Territorial Waters
Sir,—Most authorities would, I think, agree with Admiral de Horsey that the line between “territorial waters” and “the high sea” is drawn by international law, if drawn by it anywhere, at a distance of three miles from low-water mark. In the first place, the ridiculously wide claims made, on behalf of certain States, by mediæval jurists were cut down by Grotius to so much water as can be controlled from the land. The Grotian formula was then worked out by Bynkershoek with reference to the range of cannon; and, finally, this somewhat variable test was before the end of the eighteenth century, as we may see from the judgments of Lord Stowell, superseded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, and judicial decisions.
The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in The Direct U.S. Cable Co. v. Anglo-American Telegraph Co. (L.R. 2 App. Ca. 394), carefully avoided giving an opinion as to the international law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception, in Newfoundland, on the narrow ground that, as a British Court, they were bound by certain assertions of jurisdiction made in British Acts of Parliament.
The three-mile distance has, no doubt, become inadequate in consequence of the increased range of modern cannon, but no other can be substituted for it without express agreement of the Powers. One can hardly admit the view which has been maintained, e.g. by Professor de Martens, that the distance shifts automatically in accordance with improvements in artillery. The whole matter might well be included among the questions relating to the rights and duties of neutrals, for the consideration of which by a conference, to be called at an early date, a wish was recorded by The Hague Conference, of 1899.
In the meantime it may be worth while to call attention to the view of the subject taken by a specially qualified and representative body of international experts. The Institut de Droit International, after discussions and enquiries which had lasted for several years, adopted, at their Paris meeting in 1894, the following resolutions, as a statement of what, in the opinion of the Institut, would be reasonable rules with reference to territorial waters (I cite only those bearing upon the extent of such waters):—
“Art. 2.—La mer territoriale s’étend à six milles marins (60 au degré de latitude) de la laisse de basse marée sur tout l’étendue des côtes. Art. 3.—Pour les baies, la mer territoriale suit les sinuosités de la côte, sauf qu’elle mesurée à partir d’une ligne droite tirée en travers de la baie, dans la partie la plus rapprochée de l’ouverture vers la mer, où l’écart entre les deux côtes de la baie est de douze milles marins de largeur, à moins qu’un usage continu et séculaire n’ait consacré une largeur plus grande. Art. 4.—En cas de guerre, l’état riverain neutre a le droit de fixer, par la déclaration de neutralité, ou par notification spéciale, sa zone neutre au dela de six milles, jusqu’à portée du canon des côtes. Art. 5.—Tous les navires sans distinction ont le droit de passage inoffensif par la mer territoriale, sauf le droit des belligérants de règlementer et, dans un but de défense, de barrer le passage dans la dite mer pour tout navire, et sauf le droit de neutres de règlementer le passage dans la dite mer pour les navires de guerre de toutes nationalités.” (Annuaire de l’Institut, t. xiii. p. 329).
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, June 1 (1904).
A French decree, of October 18, 1912, accordingly extends, when France is neutral, her territorial waters to a distance of six miles (11 kilom.) from low-water mark.
(Cable-cutting)
With the letters which follow, compare the article by the present writer on “Les cables sous-marins en temps de guerre,” in the Journal de Droit International Privé, 1898, p. 648.
The topic of cable-cutting, as to which the Institut de Droit International arrived in 1879 at the conclusions set out in the first of these letters, was again taken into consideration by the Institut in 1902: see the Annuaire for that year, pp. 301-332.
The Hague Convention; No. iv. of 1907, provides, in Art. 54, that “submarine cables connecting occupied territory with a neutral territory shall not be destroyed or seized, unless in case of absolute necessity. They must be restored, and compensation must be arranged for them at the peace.”
Convention No. v., by Art. 3, forbids belligerents (1) to install on neutral territory a radio-telegraphic station, or any other apparatus, for communicating with their land or sea forces; (2) to employ such apparatus, established by them there before the war, for purely military purposes. By Art. 5, a neutral Power is bound to permit nothing of the sort.