding Officer, Lloyd Bucher, stated that
his ship had never approached the North Korean coast closer

than 13 miles, in compliance with the orders he had been

1 21
given,-" ruling out the application of right of hot pursuit.

Further evidence that North Korea considered it her

right to exercise peacetime security measures beyond twelve

miles came on April 1$, 1969 when North Korean air forces

shot down an unarmed United States EC-121 reconnaissance

aircraft over the Sea of Japan some 90 miles from the North

122
Korean coast. The United States protest stated:

The aircraft commander was under orders to maintain
a distance of 50 nautical miles from the coast of North
Korea. All evidence confirms that the plane remained
far outside your claimed territorial airspace. 123

The several situations, arguments and incidents cited

in this chapter by no means represent the complete list.

They have been selected and included to demonstrate the scope

and degree of deterioration of international agreement on

"1 20

""News item, "Ready for U. S. Retaliation, N. Korea

Says," San Diego Union, January 26, 1968, p. Al, citing

Rodong Shinmoon, January 26, 1968.

121"Pueblo Captain Tells His Story. . . .," loc. cit.

122Department of State, Press Release No. 37 of
April 17, 1969, quoting the text of the statement by Major
General James B. Knapp, U.S.A.F., at the 290th meeting of
the Military Armistice Commission, Panmunjom, Korea, April
17, 1969.

123ibid.

J>7&
the extent and nature of territorial waters which occurred
in the years following World War II. Not only did states
abandon the three-mile practice in large numbers, but there
was also a tendency to reinterpret liberally, unilaterally
in some cases, the rights that coastal states enjoyed in their
territorial sea. Also during this period there did occur
a major effort to resolve the differences concerning the
territorial sea, and to fix its extent and define its nature.
This took place in 1953 and I960 at the United Nations Gen-
eva Conferences on the Law of the Sea. Some consider this
effort also as the last major attempt by the traditional
maritime powers to salvage what they could of the three-mile
limit. The United Nations Conferences will be examined in
the following chapter.

CHAPTER XIII

ROLE 0? THE UNITED NATIONS

At first glance, the efforts of the United Nations to
codify the law of territorial waters in 195$ and I960 appear
painfully analogous to those of the League of Nations three
decades earlier. There was a significant difference how-
ever; the League effort had assumed that there was wide con-
sensus among the states and that it would be essentially a
matter of reducing that consensus to suitable language, whereas
the United Nations effort was an attempt to reach agreement
where there was admittedly little. Another difference lay
in the fact that the League of Nations had to create its
Committee of Experts to prepare for the Hague Conference,
whereas the United Nations was able to call upon its Inter-
national Law Commission, a permanently constituted body, to
lay the groundwork for the Geneva Conference.

I. CONTRIBUTION OF THE INTERNATIONAL
LAW COMMISSION

The Charter of the United Nations requires the General
Assembly to " . . . initiate studies and make recommendations
for the purpose of . . . encouraging the progressive develop-
ment of international law and its codification. ..." Pur-

Article 13. 1. a., Leland M. Goodrich and Edvard Hambro,

379

3S0

suant to this obligation, the General Assembly established

the International Law Commission during its second session

2
in 1947 , and elected fifteen members to the Commission during

3
its third session in 1948. The Commission met for its first

session at Lake Success, New York in April, 1949. In com-
pliance with its statute which required the Commission to
". . . survey the whole field of international law with a
view to selecting topics for codification," fourteen topics
were selected, among which were included "the high seas"
and "territorial waters." First priority was given to the
high seas; Mr. J. P. A. Francois of the Netherlands, was
named rapporteur. Study was undertaken during the second
(1950) and third (1951) sessions leading to draft articles
on the continental shelf, fisheries, and the contiguous
zone. At the third session it was also decided to initiate
work on the topic of territorial waters, Mr. Francois being
appointed special rapporteur for this closely related study.

Charter of the United Nations (Boston: World Peace Foundation,
1946), p. 101.

United Nations General Assembly Resolution 174 (II),
November 21, 1947, United Nations, Yearbook of the Inter-
national Law Commission, 1949 (New York: United Nations,
195o), P. ffitit cluing Official Records of the General Assem-
bly, Second Session, iteso±u"Gions, p. ±up.

•* Ibid. Members were elected from Panama, Brazil, U.K.,
Mexico, Netherlands, China, U.S.A., Syria, U.S.S.R., India,
Sweden, France, Greece, Colombia, and Czechoslovakia. The
first Chairman was the American publicist, Manley 0. Hudson.

4Ibid., p. 279.

^United. Nations, Yearbook of the International Law
Commission 1951 (New York: United Nations, 1957), vol. II,
p. 140.

3S1

During the several years leading up to the 19 58" Conference,
Mr. Francois served in both capacities and his name became
intimately associated with the law of the sea.

The Francois Reports

In his first report on the regime of the territorial
sea, presented to the fourth session .of the Commission in
1952, Francois included a compilation of the various limits
of territorial waters claimed by states, as evidenced by
state legislation then in effect. He also included a pro-
posed draft article:

Limits of the Territorial Sea
Article 4 - Breadth

The breadth of the zone of sea designated in the
first article [the territorial sea] will be fixed by the
littoral State, but it cannot exceed six nautical miles."

Francois felt it necessary to comment on his decision to pro-
pose a limit of six miles. He cited the failure of the 1930
Hague Conference to agree on three miles and the great diver-
sity of practice and opinion existing in 1952 as shown by

7
his compilation.

The following year, Francois presented his second

report to the fifth session (1953) of the Commission. This

report was more extensive than the first and included a

United Nations, Yearbook of the International Lav:
Commission 1952 (New York: United Nations, 1958), vol. II,
p. 26, reproducing Francois9 Pro .jet de reglement [de la mer
territoriale], translation by author.

7Ibid., pp. 23-30.

3S2

revised draft position on the extent of the territorial sea:

Article 4 - Breadth

The breadth of the territorial sea will be fixed
by the littoral State, but it cannot exceed 12 nautical
miles from the baseline of the territorial sea.

Exclusive fishing rights may not be claimed by the
littoral State for its nationals .beyond a distance of 3
nautical miles, measured from the baseline of the terri-
torial sea. Beyond this limit of three miles, fishing
in the territorial sea may be subjected by the littoral
State to regulations having the sole purpose of protect-
ing the resources of the sea. No discrimination must be
made to the detriment of the nationals of any foreign
States. &

Something of the frustration which must have faced Francois

in searching for a suitable compromise solution is revealed

in the tortuous wording of this almost ambiguous draft.

The Commission did not approve the draft but it appointed

9
a group of experts to assist Francois.

A third report was prepared by Francois reflecting

the observations of the experts, and containing an even more

complex draft article on the breadth of the territorial sea:

United Nations, Yearbook of the International Law
Commission, 1953 (New York: United Nations, 1959), vol. II,
p. 59, reproducing "Deuxieme rapport de M. J. P. A. Francois,
rapporteur special, 19 f£vrier 1953," translation by author.

'United Nations, Yearbook of the International Lav/
Commission, 1954 (New York: United Nations, 19o0) , vol. II,
p. 152. The experts were from Sweden, the United States,
France, the United Kingdom, and the Netherlands.

3S3

Article 4
Breadth of the territorial sea

1. The breadth of the territorial zco. will be 3 nauti-
cal miles measured from its baseline.

2. However, the littoral State is authorized to extend
the territorial sea up to a maximum of twelve miles
from the baseline, subject to the following condi-
tions:10

[The conditions provided for free passage throughout the
territorial sea, non-discriminatory fishery conservation
regulations, and concilation or arbitration in the event
of disputes.]

Provisional Articles Concerning the Regime of the Territorial
Sea

All three Francois reports were used as the basis
for plenary discussions on the territorial sea during the
Commission's sixth (1954) session. Eut unable to agree on
three, four, six, or twelve miles, the Commission submitted
to the General Assembly "Provisional Articles Concerning the
Regime of the Territorial sea" which included:
Limits of the Territorial Sea
Article 3
Breadth of the territorial sea
(Postponed)-
The Provisional Articles were circulated to the member

Ibid., p. 2., reproducing "Troisieme rapport de
J. P. A. Francois, rapporteur special, 4 fevrier 1954,"
translation by author.

i:LIbid., p. 154.

3#J-

governments for comment. Only eighteen replies were received;

the Soviet Union was conspicuous by its silence. The United

States replied:

Among the articles for which no text has yet been
drafted is Article 3 concerning the breadth of the
territorial sea. Y7ith respect to this Article, the
Commission requested views and suggestions which might
help it to formulate a concrete proposal.

That the breadth of the territorial sea should remain
fixed at three miles is without any question the proposal
most consistent with the principle of freedom of the seas.
The three-mile limit is the greatest breadth of terri-
torial waters on which there has ever been anything like
common agreement. Everyone is now in agreement that the
coastal State is entitled to a territorial sea to that
distance from its shores. There is no agrement on any-
thing more. 12

Draft Articles on the Regime of the Territorial Sea

The response to the Provisional Articles had been
not only unenthusiastic, but most of those states who did
reply made guarded, general statements, providing little in
the way of specific material for the Commission to use.
Reflecting this inconclusive response, the Commission adopted
a set of "Draft Articles on the Regime of the Territorial
Sea" at its seventh session (1955) which included the follow-
ing:

United Nations, Yearbook of the International Law
Commission, 1955 (New York: United Nations, i960), vol. ±It
po. 59-oO. Three states favored 3 miles: U.S., U.K., and
the Netherlands; Sweden, 4 miles; Yugoslavia, South Africa,
Haiti and Egypt, 6 miles; Mexico, 9 miles; India, 12 miles;
El Salvador, 200 miles; Philippines, the archipelago; Thai-
land, Norway, Australia, Brazil, Belgium, and Iceland re-
served comment.

3S5
Article 3
Breadth of the territorial sea

1. The Commission recognizes that international orac-
tatLnSn2°^^form^s.^Sards the traditional limi-
tation ox the territorial sea to three miles.

2. The Commission considers that international law
beyolf UlTe'illlV^51^ °' *" ^^ial sea

3. The Commission, without taking any decisions as zo
the breadth of the territorial sea within that limit,
considers that international law does not require
btates to recognize a breadth beyond three miles. 13

The Commission forwarded the Draft Articles to the General
Assembly, asking that the governments again be requested
for comments, especially on Article 3, in order that a more
detailed and useful codification document could be prepared.

This time, twenty-five states replied with comments.
But again, the replies were very cautious, diverse, and
indefinite. Most replying states did not commit themselves
to a specific width of territorial waters, apparently leav-
ing themselves maneuvering room for any subsequent negotia-
tions. The Belgian reply was typical:

[Provided adequate safeguards are taken to protect
nsning interests of littoral states] . . . [ijt will
then be possible, by means of international agreements,
to arrive at the solution of fixing a limit other than
the three-mile limit, provided that it is less than
twelve miles. 14

13Ibid., p. 35.

Jnited Nations, Yearbook of the International Law
Commission, 1956 (New York: United Nations, 1957), p. 39.

3S6
Still there was no reply from the Soviet Union. The Soviet

member of the International Law Commission, Mr. S. B. Krylov,

who had suggested that Article 3 read, "The breadth of the

territorial sea shall be determined by the national legisla-

tion of each coastal State," ? reserved "the right to refer

-i r

to the question later."

Draft Convention on the Law of the ea

The twenty-five replies were evaluated, incorporated
where practicable, and a Draft Convention was drawn up and
submitted to the United Nations General Assembly following
the Commission's eighth session in 1956. The draft article
on the width of the territorial sea pessimistically read as
follows :

Breadth of the territorial sea
Article 3

1. The Commission recognizes that international practice
is not uniform as regards the delimitation of the
territorial sea.

2. The Commission considers that international law does
not permit an extension of the territorial sea be-
yond twelve miles.

3. The Commission, without taking any decision as to the
breadth of the territorial sea within that limit
notes, on the one hand, that many States have fixed

a breadth greater than three miles, and on the other
hand, that many States do not recognize such a breadth

^Yearbook of the International Law Commission 195_5,
vol. I, p. 15o7~

Yearbook of the International Law Commission 1956,
vol. I, p. 165.

3S7

when that of their own territorial sea is less.

4. The Commission considers that the breadth of the

territorial sea should be fixed by an international
conference. 17

The General Assembly, acting on the Report of the Commission,
resolved in 1957 to convene an international conference of
plenipotentiaries to consider further the Draft Convention
prepared by the Commission.

The Conference convened in Geneva the following year.
As bases for discussion the Conference delegates had avail-
able to them the Draft Convention, the Francois reports, the
recorded deliberations of the Commission, and the -replies
of the several governments. Moreover, at the instigation of
the International Lav; Commission, several volumes were pre-
pared in time for the Conference by the United Nations
Secretariat on the Laws and Regulations on the Regime of the
High Seas and . . . of the Territorial Sea, which have been
cited extensively in this study. Following the Geneva Con-
ferences, the Commission did very little more work on terri-
torial waters. A study was initiated in I960 concerning the
"Juridical Regime of Historic Waters, including Historic

'United Nations, Yearbook of the International Lav;
Commission 1956 (New York: United nations, 1957), vol. li,

p. 2i>b.

United Nations General Assembly Resolution 1105
(XI), February 21, 1957, reproduced in United Nations, Gen-
eral Assembly Official Records, Twelfth Session, Supplement
No. 1 (New York: United Nations, 195D , pp. 120-121 .

3S3

Bays," and was published in 1946. The remainder of this
chapter will be devoted to the Geneva Conferences.

II. THE 195S UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA

As the Conference opened in February, 195$, it faced

an almost staggering range of claims. As tabulated in Table

20
XI, they varied between three and two hundred miles and

included such cryptic pronouncements as West Germany* s "in
accordance with international law." It is a monotonous pro-
cess to read through the official records of the First Com-
mittee (Territorial Sea and Contiguous Zone), observing that
the delegates, in most cases, repeated over and over their
initial stands, rewording the same arguments. There were,
it is true, some most interesting proposals, but by and large,
after three months the delegates were no closer to an agree-
ment on the extent of the territorial sea than they were at
the beginning.

Out of the scores of proposals submitted, only a few
need be mentioned in this study, because most of the proposals
and discussions revolved around three, six, and twelve-mile
limits and variations thereon. The United States at first

^United Nations, Yearbook of the International Lav/
Commission 1962 (New York: United Nations, 1964), vol. II,
pp. 1-26.

20See page 389..

3S9

TABLE XI

TERRITORIAL SEA CLAIMS OF SELECTED

STATES, SHOWING THE DIVERSITY OF INTERNATIONAL

PRACTICE IN 195S

STATE EXTENT OF TERRITORIAL

SEA CLAIMED

Australia 3 miles

Finland 4 miles

Cambodia 5 miles

India 6 miles

Mexico 9 miles

Albania 10 miles

Ethiopia 12 miles

Chile 50 kilometers

El Salvador 200 miles

Korea Continental Shelf

West Germany In accordance with

international law

NOTE: Data from the Society of Comparative Legis-
lation and International Law, The Law of the Sea (London:
Society of Comparative Legislation and"Tnternational Law,
1953), PP. 36-42.

390

proposed a three-mile limit with an exclusive fishing zone

out to twelve miles. Canada' and Greece, mindful of their

archipelagos, separately proposed a three-mile limit drawn

around baselines. Six-mile limits were proposed by Cey-
lon, Italy, and Sweden, that of Ceylon including the use of

23 24

straight baselines. Colombia proposed a twelve-mile limit.

Variations on the twelve-mile limit were also sug-
gested by the Soviet Union and jointly by several states.
The Soviet Union proposed that "[e]ach State shall determine

the breadth of its territorial waters . . . within the limits

25
... of three to twelve miles. . . ." A joint Indian-
Mexican proposal submitted in March read almost the same,
providing for any limit up to twelve miles. Then the

United Nations, Conference on the Lav; of the Sea,

vol. Ill, p. 249, U. S. proposal, Document A/CONF • 13/C. 1/

L.140 of 1 April 1953.

Ibid., p. 232, Canadian proposal, Document A/CONF.
13/C.l/L.777Itev. 1 of 29 March 19 58 and p. 243, Greek pro-
posal, Document A/CONF. 13/C1/L.136 of I April 1958.

2^Ibid., p. 212, Swedish proposal, Document A/CONF.
13/C.1/L.4 of 10* March 1953; p. 248", Italian proposal, Docu-
ment A/CONF. 13/C 1/L. 137 of 1 April 1953; and p. 244,
Ceylonese proposal, Document A/CONF. 13/C1/L.118 of 1 April
1953.

2/fIbid., p. 233, Colombian proposal, Document A/CONF.
13/C. 1/L. BT~and Corr. 1 of 31 March 1953.

25Ibid., Soviet proposal, Document A/CONF. 13/C.l/

L.30 of 3n&ch 1953.

2oIbid. , Indian-Mexican proposal, Document A/CONF.
13/C 1/L. 79 of 29 March 1953.

391

following month eight countries — Burma, Colombia, Indonesia,
Mexico, Morocco, Saucii Arabia, Egypt, and Venezuela — jointly-
sponsored the so-called "eight power" proposal which was
worded identically to the Indian-Mexican proposal:

Every State is entitled to fix the breadth of its
territorial sea up to a limit of twelve nautical miles
measured from the baseline which may be applicable in
conformity with articles 4 and 5 '[see infra, p. 421], 2?

While this optional limit feature seemed attractive to some

as a possible compromise, it failed on the practical and

logical grounds that it would eventually force all states to

claim the maximum limit. Otherwise fishermen of State A,

for example, which claimed twelve miles, might fish up to

the three-mile limit of State B, while fishermen from State

B would not enjoy the same reciprocal advantage.

Peru, "spokesman" for the CEP states, proposed that:

Each State is competent to fix its territorial sea
within reasonable limits.

...

The States shall endeavor to fix the breadth of the
territorial sea preferably by regional agreements. 28

As the Conference went on, both the United States and

the United Kingdom recognized the futility of pressing their

position on the three-mile limit. The movement for a greater

territorial sea had developed too much momentum. In order

'United Nations, Conference on the Law of the Sea,
vol. II, p. 128, Document A/CON?. 13/T.34 of 2$ April 1958.

United Nations, Conference on the Law of the Sea,
vol. Ill, p. 247, Peruvian proposal, Document A7CONF.13/C.1
/L.133 of 1 April 1958 with Addendum 1 of 15 April 1958.

392

to salvage what they could, and to prevent adoption by the
Conference of a twelve-mile limit, they decided to attempt
a compromise at six miles. The British proposed a six-mile
limit with a right of innocent passage for aircraft and
vessels, including warships, between three and six miles. '
The United States proposal provided for a territorial sea
of six miles and exclusive fishing rights for another six
miles, with the proviso that foreign states whose nationals
had traditionally fished those coastal waters (for at least

the previous five years) could continue to do so, but only

30
in the outer six-mile belt. This latter proviso was un-
acceptable to Canada, who tabled a similar proposal for a
six-mile territorial sea and an additional six-mile exclu-
sive fishing zone, but without any qualifications.

None of the many proposals obtained the necessary
two-thirds majority vote. The United States "six and six"

proposal came closest, polling forty-five out of the eighty-

six possible votes, seven shy of the required number.

29Ibid., pp. 247-243, U.K. TDrooosal, Document A/CONF,
13/C1/L.134 of I April 1958.

Ibid., pp. 253-254, U. S. proposal, Document A/
C0NF.13/CT17L.159/Rev. 2 of 19 April 1953; Arthur K. Dean,

"The Geneva Conference on the Law of the Sea: What Was
Accomplished," American Journal of International Law, LII
(October, 195&), pp. 614-616 .

^ Dean, "The Geneva Conference on the Law of the Sea
. . . ," loc. cit.

>9>

Convention on the Territorial Sea ^nc ^_ Contiguous Zone
In plenary session the Conference adopted the Con-
vention on the Territorial Sea and Contiguous Zone which
included many long-needed clarifications concerning the
international law of territorial seas. Conspicuous by its
absence, of course, was an article establishing the breadth
of the territorial sea. Several very useful articles on
the delimitation of the territorial sea were adopted and
will be discussed in a subsequent section.

Innocent Passage. The Convention embodies a rather

comprehensive codification of the rules concerning the

right of innocent passage, including the following:

Article 14

1. Subject to the provisions of these articles,
ships of all States, whether coastal or not, shall
enjoy the right of innocent passage through the terri-
torial sea.

4. Passage is innocent so long as it is not preju-
dicial to the peace, good order or security of the
coastal state. ...

5. Passage of foreign fishing vessels shall not be
considered innocent if they do not observe such laws
and regulations as the coastal State may make and pub-
lish in order to prevent these vessels from fishing

in the territorial sea.

