MARITIME DOMINION.

A PAPER READ BEFORE THE INTERNATIONAL LAW ASSOCIATION AT ITS LAST MEETING.

When one considers the greatness and the grandeur of the ocean, it seems presumptuous to talk about the dominion of man over it. In a limited sense, however, the ocean is subject to us. The watery wastes of the world are a highway among the nations for all purposes, whether of war or peace, and the fish furnish food. The ocean is, in the full sense of the word, international. It is between the nations. Surely nowhere more than upon the sea there is scope for international agreement. It is sometimes said that the sea joins instead of divides the nations. Only in a very limited sense has that condition of things been realized. We find in history that the maritime policy of many States has been shortsighted, exclusive, and narrow. It is not well that this be

So.

The tendency now is toward a broader and better point of view. My object is to help, however slightly, towards a recognition of the fact that the best interests of all can be served by international agreement. I go even further, and say that in modern conditions, if we would avoid retrogression, we must have international agreement.

The supreme position attained by maritime States was recognized by Ruskin when he wrote: "Since first the dominion of men was asserted over the ocean, three thrones, of. mark beyond all others, have been set upon its sands: the thrones of Tyre, Venice, and England."

At least one other nation owed its greatness to the sea. The national power and wealth of the Dutch depended on their shipping trade, which in turn could scarcely have attained its importance apart from its fisheries. Between the Dutch and the English long existed keen- rivalry, and many of the principles which have come to be recognized as applying to the question of jurisdiction over the sea took shape during the struggles and disputes between these two nations.

In the sixteenth century, nations first began to have world-wide interests. It was a time of expansion in every way. There was a new birth of knowledge derived from the

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study of ancient writers. Another line of enquiry led to the displacement of the old idea that the world was the centre of the universe. It was realized that it moved. Discovery was also made of the great oceans and continents hitherto unknown to the inhabitants of Europe. Men found themselves in a wider world.

Some of the nations, for example, Denmark and Venice, had asserted certain rights over parts of the narrow seas. In the new state of things Spain and Portugal claimed exclusive sovereign rights over the great oceans. England, under monarchs of the Tudor line, made a stand for the freedom of the seas. Each nation adopted a policy calculated to serve its own interests, and abandoned that policy for another if circumstances changed. Thus, under the Stuart · kings, who wore the crowns of both England and Scotland, claims were made to sovereignty over all the coastal seas around the British Islands, and to a vague dominion beyond. The right was claimed not only of compelling homage to the flag of England, but also of excluding foreigners from fishing in seas considered British.

The Dutch contested the pretensions of Spain and Portugal, and also the claims put forward by England to the sovereignty of the seas. Commercial rivalry between the Dutch and the English led not only to endless disputes and negotiations, but to several wars. These controversies have recently been admirably described in Mr. T. W. Fulton's book on "The Sovereignty of the Sea," ("The Sovereignty of the Sea," by T. W. Fulton: W. Blackwood & Sons, Edinburgh and London, 1911), a most comprehensive work, to which I am indebted for much information. Mr. Fulton points out that the birth of modern international law was associated with the controversies as to the freedom of the sea. "It was," he says, "the appearance of 'Mare Liberum,' in 1609, that heralded the dawn of the new epoch. The little book of Grotius was at once a reasoned appeal for the freedom of the seas in the general interest of mankind, and the source from which the principles of the law of nations have come." ("The Sovereignty of the Sea," page 338.)

The English reply to the Dutch was the publication of Solden's "Mare Clausum," asserting the right of the Crown of England to the dominion of the British seas.

Mr. Fulton has brought together in his book the various historical events which have occurred in relation to the ques

tion of maritime jurisdiction, more particularly during the last three centuries. I do not propose to refer in detail to these events which have led up to the present day position, but I wish to call attention to a few leading points.

Even Grotius, in presenting the argument for the freedom of the seas, admitted that a State is entitled to dominion over so much of the sea adjoining it as lies within the range of compulsion exercised from the land.

It remained for another Dutchman, Bynkershoek, to state how this principle should be carried into practice.

Nearly a century after Grotius, Byndershoek crystallized the position in the words, "terra dominion finitur ubi finitur armorum vis." The dominion of the land ends where ends the power of arms. Having regard to the range of cannon, this distance was usually recognized as being about three miles. Thus, what is commonly called the three-mile limit became established. This distance has sometimes been treated as a fixed legal limit, regardless of the fact that in more modern times the application of the principle on which it was based would cause it to be greatly extended. On the other hand, the three-mile limit has been referred to almost with contempt as no more than an Anglo-American doctrine, which never has been incorporated into international European law. (Sir Arthur Bignold, in House of Commons, 20th April, 1909.)

