ritorial waters legislation of another State in its operat ion against Chapter III one of its nationals. Acquiescence however may be derived from Acquiesthe absence of diplomatic intervention in such circumstances.

cence.

quiescence

tional law.

In international law however the adoption of similar legisla- Form of action is generally taken to imply acquiescence in the principle recognised upon which the laws of other nations are based, and thus the by internaconsent of nations to any given principle is to be derived from the common practice of nations. Yet, since identity of practice on any given detail is not to be expected, an affirmative answer to" placuitne gentibus?" is to be inferred from the adoption of similar, but not necessarily of identical, legislation: and acquiescence in any given principle is reached when the incorporation of the principle becomes universal.

laws unne

cessary;

If acquiescence depended on the existence of identical laws, Indentical this would be sufficient to negative at once the existence of a "3-mile limit": for, neither in the scope of the legislation, nor in the actual distance seaward adopted, is there uniformity in the laws of different States. It was this lack of uniformity which laws based pressed so much with Sir Alexander Cockburn. But if the sound- on identical principles er view is that the essential for acquiescence is the universal sufficient. adoption of the principle of the legislation only, though there be much variation in the details, then it is impossible to resist the conclusion that the principle of the territorial waters is acquies- Principle of ced in by all nations, and that it may be said now to form part waters is acof the law of nations.

territorial

quiesced in;

But the recognition of territorial waters is part only of a larger principle. The legal embodiment of these waters has given their existence shape in such concrete fashion that the principle, but as of which they are but the familiar illustration is apt to be lost part of the larger prinsight of indeed an argument has been derived from the existence ciple, of these waters hostile to the principle on which that existence depends. This larger principle is the right of self-defensive legislation-which is the right of legislating as well for foreigners as for of self-desubjects on the high seas, within a varying distance from the fensive legisshore, for certain purposes of vital interest to the State. It is as part of this principle that the custom has grown up with the acquiescence of the nations, of creating a definite defensive belt of waters for general purposes, within which rights analogous to those of territorial sovereignty are allowed to be exercised. This belt is called for convenience, and on account of the general

lation.

Chapter III rights claimed within it, as distinguished from the special rights claimed to be exercised over larger areas seaward, the Territorial Waters.

Acquiescence depen

The details of the legislation affecting these waters is left to dent on rea- be determined by each Legislature according to its own view of sonable ex- the necessities of its case, acquiescence being accorded so long as it deals with those necessities in a reasonable manner.

ercise of

right.

As to right It is generally assumed that there is an absolute right in the to regulate navigation. State to which they are appurtenant, to legislate specifically for, or to extend the whole body of the laws to, these waters. The decision in the case of the Saxonia referred to in the last chapter seems however to throw some doubt on the existence of the right to regulate navigation. With regard to the right to forbid or regulate fishing which undoubtedly does exist, there is, of course, one obvious limitation, not unimportant in consequence Rights as to of the historic discussions as to the rights to the seal-fisheries in fishing. the Behring Sea.

An absolute property in the free-swimming fish in these waters cannot be created, for that would involve property in them when they go into the high sea. The fishing rights of the State in its territorial waters seem to be exactly analogous to the rights of the proprietor of an estate in the wild animals upon it: he has no property in them, but only the exclusive right to take possession of them. And so the State, in forbidding fishing by foreigners in its territorial waters, if it does so, creates for itself and for its subjects an exclusive right to take possession of the fish therein. If its legislation goes no farther than the regulation of fishing in these waters foreigners are bound by the law equally with subjects. It must not however be assumed that the right of fishery legislation is limited to the territorial waters: thus, the Italian Legislature has created for the exclusive use of its subjects a mare piscatorium, 5 miles in width, irrespective of its territorial waters, and irrespective of its coral fishery laws already referred to. The subject will be dealt with at a later stage; it may be said now however that deep sea fishery laws fall within the principle of self-defensive legislation, and as such it is expected, it not presumed, that they will be recognised by other States. Conventions Fishery le- between the States co-terminous with the fishery, and the consegislation and conventions, quent special legislation, often take the place of general fishery legislation. For the present the essential point to bear in mind is

Italian mare piscatorium.

that the existence of the territorial waters gives the State no Chapter III exclusive fishing rights, but only enables the State to expressly declare them.

nations.

forbid inno

The law of nations, however, while it reserves the belt of ter- Rights and duties by ritorial waters for the exclusive exercise of the legislative power law of of the State, has established two principles: on the one hand, with regard to the State itself-the innocent passage of foreign vessels cannot be forbidden; to this extent therefore these No power to waters preserve their high sea quality: on the other hand, with cent pasregard to other States-in time of war, hostile operations sage. of every description, or operations incidental to or consequent upon the war, may not be carried on within the territorial waters Warlike operations of neutral nations: if they are carried on inside it is a violation within of neutrality, and in this they lose their high sea quality. This territorial question, however, belongs more properly to the law of the high lation of sea in time of war.

waters a vio.

neutrality.

reasonable

different

The essential point is that the distance seaward to which Limit to be the belt is extended must be reasonable. We are accustomed to but limits talk of the "3-mile limit 3-mile limit" but, bearing in mind the premiss vary in on while the whole question rests, we cannot expect to find uni- countries. versal agreement on the point-" Great difference of opinion and uncertainty have prevailed, and still continue to exist ". Thus the Norwegian law extends the limit to rather more than 4 miles: the Spanish law to 6 miles : while some States still adhere to the undetermined "cannon-shot ".