6. Submarines are required to navigate on the sur-
face and to show their flag.

39^

Article 15

1. The coastal State must not hamper innocent pas-
sage through the territorial sea.

Article 16

4. There shall be no suspension of the innocent
passage of foreign ships through straits which are
used for international navigation between one part of
the high seas and another. . . .

Article 17

Foreign ships exercising the right of innocent pas-
sage shall comply with the laws and regulations enacted
by the coastal State in conformity with these articles
and other rules of international law. . . .

Article 23

If any warship does not comply with the regulations
of the coastal State concerning passage through the
territorial sea and disregards any request for compli-
ance which is made to it, the coastal State may require
the warship to leave the territorial sea. 32

The contiguous zone. The Conference also codified

■^United Nations, Conference on the Law of the Sea,
vol. II, pp. 133-135. See supra, Chapter XII, p. 357 for
Soviet reservation.

>95

the concept of the contiguous zone, popularized by the Hague
Conference of 1930:

Article 24

1. In a zone of the high seas contiguous to its
territorial sea, the coastal State may exercise the
control necessary to:

(a) Prevent infringement of its customs, fiscal,
immigration or sanitary regulations within its
territory or territorial sea;

(b) Punish infringement of the above regulations
committed within its territory or territorial
sea.

2. The contiguous zone may not extend beyond twelve
miles from the baseline from which the breadth of the
territorial sea is measured. 33

Several of the lesser powers wished to add "security" as one
of the categories of competence in the contiguous zone,'
but their proposals could not muster sufficient support.
It can only be surmised that the major powers and a majority
of the states did not see a twelve-mile zone as sufficient
to meet their security needs.

As late as 1955 » Great Britain had held out against
the doctrine of the contiguous zone. In commenting on the

33Ibid., p. 135.

3^See proposals by Korea, Poland, and Yugoslavia in
United Nations, Conference on the Law of the Sea, vol. Ill,
pp. 226, 232, and 234.

396

International Law Commission's 1954 draft articles, Great
Britain averred:

Her Majesty's Government have not themselves found
it necessary to claim a contiguous zone, and wish to
place on record their emphatic opposition as a matter
of principle to any increase, beyond limits already
recognized, in the exercise of jurisdiction by coastal
States over the waters off their coasts. . . .35

The British reply added that the only -way Britain could accept
an article establishing a contiguous zone would be on the
condition that such an article be coupled "... with another
article stating that the territorial waters of a State shall
not extend more than three miles from the coast. . . . "^
It must have been somewhat painful for the British to retreat
from this position only five years later when they ratified
in March I960 the Convention of 195&, which included a twelve-
mile contiguous zone but remained silent on the three-mile
— or any — limit of territorial waters.

The Convention on the Territorial Sea and the Contig-
uous Zone went into effect on September 10, 1969, one month
after the Dominican Republic deposited the required twenty-
second ratification. At the time of writing, thirty-five

37
States have ratified the Convention.

* ^United Nations, Yearbook of the International Law
Commission 1955, vol. II, p. 57.

36Ibid.

-^Interview between author and Mrs. Carolyn O'Connell,
Treaty Analyst, Treaty Affairs Division, U. S. Department
of State, January 13, 1970. The thirty-five states are:

397
Other Conventions

Fisheries, The several attempts to include a twelve-
mile fishing limit in the Convention on the Territorial Sea
and the Contiguous Zone had failed* The delegates could not
agree on a limit for exclusive fishing rights, inextricably
entwined, as such a limit is, with the territorial sea issues
In the case of conservation of fisheries, however, a separate
convention was drafted and adopted, the "Convention on Fish-
ing and Conservation of the Living Resources of the High
Seas." It embodies an important feature of the 1945 Tru-
man Proclamation, namely that conservation programs should
be undertaken on a multilateral basis and should extend over
the whole of the fishery. The Convention does permit uni-
lateral conservation action in cases where negotiations are
unfruitful, and provides for settlement of conservation dis-
putes by a special commission* The special commission must
consider the dispute in terms of scientific evidence demon-
strating the need for conservation measures.

Cambodia, Czechoslovakia, Malaysia, Haiti, Hungary, Israel,
Nigeria, Romania, Senegal, U.S.S.R., U.K., U.S.A., Vene-
zuela, Bulgaria, Malagasy Republic, Portugal, South Africa,
Sierra Leone, Australia, Denmark, Dominican Republic, Fin-
land, Netherlands, Switzerland, Thailand, Yugoslavia, Uganda,
Italy, Malawi, Mexico, Japan, Kenya, Jamaica, Malta, and
Trinidad and Tobago. (The Byelorussian S.S.R. and Ukrain-
ian S.S.R* also ratified the Convention.)

3 United Nations Document A/CONF. 13/L.54, reprinted
in United Nations, Conference on the Lav; of the Sea, vol. II,
pp. 139-142.

39S
High seas. Also adopted by the 195S Conference was
the "Convention on the High Sea's. "^ it relates to this
study in that it provides that hot pursuit may be commenced
in the contiguous zone as well as within territorial waters
and may continue until the pursued ship reaches the terri-
torial waters of its own country or that of a third state.

Continental Shelf. Another product of the 1956 Con-
ference was the "Convention on the Continental Shelf."
It provides for the exploitation of the natural resources
of the seabed and subsoil and the sedentary life on the
seabed beyond the territorial sea ". . . to a depth of 200
meters or, beyond that limit, to where the depth of the

superjacent waters admits of the exploitation of the natural

i 2
resources. . . ." Article 3, which rules out any claims of

sovereignty over the shelf's superjacent waters or air space,
implies that the Latin American 200-mile claims are illegal.
The Convention, which inherently discriminates against non-
littoral states as well as against states with narrow shelves,
does not have the concurrence of the three Latin American CEP

-^United Nations Document' A/CONF. 13/L.53, reprinted
in ibid., pp. 135-139.

^°Ibid. , p. 137, article 23.

^United Nations Document A/CONF. 13/L. 55, reprinted
in ibid. , pp. 142-143.

* Ibid. , p. 142. article 1.

399
states, nor of others claiming wide seas.

The three Conventions went into effect on the dates

• , . ,43
indicated:

High Seas September 30, 1962

Continental Shelf June 10, 1964

Fisheries March 20, i960

III. THE I960 UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA

The Inter-Conference Period

As the 195S Conference adjournea, it adopted a reso-
lution requesting the General Assembly to study the possibil-
ity of calling a second conference to consider the questions
left unsettled, those of the territorial sea and fishing
zones. The General Assembly responded in the fall of 1953
and called for a new conference in I960.

At the time, a general understanding was reached in
the General Assembly that governments should not take any
action which might prejudice the success of the Second United
Nations Conference. This notwithstanding, Iraq, Panama,

^Interview between author and Mrs. Carolyn O'Connell,
Treaty Analyst, Treaty Affairs Division, Department of State,
January 13, 1970.

^Resolution of 27 April 19 53, in United Nations,
Conference on the Lav; of the Sea, Vol. II, p. 145.

^United Nations General Assembly Resolution 1307
(XIII), 10 December 1953, reproduced in United Nations,

i4-00

Iran, Libya, and Iceland enacted twelve-mile legislation
between the Conferences.

The inter-Conference period was a busy period for the
U. S. State Department. The 195& Conference had ended with
the satirical humor of Dr. Bocobo, the Philippine delegate,
who lamented the death of Mr. Three-Miles, who had served
the international community so well and so long, and said
that his heirs, Mr. Six-Miles and Mr. Twelve-Miles, were

quarreling over his estate. This was not an unrealistic
evaluation. The three-mile limit, while perhaps not dead,
could no longer be considered a rule of international law; at
best it could be described as the de .jure practice of about
one-third of the states of the world. The issue that would
be central in the forthcoming I960 Conference would be a
test of strength between the United States' six-mile pro-
posal and the Soviet twelve-mile limit. So the United
States sent teams of representatives from the Navy and
State Departments to Asia, Europe, South America, and Africa
to line up support for the "six-and-six" formula it would

Second United Nations Conference on the Lav; of the Sea
(Geneva: United iMations, 19o0) , p. xi .

^ Marjorie M. V/hiteman, Digest of International Law
(Washington: Government Printing Office, 1963- )* vol.
IV (1965), pp. 117-113.

^'Alvin Z. Rubenstein, George A. Codding, Jr., Leonard

/,. Hardy, and Robert D. Powers, Jr., "How \7ide the Territor-
ial Sea," United States Naval Institute Proceedings LXXXViI
(February 1961), p. 68.

4-01
again propose at Geneva.

The Conference Proposals

When the Conference opened at Geneva in March I960,
the Soviet Union reintroduced their optional three- to
twelve-mile limit, only this time with exclusive fishing
rights to twelve miles. The most interesting proposal
tabled was that of Mexico. It combined the optional feature
of the Soviet proposal with a sliding scale fishery limit,
designed to reward states which chose narrow territorial seas
by permitting them a greater exclusive fishing zone. If a
state chose a territorial sea of three to six miles, it could
enjoy exclusive fishing rights out to eighteen miles; if it
chose a territorial sea of seven to nine miles, it could
claim a fishing zone of fifteen miles; if it chose ten or

eleven miles, its exclusive fishing rights would extend only

to twelve miles.

The "eighteen-power" proposal. Both the Soviet Union
and Mexico withdrew their active support from their individ-
ually sponsored proposals in favor of the so-called "eighteen-

48Ibid., pp. 70-71.

^United Nations, Second Conference on the Law of the
Sea, p. 164, quoting Soviet proposal, Document A/COiNli?'. Li/
CTT/l/.l of 21 March I960.

5°lbid., p. 164, Mexican proposal, Document A/CON?.
19/Cl/L.2~oT 21 March I960.

^02

power" proposal, termed by Mr. Arthur Dean, head of the U.
S. delegation, as a "grave threat,"*1 The "eighteen-power"
proposal had the advantage of being sponsored by eighteen
underdeveloped states, many of which were attempting to main-
tain a neutral position in the Cold War. Its provisions were
almost verbatim the same as the Soviet proposal:

Article 1

Every State is entitled to fix the breadth of its
territorial sea up to a limit of twelve nautical miles
measured from the applicable baseline.

Article 2

When the breadth of its territorial sea is less than
twelve nautical miles measured as above, a State is en-
titled to establish a fishing zone ... to a limit of
twelve nautical miles. 52

This proposal was rejected by 39 votes to 36 with 13 absten-

53
tions. ^

The Canada-United States .joint proposal. Both the
United States and Canada resubmitted their six-mile proposals
from the 19 5$ Conference, but withdrew them after they agreed

' Arthur Dean, "The Second Geneva Conference on the

Law of the Sea: The Fight for Freedom of the Seas," American

Journal of International Law, LIV (October, I960), p.~~?74.

' United Nations, Second Conference on the Lav/ of the

Sea, p. 165, proposal of Ethiopia, Ghana, Guinea, Indonesia,
Iran, Iraq, Jordan, Lebanon, Libya, Mexico, Morocco, Philippines,
Saudi Arabia, Sudan, Tunisia, United Arab Republic, Venezuela,
and Yemen; Document A/CONF . 19/C . l/L . 2/Rev . 1 of 11 April I960.

53Ibid., p. 151.

on a joint proposal combining features of both:

1. A State is entitled 'to fix the breadth of its
territorial sea up to a maximum of six nautical miles
measured from the applicable baseline.

2. A State is entitled to establish a fishing zone
contiguous to its territorial sea extending to a maximum
limit of twelve nautical miles from the baseline. . . .

3. Any State whose vessels have made a practice of
fishing in the outer six miles of. the fishing zone . . .
for . . . five years . . . may continue to do so for

. . . ten years. 54

This is the only proposal which received wide support at

the Conference. It was adopted in the Committee of the

'.'/hole by a vote of 43 to 33 with 12 abstentions. Under the

rules of procedure adopted by the Conference, substantive

decisions required a two-thirds majority of the representa-

56
tives present and voting. In order to gather the additional

support needed, the United States and Canada agreed to an

amendment sponsored by Brazil, Cuba, and Uruguay, providing

that:

the coastal State has the faculty of claiming prefer-
ential fishing rights in any area of the high seas ad-
jacent to its exclusive fishing zone when it is scientif-
ically established that a special situation or condition
makes the exploitation of the living resources of the
high seas in that area of fundamental importance to the
economic development of the coastal State or the feeding

^Ibid. , p. 169, proposal of Canada and United States,
Document A7CTTNF.l9/C.l/L.10 of 8 April I960.

55Ibid., p. 152.

' Ibid. , p. xxx.

404

of its population.

When the joint Canadian-U . S. proposal, as amended, came to
the vote in plenary session it received 54 affirmative votes,

2B negative votes, and 3 abstentions, one vote short of the

5$
required number. Arthur Dean attributed this failure to a

last minute withdrawal of promised support by Japan, Ecuador,

59
and Chile. Japan abstained in the voting because of the

Brazil-Cuba-Uruguay amendment, which she felt favored Korean

fishing interests. Yet this was a vicious circle because

Korea had insisted on the amendment as a prerequisite to her

support! Chile had offered her support provided the United

States could agree to the Brazil-Cuba-Uruguay amendment, but

subsequently withdrew her support, claiming she could not

get Peru to release her from her 1952 and 1954 CEP commit-

'"Ibid. , p. 173, Brazil, Cuba, and Uruguay proposal,

Document A~750NF.19/L.12 of 22 April I960.

J "whiteman, op_. cit . , p. 135. In favor: Turkey, South
Africa, U.K., U.S.A., Uruguay, VietKam, Argentina, Australia,
Austria, Belgium, Bolivia, Brazil, Cameroon, Canada, Ceylon,
China, Colombia, Costa Rica, Cuba, Denmark, Dominican Republic,
Ethiopia, Finland, France, West Germany, Ghana, Greece,
Guatemala, Haiti, Holy See, Honduras, Ireland, Israel, Italy,
Jordan, South Korea, Laos, Liberia, Luxembourg, Malaysia,
Monaco, Netherlands, New Zealand, Nicaragua, Norway, Pakistan,
Paraguay, Portugal, San Marino, Spain, Sweden, Switzerland,
Thailand, and Tunisia. Against: Ukrainian S.S.R., U.S.S.R.,
U.A.R., Venezuela, Yemen, Yugoslavia, Albania, Bulgaria,
Burma, Byelorussian S.S.R. , Chile, Czechoslovakia, Ecuador,
Guinea, Hungary, Iceland, India, Indonesia, Iraq, Libya,
Mexico, Morocco, Panama, Peru, Poland, Romania, Saudi Arabia,
and Sudan. Abstaining: Cambodia, El Salvador, Iran, Japan,
and Philippines.

^Dean, "The Second Geneva Conference. . . , " pp. 779-
7S2.

40$
An
merits. Ecuador withdrew her promised support on the day

of the voting after the United States refused to release her
from the claims for seizures of tuna boats dating back to
1953. Dean remarked that if either Ecuador or Chile had
merely abstained, the proposal would have carried.

Emotions were running high by the end of the Conference
and there were some last minute "sour grapes" on both sides.
Just prior to the final vote, it appeared likely to the Rus-
sians that the joint Canadian-United States proposal would
succeed. The Soviet delegate then denounced the Conference
rules of procedure and declared that whatever the outcome of
the Conference, the Soviet Union would adhere to the twelve-
mile territorial sea. After the final vote, Mr. Dean an-
nounced that since the compromise failed, the United States
would continue to adhere to the three-mile limit. The six-
mile proposal, he said, had been no more than an offer and
that its non-acceptance left the pre-Conference situation un-
changed. Kis country was satisfied with the three-mile rule
and would continue to regard it as established international
law. Three miles, he added, was the only breadth on which
there had ever been anything like common agreement, and there
was no obligation on the part of states adhering to the three-
mile rule to recognize claims of other states to a greater

°°See supra, Chapter XI, p. 304, and Chapter XII, p. 341
See supra, Chapter XII, p. 340.
Dean, "The Second Geneva Conference. . . , " p. 7#2.

H-06

width.63

Later, Mr. Dean wrote:

The U.S. -Canadian compromise "joint proposal" was
sincerely designed to find a rule acceptable to the
Conference, though admittedly at considerable expense
to u. S. fishing interests. 64

The Conference had closed with no plans for a third attempt.
And thus, for the third time since 193-0, the representatives
of the states of the world had been unable to reach agree-
ment on the extent of the marginal sea. The cumulative de-
bilitating effect of the two Conferences on the three-mile
limit is considered by this writer to be the fourth in the
series of five major developments leading to the demise of
the three-mile rule.

IV. DELIMITATION OF THE TERRITORIAL SEA

The abject failure of the Geneva Conferences to reach
agreement on a limit for the territorial sea tends to over-
shadow the remarkable progress made there in codifying the
delimitation of the territorial sea. The matter of defining
the baseline from which the territorial sea is measured had
been quite controversial during the nineteenth century. For
example, although the United States and Great Britain agreed
on a three-mile limit, the two states could not agree on the

United Nations, Second Conference on the Lav; of the

Sea, pp. 33-34.
64

Dean, "The Second Geneva Conference . . .," p. 775.

407

baseline from which it was to be measured. The resulting
North Atlantic fisheries dispute lasted almost a century.

The Low-Water Line

In documents of the eighteenth and early nineteenth
centuries, the words "shore" and "coast" appeared frequently
in connection with both the cannon shot and three-mile mea-
surements. Both terms were adequate under the cannon shot
rule because an exact baseline was irrelevant; the distance
to seaward depended on the location and range of the cannon.
But in measuring a belt of specific width, such as three or
four miles, a more exact point of departure was needed. This
is especially essential in certain areas where the rise and
fall of tide is great, as in the Bay of Fundy. In several

places there, there is well over a mile between the high-

water and low-water lines. An extreme example is found

in the Bristol Channel estuaries such as that at Loughor,
Wales, where the tidal flats are over five miles wide.
In such areas, without a clearly defined baseline, laying
off a three-mile limit could lead to obvious absurdities.
A standard international practice developed during the nine-
teenth century — that of using the low-water line. The low-

^Personal observation by author; the range of spring
tide is over 50 feet.

°°Personal interview with Paul Griffiths of Maesteg,
Glamorganshire, Wales, St. David's Welsh-American Society
of Washington, Washington, D. C, January 12, 1970.

u-os

water line maximizes the extent of territorial sea for the
littoral state. Table XII / indicates when the low-water
mark or its equivalent first appeared in state documents
of the maritime nations. It was ac^pted at least as early
as 1812 in the case of the Kingdom of Denmark and Norway.
By 1909, when it was adopted by Italy, it had been accepted
in the practice of all the maritime states. The obvious
consensus which had thus developed during the nineteenth
century over the choice of the ' low-water mark has continued
to the present. It was included in the Bases of Discussion
for the 1930 Hague Conference:

Basis of Discussion Mo. 6

Subject to the provisions regarding bays and islands,
the breadth of territorial waters is measured from the
line of low-water mark along the entire coast. °o

The low-water line became formally codified in 1953 by the
United Nations:

Article 3

Except where otherwise provided in these articles,
the normal baseline for measuring the breadth of the
territorial sea is the low-water line along the coast

7See page 409 .

League of Nations, Bases of Discussion II, Terri-
torial Waters, Conference for the Codification of Inter-
national Law (Geneva: League of Nations, 19^9), reprinted
in Supplement to American Journal of International Law,
XXIV (January, 1930), p. 3^

409

TABLE XII

ADOPTION OF THE PRINCIPLE OF THE LOW-WATER
LINE BY THE MARITIME STATES, SHOWING YEAR OF
ADOPTION AND TERMINOLOGY USED

State

Year Terminology Used

Argentina

1869

Belgium

1832

1882

Chile

1855

China

1899

Denmark and

Norway

1812

Denmark

1882

Ecuador

1857

El Salvador

1860

France

1839

Germany

1882

Great Britain

1339

Honduras

1880

Italy

1909

Japan

1870

Mexico

1885

Netherlands

1882

Portugal

1885

Russia

1893

Spain

1885

Sweden

1871

United States 1859

low-water mark
extreme land frontier
low-water mark
low-water line
line of low tide

. . . outermost islands or islets
whicti are not overflowed by the sea
low-water mark
low-water mark
low-water mark
low-water mark
low-water mark
low-water mark
low-water mark
low-water mark

• • • any part of the coast what-
soever . . .
low-water mark
low-water mark

low-water mark at neap tides
extreme coast line at neap tides
low-water mark at neap tides
. . • coasts which are not constantly
submerged by the sea
low-water mark

NOTE: Data from Henry G. Crocker (ed.). The Extent of
the Marginal Sea 4 U. S. State Department (Washington:
Government Printing Office, 1919), Dp. 486, 511-513, 519,
524, 601, 604-605, 618, 621, 627, and 652. The documents
in the case of Argentina, Ecuador, El Salvador, and Hon-
duras may be found in United Nations, Laws and Regulations
on the Regime of the High Seas (New York: United Nations,
1^5177 PP. 51,"o"77~7l, and~30T

41 0

as marked on large-scale charts officially recognized
by the coastal state. 69

The Outer Limit of the Territorial Sec

Once the baseline is defined, there are essentially

two ways to determine the seaward boundary of the territorial

70
sea:

(a) The trace parallele, a line parallel to the gen-
eral trend of the coast, following the sinuosities of
the baseline.