The truth is that the question of maritime jurisdiction must be regarded in two quite separate aspects. In war, and in peace.

In warlike circumstances the doctrine of the power of arms necessarily applies, and, with greater power, a greater distance must be allowed to lie within the limit of territorial sea.

The peaceful aspect of the subject involves entirely different considerations arising in connection with the fisheries and other matters. As to fisheries, Welwood, a Scottish lawyer, who wrote in reply to Grotius before Seldon's book was published, was the first who clearly laid down "the principle that the inhabitants of a country had a primary and exclusive right to the fisheries along their coasts -that the usufruct of the adjacent sea belonged to them; and that one of the main reasons why that portion of the sea should pertain to the neighbouring State was the risk

of the exhaustion of its fisheries from promiscuous use. ("The Sovereignty of the Sea," page 355.)

In relation to the fisheries the three-mile limit is regarded internationally as the ordinary limit, but it is far from being universally accepted. Great Britain, while adopting the three-mile limit for particular purposes, has been careful to guard against this being taken as an admission that national rights may not extend further. Spain. and Portugal, and also also the Scandinavian countries, expressly claim a more extended boundary, and there are many other instances to the like effect. Regarding the other side of the Atlantic, Mr. Fulton points out that "although the United States more than any other power has varied her principles and claims as to the extent of territorial waters, according to her policy at the time-now claiming the vague and wandering 'boundary' of the Gulf Stream or the whole of the Behring Sea, and now the liberty to fish right up to the shores of the Falkland Islandsshe has been consistent in this, that she has steadily and consistently pressed for the narrowest limits she could get in favour of her own fishermen on the coasts of the British North American colonies." ("The Sovereignty of the Sea," page 650).

The modern practice of different States varies so much that it is almost impossible to find any common basis. Not only is the width of the band of territorial waters not the same, but there are also differences in the method of measuring from the coast, and differences in the rules applied to bays and inlets. The jurisdiction over some inlets of the sea depends upon long continued custom, independent of any rules whatever, and in other instances the matter is complicated by the special provisions of treaties and conventions.

The key to the position is perhaps to be found in the fact that each nation has continued to regard the matter from a merely national standpoint, putting its own interests first, and the interests of others nowhere. It has scarcely been realized as yet that fisheries have become international, and that the narrow national standpoint will no longer serve in regard to questions of maritime dominion. It is necessary for us to use pause. We must recognize that in recent years conditions have completely changed, and that the whole. question now demands consideration along far more com

prehensive lines than hitherto. I am not overlooking the fact that certain international steps have been taken. Various international conventions have been entered into, and I would not in any way minimize the importance of the commencement which has been made towards a recognition of the necessity of common action for the common good. The North Sea Convention is important in this sense, but since it was signed in 1882, great changes have occurred. More effective methods have been devised for sweeping the seas with great trawl nets. The newer methods of fishing are much more destructive and wasteful and require to be regulated in order to prevent the impoverishment of the fisheries. Nowadays, regulations are ineffective unless international. The restraint imposed by regulations has not been sufficient. The older fishing areas have become more or less depleted, and trawlers have sought other regions where the same destructive processes are being repeated. The coasts of Iceland, Spain, Portugal, and Morocco are now much frequented by trawlers. The demand for the regulation of trawling formerly urged has been abandoned. Before the newer fishing grounds were discovered those interested in trawling were moved by self-interest to try and bring into operation some means of saving the fisheries from exhaustion. Since the vast extent of new fishing grounds has been known, the tendency has been to cry out for freedom, and to oppose the recognition of anything more than the narrowest limit of territorial sea, lest the harvest of the trawlers should be lessened. British trawlers predominate, but the industry is not the monopoly of any nation. It is international ir every sense and a true estimate of the situation shews that the present absence of restraint will work out ultimately to the general disadvantage. I come to the point which I wish chiefly to emphasize, that, in the interest of everyone, a certain measure of restraint must be enforced, and that in present circumstances the only effective method of control is through the medium of universal international agreement.

It is apparent that the actual course of events is to a large extent governed by the influence of vested interests. There are the interests of in-shore fishermen and others, whose fishing is spoiled by the operation of trawlers, and there are the interests of the trawling industry itself. The two sometimes conflict. Over and above these, each State