We ourselves have accepted the traditional 3 miles, and [see Part II, Chapter the signatory Powers to the North Sea Fishery Convention seem ix.] to have agreed to the same width but it by no means follows from this, that our Courts would decline to recognise the larger limits adopted by other States. On the contrary, the current of opinion would seem to be in favour of the general principle of recognition suggested above: and that, except in extreme cases, Courts not English the comity of nations would require the Courts to hold that a precluded from recoState is the best judge of its own necessities.† Indeed Marshall gnising wider limits C. J. declared in Church v. Hubbart, that what is sufficient for than 3 miles. one State need not of necessity be sufficient for another; that [cit. L. R. 2 what is sufficient for an island, may be altoget her insufficient for Ex. D. at p、 a country with a large extent of coast-line.

It is said that Great Britain and the United States have protested against the Spanish claim to a belt of 6 miles see Wheaton's " International Law" (2nd, English Ed. p. 239). This however seems to have occurred in 1874.

215.

Chapter III

Bynker

shoek's for

mula.

Reference to

armorum

vis is misleading.

The Act of 1878.

[see Part II, Chapter V.

The zone of defence cannot therefore be constant for all countries and indeed it is hardly necessary to point out that the chief advocate of its existence had nothing whatever of accurate measurement in his mind.

Bynkershoek's formula" potestas finitur ubi finitur armorum vis" was a telling one: his application of it was the extent of cannon range. Succeeding publicists adopted three miles as the extent of that range in the times in which they lived and wrote. But the arms of war have something more than doubled their effective range: and while some publicists of a later generation have expressed an opinion that the breadth of the zone of defence should be correspondingly increased, others have pointed out that the modern arms of precision have now so great a range as to render futile any reference to them for the purpose of defining the territorial waters.

Indeed, the reference to arms is itself misleading. The zone of waters is not protective against hostile invasion so far as it has relation to warlike operations, the armorum vis could only be resorted to to keep belligerent ships from fighting within the zone. Civil laws are not now supported by force of arms-except the Hovering Acts: and these hardly need the protection of the extreme range of cannon shot, until the time for pursuit arrives, at which time the limits of the territorial waters are ignored.

The practical aspect of the question for the British Empire is embodied in the Territorial Waters Act, 1878.

At the time the judgments were pronounced which declared Ferdinand Keyn not to be triable in England, there existed the ordinary high-sea legislation, a few isolated statutes which recognised the 3-mile limit for certain purposes, and also a certain amount of legislation which ignored that limit: but of general legislation for a defensive zone there was none. Parliament had not availed itself of the right to assert jurisdiction over such a belt of waters. It did so two years later, and it is to this Act, and to this Act alone, that we must look to ascertain what general jurisdiction exists in our territorial waters.

It is impossible to over-rate the importance of this Act; nor, having in view the functions it was supposed to perform, and the language with which it sets about the performance, is it possible not to be disappointed at the conclusion. The preamble begins thus

"Whereas the rightful jurisdiction of Her Majesty, Her Heirs and Chapter III Successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty's dominions to such a distance as is necessary for the defence and security of such dominions :-"

bear out the

It may be, of course, that this language was intended to convey what Sir Alexander Cockburn declared to be the law: but whether it was so intended, or was intended to express a view hostile to that judgment (a view which indeed did not want for expression at the time), the statute did not go to the full ex- The Act tent to which that judgment warranted, for it extended part does not of the law of England over the territorial waters, and part preamble. only-the law relating to the trial and punishment of offenders. After the preliminary declaration as to the rightful jurisdiction of the Sovereign over these waters, the preamble proceeds to declare it to be expedient that all offences committed within these waters, by whomsoever committed, should be dealt with according to law; the special extension being to persons on board foreign ships. Yet even in this the Act is disappointing; for the method adopted for dealing with the necessities of the case, was to declare that subjects should be triable in the ordinary way-a result which might have been attained without reference to the territorial waters but that interposed between the offence and trial foreigners in of a foreigner, there should be the consenting certificate of one territorial of Her Majesty's Principal Secretaries of State. The Act thus declares it to be expedient that the "rightful jurisdiction" of the Sovereign in these waters should be exercised, yet makes the Secretary of State the judge of the expediency in every individual case in which a foreigner is concerned. This may of course mean that the Secretary of State is to satisfy himself that there is sufficient evidence to warrant a prosecution.

Offences by

waters.

The detailed examination of the statute must be reserved until the principles involved in extra-territorial legislation have been established; for the present one general remark must suffice: not only in this interposition of an executive view of the expediency of the trial, but also in the omission of civil jurisdiction, the Act declares something to be, and always to have been, existent, General which it then proceeds to show does not exist. Further, the trial the Act. of foreigners for offences on board British ships in these waters

criticism of