(b) The courbe tangante, or "envelope line," also
referred to as the "arcs of circles line"; a line all
points of which are precisely three miles (or any other
width) from the nearest point of land.

The trace parallele method. Along a relatively straight
and uninterrupted coast, there is no difficulty in utilizing
the trace parallele. This system was the earliest, least
sophisticated, and most expedient means to define the sea-
ward boundary; it was generally implied in much of the writing
and in many of the documents of the nineteenth century. It
was expressly used in an 1893 Anglo-Russian document:

Within a zone of ten marine miles following the sin-
uosities of the Russian coasts. . . • '•*■

^United Nations, Conference on the Law of the Sea,
II, Plenary Meetings (Geneva: United Nations, 1958) » p. 132
quoting "Convention on the Territorial Sea and the Contiguous
Zone," Document A/CONF.13/L.52.

1 Whittemore S. Eoggs, "Delimitation of the Territorial
Sea," American Journal of International Law, XXIV (July, 1930),
p. 543.

71Great Britain and Russia, "Draft Agreement Relative

4-11

As late as 1909, the United States went on record as favoring
this method. The United States contention in the North At-
lantic Fisheries Arbitration held that the marginal seas of

three miles "... must be measured from low-water mark

following the indentations of the coast." This system

runs into difficulties when the seaward boundary line must
run around a point, a cape, or a cluster of coastal islands.
A ship might be located three miles to seaward from the
corresponding "parallel" point on the coast, but within two
miles, e.g., of a protruding spit or an island.

The courbe tangante method. The courbe tang ante
method, on the other hand, solves the problem of points,
islands, and otherwise irregular coasts. Inasmuch as this
line is constructed by striking arcs to seaward from every
point on the coast, it results in a line, every point of which
is at a distance equal to the marginal belt from the nearest
point of land. For the navigator, this method assures him
that if he is within three miles, say, from a point or islet,
he is within territorial waters. Another advantage arises
out of the fact that one, and only one, such line can be

to the Seal Fisheries," April 30-May 12, 1893, reproduced
in Crocker, op. cit . , p. 578.

'2United States Congress, Senate, North Atlantic
Coast Fisheries Arbitration, U. S. Senate Document No. 370,
61st Cong.. 3ra sess. (Washington: Government Printing Of-
fice, 1912), vol. I, pp. 10 and 248.

412

drawn from any given coast; this cannot be said of the trace

parallele. The courbe tangante- was utilized by Russia in

her 1S93 Instructions to Craisers. The directive proclaimed

the extent of territorial waters along the Arctic coast as

including all waters within

a radius of three marine or Italian miles from the
extreme coast line at low tide or from the farthermost
islands, rocks, stone banks, or reefs which project above
the level of the water. 73

The United States proposed this method at the 1930

Hague Convention:

Except as otherwise provided in this Convention, the
seaward limit of the territorial waters is the envelope
of all arcs of circles having a radius of the three
nautical miles drawn from all points on the coast (at
whatever line of sea level is adopted in the charts of
the coastal state), or from the seaward limit of those
interior waters which are contiguous with the territor-
ial waters. 7 4

Although no action was taken on this recommendation at The

Hague, it was again recommended by the International Law

Commission in its 1956 Draft Convention and was approved by

the United Nations Conference in 195&. The wording adopted

was somewhat stilted inasmuch as no agrement had been reached

on the extent of the territorial sea:

Cuter Limit of the Territorial Sea

Article 6

The outer limit of the territorial sea is the line

Crocker, op_. cit. , p. 621.

n 1

'^Boggs, op. cit. , p. 544.

every point of which is at a distance from the nearest
point of the baseline equal to the breadth of the terri-
torial sea. '?

In view of its advantages, there was little opposition to
this article. Moreover, use of this "arcs of circles" method
tends to increase the area within the maritime belt by
"straightening out" the seaward boundary. On a highly ir-
regular "sawtooth"-type coast it could easily increase the
expanse of water in the marginal belt by fifty percent over
that enclosed by a line following every sinuosity. On a
straight coast, obviously there is no difference in the area
enclosed by the two different systems.

Bays

Another problem solved by the 195$ Geneva Conference
was that of bays. Since the earliest days of the concept of
territorial waters, publicists and states had considered the
problem of bays but had never been able to agree on how to
define a bay. In the early nineteenth century it was gen-
erally agreed that a bay could be closed off as interior
waters at the point where its mouth narrowed to a distance
twice the extent of territorial waters. Later it was a-
greed that a bay could be closed off at the point where its

'^United Nations, Conference on the Lav; of the Sea,
vol. II, p. 133*

7°See supra, p. 177, note 17.

414

mouth narrowed to ten miles. But there was no agreement

as to how a body of water must .be configured, that is, in
terms of breadth, width, area, length, mouth, and other fac-
tors, in order to be classified as a bay.

Hague Conference of 1930. Serious consideration was
given to the problem of bays at the time of the 1930 Hague
Convention. The Preparatory Committee "codified" the ten-
mile bay baseline rule as Basis of Discussion No. 1 i

In the case of bays the coasts of which belong to a
single State, the belt of territorial waters shall be
measured from a straight line drawn across the opening of
the bay. If the opening of the bay is more than ten
miles wide, the line shall be drawn at the nearest point
to the entrance at which the opening does not exceed ten
miles. <°

Aware that this did not define the term "bay," the Committee

observed:

It is agreed that the base line constituted by the
sinuosities of the coast should not be maintained for
every bay. The suggested exception, however, contem-
plates, not a mere curvature of the shore line, but an
indentation presenting the characteristic features of a
bay, showing in particular a well-marked entrance and a
certain proportion (v/hich it will be for the Conference
to fix) between the breadth of such entrance and the depth
of the indentation.'"

The United States rose to the occasion and proposed

a rather wordy and complicated procedure for defining a bay

77See supra , pp. 127-128, 224-227.

League of Nations, Bases of Discussion, op. cit . ,
p. 31.

79Ibid.

*H5

with rules for incorporating certain bays into internal wa-
ters. Even though complex, it served as a first step in
satisfying the long-standing requirement to define a bay for
purposes of determination of baselines. The method was to be
applied to indentations to which the ten-mile baseline rule
had already been applied, and would separate bona fide bays
from indentations too shallow to be considered bays, hence,
too shallow to be incorporated into national waters. Fol-

__ '''_.

(2) The envelope of all arcs of circles having a
radius equal to one-fourth the length of the straight
line across the bay or estuary shall then be drawn from
all points on the coast of the mainland (at whatever
line of sea-level is adopted on the charts of the
coastal state) but such arcs of circles shall not be
drawn around islands in connection with the process
which is next described;

(3) If the area enclosed within the straight line
and the envelope of the arcs of circles exceeds the
area of a semi-circle whose diameter is equal to one-
half the length of the straight line across the bay or
estuary, the waters of the bay or estuary inside of
the straight line shall be regarded, for the purposes
of this convention, as interior waters; otherwise they
shall not be so regarded. °0

The proposal went on to point out that if the bay was de-
termined by this procedure to be interior waters, then the
territorial" sea would be measured to seaward from the ten-
mile (or less) baseline across the bay entrance.

League of Nations, Final Act, Conference for the
Codification of International Law, Report of the Second
Committee, reprinted in Supplement to American Journal of
International Law, XXIV (July, 1930), pp. 249-250.

*U6

France also prepared a similarly complex system for
defining a bay. Due to the failure of the Conference to
agree on rules for measuring the marginal sea, the American
and French proposed amendments also failed of adoption.

International Lav/ Commission. Next, the International
Lav; Commission undertook to define the. term "bay." In his
third report, Mr. Francois attempted definition as follows:

Article &
Bays

1. The waters of a bay will be considered as interior
waters if the line drawn across the mouth does not ex-
ceed 10 miles.

2. The term "bay" as used in the first paragraph,

is understood to be an indentation, the area of which is
equal to or greater than the area of a semi-circle having
as its diameter the length of the line drawn across the
mouth of the indentation. . . .82

This is believed to be the first formal appearance of the semi-
circle rule — as it later turned out to be. The International
Law Commission espoused it at once. Nevertheless, the Com-
mission felt moved to propose a baseline longer than the
traditional ten miles in Francois* report:

/is an experiment the Commission suggests a distance
of twenty-five miles; thus, the length of the closing line
will be slightly more than twice the permissible maximum
width of the territorial sea as laid clown in paragraph 2

■Ibid., p. 250.

United Nations, Yearbook of the International Law
Commission 1954, vol. II, p. 4, "Troisieme rapport," transla-
tion by author.

4-17

of article 3. Since, firstly, historical bays, some
of which are longer than twenty-five miles, do not come
under this article and since, secondly, ... it is
possible that some extension of the closing line will
be more readily accepted than a widening of the terri-
torial sea in general."^

The semi-circle bay definition with a twenty-five-mile base-
line was circulated to the governments for comment. A plural-
ity of the twenty-five replies objected to twenty-five miles
as excessive and recommended either ten or twelve. Only Na-
tionalist China agreed with the 25 miles. As a result of
this reaction, in its final draft convention, the Commission
included the semi-circle bay definition with a fifteen-mile
bay baseline.

The 195# Conference on the Lav; of the Sea. The semi-
circle rule was adopted and codified as international maritime
law by the 1953 United Nations Conference on the Law of the
Sea. After a century and a half of imprecision, doubt, and
controversy on the issue of bays, there were approved clear rules

■'See supra, p. 3&5.

^United Nations, Yearbook of the International Law
Commission, 1955, vol. II, p. 37.

^Belgium, Brazil, Israel, Turkey, U.K. and U.S.A.
suggested either ten or twelve miles. The other states were
silent or non-committal on the issue: Austria, Cambodia, Canada,
Chile, Denmark, Dominican Republic, Iceland, India, Ireland,
Italy, Lebanon, Nepal, Netherlands, Norway, Phillipines, Swe-
den, South Africa,* and Yugoslavia. United Nations, Yearbook of
the International Law Commission, 1956, vol. II, pp. 37-102.

B6Ibid., p. 257.

ins

by which bays are defined and incorporated into the internal
waters of a state. The Conference made one important change
to the International Lav/ Commission draft convention, however,
that of increasing the fifteen-mile bay baseline to twenty-four
miles. Article 7 of the Convention on the Territorial Sea and
the Contiguous Zone reads:

2. For the purposes of these articles, a bay is a
well-marked indentation whose penetration is in such pro-
portion to the width of its mouth as to contain landlocked
waters and constitute more than a mere curvature of the
coast. An indentation shall not, however, be regarded as
a bay unless its area is as large as, or larger than, that
of the semi-circle whose diameter is a line drawn across
the mouth of that indentation.

3. For the purpose of measurement, the area of an
indentation is that lying between the low-water mark
around the shore of the indentation and a line joining the
low-water mark of its natural entrance points. Where,
because of the presence of islands, an indentation has
more than one mouth, the semi-circle shall be drawn on a
line as long as the sum total of the lengths of the lines
across the different mouths. Islands within an indentation
shall be included as if they were part of the water area

of the indentation.

4. If the distance between the low-water marks of

the natural entrance points of a bay does not exceed twenty-
four miles, a closing line may be drawn between these two
low-water marks, and the water enclosed thereby shall be
considered as internal waters.

5. V/here the distance between the low-water marks

of the natural entrance points of a bay exceeds twenty-four
miles, a straight baseline of twenty-four miles shall be
drawn within the bay in such a manner as to enclose the
maximum area of water that is possible with a line of that

length-87

The twenty-four-mile line, or shorter as appropriate, drawn

'United Nations, Conference on the Law of the Sea,
vol. II, p. 133 •

across the bay becomes the baseline from which the territor-
ial sea is measured. At the conference it had been sug-
gested that the bay baseline should be double the width of
the territorial sea — a la early nineteenth century. The
Soviet delegate proposed that a twenty-four-mile rule be
adopted so as to put all states on the same footing with
respect to bays, regardless of the breadth they chose for
their territorial sea. Adoption of this Soviet proposal
— a bay closing line double the Soviet twelve-mile terri-
torial sea — was a clear victory for the Soviet Union and
for the twelve-mile limit and at the same time a defeat
for the advocates of the three-mile limit.

It is interesting to note that the twenty-four-mile
rule makes irrelevant the "historic bay" status of such bays
as Chesapeake, Delaware, Conception and Fonseca, for they
became ipso facto internal waters with the new rule. Mon-
terey Bay in California became internal waters. But the new
rule did not enhance the Canadian claim to "historic" status
for Hudson Bay, whose entrance measures fifty miles, or for
that matter, Norway's claim to Varanger-Fjord (thirty miles).
British writers, both before and after Canadian independence
have asserted that Hudson Bay is internal waters. The

3£

United Nations, Conference on the Law of the Sea,

vol. Ill, p. 32.

9See Kenneth V. Johnston, "Canada's Title to Hudson
Bay and Hudson Strait," British Yearbook of International
Law, XV (1934), pp. 1-20.

420
United States has disagreed. Thomas Balch challenged the
Canadian view in his article, "Is Hudson Bay a Closed or
an Open Sea?" , and answered his own question in another

article a year later entitled, "The Hudsonian Sea Is a

Great Open Sea." Nor is Russia's claim to Peter the Great

Bay validated by the new rule. That body of water fails
to qualify under both the twenty-four-mile and the semi-
circle criteria.

Straight vaselines

Irregular Coastlines. The use of straight baselines
along irregular coastlines is relatively new. It was in-
troduced by Norway in 1935, and in spite of strong British

opposition, was "approvea" by the International Court of

91
Justice in 1951. Because of the 1951 judicial precedent,

this concept was readily approved by the 1953 Geneva Con-
ference. Francois had included it in each of his three

92
retorts. The International Law Commission had recommended

Thomas William Balch, "Is Hudson Eay a Closed or

an Open Sea?" , American Journal of International Law, VI
(April, 1912), pp, 409-459; ana 'The Huasonian Sea Is a
Great Open Sea," ibid. , VII (July, 1913), Pp. 546-565.

See supra, Chapter X, p. 273, anci Chapter XII, p. 347.

United Nations, Yearbook of the International Law

Commission 1952, vol. II, pp . 32-33 (''premier rapport");

Yearbook of the International Law Commission 1953, vol. II,

p. 05 ("deuxieme rapport" j ; and Yearbook of the International

Law Commission 1954, vol. II, p. 3 ("troisieme rapport").

421
such a provision in its Draft Convention. The 1958 Con-
ference approved the following procedure:

Article 4

1. In localities where the coastline is deeply-
indented and cut into, or if there is a fringe of is-
lands along the coast in its immediate vicinity-, the
method of straight baselines joining appropriate points
may be employed in drawing the baseline from which the
breadth of the territorial sea is measured,

2. The drawing of such baselines must not depart
to any appreciable extent from the general direction
of the coast. . . .

3 . Baselines shall not be drawn to and from low-
tide elevations. . . .93

While under this procedure waters on the landward side of
the straight baselines become internal waters, the Conven-
tion of 1953 made the following qualification:

Article 5

2. Where the establishment of a straight baseline
in accordance with article 4 has the effect of enclos-
ing as internal waters areas which previously had been
considered as part of the territorial sea or of the
high seas, a right of innocent passage . . . shall
exist in those waters. 94

Archipelagos. The Convention adopted by the 1953
Conference gave no encouragement to the proponents of the
archipelago doctrine:

^United Nations, Conference on the Lav/ of the Sea,
vol. II, p. 132.

9/fIbid,, p. 133.

Article 10

2. The territorial sea of an island is measured in
accordance with the provisions of these articles. 95

This has annoyed the states who have adopted the archipelago

doctrine. Indonesia's delegate to the Conference, Mr.

Subardjo, complained:

The final decision on the question of archipelagos
was a matter solely for the Conference. The fact that
the nations most directly interested in the question
were few and comparatively weak was no reason for leav-
ing the problem unsolved. 9o

Indonesia and the Philippines have not ratified the 195&

97
Convention. Moreover, Canada, concerned about her Arctic

Archipelago and Hudson Bay; Norway, similarly concerned

about the Spitzbergen Archipelago and Varanger-Fjord; and

Greece, with her Aegean Archipelago, have not ratified the

92
Convention. Japan, conversely, an archipelagic state who

does not adhere to the doctrine, did ratify the Convention,

, , qq
but not until 19o8. Neither the United States, with her

lesser archipelagos, the Aleutians and the Hawaiians, nor

95Ibid., p. 133.

" United Nations, Conference on the Law of the Sea,
vol. Ill, p. 44.

^ 'As of the time of writing, January, 1970. Inter-
view between author and Mrs. Carolyn O'Connell, Treaty Ana-
lyst, Treaty Affairs Division, U. S. Department of State,
January 13, 1970.

*»Ibid.

"ibid.

42p

the Soviet Union with her small Arctic icebound archipelagos
found Artile 10 to be an impediment to ratification.

In sum, the failure of the 19 53 and I960 Conferences
to reach agreement on the extent of the territorial sea
did mortal damage to the three-mile rule. Yet, in spite
of the gloom and pessimism with which the three-mile advo-
cates view the Conferences, the 195$ Conference produced
a very useful codification of the mechanics of the inter-
national law of the sea. No matter what specific limit
becomes the ultimate successor to the three-mile limit —
if any — it will be well-served by the comprehensive delimi-
tation procedures laid down in the Convention on the Ter-
ritorial Sea and the Contiguous Zone.

CHAPTER XIV
THE DEMISE OF THE THREE-MILE LIMIT

I. THE TWELVE-MILE FISHING LIMIT

The United Nations Conference on the Law of the Sea
at Geneva in 195$ prompted Iceland, as. pointed out earlier,
to declare a twelve-mile fishing limit. The Second Confer-
ence, which followed two years later, precipitated an almost
worldwide adoption of the twelve-mile limit for fisheries.
Among the first to react were Norway and Denmark. By uni-
lateral action, Norway adopted a twelve-mile fishing limit
on September 1, 1961. Denmark did likewise in the case of
Greenland and the Faeroes in 1963.

Fisheries Convention of 1964

These unilateral pronouncements by Iceland, Norway,
and Denmark created a stir of concern among the states of
western Europe and triggered an international fisheries con-
ference, which convened at London in December, 1963 . By

Marjorie V/hiteman, Digest of International Law
(Washington: Government Frinting Office, 1963- ), vol.
IV (1965), p. 34.

Danish Announcement No. 192, Ministry for Greenland,
May 27, 1963, effective June 1, 1963, and Danish Foreign
Ministry's Regulation No. 156 (Faeroe Islands) of April 24,
1963, effective March 12, 1964, ibid.

3 James Feron, "16 Nations Split on Fishing Code," New
York Times, January IS, 1964, p. 36M.

424

^25

March, the delegates of sixteen states had completely revised
the eighty-two-year-old North Sea Fisheries Convention which
had upheld the three-mile limit since loS2. All six of the
1&&2 signatories, together with ten other western European
states and the Commission of the European Economic Community
(Common Market) participated. Although the new Convention

is more accurately referred to as the "North-West Atlantic

5
Fisheries Convention," it has become widely and commonly

known as the European Fisheries Convention, or simply as the
Fisheries Convention. The Convention provides for a twelve-
mile fishing zone among the signatories, qualified as follows;

Article 2

The coastal state has the exclusive right to fish
and exclusive jurisdiction in matters of fisheries
within the belt of six miles measured from the baseline
of its territorial sea.

Article 3

Within the belt between six and twelve miles measured
from the baseline of the territorial sea, the right to
fish shall be exercised only by the coastal state and by
such other Contracting Parties, the fishing vessels of
which have habitually fished in that belt between 1st
January, 1953 and 31st December, 1962.6

Drafting states included: Austria, Belgium, Denmark, France,

Final Act of the European Fisheries Conference (Lon-
don, December 3» 19^3 to March 2, T964) , reproduced in
American Journal of International Law, LVIII (October, 1964) >
p. 10687 citing text of the Ministry of Agriculture, Fish-
eries and Food, United Kingdom.

5Ibid., p. 1069

6Ibid., p. 1071.

426

V/est Germany, Iceland, Ireland, Italy, Luxembourg, The
Netherlands, Norway, Portugal, Spain, Sweden, Switzerland,
and the United Kingdom. Norway and Iceland refused to sign

the Convention, being unwilling to share the outer six-mile

belt. Switzerland, whose only international waters are

those of Lake Geneva which she shares with France, likewise
did not sign the Convention. Denmark became a signatory but
excluded, by annex, the application of the Convention to
Greenland and the Faeroes. °

Thus, in 1964, Great Britain terminated her almost
century-old practice of adhering to the three-mile limit as
the only limit for all purposes. In 1964, Britain also en-
acted a Continental Shelf Act which became effective in
April; the next month she ratified the 195& United Nations
Convention on the Continental Shelf.

