1911 Encyclopædia Britannica/Waters, Territorial

31789101911 Encyclopædia Britannica, Volume 28 — Waters, TerritorialThomas Barclay

WATERS, TERRITORIAL. In international law “territorial waters” are the belt of sea adjacent to their shores which states respect as being under their immediate territorial jurisdiction, subject only to a right of “inoffensive” passage through them by vessels of all nations. As to the breadth of the belt and the exact nature of this inoffensive right of passage, however, there is still much controversy. The 3-miles’ limit recognized and practised by Great Britain, France and the United States seems to have been derived from the cannon range of the period, when it was adopted as between Great Britain and the United States, i.e. towards the close of the 18th century. Bynkershoek, a famous Dutch jurist, whose authority at one time was almost as great in England as in his own country, in a dissertation on the Dominion of the Sea (1702), had devised a plausible juridical theory to support a homogeneous jurisdiction over environing waters in the place of the quite arbitrary claims made at that time, to any distance seawards, from whole seas to range of vision. Starting from the fact that fortresses can give effective protection within range of their cannon, and that in practice this effective protection was respected, he argued that the respect was not due to the reality of the presence of cannon, but to the fact (hat the state was in a position to enforce respect. This it could do from any point along its shore. Hence his well-known doctrine: terrae dominium finitur, ubi finitur armorum vis. The doctrine satisfied a requirement of the age and became a maxim of international law throughout northern Europe, both for the protection of shore fisheries and for the assertion of the immunity of adjacent waters of neutral states from acts of war between belligerent states. Germany still holds in principle to this varying limit of cannon range. Norway has never agreed to the 3 m., maintaining that the special configuration of her coast necessitates the exercise of jurisdiction over a belt of 4 m. Spain lays claim to jurisdiction over 6 m. from her shores. The writers and specialists on the subject are quite as much divided. A British Fishery Commission in 1893 reported that “the present territorial limit of 3 m. is insufficient, and that, for fishery purposes alone, this limit should be extended, provided such extension can be effected upon an international basis and with due regard to the rights and interests of all nations.” The committee recommended that “a proposition on these lines should be submitted to an international conference of the powers who border on the North Sea." There is already an international convention, dated 6th May 1882, between Great Britain, France, Belgium, Holland, Germany and Denmark, relating to the regulation of the fisheries in the North Sea, which has fixed the limit of territorial waters as between the contracting parties at 3 m. measured from low-water mark and from a straight line drawn from headland to headland at the points where they are 10 m. across. In the British Act of 29th June 1893, giving effect to a subsequent convention (16th November 1887) between the same parties for the regulation of the liquor traffic in the North Sea, “territorial waters” are declared to be as defined in the Territorial Waters Jurisdiction Act 1878. In this Act the definition is as follows:—

The territorial waters of Her Majesty’s dominions in reference to the sea means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.

This definition only restricts the operation of the 3 m. limit to offences dealt with in the act, and does not deal with bays. The act of 1893 declares that the articles of the convention “shall be of the same force as if they were enacted in the body of the act,” but this convention gives no definition of territorial waters.

The jurisdiction exercised in British territorial waters under the Territorial Waters Jurisdiction Act of 1878[1] is asserted without distinction between them and inland waters. “All offences” committed by any person, whether a British subject or not, and whether or not committed “on board or by means of a foreign ship,” “within the territorial waters of Her Majesty's dominions,” are made punishable under it. No exception is made for offences committed on merely passing foreign vessels, except that there is this attenuation in their case, that no prosecution can take place without a special authorization given by certain high officers of state.[2] It is doubtful whether any Continental state would recognize so complete a jurisdiction. The subject has been exhaustively dealt with by both the Institute of International Law and the International Law Association, which, at the suggestion of the rapporteur of the two committees, decided that the subjects of fisheries and neutrality should be dealt with separately. The following considerations and rules were adopted in 1894 by the institute and afterwards by the association:—

Whereas there is no reason to confound in a single zone the distance necessary for the exercise of sovereignty and protection of coast fisheries and the distance necessary to guarantee the neutrality of non-belligerents in time of war; And whereas the distance most commonly adopted of 3 m. from low-water mark has been recognized as insufficient for the protection of coast fisheries; And whereas, moreover, this distance does not correspond to the real range of cannon placed on the coast; The following dispositions are adopted:—

Art. I. The state has the right of sovereignty over a belt of sea along its coast subject to the right of inoffensive passage reserved in article 5. This belt is called territorial waters (mer territoriale).

Art. II. Territorial waters extend for 6 sea m. (60 to 1 degree of latitude) from low-water mark along the whole extent of its coasts.