The United States and the Twelve-Mile Fishing Limit

Internal pressures. In the United States, too, pressures
were mounting to abandon the three-mile zone in favor of a

'News item, "13 Nations Extend Their Fisheries Juris-
diction," The Washington Post, March 4, 1964, p. D4.

BIbid.

^Final Act, op. cit . , p. 1074.

Great Britain, Continental Shelf Act_1964, reproduced
in American Journal of International Law, LVIII (October,
1964), pp. 1085-1090; ratification, May 11, 1964, United
Nations Document A/CONF.13/L.55 (195S).

^27

twelve-mile zone. The Alaskans had been the most outspoken
in their desire to extend fishing limits before World War II.11
In the post-war period they were joined with the strong support
of Washington State and New England fishing interests. In
1963, Warren G. Magnuson, U.S. Senator from Washington and
Chairman of the Senate Commerce Committee, announced that the
United States might be forced to extend its fishing limits
in order to push back the large Russian and Japanese trawl-
ing fleets encircling the American coasts. He noted that
some states claimed fishing limits as great as 200 miles out
to sea, and added:

We might want to keep up with the Joneses, . . .
We might not want to, but may be forced to. 12

Concurrently, Senator Ernest Gruening of Alaska was seeking

an extension to protect the Alaska king crab industry:

Now, the Russians are invading these king crab fish-
ing grounds, [and] have depleted the traps of our Ameri-
can fishermen. . . .

It is true that many of these traps are outside the
3-mile limit and therefore in international waters. Two
remedies, of course, are immediately available: The first
would be to extend the fishing limits for all fisheries
to 12 miles, and the second — but even more pertinent —
would be to extend the limits for the taking of Crustacea
and shellfish to the Continental Shelf. . . .13

See supra. Chapter XI, pp. 291-292.

News item, "Extension of Limit on Fishing is Seen,"

New York Times, September 7, 1963 .

^Ernest Gruening, "The Russian Raids on Alaskan Fish-
ermen Should be Stopped," Congressional Record (Senate),
November 5, 1963, p. 20005.

^2S

Senator Gruening, three months later, criticized the three-
mile limit policy which:

... permits the fishing vessels of other nations
to make themselves at home in our waters, gorge them-
selves with our fish, and sometimes, ironically, to
even compound their profits as they sell to U. S. con-
sumers the very product which has been taken from our
waters. ^4

More recently, Massachusetts fishing interests have

become concerned with the routine appearance of over 300

modern foreign fishing vessels off their coast, 200 of which

were identified as Russian, the rest mostly German and

15
Polish. Sentiment among the New England fishermen is in

favor of greatly expanded exclusive fishing limits, as ex-
pressed by Captain Henrique Duarte of Provincetown:

The government should set the limit 200 miles off-
shore, and keep the foreign fishing boats from inside
that line. 1"

A 1969 editorial in the Cape Cod Standard Times read:

One lone United States Coast Guard patrol boat can't
keep tabs on more than 300 foreign vessels off the Cape

area.

. . . Cape fishermen say that the big boats by their

^Congressional Record (Senate), February 25, 1964,
p. 3340.

"^Herbert Gordon, "Foreign Vessels Fishing Illegally
Irk Coast Guard," Eoston Globe, September 14, 1969 » p. 37.

Neil G. Nickerson, "Cape-tip Skipper Fears Squeeze-
out," Cape Cod Standard-Times, September 15, 1969, p. 1-

^29

very presence force area fishermen to pull up their
drags to save them from damage. Many fishermen have
reported over the years that their nets have been
ruined and cut by the foreign vessels cutting across
them. And the big boats roil the bottom and drive the
fish away.

. . . [T]he federal government must consider limiting
foreign vessels to a much greater distance than 12 miles.
Many nations now claim a 200-mile limit. This seems
much more feasible than 12 miles, which practically
permits foreign fishing right in the frontyard of our
area fishermen. The day when a nation based its claim
of territorial waters on the distance a cannon ball
could carry went out with the dodo. 17

Testifying in favor of proposed legislation to in-
crease the United States fisheries limits to twelve miles,
Robert Simon, Alaska Fish and Game official, told the U. S.
Senate:

Admittedly, a 12-mile fisheries limit is not ade-
quate to give our coastal fisheries the full protection
they need. It will, however, be a necessary step in
the right direction. . . .-*-"

Act of 1964. The United States Government responded
to the internal pressures from fishing interests by passing

a series of three laws, the first of which was the so-called

19
"Bartlett Act" of 1964. The law prohibited foreign vessels

■'■'''Editorial, "Fishing Industry Faces Extinction,"
Cape Cod Standard-Times, September 18, 1969, p. 4.

18United States Congress, Senate, Twelve-Mile Fish-
ery Zone, Senate Report No. 1230, 89th^Cong., 2d Sess. (Wash-
ington: Government Printing Office, 1966), p. 2.

■^Public Law 83-308, 73 U. S. Statutes at Large 194,
"Act to Prohibit Fishing by Foreign Vessels in the Terri-

4-30

from taking any of the living resources of the United
States' continental shelf out to a depth of 200 meters. The

lav; was expected to have its greatest impact on Russian,

20
Japanese, and Cuban trawlers. The Japanese, who had not

become a party to the Convention on the Continental Shelf,

objected to the new law, claiming it would have a serious

21
effect on its Alaskan king crab industry.

Twelve-Kile Fishery Act of 1966. An act to extend
United States fishing limits was introduced into the Senate
in June, 1966 jointly by Alaska Senator Bartlett, Washington
Senator Magnuson, and Massachusetts Senator Kennedy. Sub-
sequently, senators from Oregon, Maine, Rhode Island, and
Connecticut joined as cosponsors. The legislation was strongly

supported by fishing interests all over the country with the

conspicuous exception of those of southern California.

It is pertinent to recall that the fishing fleet of southern
California fishes primarily off the shore of other states;

torial Waters of the United States and in Certain other
Areas," May 20, 19o4, reproduced in American Journal of
International Law, LVIII (October, 1964), pp. 1090-1093.
The Act has been referred to as the "Bartlett Act" because
of its sponsor, Senator E. L. Bartlett of Alaska.

News item, "Trawler Penalty is Voted by House,"
New York Times, May 5, 1964, p. 1.

%ews item, "Alien Trawler Bill Signed by Johnson,"
New York Times, May 21, 1964.

22United States Senate, Twelve-Mile Fishery Zone,
op. cit . , p. 1.

431

consequently, extension of United States limits would serve
no purpose for the San Diego tuna fleet and could possibly
be counter-productive to its long term interests! Ironically,
the twelve-mile legislation encountered much opposition from
the Pacific Northwest and New England where it was argued
that twelve miles was too little, and that the limit should

be set at 200 miles or at least should extend to the 100-

fathom line. Nevertheless, the lav/ was passed. It pro-
vided simply and briefly an exclusive fishing zone of nine
miles contiguous to the three-mile belt of territorial seas.
Out of the law's brevity there soon became apparent a legal

loophole. On July 26, 1968, President Johnson signed into

25
law a Supplemental Act which prohibited also the activi-
ties of foreign fishing support ships which did no actual
fishing themselves. The amending statute bars, within the
twelve-mile limit, support activities such as freezing,
packing, and processing of fish caught by other fishing ves-
sels and prohibits the transfer of fish, tackle, personnel,
and fuel between fishing vessels and support ships.

23Ibid., p. 10.

uJnited States Congress, "An Act to Establish a
Contiguous Fishery Zone Beyond the Territorial Sea of the
United States, October 14, 1966" (Public Law 89-658), 80
U. S. Statutes at Large, 90S, reproduced in International
Legal Materials; Current Documents, V (No. 6, November,
19o6), p. 1103.

25?ublic Law 90-427, July 26, 1968, 82 U. S. Statutes
at Large, 445.

2oNews item, "New Ban Applies In 12-Mile Limit,"

432

Japan and the Twelve-Mile Fishing; Limit

The twelve-mile fishing limit is viewed much differ-
ently by the Japanese. The United States, who has extensive,
lucrative fishing grounds, relies only moderately on fish
in its national diet. Japan, conversely, with a relatively

small coastline of her own, counts on seafood for almost

27
70/0 of its animal protein. Even though most of the

Japanese fishing fleet had been destroyed during World War
II, by 1959 she had risen to the status of the most impor-
tant fishing state in the world. She was engaged in over-
seas fishery enterprises in 35 foreign countries and had

200 Japanese fishing vessels home ported abroad.

Because of this reliance on the foreign fishing
grounds, Japan became a consistent and strong defender of
the three-mile limit for all purposes as early as the Hague
Conference of 1930. In 1969? however, Japan, too, became
affected by the rapidly growing Soviet fishing fleet, which
had begun to appear outside the three-mile limit of Japan's
Pacific coast mackerel fishing grounds. Since that time,
the Japanese fishing industry has urged the government to

San Dieso Union, July 27, 1968, p. 47.

^"Fisheries," Britannica Book of the Year 1964
(Chicago, Toronto, London, Geneva, Sydney, Tokyo: Encyclo-
paedia Britannica, Inc., 1964) , p. 366.

"Fisheries," Britannica Book of the Year I960
(Chicago, Toronto, London: Encyclopaedia Britannica, Inc.,
I960), p. 257.

^J>3>

extend its territorial sea to 12 miles.

Other States

Norway, Denmark, and the United States were not the
only states unilaterally to adopt the twelve-mile fishing
limit during the post-Conference fishing grounds "rush."
There were also the twelve-mile claims of roughly forty

newly independent and miscellaneous states listed in Chap-

30
ter XI. And in addition to the claims already discussed

or mentioned, Albania claimed twelve-miles for fishing in

31
I960. South Africa proclaimed a twelve-mile fishing limit

in 1963, applicable not only to the coasts of South Africa

herself but also to her mandate, Southwest Africa. Turkey

33
followed suit in 1964. New Zealand and Australia, in 1966

and 1968 respectively, placed in effect twelve-mile fishing

2%Iews item, "12-Mile Sea Limit Studied by Tokyo,"
New York Times, March 19, 1969, p. 6.

^°See supra, pp. 320-325.

^Ibid., citing Correction No. 6o2, March 1, I960
Monthly Supplement to Adriatic Pilot-East Coast, Oglas za
Pomorce (Notices to Mariners) .

^2South African Territorial Waters Act, Law No. 87 of
1963, cited in David V/indley, "International Practice Regard-
ing Traditional Fishing Privileges of Foreign Fishermen in
Zones of Extended Maritime Jurisdiction." American Journal
of International Law, LXIII (July, 1969), p. 502. The Act
of 1963 also provided for a territorial sea of six miles.

33Whiteman, od. cit., p. 35, citing Turkish Official
Gazette, May 25, 19^4.

limits, and Cambodia increased her territorial sea to that
limit in 19o9.35

So many states followed this pattern that by the end
of the decade there were only thirteen states remaining
which claimed as little as three miles for exclusive fishing
rights. Only Japan among them can be identified as a
significant maritime or fishing state. The several signif-
icant fishing states — significant because of the volume of
their catch or because of the importance they have placed

on fishing in their international relations — appear in Table

XIII, as of 1963. It was during that year that Peru over-
took Japan as the state with the largest fishing catch, a
position which she has held since. Since that time Norway
and the United States have exchanged positions on the scale,
and Chile has moved up to seventh place. Peru's rise from

■^New Zealand Territorial Sea and Fishing Zone Act
of 196$ (Law No. 11 of September 10, 196$) and Australian
Fisheries Act 1967 (Law No. 116 of November 17, 1967) in
Windley, op_. cit., pp. 502-503.

■^Cambodia, Declaration on Territorial Sea and on the
Continental Shelf, published 27 September 1969, U.S. State
Department Airgram A-45 of October 2, 1969, Charge d' Affaires
L. M. Rives, American Embassy, Phnom Penh, to U. S. Secretary
of State.

-^°Congo, Cuba, Gambia, Guyana, Japan, Jordan, Kenya,
Malaysia, Malta, Poland, Singapore, Taiwan, and Trinidad and
Tobago; United States Department of State, Office of the
Special Assistant to the Secretary of State for Fisheries
and Wildlife, Breadth of the Territorial Sea and Fishing
Jurisdiction Claimed by '-lambers of the United Nations System
(Washington: State Department, 15 August 1969), pp. 1-5.

** 'See page 435.

^35

TABLE XIII
LEADING FISHING STATES OF THE WORLD (1963)

Rank

Country

Annual Catch (in OOO metric tons)

Peru

• 6901

Japan

669B

China

4933 (estimated)

U.S.S.R.

3977

U.S.A.

2712

Norway

1338

Canada

1191

Spain

1039

India

IO46

Denmark

985

U.K.

951

Indonesia

936

Iceland

785

Chile

763

France

742

Philippines

565

Portugal

540

South Korea

444

Source: "Fisheries,"

Britannica Book of the Year

1966 (Chicago, Toronto, London, Geneva. Sydney, Tokyo,
Manila: Encyclopaedia Britannica, 1966); p. 308, citing
United Nations Food and Agriculture Organization (FAO),
Yearbook of Fishery Statistics. The United States had
been the leading fishing state in 1945. Ibid.

4-36

27th place in 1955 to first place in 1963, with Chile also
moving up in the ranks, is significant because of the claims
of those states to 200-mile limits. Worthy of note also is
the fact that Callao, Peru had become the world's leading
port in annual tonnage of landed fish catches in 1961. ^

The fact that most of these states have abandoned the
three-mile limit for fishing is especially significant when
considered in historical context. Since the days of Grotius
and Selden, the territorial seas' two most important raisons
d'etre have been fishing rights and neutral rights. That of
fishing has been the dominant of the two, if the number and
nature of disputes, arbitrations, conventions, treaties, and
court cases can be considered a fair indication. The primacy
of fishing rights in this regard is most logical from a
practical and economic point of view as well. Fish are tan-
gible assets, capable of exploitation for the nourishment
of the fishermen and for profitable sale to others. Indeed,
to many states, particularly less-developed states and those
who rely heavily on the living resources of the sea, virtually
the sole significance of the legal regime of littoral waters
— whether they are termed the territorial sea, the contiguous
zone, or the maritime belt — is the extent to which they
provide exclusive fishing rights. This was true historically

3 "Fisheries," Britannic a Book of the Year 1962 (Chi-
cago, Toronto, London, Geneva: Encyclopaedia Britannica,
Inc., 1962), p. 255.

^37
and is still true today. To states who view the territorial
sea primarily as a source of food, the fact that the three-
mile limit has been abandoned so far as fishing is concerned,
removes all pith and meaning from it. As the world* s popu-
lation continues to expand at its present, seemingly uncon-
trolled rate, it may well be that the food-producing aspect
of the territorial sea will become foremost in the view of
all states.

Yet at the present time, there are still states who
place value on the intangible benefits accruing from the
territorial sea such as security, privacy, neutral rights,
and rights of passage. To them, the fact that the three-
mile limit has been abandoned as the seaward limit for fish-
ing is insufficient reason to abandon it completely. The
supreme naval powers are in this category. First it was
Great Britain and then it became the United States. They
have been referred to as the "champions of the three-mile
limit . "

II. THE UNITED STATES AS CHAMPION OF THE
THREE-MILE LIMIT

Great Eritain championed the three-mile limit to its
inter-war paramountcy by employing two methods. First, she
adopted the three-mile limit — and only that limit — for all
purposes. She climaxed this policy with her Customs Consoli-
dation Act of IS76 wherein she repealed all outstanding laws
which might conflict with her three-mile limit. By adhering

strictly to one limit, she provided a very clearly understood
standard for the other states to observe and at the same time,
she could not be accused of duplicity in her foreign policy.
Second, she utilized her position of naval superiority to
force other states to comply with the three-mile rule. She
forced Russia to back down from the latter' s 100-mile ukase
of 1821. She deployed the Royal Navy to guarantee the right
of fishermen — French and German, as well as British — to fish
off the coasts of Portugal and Spain from the middle of the
nineteenth century until the early twentieth century. She
did the same in the case of Iceland even as late as the mid-
twentieth century.

United States Practice

The United States, on the other hand, used neither of
these methods after her post-World War II succession to the
role as champion of the three-mile limit. First, the United
States did not consider that it would serve her interests
to observe the three-mile limit for all purposes as had Great
Britain. Second, the use of forceful measures against a
territorial sea adversary in possession of nuclear weapons
was ruled out as too risky a course of action. These deci-
sions by the United States can best be examined in terms of
the various limits of maritime jurisdiction.

Secur: ty. Although many states have considered secur-
ity as one of the more important benefits of a belt of terri-

K39

torial sea, in United States practice three miles has been
considered inadequate. As a result, security measures have
been taken well beyond the three-mile limit. Early in World

War II the United States established Maritime Control Areas

as far as 65 miles out to sea. During the post-war nuclear

war scare, Air Defense Identification Zones (ADIZ) were es-
tablished to monitor all aircraft, 'foreign and domestic,
within a maritime belt 400 miles wide.

At about the same time — the early 1950' s — the Soviet
Union, with the self-confidence of having developed her own
atomic weapon, embarked on a program of aggressive enforce-
ment of her twelve-mile territorial sea. If the Russian
twelve-mile bid were to be challenged, it would have had to
have been the United States who made the challenge. Yet,
there was the risk of nuclear war in any direct confronta-
tion between the two powers. U. S. naval units might have
been deployed to penetrate the twelve-mile limit in a delib-
erate and obvious attempt to discredit the Russian claim. It
will probably never be known if this could have succeeded.
But the United States chose the less dangerous course. Her
ships and aircraft were instructed to remain outside the
twelve-mile limit of not only the Soviet Union, but also that

•^"See supra, Chapter XI, p. 286.
^See supra, Chapter XII, p. 362.
^ See supra, Chapter XII, p. 3A-6.

of China and other allied communist states. The orders for
the USS Pueblo to remain at least thirteen miles from North
Korea, and for the ill-fated EC-121 to remain beyond 50 miles,
were noted earlier. The extent of the United States Govern-
ment's commitment not to provoke China over the issue of ter-
ritorial seas was vividly revealed in February 1968 when a
U. S. Navy pilot was shot down by Chinese fighter aircraft
after he had violated Chinese airspace. The pilot parachuted
into the sea five miles off the Chinese coast where he trans-
mitted emergency radio signals for at least seven hours.
Orders from Washington, however, prevented Seventh Fleet
rescue helicopters and ships in the vicinity from penetrat-
ing the twelve-mile limit to make the pick-up. The pilot was

presumed captured by the Chinese. In this case the United
States tacitly, but unmistakeably, acknowledged the right
of China to a reciprocal measure of security against incoming
aircraft, the purpose for which the ADIZ had been created.

Neutrality. The United States has never been content
with a belt of three miles for purposes of neutrality.
Thomas Jefferson and early American publicists such as

^See supra, Chapter Xil, p. 377.

^News item, "Unarmed Navy Plane Downed by a Chinese
Communist MIG," New York Times, February 15, 1968; and news
item, "Ships Ordered to Stay Clear of Red Territory: Aid
to Downed Pilot Barred," San Diego Union, February 16, 1968,
pp. Al, A6.

^See supra, Chapter VI, p. 113.

James Kent 5 advocated much wider neutral zones. In 1896,
Secretary of State Olney indicated United States1 interest
in extending the neutrality zone to six miles. Then during
World War II, the United States, with other American states,
jointly proclaimed a neutral zone several hundred miles
wide.

Customs. The United States has maintained since 1799
that three miles is insufficient to provide for customs en-
forcement. This was reemphasized during Prohibition with the

L9
passage of the Tariff Act of 1922, ' extending broad author-
ity to customs officials out to twelve miles.

Fishing;. Very early in United States history the
three-mile limit was considered adequate for fishing because
of the favorable terms of the Convention of 1&18. But
dissatisfaction started to develop during the days of the
Bering Sea pelagic sealing disputes late in the century.
The Truman Fisheries Proclamation of 1945 made public the
United States intention "to establish conservation zones in

^See supra, Chapter VII, p. 160.
46See supra, Chapter VIII, p. 179.
^"'See supra, Chapter XI, p. 232.
4^See supra, Chapter VIII, p. 177.
*"see supra, Chapter X, p. 265.
5 See supra, Chapter VI, p. 123.

M-2

those areas of the high seas" as required to "protect coastal
fishery resources from destructive exploitation.'1^ During
the Geneva Conferences of 1958 and I960, the United States
indicated her willingness to adopt a twelve-mile fishing zone,
and during the 19 58 Conference did adopt the twenty-four-
( twice twelve-) mile closing rule for bays. Then in 1964,
she declared her exclusive rights to the living fishery re-
sources of the continental shelf and followed this two years
later with a twelve-mile fishing limit for her own coasts.

With respect to the more extensive fishing claims of
other states, the United States practiced considerable re-
straint. The Government resisted the urgings of congressmen
to send warships to protect United States fishermen from
Ecuadorian and Peruvian gunboats. It would seem that this
decision not to use force to challenge the 200-mile limit was
made in the interest of preserving the integrity of the Rio
Pact, considered essential to the U. S. Cold War strategy.
Too, in its post-war diplomatic relations with Latin America,
the United States was attempting to steer clear of the in-
terventionist policy and tactics so characteristic of the
past. So instead, she enacted the "Fisherman's Protective
Act" and attempted to resolve differences at the diplomatic
level.

^ See supra, Chapter XI, p. 297.
5 See supra, Chapter XIII, p. 419.

443
Seabed and subsoil. The Truman Proclamation of 194$
on the continental shelf did not define the continental shelf
or its extent. A White House press release issued the same
day, September 23, did define the shelf as that submerged,

contiguous land which is covered by no more than 100 fathoms

53
of water. Its breadth was defined by the Secretary of the

Interior as between 20 and 250 miles on the east coast and

from 1 to 50 miles on the west coast. ^ On May 22, 1953

Congress further delimited the United States' title to the

natural resources of the seabed and subsoil. The Submerged

Lands Act of 1953 relinquished to the coastal states the

property rights to the seabed and subsoil out to three miles,

but confirmed the rights of the federal government to the

resources of the seabed and subsoil beyond the three-mile

limit, to the outer edge of the shelf, or to the 100-fathom

line.55

Navigation. The three-mile limit has not provided
an adequate width, as far as the United States has been con-

White House Press Release, September 28, 1945, re-
produced in V/hiteman, op_. cit., pp. 757-753, citing State
Department Bulletin, XIII "["September 30, 1945, No. 327 J,

pp. 4b"4-4Sy;

i/hiteman, op. cit., p. 760, quoting Annual Report of
the Secretary of the Interior, Fiscal Year Ended June 30,
1945 (Washington: Government Printing Office, 1945), pp. ix-x,

55Submerged Lands Act, May 22, 1953, 67 U. S. Statutes
at Large 29, reproduced in part in V/hiteman, op. cit. , pp.
783-784. The Supreme Court later interpreted this Act to
grant Texas and Florida a three-league limit. Ibid. See
also p. 294.

cerned, for the proper application of its navigation laws.
The United States Inland Rules of the Road were approved by-
Congress on June 7, 1897 , and became effective four months

56
later. These rules, somewhat different from the Inter-
national Rules of the Road applicable elsewhere in the world,
provide the rules and regulations for the safe navigation
of ships at sea, in and near the United States and its ter-
ritories. The rules prescribe the visual and sound signals
to be used by vessels and the rules by which ships in the
vicinity of one another must maneuver.

The boundary line for the application of these rules,
oddly, does not conform to United States territorial waters.
Rather, it follows the shoreline in most cases, and in the
vicinity of ports, harbors, and rugged coastlines, it fol-
lows a series of sea buoys, lighthouses, and lightships.
On the landward side of the boundary line, Inland Rules
apply to the navigation of ships; on the seaward side of
this boundary, the International Rules apply. In many places
the boundary line for Inland Waters extends well beyond the
three-mile limit. Along the New England coast and in the

vicinity of the Florida Keys, the line plots about 15 miles

from the shore. Theoretically, a foreign ship involved in

5°Ralph V/entworth, et al. (eds.), Knight's Modern
Seamanship (twelfth edition; New York, Toronto, London:
D. Van Kostrand Co., Inc., 1953), p. 297.

^Raymond F. Farwell, The Rules of the Nautical Road

445

a collision on the high seas off New England, but within the
boundary for Inland Rules, could be tried in a U. S. Admiralty-
court, and found guilty of violating the U. S. Rules of the
Road, although she may not have violated the International
Rules of the Road.

The Inland Rules underwent a revision in 1965 aimed
at bringing greater uniformity between the several United
States navigation laws and between the Inland Rules and the
International Rules of the Road. At the time, concerning
the boundary line, it was reported that:

The Coast Guard has no intention of eliminating the
demarcation line between the areas where international
and inland rules must be applied. 58

Sanitation and pollution. In the Oil Pollution Act

59
of 1924, the United States Congress forbade the discharge

of oil by any method within U. S. territorial waters. Pol-
lution of the oceans was of such concern to the United States
that the President called an international conference on the
subject in 1926. An American proposal that there be an abso-

( revised ed. by Alfred Prunski; Annapolis: United States
Naval Institute, 1954), pp. 389-399; United States Coast
Guard, Rules of the Road: International — Inland ( CG 169)
(Washington: Government Printing Office, 1965), pp. 67-74.

J News item, "Revision of Navigation Rules in U. S.
Waters Nearly Ready," New York Times, July 25, 1965.

590il Pollution Act of 1924, 43 U. S. Statutes at
Large 604-606, quoted in l/hiteman, op_. cit., p. 689.

i|46

lute prohibition against the discharge of oil at sea was

fid

voted down. Continuing efforts by the United States to
extend more rigid international controls over pollution
achieved only limited success, and in 1961, the United States
enacted a revised Oil Pollution Act making it unlawful for

oil tankers to discharge wastes in " • . • all sea areas

An
within fifty miles from land."

The several preceding paragraphs point out the great
variety and extent of United States interests along her
ocean frontiers, beyond the three-mile limit. For nearly
every benefit or competence characteristic of the territor-
ial sea, the United States has found it to be in her na-
tional interest to claim a jurisdiction greater than that
afforded by the three-mile limit. In effect, the importance
that the United States attaches to its "residual" three-mile
limit now focuses solely around the right of innocent pas-
sage of warships.

Role of the United States Navy

It is, of course, the Navy which holds the vested
interest in what remains of the three-mile rule. And this is
true only because of the Soviet adamant view that warships
do not possess the right of innocent passage through the

° Whiteman, op_. cit. , p. 690.

6l0il Pollution Act, August 30, 1961, Public Law 37-
167; 75 U. S. Statutes at Large, 402-407, Whiteman, od. cit.,
p. 702.

447
territorial sea. Under the original concept of innocent

passage, this would not have been an issue. The passage
of fishing ships and warships through territorial waters
was deemed "innocent," and was permitted, so long as they
did not fish nor commit acts of war, respectively. The
Soviet view, however, holds that a foreign warship, by its
very nature and presence in the territorial sea is less than
innocent. The U. S. Navy position, accordingly, was to
resist any extension of the territorial sea, which in turn
would reduce the ocean areas available for transit and
training maneuvers.

As might be expected, the Navy was the most ardent
and most persistent of the voices in Washington promoting
the three-mile limit. For example, in March, 1964 Repre-
sentative Thomas N. Downing of Virginia introduced a bill
in the House of Representatives which would have increased
the limit of U. S. territorial waters to twelve miles.
In commenting on the proposed bill the Navy submitted the
following remarks:

4. The effect of United States action to extend its
territorial sea to twelve miles would understand-
ably lead to worldwide adoption of such a limit.
Universal extension of the breadth of the territor-
ial sea to twelve miles would adversely affect the

62H.R. 10492, March IS, 1964, "A Bill Extending the
National Sovereignty of the United States over Certain
Waters," SSth Congress, 2nd Session.

44g

Free World's seapower by reducing the high seas by
an area of three million square miles or the entire
area of the U. S. including the Great Lakes. In
the Mediterranean alone, extending the territorial
sea from 3 to 12 miles removes 145,000 square miles
from the high seas (an area 1-g- times the size of
Italy) . Of even greater significance is the effect
of extension of the breadth of territorial seas on
the narrow straits which interconnect the high seas
of the world. Extending the territorial sea from 3
to 12 miles would remove some 116 straits as free
high seas, placing them under the national sovereignty
of the bordering states.

5. The right of ''innocent passage" does not provide a
guarantee of passage through those straits affected
and removed as "high seas" routes. The coastal
states, under whose sovereignty they would come,
could employ such actions as harassment by patrol
activities, "failure" of navigational aids, and a
flood of notices to mariners as to obstructions to
navigation and mine fields in order to force the
abandonment of such waterways; moreover, the Soviets
and Communist Bloc countries do not recognize the
unqualified "right of innocent passage" of warships
but condition it upon authorization of the coastal
state.

6. Extending territorial waters over straits, further-
more, would adversely affect U. S. submarine opera-
tions. In territorial waters submarines are required
to navigate on the surface and show their flag.
National sovereignty over the narrow passages would
therefore prevent submerged entry into areas of the
high seas and jeopardize the effective deployment

of the U. S. submarine fleet and its Polaris weapons
system. 63

Positions of United States Navy and Royal Navy com-
pared. As ardent and persistent as the U. S. Navy voice
was, it had nowhere near the influence and impact of that

^Navy Department, Office of the Chief of Naval Op-
erations, Director, Politico-Military Policy Division to Chief
of Legislative Affairs, Memorandum 0p-6l4C/mg ser M1669P61

dated 9 May 19 64.

of the Royal Navy during the years that Great Britain cham-
pioned the three-mile limit. There are some important rea-
sons for this. In 1£>15, when Great Britain became champion
of the three-mile limit, the Royal Navy enjoyed a very high
position in the government hierarchy. The First Lord of the
Admiralty was one of the members of the so-called "Inner
Cabinet," which dealt directly with the sovereign. Con-
versely, following World War II, when the United States be-
came champion of the three-mile limit, the United States Navy
lost its cabinet status, and with it, its immediate and direct
access to the President, incident to the establishment of the
Defense Department in 1947.

It is not unrealistic to attribute this 1947 downgrad-
ing of the U. S. Navy from cabinet status to its comparative
lesser importance. During the nineteenth century the very
day-to-day survival of the British Empire depended on the
Royal Navy and its maintenance of the sea lines of communi-
cation between England and all the outlying regions of the
Empire. Without the Royal Navy, the Empire would have col-
lapsed; it was as basic as that. But it was not so in the
case of the post-World War II United States Navy. The United
States was not an empire. Aircraft, unknown during the
nineteenth century, provided the U. S. with an alternative

o/f"The Cabinet," Encyclopaedia Britannica (1953 edi-
tion), IV, 499.

450

means of international communication. So, important the
United States Navy was — but not vital as in the case of nine-
teenth century Great Britain.

The post-war mission of the Navy had a subtle impact
on the Navy's ability to defend the three-mile limit. The
United States' post-war strategy of "massive nuclear retalia-
tion" envisioned the use of both Navy carrier-based aircraft
and Air Force Strategic Air Command bombers. With the trans-
ition to intercontinental ballistic missiles the importance
of the manned bomber, including those on aircraft carriers,
started to decrease. The Navy's strategic retaliatory role
shifted in the 19o0's from carriers to ballistic missile
"Polaris" submarines. Inasmuch as the three-mile limit is
far more important to carrier operations than it is to sub-
marine operations, this change in tasks impaired to some ex-
tent the impact of the Navy's arguments to hold fast on the
three-mile limit.

United States Navy and the twelve-mile limit. By
1966, the Navy could see that there was no stopping the
swing to twelve miles for fishing. Testifying before Congress
on the twelve-mile fishery belt, the Navy's Judge Advocate
General, Rear Admiral Wilfred Hearn, said that the Navy had
traditionally opposed extending fishing limits but that it
had come to accept the State Department position that sov-
ereignty and fishing rights could be separated. He added:

451

V.Te believe that our security interests are best
served when nations are limited to narrow territorial
seas which interfere only slightly with this freedom of
navigation. 65

Less than a year later there appeared an article in the
Navy's professional journal, The U. S. Naval Institute Pro-
ceedings, entitled "Three-Mile Limit — Obsolete Concept?"
In it, its author, a senior naval officer, wrote pragmat-
ically and resignedly:

The three-mile limit as the only enforceable breadth
is no longer a meaningful principle of international
law. Adherence to this principle may not be in the best
interest of the United States. This is not to say that
we should lightly abandon it without receiving something
in return. . . .

... It seems that the United States might trade a
recognition of 12-mile territorial sea claims for a
guaranteed right of free, as opposed^to innocent, pas-
sage through international straits. 66

These words, which would have labeled their author as a heretic
twenty years earlier, were echoed by the Chief of Naval Oper-
ations, Admiral Thomas H. Moover, only a year later before
the House Defense Appropriations Subcommittee:

. . ,[B]efore we would want to agree to expanding
the limit to 12 miles we would want a very firm agree-
ment as to passage through the straits and overflights
through the straits. °7

5,!Navy Backs 12-Mile Fish Limit," U. S. Naval In-
stitute Proceedings, XCII (September, 1966), p. 154, citing
Christian Science Monitor, June 15, 1966.

°°Captain Geoffrey E. Carlisle, U.S. Navy, "Three-
Mile Limit — Obsolete Concept?" U.S. Naval Institute Proceed-
ings, XCIII (February, 1967), p" 33.

°?L. Edgar Prina, "12-Mile Sea Limit Expected for U.S.,"
San Diego Union, June 16, 1968, pp. Al, A6.

452
Evaluation of the United States Policy

The United States had never been an ardent defender
of the three-mile limit. At least two of her presidents,
Thomas Jefferson and Franklin Roosevelt, regarded the three-
mile rule as inadequate. When, the United States inherited
the role as champion of the three-mile rule in 1945, it was
a role she could never play with the fervor of Great Britain.
In the first place, the three-mile limit was not vital to
her national survival as it had been to that of the British
Empire. Secondly, the cumulative demands of pressure groups
to maintain and expand U. S. interests beyond the three-mile
limit outweighed the Navy's desire to adhere to and enforce
a three-mile rule.

The State Department was in the middle of the dilemma.
On the one hand, it would have been advantageous to uphold
the three-mile limit and thus enhance the Navy's value as
an instrument to extend and implement U. S. foreign policy.
On the other hand, to have challenged forcibly the Russian
twelve-mile and/or the Latin American 200-mile claims, could
possibly have triggered war with Russia or a serious schism
in the Inter-American system.

In the final analysis, the United States did not
serve as a strong champion of the three-mile limit, and un-
fortunately for that rule of law, there was no other state

68See supra, Chapter VI, p. 113, and Chapter XI, p. 297.

^53

which was in a position to have done so. This circumspect
United States policy concerning the three-mile limit is
viewed as the fifth and final of the series of developments
which contributed directly to the demise of the three-mile
limit.

It would be both inaccurate and unfair to fault the
United States for having permitted the demise of the three-
mile limit through ineptitude, error, or negligence. Rather,
it appears that the key decisions were made with due de-
liberation, only after careful consideration of the alter-
natives and consequences, domestic and international. It
was simply a matter of national priorities.

III. THE UNITED STATES-SOVIET TERRITORIAL
SEAS RAPPROCHEMENT

To point up the United States Navy's concern about
adopting a twelve-mile limit, an example may be in order.
In December, 1967 the Algerian Government formally pro-
tested to the United States that a squadron of warships
from the Navy's Sixth Fleet had violated Algerian terri-
torial waters, claiming the ships sailed within seven miles

69
of -Ghe coast off Cherchell. These waters had been sailed

by the Sixth Fleet continuously for twenty years; Algeria

°News item in San Diego Union, December 12, 1967,

p. A5.

45^

had declared a twelve-mile limit in 1963.

But there was developing among the major naval and
maritime powers a far more serious concern over the very
wide claims of the Latin American states and the archipel-
ago states. In August, 1964 a United States aircraft carrier
task force transited certain "internal" waters of the Indo-
nesian Archipelago — the Java Sea and the Sunda Strait.
Indonesia reacted by announcing that henceforth all foreign

shipping transiting the waters of the Indonesian Archipelago

would be required to obtain prior written permission.

Meanwhile, Soviet ships — naval, merchant, and fishing
— were also plying the many oceans of the world, far from
their home ports. One of them, a Soviet government hydro-
graphic survey ship, was apprehended by the Indonesian Navy
for "violating" those "internal" waters near Natuna Island.
The Soviet ship was interned in an Indonesian port but she

managed to get underway and escape with her Indonesian

captors in an unsuccessful hot pursuit. A few years later

the Soviet Union encountered a similar situation in Argen-
tina's 200-mile territorial sea. In June, 1963 five Russian

See supra, Chapter XI, p. 323.

^United States Navy, Offices, of the Chief of Naval
Operations and the Judge Advocate General, Study on United
States Policy on Freedom of the Seas and the Navy's Support
of that Policy (Washington: Navy Department, 1964) > P« -L^»

72_

' ibid., p. M10.

^55

trawlers were spotted 120 miles off the coast by Argentine
aircraft. Argentine warships were deployed to seize the
trawlers. Two were captured and escorted under arms towards
Mar del Plata. One of the two, the Pavlovo, escaped from
its escort, the Yamana, when they reached a point 25 miles
offshore. Argentine war planes were vectored to the scene.
When they located the Pavlovo, they opened fire in an abor-
tive effort to force the evading trawler to stop and return. ^

Incidents such as this were making it clear to the
Soviet Union that her initial post-war policy of encourag-
ing states to unilaterally fix their own territorial sea
limits, had been "misunderstood." The Soviet position was
clarified at the I960 Conference:

Hitherto, coastal States had themselves fixed the
breadth of their territorial sea, with due regard for
their own interests and circumstances. With a few ex-
ceptions, that breadth nowhere exceeded twelve nautical
miles. ...

For its part, the Soviet Union delegation had pro-
posed that each State should fix the breadth of its
territorial sea . . . within the limits ... of three
and twelve miles. 74

Included in the 1966 Russian international maritime law man-
ual is the following statement:

'-'News item, "Soviet Trawler Eludes Capture by Argen-
tina," San Diego Union, June 23, 1968, p. A-10.

'^United Nations, Second United Nations Conference
on the Law of the Sea (Geneva: United Nations, I960), p. 39,
quoting Soviet delegate, Mr. Tunkin, March 22, I960.

^56

. . . [T]he substantial (200-mile) territorial sea
which certain Latin American States claim is essentially
a special zone for . . . protection of fishing and
maritime interests from the predatory activities of
United States fishing vessels.

In this connection it must be noted that the estab-
lishment of excessively broad territorial waters is
at variance with the authoritative opinion of the United
Nations International Law Commission, which in 1956 de-
clared . . . that "international lav; does not permit
extension of the territorial sea beyond the 12-mile
limit. "75

By the late 1960's it was obvious to the Russians
that the 200-mile and archipelago claims of the lesser powers
were a product of the superpowers' failure to agree on the
international lav; of the sea. The spectacular growth of the
Soviet fleets had brought many of their maritime interests
and objectives into parallel with those of the United States.
If those two superpowers could reach an agreement on the
breadth of the territorial sea, with the support of their
allies, something on the order of a two-thirds majority con-
sensus— 85 or more states — might be achieved. Accordingly,
in 1967, Soviet representatives in Washington suggested that
a new conference on the law of the sea be scheduled and that
the United States and the Soviet Union enter the conference
with an agreed, twelve-mile position. The United States re-
action was generally favorable, subject to an important con-

'*?. D. Barabolya, et al . , Manual of International
Maritime Law (U. S. Navy Department translation from the
1966 Moscow edition in Russian; Springfield, Virginia:
Clearinghouse, U. S. Department of Commerce, 1968), vol. I,
p. 21.

^57

concision:

in return for the right of innocent passage in all
international straits, the Navy probably would go along
with the wishes of the Soviet Union to establish a
uniform 12-rai. territorial limit for all coastal states.

This was the view volunteered by the Navy's top legal
officer, Rear A dm. Joseph B. McDevitt, during a question-
and-answer session following a speech by Donald McKernan,
special assistant to the Secretary of State for fisheries
and wildlife, at a luncheon meeting of the Marine Tech-
nology Society's law committee in Washington, D. C, on
Tuesday.

The right of innocent passage for Naval vessels
through certain straits will be in jeopardy, McDevitt
said, so long as coastal states are in control of these
waters. The Navy "could live with" uniform 12-mi. limits
if it was sure of no interference in the straits by
coastal states, he added. The Soviet Union has, without
much success, been urging that an international confer-
ence be convened to establish uniform boundaries for
territorial seas, preferably 12 mi.7o

Concurrently, pressures for a twelve-mile limit were

building up in the U. S. Congress. In 1963, Senator Robert

P. Griffin of Michigan introduced an amendment to a pending

Senate bill, S. 2269, which proposed a variable territorial

sea, which would have placed the United States in a position

similar to that of West Germany. The amendment read:

Sec. 4(a). The territorial sea of the United States
is hereby established as extending three nautical miles
from the coastline of the United States: Provided,
that in the case of any coastal country (including ships
and nationals thereof) which claim a territorial sea
extending more than three nautical miles from its coast-

^°"Navy Would Make Concessions for Right of Innocent
Passage in Straits," Oceanology: the Weekly of Ocean Tech-
nology, vol. V (November 21, i"96o; No. 21}, p. 149.