Art. III. For bays, territorial waters follow the trend of the coast except that it is measured from a straight line drawn across the bay from the two points nearest the sea where the opening of the bay is of 12 marine m. in width, unless a greater width shall have become recognized by an immemorial usage.

Art. IV. In case of war the adjacent neutral state shall have the right to extend by its declaration of neutrality or by special notification its neutral zone from 6 m. to cannon range from the coast.

Art. V. All ships, without distinction, have the right of inoffensive passage through territorial waters, subject to the belligerent right to regulate, and for purposes of defence to bar, the passage through the said waters for every ship, and subject to the right of neutrals to regulate the passage through the said waters for ships of war of all nationalities.

Art. VI. Crimes and offences committed on board foreign ships passing through territorial waters by persons on board such ships, upon persons or things on board the same ships, are, as such, beyond the jurisdiction of the adjacent state, unless they involve a violation of the rights or interests of the adjacent state, or of its subjects or citizens not forming part of its crew or its passengers.

Art. VII. Ships passing through territorial waters must conform to the special rules laid down by the adjacent state, in the interest and for the security of navigation and for the police of the sea.

Art. VIII. Ships of all nationalities, by the simple fact of being in territorial waters, unless merely passing through them, are subject to the jurisdiction of the adjacent state.

The adjacent state has the right to continue upon the high seas the pursuit of a ship commenced within territorial waters, and to arrest and try it for an offence committed within the limits of its waters. In case of capture on the high seas the fact shall, however, be notified without delay to the state to which the ship belongs. The pursuit is interrupted from the moment the ship enters the territorial waters of its own state or of a third power. The right of pursuit ceases from the moment the ship enters a port either of its own country or of a third power. Art. IX. The special position of ships of war and of ships assimilated to them is reserved.

Art. X. The provisions of the preceding articles are applicable to straits not exceeding 12 m. in width, with the following modifications and exceptions:—

(1) Straits, the coast of which belong to different powers, form part of the territorial waters of the adjacent states, their jurisdiction respectively extending to the middle line of the straits;

(2) Straits whose coasts belong to the same state, and which are indispensable for maritime communication between two or more states other than the state in question, form part of the territorial waters of the said state whatever the proximity of the two coasts may be;

(3) Straits serving as a passage between one open sea and another can never be closed.

Art. XI. The position of straits already regulated by conventions or special usage is reserved.

The Dutch government in 1896 brought these rules to the notice of the leading European governments, and suggested the desirability of concluding an international convention on the subject. The only government which was unfavourable to the proposal was that of Great Britain. (See as to the Moray Firth Fisheries controversy, North Sea Fisheries Convention.)

In the Hague Convention of 1907 respecting the rights and duties of neutral powers in naval war, the existing practice in regard to territorial waters is confirmed (see arts. 2, 3, 9, 10, 12, 13 and 18), but no definition of what constitutes the distance of these waters seawards is given. This question is among those which the next Hague Conference may deal with, inasmuch as for purposes of neutrality the difficulties connected with fishery questions do not arise.[3]

Authorities.—Sir Thomas Barclay, Question de la mer territorial (published by the Association Internationale de la Marine, Paris, 1902); Idem, as rapporteur on the subject in the Annuaires de l'institut de droit international for 1893 and 1894; Idem, Special Report of the International Law Association (replies to Questionnaire, 1893), and Report and Discussion (1895); Idem, Problems of International Practice and Diplomacy (London, 1907), pp. 109 et seq. See also Coulson and Forbes, Law relating to Waters (London, 1910), 3rd ed., pp. 5 et seq.

 (T. Ba.) 

  1. This act was passed to meet what was thought to be a defect in British law, the decision in the well-known “Franconia” case having been that territorial waters were “out of the realm,” and that criminal jurisdiction within them over a foreign ship could be exercised only in virtue of an act of parliament.
  2. Proceedings, says § 3 of the act, for the trial and punishment of a person who is not a British subject, and who is charged with any offence as is declared by this act to be within the jurisdiction of the admiral, shall not be instituted in any Court of the United Kingdom, except with the consent of one of the principal Secretaries of State, and on his certificate that the institution of such proceedings is in his opinion expedient, and shall not be instituted in any British dominions outside of the United Kingdom except with the leave of the governor of the part of the dominions in which such proceedings are proposed to be instituted, and on his certificate that it is expedient that such proceedings should be instituted.
  3. The question of revising the limits fixed for Territorial Waters in the Convention of 1882 (see above) was the subject of an animated discussion at the conference at Hull of the National Sea Fisheries Protection Association in 1906, when a resolution was adopted in favour of maintaining the present 3-miles limit on grounds of expediency, which deserve serious consideration.