''See supra, Chapter XI, p. 322.

^5S

line, the territorial sea of the United States shall be
equal in distance to that claimed by such other country,
but not to exceed twelve nautical miles. ?°

It was also during 1968 that representatives from the

United States and the Soviet Union quietly reached tentative

agreement on the twelve-mile limit. Legal experts from the

two superpowers prepared a draft convention on the breadth
of the territorial sea. The key article granted each state
the right to establish the breadth of the territorial sea
up to the limit of twelve miles ? as long advocated by Russia.
The quid pro quo took the form of two additional articles.
One of them guaranteed the right of all ships and aircraft
— naval and military included — to pass through all inter-
national straits connecting areas of the high seas. The
other one recognized a state's right to adopt unilateral
non-discriminatory fishery conservation measures as envi-
sioned in the 1945 Truman Proclamation and the 1958 United
Nations Fisheries Convention. It included complex proced-
ures for determining the scientific necessity for such mea-
sures and machinery for international arbitration in case

'United States Congress, Congressional Record (April
3, 1968) (Washington: Government Printing Office, l^o"8) ,
vol. 114, part 7, pp. 8872-8873-

79It was not until February, 1970 that the United
States publically announced her support of the twelve-mile
limit. News item, "U. S. Shifts Position on Territorial
Limit," in The Washington Post, February 19, 1970, p. A16.
The endorsement of the twelve-mile limit was made by U. S.
State Department legal advisor, John R. Stevenson, on Feb-
ruary 13, 1970.

^59

of disputes. During 1969, these draft articles were cir-
culated widely by the Soviet Union and the United States
in their respective spheres in order to generate support.
Strong opposition, as might be expected, was encountered
among the CEP states. In December, the CE? states con-
ferred at Lima to determine their course of action. Fol-
lowing the conference, Peruvian Foreign Minister Mercado
was quoted in a joint communique:

He [Mercado] said that the Soviet Union and the
United States have given every country in the world
a copy of the agenda of the proposed conference. The
agenda calls for limiting territorial waters to 12
miles.

In brief, the Peruvian Foreign Minister said that
the proposal tends to disregard the right of exclusive
jurisdiction over a 200-mile maritime area. It also
disregards rights of fiscal jurisdiction, patrol, and
control in this area.

The Peruvian Foreign Minister said that they [the
CEP states] will seek the support of all countries that
have extended their jurisdiction to 200 miles and of
the developing nations. • . .80

The Ecuadorian press, too, strongly opposed the U.S.-U.S.S.R,

twelve-mile draft convention, pointing out that it would

limit the right of coastal states to regulate fishing off

A gene e France-Presse (AFP) Bulletin, Lima, Peru,
December 12, 1969. This appeal for support was followed
on March 2$, 1970 by a Brazilian decree extending her ter-
ritorial waters to 200 miles. News item, "Brazil Extends
Waters to 200 Miles," The V/ashington Post, March 26, 1970,
p. A25.

their shores. In caustic anti-United States and Soviet

Union terms, it denounced the procedures for compulsory

arbitration of fishing disputes , complaining bitterly that:

. . . powerful nations always attempt to impose
their own designs instead of observing established
rights. The great gulf between rich and poor remains.
. • . Ecuadorian aspirations have been defrauded; Ecua-
dor has a duty to defend herself • »!

This section might well have been captioned, "The

Genesis of the Twelve-Mile Rule." Although the three-mile

limit is surely defunct as a rule of law, it has yet to be

replaced formally by a new rule. In the words of Mr. Bocobo,

"Mr. Twelve-Miles" seems to be a much stronger contender

than "Mr. Six-Miles" in their quarrel over the estate of

the late "Mr. Three-Miles." The twelve-mile limit needs

only to be codified by international convention; this seems

quite likely in 1971 or 1972.

IV. VIEW OF CONTEMPORARY PUBLICISTS

The view of several contemporary Spanish language
publicists were considered in Chapter XI. Representative
opinions of the writers of other selected literature groups
will be examined in this section.

Russian

p. D. Barabolya, in collaboration with S^ V_j_ Molodtsov

^Editorial in Quito [Ecuador] El Commercio, December

4-61

and other Soviet legal experts, prepared the 1966 Soviet

Manual of International Maritime Law, which takes the posi-
tion:

The United States, Great Britain and some other
imperialist States are endeavoring against the will
of other countries , to establish as a rule of inter-
national lav; a breadth of the territorial sea which
would enable their warships and fishing vessels to
navigate as close as possible to the coastlines of
other States. For quite some time they have been pro-
posing a 3-mile limit for the territorial sea. However,
the imperialist Spates cannot and never have been able
to justify this. 82

French Language

Charles de Visscher, Belgian professor, international
arbiter, president of the Institute of International Law,
and judge of the International Court of Justice, writes con-
cerning the three-mile rule, significantly, in the past tense

There is no doubt that the attachment of the great
maritime Powers to the three-mile limit regarded as a
maximum is largely explained by the fact that, having
no great interest in a legal extension of their own
territorial waters owing to the de facto superiority
that their means of action give -.them- over vast ex-
panses of ocean, they object to establishing the ex-
clusive jurisdiction of other States over parts of the
high sea, where, in peace, their ships are subject only
to the law of the flag, while in time of war their
fleets exercise rights there that would be restricted
by any extension of the zone of neutrality. Defense
of the principle of freedom of the sea was thus for

14, 1969 and in Guayaquil [Ecuador] El Telegrapho, Decem-
ber 14, 1969.

~Barabolya, op_. cit. , p. 20.

462

them a matter of national interest.

German Language

Hans Kelsen, German jurist and successively a pro-
fessor at Cologne, Geneva, and Prague, has published exten-
sively in German and English. Eorn in 1881, he has lived
since 1941 in the United States, where he became Professor
of Political Science at the University of California at
Berkeley. In his first edition of Principles, he wrote:

Nowadays, the three-mile rule is certainly obsolete.
But the principle remains valid that the territorial
waters do not extend beyond that part of the sea over
which the littoral state can exercise effective con-
trol. 84

In Kelsen' s second edition, revised and edited by Professor

Robert Tucker of The Johns Hopkins University, his view is

expressed more fully:

It has for some time been apparent that the one-
league or three-mile limit of territorial waters can
no longer be regarded as expressive of the lav/ govern-
ing the width of the territorial sea. Though quite
generally accepted by states during the nineteenth
century and the early years of the present century, the
limit formerly set to the territorial sea has been pro-
gressively abandoned in recent decades. . . •

. . . [I]t is not possible to state that there is

^Charles de Visscher, Theory and Reality in Public
International Law (trans, from French by P. E. Corbett;
Princeton: Princeton University Press, 1957), p. 212.

cifHans Kelsen, Principles of International Law (New
York: Rinehart and Co., inc., 19527, ?. 220.

k6j>

any specific width of territorial waters presently
sanctioned by a general rule of international law. ^5

Josef I, Kur.z, Austrian born naturalized American,
is Professor Emeritus in the College of Law at the Univer-
sity of Toledo , and is the author of numerous books in Ger-
man, English, French, and Spanish. Whereas most German
language — and American — publicists have traditionally de-
voted much effort and many pages to the extent of territor-
ial waters and freedom of the seas, it is considered signif-
icant that Professor Kuna, in his 970-page 1968 text on
international law scarcely mentions the three-mile limit
at all, and for that matter, then only in another context.
He says:

[Ejven the concurrent attitude of the leading powers
cannot create a norm of customary general international
lav; against the resistance of other powers. That is why
the three-mile limit of territorial waters, upheld by
the leading maritime -powers, the United States and Great
Britain, has, in the light of non-acceptance by other
states, not become a__norm"of customary general inter-
national law. ... [A] mere majority of states is not
enough. The practice must have been applied by the
overwhelming majority. . . .36

rV r

o:>Hans Kelsen and Kobert W. Tucker, Principles of
International Law (second edition; New York, Chicago, 5an
Francisco, Toronto, and London: Holt, Rinehart, and Winston,
Inc., 1966), pp. 324-325.

Josef L. Kunz, The Changing Lav; of Nations (Columbus
Ohio State University Press, 196V), pp. 33^-340.

Japanese

Shigeru Oda, Professor of International Law at Tohoku

University, reflects the growing Japanese concern over the :

extension of foreign fishing limits beyond three miles:

The eminent scholars of the world are of the opinion
that there is no agreed, rule of international law as to
the width of the territorial sea, so long as the three-
mile limit is not considered as established.

The absence of a uniform limit to the territorial
sea has made it difficult to give precise legal evalua-
tion to the claims of various States to coastal waters,
especially if asserted within twelve miles from the
coast. ...

. . . It is no exaggeration to say that the claims
of jurisdiction [beyond three miles] have been asserted,
in effect, mainly with a view toward securing a national
advantage, which was best served by exclusive control of
the resources. At most, the idea of conservation was
used to cloak the true intent of the claims. °7

British

Sir Humphrey Waldock, Professor of International Law
at Oxford and counsel before international tribunals, be-
came editor of J. L. Brierly's Lav: of Nations after the
latter' s death in 1955. Writing about the Geneva Confer-
ences of 1953 and I960, Sir Humphrey observes:

The three-mile states, so far from having the two-
thirds majority that they had possessed in 1930, could
not now muster one-third of the votes.

^Shigeru Oda, International Control of Sea Resources
(Ley den: A. "5. Sythoff, 1963), pp. 15, 18.

^65

. . . Many other states, however, continue to claim
six or twelve miles, and the question of the width of
the territorial sea remains a serious potential source

of future difficulties.^

United States

Myres S. McDougal and William T. Burke, law professors
at Yale and the University of Washington, respectively,
collaborated and produced what is certainly the most compre-
hensive post-war American work on international maritime law.
They speculate:

What may happen, in the absence of explicit multi-
lateral agreement, is not of course easy to forecast.
Some observers predict, it is said, that without explicit
agreement of this type the tendency will be toward wider
adoption of the twelve-mile territorial sea and that such
distance may achieve recognition in customary -interna-
tional law. 89

H. 3. Jacobini, Professor of Government at Southern

Illinois University, wrote in 1963:

There is steady and apparently increasing pressure
to extend the territorial sea to 12 miles, but at the
present writing the matter remains unresolved. It may
be pointed out, however, that a consensus of important
states can . . . influence the ultimate • . • law. 90

J. L. xirierly, The Law of Nations (sixth edition
by Sir Humphrey Waldo ck; New iorlfand Uxi'ord: Oxford Uni-
versity Press, 1963)? pp. 208, 211.

%yres S. McDougal and William T. Burke, The Public
Order of the Oceans: A Contemporary International Law of
the Sea (New Haven and London: YaleUniversity Press,
l9o2T7"p. 553.

^ °H. 3. Jacobini, International Law: A Text (revised

^66

It is interesting to note that this latter statement and
that of Professor Kunz, supra,' were published concurrently
with the United States-Soviet effort to effect such a con-
sensus in order to halt, at twelve miles, the seemingly
uncontrolled grab for territorial seas.

Lawrence W. v/adsworth, Professor of International

Lav; at The American University, evaluates the failure of

the three-mile limit in terms of

. . . the growing recognition that a single limit
for the territorial jurisdiction of the state over a
maritime belt no longer is a satisfactory solution to
the problem of territorial waters.

Of course, it is still desirable to find an agreed
limitation on the breadth of territorial seas, for
general purposes. ... In the meantime, however, the
idea of special limits for specific purposes offers
a hopeful new path for exploration. ... [T]he time
may not be far off when the belt of sea area over which
the State maintains jurisdiction may depend entirely
upon the reason for the advancement of the claim of
jurisdiction. 91

This chapter has been entitled, "The Demise of the

Three-Mile Limit." It has dealt primarily with the events

of the 1960,s. It may be too early to pick any one of the

events of the 1960's and point to it as the one which marks

edition; Homewood, Illinois: The Borsey Press, and Nobleton,
Ontario: Irwin-Dorsey, Ltd., 1968), pp. 101-102.

^Lawrence W. V/adsworth, "The Changing Concept of
the Territorial Seas," V/orld Affairs, CXXIII (Fall, I960),
pp. 68-69.

^67

most clearly the demise of the three-mile limit. Other, or
subsequent, writers may even argue that it occurred in the
1950 9s or perhaps even the 1940* s. But it seems to this
writer that the signal event was the United States* deci-
sion to follow the European states in adopting the 12-mile
fishing limit. This, coupled with the self-imposed restric-
tion of her warships and warplanes from the communist states'
twelve-mile belt — which amounted to a de facto recognition
of the twelve-mile limit — administered the coup de grace
to the three-mile limit. After that, the United States had
no practical alternative left but to accept the 1967 Soviet
bid and come to terms on the twelve-mile limit.

CHAPTER XV
CONCLUSION

I . SUMMARY

Precis of the Rise and Pali of the Three-Mile Limit

Before the three-mile limit was introduced as the
legal extent of territorial waters, states most commonly
considered their seaward boundaries as extending to the
range of eyesight, to the range of cannon shot, or to an
imaginary line a fixed number of marine leagues distant.

The line of sight doctrine appeared historically at
least as early as 1565 in the form of a Spanish royal de-
cree. In 159^, a Danish ordinance prohibited Eritish fish-
ermen within two leagues of the coast; and in 1610, the
Dutch espoused the position that a prince could claim seas
no farther than his cannon shot could carry.

The three-mile limit was utilized as early as 1728
by the Customs Collector at the port of Yarmouth, England, to
define the boundaries of his jurisdiction. This, however,
appears to have been an isolated case with no relationship
to state practice either earlier or later.

France, meanwhile, had adopted the cannon shot rule
and by 1761, the French Foreign Office advised the Danes of
their opinion that territorial waters could extend no far-
ther than three miles, or the maximum range of cannon shot.

163

469

Although this represented an exaggeration of the capability
of artillery of that period, an Italian diplomat, Ferdinando
Galiani, who was accredited to Paris at the time, published
a book subsequently (17&2) in which he recommended that three
miles be adopted as the international standard because cannon
shot was so variable and uncertain.

In 1793, during the war between France and England,
the French insisted that the fledgling United States announce
their limit of territorial seas for purposes of neutrality.
Quite reluctantly, the United States selected a one-league
or three-mile limit simply because they considered themsel-
ves too weak to defend a wider belt. It is clear that the
responsible American statesmen considered the line of sight
doctrine, the cannon shot rule, and the Scandinavian marine
league in formulating this position. The line of sight
distance to the horizon varied between three miles and over
tv/enty miles depending on whether the viewer was standing
on the beach or atop a promontory overlooking the coast.
Cannon range was considered by some authorities at the time
to equal three miles. The Danes had claimed a territorial
sea of one marine league — albeit a four-mile league — since

1745.

A few years passed, and in 1818, the United States
concluded a three-mile fishing treaty with England. Again
this narrow limit was reluctantly accepted by the United
States, this time in order to obtain in the treaty maximum

4-70

fishing rights along the Canadian coast.

The British, conversely, who had become supreme among
the great powers and whose Royal Navy was more powerful than
all others combined, saw in the narrow three-mile limit a
means whereby she could enjoy maximum freedom of movement
and diplomatic flexibility so long as she maintained her
naval supremacy. She became the unwavering champion of the
three-mile limit. She dictated the three-mile rule by force
against those states who claimed a wider limit, most notably
Spain and Portugal. British, French and German fishermen
fished right up to the three-mile limits of the objecting
states under the protection of warships. Then, in IB76,
Great Britain went a step further and repealed all of her
laws which extended her jurisdiction beyond three miles,
especially customs laws. Thus, thereafter she set the in-
ternational legal standard for strict interpretation of the
three-mile rule.

During the period I876 to 1926, the three-mile rule
rose to paramountcy with the other great powers coming
generally into agreement with the British position. During
the first decade of the twentieth century Portugal and Mexico
yielded to the international pressures and abandoned their
claims to six and nine miles respectively. During World
War I, even Spain, Norway and Sweden, the only states which
were holding out for a greater extent, adopted a three-mile
limit for neutrality.

*7l

Russia in 1911 had announced a claim to a fishing
zone of twelve miles. But that state was all but destroyed
by enemy armies, revolution, and civil war a few years later.
Moreover, she had no fleet — naval or merchant — so her unen-
forceable claim to twelve miles was disregarded and virtually
forgotten — for the time being.

By 1925, as a result of the consensus of the great
powers, the three-mile limit was clearly established as a
rule of international law, even though it was one which had
been enforced over the objection of several of the lesser
states, particularly those who desired a more extensive
exclusive fishing zone. During the next half century, how-
ever, there were five major events or developments which
started the decline, and led to the demise, of the three-
mile rule.

The first of these was the Hague Codification Con-
ference of 1930. In 1926 the decision was made through the
League of Nations to codify the international law of terri-
torial waters. Perhaps the great powers naively believed
that the three-mile limit was so well established that the
lesser states, given the chance to vote with an equal voice,
would approve it — a rule which had been hitherto dictated to
them by the great powers. But when the issue over the ex-
tent of the territorial sea was thrown open to Conference
discussion, the states which had traditionally desired a
width greater than three miles and those new states which

^72
felt no obligation to the past or to traditional interna-
tional law, formed a large enough number of votes to block
formal codification of the three-mile rule. Several states
suggested that there be recognized a special "contiguous
zone" of water, adjacent to the territorial sea, for special
jurisdiction such as customs, sanitation, and immigration.
But Great Britain's strong opposition to such a concept
ruled out any compromise solution. The Conference failed.
Following the Conference there were promulgated literally
dozens of claims to special maritime zones for special pur-
poses beyond the three-mile limit.

Second, there were the Truman Proclamations of 1945,
by which the United States claimed the rights to the re-
sources of the seabed and subsoil of the continental shelf
and the right to institute fishery conservation measures
on the high seas adjacent to the territorial sea as nec-
essary to protect the fishery. These proclamations were
widely misinterpreted and were used as a pretext by states
in South America, Asia, and Africa to increase their terri-
torial seas. The 200-mile limit, subsequently proclaimed
by several Latin American states, can be traced directly
to the Truman Proclamations.

Third, Soviet Russia, diplomatically eclipsed for a
quarter century, emerged as a winner of V/orld War II, and
presently became one of the two superpowers, with the United
States, of the post-war period. She reaffirmed her claim

^73
to a twelve-mile territorial sea, and developed a large navy
and merchant fleet, second only to that of the United States,
to validate that claim. Russia's defiant and emphatic super-
power claim to twelve miles, even in itself, would have au-
gered ill for the three-mile limit. But Russia also actively
encouraged other states to adopt the twelve-mile limit.
There followed a large number of twelve-mile claims by under-
developed states who saw in the Soviet Union an example of
modernization and industrialization they wished to emulate.
Such claims also served in some cases as a means to break
with the past, protesting as it were the policies of their
Western overlords.

Fourth, two conferences were held under United Na-
tions auspices in 1953 and I960 hopefully to resolve the
issues between the three-mile states and the twelve-mile
states. Although a compromise was nearly reached at six
miles, neither side could muster enough support to codify
either three or twelve miles as the extent of territorial
seas. During the Conferences, in an attempt to reach the
six-mile compromise, the three-mile states indicated their
willingness to accept a twelve-mile limit for fishing. It
was not long after the I960 Conference until all but a hand-
ful of the more than 100 states of the world had abandoned

the three-mile fishing limit in favor of one extending
twelve miles.

Fifth was the role played by the United States. Great

Britain, the traditional champion of the three-mile limit
emerged from World War II thoroughly exhausted with her
Empire on the verge of collapse. If any state were to take
up the three-mile yoke, it would have to be the United States.
But the post-World War II United States was not in a posi-
tion to play a role similar to that of post-Napoleonic War
Great Britain. If the three-mile limit were to be preserved,
both the twelve-mile limit of Soviet Russia and the 200-mile
limit of Latin America would have to be successfully chal-
lenged, by force if necessary, as did Great Britain. But risk
of nuclear war and Cold War alliances were at stake. Also,
unlike Great Britain, who had adhered to a strict three-mile
limit for all purposes, the United States had strong national
interests in the contiguous waters beyond the three-mile limit
which served as impediments to her service as would-be cham-
pion of the three-mile limit. Consequently, the efforts of
the United States to preserve the three-mile limit were limited
to diplomatic efforts which, in the face of mounting interna-
tional interest in Russia's twelve-mile limit, were doomed to
failure. Borrowing a little from the metaphor of Mr. Bocobo:
since the United States had served reluctantly as midwife at
the birth of Mr. Three-Miles, it was only fitting and proper
that she should serve also as the attending physician — again
reluctantly — at Mr. Three-Miles' death.

Within a quarter- century following World War II, the
three-mile limit was, in fact, dead as a rule of international

475
lav/. Less than one-fourth of the states of the world still
retained three-mile legislation on their law books. Nearly-
all of those had adopted greater limits for fishing, customs,
etc. More important, they had given de facto recognition
to the six- and twelve-mile limits of the other states, re-
stricting the navigation of their ships accordingly. It
appeared to be only a matter of time until they repealed or
superseded their three-mile laws, if for no other reason
than to place themselves on a par with the majority of
states.

Evolution of the Nature of the Three-Mile Limit

The nature of the territorial sea and of the rights
and obligations it confers upon the littoral state have
undergone a continuous evolution since the earliest days of
the concept. In feudal times the territorial sea was regarded
as something of a judicial district in which the littoral
prince was competent and responsible to apprehend and punish
those who committed illegal acts. The Venetians regarded
their territorial sea as something of a private thoroughfare,
passage through which was subject to payment of fees or tolls.
The fifteenth century Iberian view simply held the seas as
the monarch's private property. Foreigners could navigate
through the "property" only at his pleasure or convenience.

But with the sixteenth century came the age of imper-
ialism and keen competition for the use of the seas. It

±76

became apparent to kings and princes that it was futile to
aspire to control the whole of their ocean domains, and they
began to moderate their claims, concentrating them in the
littoral area where they felt reasonably confident they could
establish and maintain control over a particular matter or
matters especially important to them.

The first of these narrower claims seems to have been
that of the Spanish King in 1565 when he proclaimed a line
of sight coastal belt. This belt was a protective belt —
nowadays we use the term "security" — and most of its adherents
and proponents envisioned it in that light. The Danes es-
tablished their two-league belt as an exclusive fishing zone.
The cannon shot rule was conceived to create neutrality
zones. The early eighteenth century English customs officials
often used the depth of water — fourteen, sixteen, and thirty-
fathom contour curves — as -the seaward extent of their juris-
diction.

The three-mile limit synthesized these several con-
cepts of what the maritime belt should provide for its owner.
At the turn of the eighteenth century, even Great Britain had
become involved with all these various limits for special
purposes. In Britain's 1751 peace treaty with Tripoli, Tri-
politan ships were prohibited from cruising with sight of
Minorca or Gibraltar or disturbing or molesting the trade

See supra, Chapter VI, p. 101.

^77

in those ports. In the 1763 peace treaty between France

and Great Britain the fishing limits of the American colonies

were established in leagues, varying between three and fif-

3
teen leagues. In 1794, the United States and Great Britain

concluded a cannon shot neutrality treaty. Use of bottom

contour lines to delimit customs areas gave way to zones

measured in leagues, and by the end of the eighteenth century

the British "Hovering Acts" had extended her customs zones

5
to four leagues. But by the time of the Customs Consolida-
tion Act of 1876, Great Britain had decided that one limit
for all these competences — security, fishing, neutrality,
and customs — was best. During the half century that followed
there was no effective opposition to this interpretation of
the three-mile rule. What is more, Britain's control of the
seas was enhanced by this simplified strict interpretation
of the three-mile rule. With the maximum freedom of movement
thus afforded her naval, merchant, and fishing fleets, she
enjoyed control of the seas under the concept of mare liberum
more successfully and with less effort than during the days

2
See supra, Chapter IV, p. 76, note 2.

-^See supra, Chapter V, p. 97, note 27.

United States and Great Britain, "Treaty of Amity,
Commerce, and Navigation, November 19, 1794," reproduced in
Henry G. Crocker (ed.), The Extent of the Marginal Sea,
U. S. State Department (Washington: Government Printing Of-
fice, 1919), p. 637.

^See supra, Chapter VII, pp. 135-136.

of mare clausum.

But it did not always remain so. Just as customs
jurisdiction had been the last to be synthesized into the
three-mile limit package, it was the first to reassert itself
as a state jurisdiction separate from and beyond the three-
mile limit. This came in the early 1920' s with the success-
ful challenge by the United States to enforce its liquor
laws against British subjects out to twelve miles — or to the
extent of one hour's steaming distance.

World War II clearly demonstrated that states were
not convinced that a three-mile neutrality belt was adequate,
and many proclaimed neutral zones several hundred miles dis-
tant. Although cannon range had not increased that far,
several writers have suggested that ordnance aboard coastal
naval cruisers amounts to a constructive increase in the range
of shore batteries.

Security needs, too, soon found new expression beyond
the three-mile limit. Four hundred-mile Air Defense Identi-
fication Zones provide an interesting example of how tech-
nology can affect legal concepts. The security zone which
used to extend as far as the eye could see, now extends as
far as the electronic sensors in radar ships, radar aircraft
and ocean bottom hydrophone arrays can "see."

The regime of the continental shelf is newly codified
in international law. But its variable seaward boundary at
the 100-fathom curve is not new. The publicist Rene Valin

479
recommended in 1760 establishment of the maritime frontier
at the point where the bottom could no longer be sounded.
British customs officers used bottom contour lines to delimit
their jurisdictional zones, as indicated above. The Ceylon-
ese pearl fisheries were once limited by the 12-fathom curve.
Moreover, strongly reminiscent of Grotius' maxim that a state's
territory extends as far seaward as the state can exercise con-
trol, are the words in the 1958 Convention on the Continental
Shelf which permit the coastal state to exploit the seabed
and subsoil as far seaward as the state is capable to do so.
Fishing rights were the last of the major territorial
sea competences to be extracted from the three-mile limit.
The twelve-mile limit of the 1960*3 and the 200-mile claims
of the 1950* s make one mindful of the seventeenth and eigh-
teenth century Danish fishing limits of four leagues and fif-

7
teen leagues around Iceland and Greenland, respectively.

Other special seaward limits had been adopted by states

to meet their special needs in matters such as sanitation and

navigation, with the end result that the three-mile limit was

reduced to only a shell of its nineteenth century British

design. As a matter of fact, it seems to have been reduced

to the single, ancient attribute of territorial waters,

that of private property through which the passage of foreign

See supra, Chapter III, p. 68.
7See supra, Chapter V, pp. 88-90.

ships may be regulated or prevented altogether by the coastal
sovereign.

II . RECOMMENDATIONS

Extent of the Territorial Sea

It was this latter issue which was the crux of the
Soviet-United States territorial seas controversy during the
post-war period. The Soviet Union, traditionally a land power,
desired the wider twelve-mile zone to exclude United States
ships, arguing that warships did not enjoy the right of passage
in the territorial sea. The United States, a naval power,
desired to retain as much freedom of maneuverability as pos-
sible for her fleet; this could be best served by a three-
mile limit together with general agreement that warships
enjoyed the right of innocent passage without prior noti-
fication or authorization.-

But since the early years of the Cold War, the situa-
tion between the two superpowers has changed. Russia is no
longer strictly a land power. She now supports naval and
merchant fleets almost the size of those of the United States.
Her fishing fleet is larger. Neither of these powers singly
rules or controls the seas. Whereas Britain alone enjoyed
naval supremacy during the nineteenth century, currently the
United States and the Soviet Union share control of the seas
in somewhat of an uneasy condominium.

During the 1960fs the Soviet Union ventured from the

4S1

Black Sea into the Mediterranean where her fleet units have
since routinely and literally shared those waters with the
United States Navy. Moreover, the Soviet Navy which was
transformed first from a small coastal patrol force to the
world's largest submarine force, has since broadened its
mission to include operation of aircraft carriers. Hence,
the Soviet Navy, becoming more and more like the United States
Navy, will increasingly note the advantages of a narrow terri-
torial sea belt. It may conceivably develop that the Soviet
Union is even more committed to narrow territorial seas than
the United States; unlike the United States Atlantic and
Pacific Fleets, the Soviet Baltic, Black, and Pacific fleets
must rely on passage through the straits and territorial
waters of other states to reach the open oceans.

Rising as they have to superpower status, the United
States and the 'Soviet Union have come to share a joint re-
sponsibility for world stability. Whether or not they ac-
cept the responsibility willingly and cheerfully does not
matter; for in any event theirs will be the blame or credit
for the result. Great Britain assumed the task in the nine-
teenth century and succeeded in preventing global war for 99
years. If the United States and the Soviet Union perform
their joint obligations with similar skill and responsibility,
the so-called Cold War might turn out to be another long-
lasting period of relative peace and stability similar to the

^S2

"Pax Britannica." Both superpowers seem to be taking their
roles seriously. Even though they are mutual competitors,
they have maturely sidestepped serious and direct confronta-
tion which could have led to global war. At the same time,
they have both applied military and/or naval force- to check
trouble within their respective spheres.

The United States has used naval force in this regard
and it is probably only a matter of time and opportunity
until the Soviet Union does likewise. Her effectiveness in
doing so could be affected by the breadth of the territorial
sea, a case of Soviet chickens coming home to roost. During
the early days of the American Cold War "containment" policy,
the Soviet Union found herself surrounded by the United States
Fleets. Although her insistence on a twelve-mile zone could
provide her no positive security advantages, such a limit
offered her an advantage in the negative sense that it re-
duced the effectiveness of the United States' "containment"
strategy. By 1970, however, as a result of Russia's largely
overcoming her naval inferiority, the twelve-mile limit had
become as disadvantageous to the Soviet Union as it was to

The "Pax Britannica" and the Cold War thus far com-
pare very interestingly in this regard. During the ninety-
nine -year "Pax Britannica" there were literally scores of
local wars, uprisings, border clashes, and subversive move-
ments aimed at coup or assassination. There were arms races,
ideological clashes, and student riots. For virtually every
Cold War crisis, there can be found a "Fax Britannica"
parallel.

4S3

the United States, imposing annoying restrictions on the
fleets of both superpowers, almost equally. In fact, the
United States might have logically adhered with alacrity to
the twelve-mile limit on the grounds that it is more re-
strictive to the Soviet Navy than to its own. No doubt,
this has occurred to the Kremlin, and it should not be sur-
prising to learn that the Soviet Navy may secretly already
favor a three-mile limit over the twelve-mile limit. This
awkward situation is ironically unfortunate, because a three-
mile limit — in its remaining competence of "private property"
— would seem to be in the best interests of both the super-
powers. It would provide them with more efficient tools in
their world leadership role and as a result would probably
better serve the ends of world peace and stability.

let, it cannot be expected that the Soviet Union would
suddenly do a volte face on the three-mile limit. The
twelve-mile limit has become a matter of national pride with
the Soviet Union and represents a significant diplomatic
victory. Even if there is support for a three-mile limit
within the Soviet naval ranks, it is not likely to surface.

Certainly the most logical alternative is the twelve-
mile limit. It has become, with few exceptions, the inter-
national fishing and customs limit. A plurality of states
have already adopted twelve miles as their limit of terri-
torial waters. It is important that the superpowers agree
on a limit if they desire to put an end to claims such as

4S^

130 miles, 200 miles, and the like. If, conversely, they
cannot agree on a limit, there is virtually no end to the
extent and variety of limits the lesser states might claim,
and the superpowers would have no one to blame for the re-
sulting territorial seas anarchy but themselves. The twelve-
mile limit offers a "ready-made" and most expeditious solu-
tion. Meanwhile, the 200-mile limit continues to gather
support, with more than ten adherents. The twelve-mile limit
is obviously a better choice, and for the United States, a
necessary compromise.

Prospects for the Future

The three-mile limit failed primarily on the grounds

that it did not provide coastal states a wide enough exclu-

9
sive fishing zone. Throughout the nineteenth century the

Russians maintained this to be the case; they persisted long
enough to have seen their position vindicated. Now, even
as twelve miles is becoming the generally accepted interna-
tional fishing limit, there are heard dissenting states which
claim that twelve miles, too, is insufficient. Unless this
problem is addressed and solved, it is quite possible that
the twelve-mile limit could fail on the same grounds; the

'Failure of the three-mile rule to provide a fully ac-
ceptable security zone also contributed to its demise; but
in this writer's view, the security shortcoming was secondary
in importance to that of fisheries, for the reasons cited on
p . 3*5S and p. 436.

seeds for its demise have already been sown.

4S5
10

Exploitation of the resources of the sea. The situ-
ation has changed in certain respects since the nineteenth
century. Then the sea yielded primarily food. Now, in addi-
tion it yields minerals. Moreover, the burgeoning population
of this century is being forced into a position of increas-
ing reliance on the protein and mineral resources of the sea.
This was brought into world focus by the 1945 Truman Procla-
mations on the continental shelf and fisheries. Although
the United States, in its dealings with Latin America, has
since emphasized the separateness of the two proclamations,
they were issued jointly with :,two companion Executive Or-
ders" under a single press release ; and in the context of
concern over sea resources beyond territorial waters they
should be considered on the basis of their joint nature.

The states which claimed 200-mile limits justified

See supra, Chapter XI, pp. 302-306, and Chapter XII,
or), 331-337. Not that this statement needs further proof,
consider the words of Fernandez de Cordoba, Ecuadorian con-
sul in San Diego: "The old 12-mile claim for territorial
water in the oceans of some nations was to protect ports in
time of war. Now we are trying to protect our maritime re-
sources." News item, "200-Mile Limit Upheld by Ecuador Con-
sul," San Diego Union, February 27, 1970, p. 3-5. In de-
fending the 200-mile limit thus, the CEP states are speak-
ing of the 12-mile limit as already outmoded, just as the
Russians defended the 12-mile limit against the 3-mile limit
at the beginning of the twentieth century.

Marjorie M. Whiteman, Digest of International Law
(V/ashington: Government Printing Office, 1963- J. vol.
IV (1965), pp. 757-75S, quoting White House press release

of 28 September 1945.

^S6

then — at least in the earlier cases — largely on the basis
of the United States' 1945 Proclamations. After reading
carefully all the arguments by both sides, it is believed
that the objective student of history or law will agree
that the 200-mile fishing claims have as much legal, moral,
and logical basis as the claims to the continental shelf.
There is no logic — moral or legal — in the claim that crabs
and other "sedentary'1 sea life on the continental shelf
are the property of the littoral state when the other fish
living there are not. Neither is there any logic in the
argument that Argentina, for example, owns the minerals
of the seabed 200 miles off her coast when Chile does not.
This is not to say that this writer approves of the 200-
mile exclusive fishing zones. He does not. Eut neither
does he approve of any exclusive rights for the coastal
state to exploit the resources of the continental shelf
or ocean floor beyond the limit of territorial waters.

The doctrine that a coastal state should enjoy ex-
clusive right to exploit the continental shelf is patently
unfair to non-littoral states and to states with little or
no continental shelf. Such an inequitable regime over the
resources of the sea can be predicted to be a constant
source of friction, and with a population expansion problem,
an increasing one. For example, the United States 1964
"Bartlett Act,"12 prohibiting foreigners from taking seden-

1 See supra, Chapter XIV, p. 429.

427

tary life from the United States continental shelf triggered

difficulties between the United States and both Japan and

13
the Soviet Union. That law creates as much concern among

the Japanese and Russian fishermen as the Declaration of
Santiago does among California fishermen. Left alone, the
situation will probably continue to deteriorate. With pop-
ulations growing, and with ocean technology making great
strides, it is only a matter of time until it will be not
only possible, but also necessary, to exploit the entire
ocean, its seabed, and subsoil and not just those areas
where there is a continental shelf. International lawyers
have already prepared charts, inherently controversial, di-
viding the oceans between the coastal states under the pro-
cedures laid down in the 195# Convention on the Continental
Shelf.14

■^David W. V/indley, "International Practice regarding
Traditional Fishing Privileges of Foreign Fishermen in Zones
of Extended Maritime Jurisdiction," American Journal of
International Law, LXIII (July, 1969), pp. 492-494.

4J. V. Reistrup, "Davy Jones' Locker Tempts the
World," The Washington Post, November 19, 1967, p. B5- The
ocean chart is appenaed also to Lewis M. Alexander (ed.),
The Law of the Sea: The Future of the Sea's Resources (Pro-
ceedings of the Second [19o7J Annual Conference of the Law
of ine s'eiTlnstitutej (Kingston, unode islana: University
5T RnodeTTsiand, lyoS). The arrangement envisioned is a
geometric partition of the oceans based on the principle of
equidistance from the nearest points of the baseline. The
political unworkability of such a scheme can be best illus-
trated by the fact that the Soviet Union, a seagoing super-
power with demonstrated technological prowess, would be
assigned a disproportionately — and no doubt unacceptably —
small share of * the seas. Germany would get virtually none.
(Germany's dissatisfaction with such a means of apportion-

4gg

A better solution, it would seem, might be found in
the experience and practice of' nineteenth century Great Brit-
ain. Faced with a serious smuggling problem, Great Britain
had increased her customs boundaries successively to two,
three, four, eight and even to 100 leagues. Although this
solved her domestic customs problems, her extensive customs
zones were creating international problems for her, and she
withdrew her customs boundaries to within her three-mile
limit of territorial waters.

Today, extended claims are being advanced unilaterally
by states in the name of conservation. There is little hope
that long range conservation of the living and mineral re-
sources of the sea can be accomplished in this uncoordinated
manner. But to arrest the present trend, to pull back and
start afresh as did Great Britain, would require today a
joint effort by the United States and Soviet Russia. These
two states would do well to spearhead a plan to renounce
all exclusive claims to the sea, the seabed, and subsoil
beyond the limit of territorial waters, contingent upon the

ment has already been articulated. See International Court
of Justice, Reports of Judgements, Advisory Opinions and
Orders, 1969: ^orth Sea Gontinental*~Shelf Cases [.Netherlands:
International Court of Justice, I969J and/or "Judicial De-
cisions," American Journal of International Law, LXIII [July,
1969 J y pp. 591-636). Conversely, less technically advanced
Portugal, by virtue of her ownership of -the Azores and Cape
Verdes, would fall heir to the major share of the North At-
lantic Ocean. The balance of the North Atlantic — that off
the U. 3. east coast — would go mainly to the United Kingdom
because of Bermuda and the Bahamas.

4S9

conclusion of an international convention regulating the
exploitation of the living and 'mineral resources of the sea.
Such a convention would establish "rules of the road" for
pollution (crude oil, radioactive waste, etc.), safety (nav-
igation, mutual interference, etc.), and conservation (harm-
ful techniques, equipment, etc.) on the high seas. * Under
such an agreement, everyone alike would be free to exploit
the resources of the ocean beyond the territorial waters of
all states, but subject to compliance with the rules. In-
fractions would be considered in a sense as "piratical,"
against the laws of all states and could be tried and pun-
ished as in the case of the International Regulations for
Preventing Collisions at Sea (International Rules of the
Road) by the courts of any state, sitting in admiralty.

The high seas beyond territorial waters should be
treated as res communes, -available for the use and common
welfare of all states and peoples. The regime of the min-
eral and living resources beyond the territorial sea, and
consequently conservation thereof, is too important to the
community of states in general to be left up to the uncoor-
dinated efforts of individual states.

^The immediate and pressing need for antipollution
measures on the high seas was highlighted by the extensive
1970 oil pollution in the Gulf of Mexico resulting from the
"Texas Tower" operation there. Such pollution poses a di-
rect threat to fish and wildlife. News item, "Four Wells
Still Belching Oil Into Slick in Gulf of Mexico," The Wash-
ington Post, March 1$, 1970, p. A30.

For example, the "conservation" area proclaimed by

4-90

The contiguous zone. Assuming that the twelve-mile
limit becomes the ultimate successor to the three-mile limit,
the de .jure doctrine of the contiguous zone becomes irele-
vant. The Convention on the Territorial Sea and the Con-
tiguous Zone provides that the contiguous zone cannot extend
beyond twelve miles, so the two would become congruent. It
should not work any particular hardship on states if they
were to confine the enforcement of their customs, naviga-
tion, immigration, and sanitation laws within the twelve-
mile zone. But then there are the de facto contiguous zones
exercised by states for security reasons, occasioned by and
large out of Cold War mutual distrusts. Although the Soviet
publicist A. N. Nikolaev writes that "... the Soviet
Union ... at the present time has no contiguous zone," he

does not deny or clarify the vague Soviet claims in the

17
Arctic "sector." On the United States side, there are

the ADIZ's, created in 1950 to detect an incoming attack by

manned bombers. Perhaps in this day of ICBM's, they may

have outlived their cost-effectiveness. If one needs a Quid

r>ro quo, perhaps unrestricted passage of Soviet airliners

Chile, Ecuador and Peru measures 200 by 4000 miles. Pro-
tecting a fishery of that magnitude is a global concern,
not limited to the interests of the littoral states.

17A. N. Nikolaev, The Territorial Sea (Moscow, 1959),
d. 12, translated and reproduced in part in American Embassy
Moscow, State Department Airgram A-1682 of December 31, 1969.

through the ADIZ could be bartered for unrestricted passage
of American icebreakers through the Northeast Passage. Thus,
"security" could be added as one of the competences of the
twelve-mile limit.

Although there is no guarantee that an all-purpose
twelve-mile limit would serve the states better than one
with a contiguous zone, the history of the three-mile limit
would make it seem so. The three-mile limit was a stable
rule of law until the inter-war period when the concept of
the contiguous zone began to gather momentum. As that con-
cept— with its special limits for special purposes — gained
strength, the rule of three miles proportionally lost strength,
It would seem advisable, then, if the maritime states desire
a stable rule fixing the extent of the territorial sea at
twelve miles, that they strive to create in it a package
regime representing at once the maximum extent of their
sovereignty and of the several special jurisdictions they
have traditionally claimed over the sea.

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Malloy, William M. (ed.). Treaties, Conventions, Interna-
tional Acts, Protocols, and Agreements between the United
States of America and Other Powers, 1776-1909. Senate
Document wo. 357, blst Cong., 2nd sess. 2 vols. Wash-
ington: Government Printing Office, 1910.

Martens, Fedor Fedorovich de. Recueil des traites et

conventions conclus par la Russie avec les Puissances
etrangeres. 15 vols. St. Petersburg, 1874-1909.

Martens, Georg Friedrich von (ed.). Nouveau recueil general
de traites et autres actes relatif s aux rapports de
droit international . Second series ed. and trans.
Charles Samever, Jules Hopf, and Felix Stoerk. 35 vols.
Gottingue: Dieterich, 1&76-190S.

( ed. ) . Recueil de traites d'alliance, de paix, de

treve, de neutralite, de commerce, de limite, d' echange
etc . , et nlusieurs autres actes servants a la" connaissance
des relations et rangers des puissances et etats de
1' Europe. First edition. ~7 vols, plus 4 supplemental
volumes. Gottingue: Dieterich, 1791-1308. (Second edi-
tion, 8" vols., Gottingue: Dieterich, 1B17-1&35.)

Moore, John Bassett. A Digest of International Law. £
vols. Washington: Government Printing Office, 1906.

History and Digest of the International Arbitra-

tions to which the United States Has Been a Party.

o vols. Washington: Government Printing Office, lo9&.

Napoleon III, Emperor of the French. Etudes sur le passe
et 1'avenir de i'artillerie. . . . See entry under
Fave, le General Alphonse.

Orfield, Lester B. and Edward D. Re. Cases and Materials
on International Lav/. Revised edition. Indianapolis,
Kansas City and New York: The Bobbs-Merril Co., Inc.,
1965. Pp. xliv + 1102.

Parry, Clive (ed.). A British Digest of International Law.
15 vols, (projected estimate) . Eondon: Stevens and Sons,
Ltd., 1965- . Volume III deals with the law of the
sea.

Scott, James Brown (ed.). Argument of the Honorable Elihu
Root on behalf of the United States before the North
Atlantic Coast Fisheries Arbitration Tribunal at The
Hague, 1910. Boston: The 'World Peace Foundation,
1912. Pp. cli + 523.

495

Scott, James Brown (ed.). The Reports to the Hague Confer-
ences of lo99 and 1907. Oxford: The Clarendon Press,
1917. Pp. xxxii +~940\

Smith, Herbert Arthur (ed.) . Great Britain and the Law of
Nations: A Selection of Documents Illustrating the
Views of the Government in the United Kingdom upon
Matters of International Law. 2 vols. London: P. S.
King and Son, 1932-1935.

Snow, Freeman. Cases and Opinions on International Law.
Boston: The Boston Book Co., IS93 . Pp. xl + 586.

Sohn, Lewis B. Cases and Other Materials on World Law.

Brooklyn: The Foundation Press, Inc., T^OT Pp. xxii +
1363.

Steiner, Henry J. and Detlev F. Vagts. Transnational Legal
Problems: Materials and Text. Mineola, New York: The
Foundation Press, 196S . Pp. liv + 1230.

Stowell, Ellery C. and Henry F. Munro, International Cases.
2 vols. London: Constable and Co., Ltd., and Boston and
New York: Houghton Mifflin Co., 1916.

Wharton, Francis. A Digest of International Lav/ of the
United States. 3 vols. Second edition. Washington:
Government Printing Office, 1387. Volume I deals
with territorial seas.

Whit email, Marjorie M. Digest of International Law. 15 vols,
Washington: Government Printing Office, 1963-
Volume IV deals with territorial seas; volumes VII,
XII, XIV, XV not published as of February, 1970.

2. Government Publications

Borchardt, Edwin M. (ed.). North Atlantic Coast Fisheries
Arbitration: Coastal Waters : English Translation of
Extracts from Works of French, German, Austrian, Argen-
tinian, Spanish, Swiss, Russian, Italian, and Belgian
Publicists. Washington: Government Printing Office,
1910. Pp. iv + 362. [Also spelled Borchard.]

The British Information Service. The Territorial Sea.

London: Central Office of Information (Reference Division
Pamphlet No. R. 4372), September, 1961. Pp. 44.

Franklin, Carl M. (ed.). U.S. Naval War College International
Law Studies 1959-1960: The Law of the Sea: Some Recent
Developments. Department of the Navy. Washington:
Government Printing Office, 1961. Pp. viii + 312.

Great Britain, Foreign Office. British and Foreign State

Papers, 1812/14 — . Ed. Lewis Hertslet, et al. " vols.
London: H. M. Stationery Office (various printers"]",
1S41-

. Treaty Series, no. 10 (1942). London: H. M.

Stationery Office, 1942.

Great Britain, Parliament. [Hansard's] Parliamentary Debates
Fifth series. London: H. M. Stationery Office, 1909-

MacChesney, Brunson (ed.). U.S. Naval War College Inter-
national Lav; Situations and Documents 195b : Situation,
Documents and Commentary on lie cent Developments in the
International Lav; of the Sea. Department of the Navy.
Washington: Government Printing Office, 1957. Pp. xvii
+ 629.

Mallison, W. T., Jr. U.S. Naval V/ar College International
Law Studies 1966: Studies in the Law of Naval Warfare :
Submarines in General ana Limited Wars . Washington:
Government Printing Office, 1968. Pp. xv + 230.

Shalowitz, Aaron L. Boundary Problems Associated with the
Submerged Lands Cases and the Submerged Lands Acts.
Vol. I of Shore and Sea Boundaries : With Special Refer-
ence to the Interpretation and Use of Coast and Geodetic
Survey Data. (U.S. Department of Commerce, Coast and
Geodetic Survey Publication 10-1) 2 vols. Washington:
Government Printing Office, 1962. Pp. xxiv + 420.

Tucker, Robert Wr. U.S. Naval War College International Law
Studies 1955: The Law of War and Neutrality at Sea.
Washington: Government Printing Office, 1957. Pp. xiii
+ 448.

United States Archives, Federal Register Division. The
Code of Federal Regulations of the United States of
America. Washington: Government Printing Office,
1939- .

. The Federal Register, Wednesday, December 27,

1950.

United States Coast Guard. Rules of the Road: International
— Inland (CG-169). Washington: Government Printing
Office, 1965. Pp. x + 102.

United States Congress. Congressional Record (Senate) ,
February 25, 1964, p. 3340.

^97

United States Congress. Congressional Record (Volume 114,
Part 7, April 3, 1968j . Washington: Government Printing
Office, 1968.

United States Congress, House of Representatives. The

Counter^Case of Great Britain as Laid Before the Tri-
bunal of Arbitration, Convened at Geneva under the
Provisions of the Treaty Between the United States of
America and Her Majesty the ^ueen of Great Britain,
concluded at Washington May 8, 1871 . 42nd Cong., 2nd
sess., House of Representatives. Ex. doc. 324. Wash-
ington: Government Printing Office, 1872. Pp. 3 + 1105.

United States Congress, House of Representatives. Protect-
ing the Rights of Vessels of the United States on the
High Seas and in Territorial "waters of Foreign Coun-
tries. 83rd Cong., 2nd sess., House Report No. 2449,
July 22, 1954. Washington: Government Printing Office,
1954.

United States Congress. The Public Statutes at Large. Ed.
Richard Peters, Esq. 8 vols. Boston: Charles C. Little
and James Brown, 1850. The series now published by the
U.S. government under the title U.S. Statutes at Large
currently numbers over SO volumes.

United States Congress, Senate. Coastal Waters and Terri-
torial Sovereignty (Supplemental to Extracts Used by
Great Britain During the Oral Argument in the North
Atlantic Coast Fisheries Arbitration). ETst Cong.,
3rd sess. Washington: Government Printing Office, 1910.

Proceedings in the North Atlantic Coast Fisheries

Arbitration. 12 vols. Senate Document No. 870, 61st
Cong., 3rd sess. Washington: Government Printing
Office, 1912.

Proceedings of the Alaska Boundaries Tribunal.

7 vols. Senate Document No. 162, 58th Cong., 2nd sess.
Washington: Government Printing Office, 1903-1904.

. Twelve-Mile Fishery Zone . Senate Report No. 1280,

8~3th Cong., 2nd sess. Washington: Government Printing
Office, 1966. Pp. 18.

United States Department of the Army. International Law.
2 vols. (Army Pamphlets 27-161-1 and -2) . Washington:
Government Printing Office, 1962-1964.

United States, Department of the Interior. Annual Report
of the Secretary of the Interior, Fiscal Year Ended
June 30, 1945. Washington: Government Printing Office,

1945.

49S

United States Department of the Navy. "Court-Martial

Order 3-1949: Extension of Territorial Waters Beyond
Three-Mile Limit Would Be Contrary to Prevalent Con-
cepts of International Law," Navy Department Court-
Mart ial Orders, pp. 47-64. Office of the Judge Advo-
cate General, Department of the Navy. Washington:
Government Printing Office, 1951.

Defensive Sea Areas and Airspace Reservations

(General Order Number 13 oT~21 September 1948). Wash-
ington: Government Printing Office, 1943W Pp. 11.

Offices of the Chief of Naval Operations and

Judge Advocate General. Study on United States Policy
on Freedom of the Seas and the Navy's Support of that
Policy. Washington: Navy Department, 1964. (Xeroxed.)

Office of the Chief of Naval Operations. The Law

of Naval Warfare (NWIP 10-2). Washington: Government
Printing Office, 195$. 6 chapters and 10 appendixes.

United States Department of State, Office of the Special
Assistant to the Secretary of State for Fisheries and
Wildlife. Breadth of Territorial Sea and Fishing Juris-
diction Claimed by Members of the United Nations System,
Washington: State Department, 15 August 1969. Pp. 5.
(Xeroxed.)

United States Department of State. Papers Relating to the
Foreign Relations of the United States. vols.
Washington: Government Printing Office, 18~6~2-

. Press Release Number 87, April 17, 1969. ("Text

of Statement by USAF Major General James B. Knapp at
290th Meeting of the Military Armistice Commission,
Panmunjom, Korea, April 17, 1969.")

. Sound Dues upon American Commerce to the Baltic :

Message from the President, of the United States, Trans-
mitting Correspondence in ReTation to the Imp"osition
of "Sound Dues" upon our Commerce to the Baltic.
Washington: Government Printing Office, 1854. Pp. 61.

. Sovereignty of the Sea (Geographic Bulletin Number

3, April 1965) . ' Washington: Government Printing Office,
1965. Pp. 3 + 31.

United States Department of the Treasury. Fur-Seal, Sea

Otter and Salmon Fisheries: Acts of Congress, Presidents'
Proclamations, Regulations Governing U .S. Vessels, Acts
of Parliament, )rders in Council, Pertaining to the

J+99
.r-Seai isheries in Bering Sea and North Pacific

Ocean, Sea Otter Regulations, Laws as to Salmon Fisheries
in .-,1a ska. Treasury Department (.OffTce of Division of
Revenue Gutter Service) Document No. IS 50. Washington:
Government Printing Office, 1396. Pp. 78.

United States Government. The American State Papers: State
Papers and Publick Documents of the United States from
the Accession of George Washington to the Presidency,
Exhibiting^ a Complete View of our Foreign Relations

Since that Time . 10. vols. Second edition. Boston:
T. IT Wait and Sons, 1817.

. The Federal Cases : Comprising Cases Argued and

Determined in the Circuit and District Courts of the
United States. Vol. I of a continuing series. St. Paul:
West Publishing Co., 1894. Pp. xlvii + 1224.

Fur Seal Arbitration: Proceedings of the Tribunal

of Arbitration Convened at Paris under the Treaty Be-
tween the United States of America and Great Britain,
Concluded at Washington February 29 , 1892 for the De-
termination of Questions between the Two Governments
Concerning the Jurisdictional Rights of the United States
in the waters of Bering Sea, lo vols. Washington:
Government Printing Office, 1895.

United States Naval War College, "Contiguous Zones, Airplanes,
and Neutrality," International Law Situations 1939.
Washington: Government Printing Office, 1940. Pp. 60-
100.

International Lav; Discussions 1903: The United

States Naval War Code of 1900. Washington: Government
Printing Office, 190~4. Pp. 167.

. International Law Documents 1948-49. Washington:

Government Printing Office, 1950. Pp. vii + 264.

. "Marginal Sea and Other Waters," International

Law Topics and Discussions 1913. Washington: Govern-
ment Printing Office, 1914. Pp. 11-53.

. "Maritime Jurisdiction," International Law Situa-
tions with Solutions and Notes 1928. Washington:
Government Printing Office, I929\~ Pp. 1-39. .

, "Neutrality and Territorial Waters," International

Law Situations with Solutions and Notes 1931. Wash-
ington: Government Printing Office, 1932. Pp. 33-93.

500

U.S. Navy Hydrographic Office (originally by Nathaniel
Bowditch) . American Practical Navigator (H. 0. Pub.
No. 9). Washington: Governraent Printing Off ice, "1^53.
Pp. 1524.

2« Publications of International Organizations

Comite Juridico Interamericano. Mar territorial y_ cuestiones
afines. Resolucion del comite juridico interamericano
por la cual man-pi en e la suspension de estudio sobre mar
territorial y_ cuestiones afines. Washington: Departamento
Jurfaico, Union Panamerica, 1955. Pp. 12.

International Court of Justice. Reports of Judgements,
Advisory Opinions and Orders, 1949. Leyden, Nether-
lands: A. V.r. Sijthoff's Publishing Co., 1949.

Reports of Judgements, Advisory Opinions and

Orders, 1951. Leyden, Netherlands: A. W. Sijthoff's
Publishing Co., 1951.

. Reports of Judgements, Advisory Opinions and

Orders, 1969: North Sea Continental Shelf Cases.
Netherlands: International Court of Justice, 1969.

League of Nations. Acts of the Conferences for the Codifi-
cation of International Law, Vol. Ill, Minutes of the
Second Committee, Territorial Waters. Geneva: League
of Nations, 1930.

Conference for the Codification of International

Law, Bases of Discussion Prawn up for the Conference by
the Preparatory Committee, Vol. II, territorial IVaters
TTeague of Nations Document C. 73. M. 38. 1929. V.) .
Geneva: League of Nations, 1929. Reprinted in Sup-
plement to American Journal of International Law, XXIV
(January, 1930), pp. 1-8, 25-46.

. Final Act, Conference for the Codification of

International Law, The Hague , March-April, 1930 (Pub-
lication of the League of Nations V. Legal Questions,
1930. V. 7.). Geneva: League of Nations, 1930. Re-
printed in Supplement to American Journal of Interna-
tional Law, XXIV (July, 1930), pp. 169-258.

First Session of the Committee of Experts for the

progressive CoGification cf International Law. Geneva:
League of Nations, 1925. Reprinted in Special Supple-
ment to American Journal cf international Law, XX
(July, 192b), pp. 12-16.

50i

League of Nations. Report of the Sub-committee (Schiicking,
de Magalhaes, V/ickershamT on Territorial Waters, Com-
mittee of experts for the Progressive Codification of
international Law. Geneva: League of Nations, 1926.
Reprinted in Special Supplement to American Journal of
International Lav;, XX (July, 1926), pp. o2-147.

Report of the Sub-committee (Suarez) on Exploita-

tion of the Products of the Sea, Committee of Experts
for the Progressive Codification of International Law.
Geneva: League of Nations, 1926. Reprinted in Special
Supplement to American Journal of International Law,
XX (July, 1926), pp. 230-241.

. Report to the Council of the League of Nations

on the Questions which Appear Ripe for International'
Regulation, League of Rations Committee of Experts for
the Progressive Codification of International Law,
Third Session, March-April 1927, Annex, III, Analysis
of Re-plies Received from Governments to Questionnaires
Submitted by Members of the Committee. Geneva: League
of Rations, 1927. Reprinted in Special Supplement to
American Journal of International Law, XXII (January,
1928), pp. 4-38.

Second Session of the Committee of Experts for the

Progressive Codification of International Law. Geneva:
League of Nations, 192b.' Reprinted in Special Supple-
ment to American Journal of International Law , XX (July,
1926), pp. 17-278.

. Third Session of the Committee of Experts for the

Progressive Codification of International Lav/. Geneva:
League of Nations, 1927. Reprinted in Special Supple-
ment to the American Journal of International Law, XXII
(January, 1928), pp. vi + 2~J3 .

Pan American Union. Congress and Conference Series, Number
29. (Report on the Meeting of the Ministers of Foreign
Affairs of the American Republics, Panama, September 23-
October 3, 1939). Washington: Pan American Union, 1939.
Pp. iii + 28".

Schaefer, Milner 3. "Scientific Investigation of the

Tropical Tuna Resources of the Eastern Pacific," Papers
Presented at the International Technical Conference on
the Conservation of the Living Resources of the S"ea
"CRome, 18 April to 10 May, 1955) (U.N. Document No.
A/CONF. 10/7, 1956). New York: United Nations, 1956.

502

United Nations. The Economic and Social Development of
Libya (U.N. Doc. No. ST/TAA7K/Libya/3TT New YorkT"
United Nations, 1953.

General Assembly Resolutions 2467 A-D (XXIII)

on the "Examination of the question of the reservation
exclusively for peaceful purposes of the sea-bed and the
ocean floor, and the subsoil thereof, underlying the
high seas beyond the limits of present national juris-
diction, and the use of their resources in the interests
of mankind, 21 December, 1968,:' Decisions of the General
Assembly 1968: Peaceful Uses of the Sea-bed and Ocean
Floor (U.N, publication 0?l7350~-0T6"90- Jan . 19o^-20M) .
New York: United Nations, 1969. Pp. 14.

aws and Regulations on the Regime of the High

Seas. 2 vols, and Supplement (U.N" Pubs. ST/LEG/SER B/
1, 1951; ST/LEG/SER. B/2, 1952; ST/LEG/SER. B/S, 1959).
New York: United Nations, 1951-1959.

Laws and Regulations on the Regime of the Terri-

torial Sea (U.N. Pub. ST/LEG7SER. B/6) . New York:
United Nations, 1957. Pp. li + Sll.

Official Records of the Second United Nations

Conference on the Law of the Sea, Geneva, 17 March-
26 April 19o7), Committee of the VJhole, Verbatim Records
of the General Debate (U.N. Pub. A/CONF. 19/9 J . New
York: United Nations, i960.

. Official Records of the General Assembly, Eleventh

Session. New York: United Nations, 1957.

. Official Records of the General Assembly, Twelfth

Session (Supplement No. I). New York: United Nations,
1957.

Papers Presented at the International Technical

Conference on the Conservation 01 the Living Resources
of the Sea T"Rome, 13 April to 10 May, 1955) (U .N. Docu-
ment No. A/CONF. 10/7, 1956). New York: United Nations,
1956.

. Second United Nations Conference on the Law of

the Sea: Summary Records of Plenary Meetings and Meet-
ings of the Committee of the '..'hole (U.N. Pub. A/CONF.
I9/8 ) . Geneva: United Nations, I960.

United Nations Conference on the Law of the Sea:
Bibliographical Guide po the Law of the SeaTPreparatory
Document No. 14; A/CONF. 1371777 New York: United
Nations, 1957. Pp. 56.

503

United Nations. United Nations Conference on the Law of the
Sea, Yol. II of 7 vols., Plenary Meetings ITJTN. PubT
A/CONF. 13/33). New York: United Nations, 195S. Pp.
xxxvi + 147.

United Nations Conference on the Law of the Sea,

Yol. Ill of 7 vols.. First Committee (Territorial Sea
and Contiguous Zone) (U.N. Pub. A/CONF. 13/39) . New
York: United Nations, 195&. Pp. xvi + 261.

Yearbook of the International Law Commission,

1949 (U.N. Pub. A/CNT 4/SER. A/1949). New York: United
Nations, 1956.

Yearbook of the International Law Commission,

1950. 2 vols. Tu.iM. Pub. A/CN. 4/SER. A/1950 with
Add. 1). New York: United Nations, 1957, 1958.