CHAPTER V.

CHAPTER V.
THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.

The recommendation of the International Law Association and of the French Institute that the territorial waters should be extended to six miles from the shore, or double the width usually enforced, was avowedly made, as we have seen, chiefly in the interests of the sea fisheries; and it may be presumed from the opinions of the majority of accredited writers on the law of nations, as reviewed in these pages, that it is open to any Power so to extend its territorial sea, except in so far as such extension may be opposed to the provisions of treaties with any other Power or Powers. It is undoubtedly the case that in by far the greater number of instances in which the limits of territorial waters, or the rights of the bordering state in the adjacent sea, have been disputed, or have come under discussion, between one nation and another, it was the right of fishery that was at issue. From the reign of James I. this has been the case, and it has been exhibited on all coasts, and in almost all countries. How replete our history is with such disputes may be gathered from foregoing chapters, while nearly all recent international treaties in which limits in the neighbouring sea are dealt with have been concerned with fishery questions. The numerous treaties and agreements with the United States and France respecting the vexed rights of fishing on the coasts of British North America, the North Sea conventions in Europe, and the various other agreements between European Powers, as between Spain and Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany, Great Britain and France, Belgium and Germany, 694 and with Denmark concerning Iceland, are instances in point. The fishery interest is thus the determining interest, and the one which has made these various conventions desirable.

There appears to be little doubt that, in many cases at least, the three-mile boundary which has been commonly fixed in the fishery conventions is inadequate from the point of view of the fisheries, and this is the opinion of most of the experts and authorities, as is explained below. It must not be forgotten that the three-mile limit was selected, not on any grounds special to fisheries, but because it had been already recognised and put into force in connection with the rights of neutrals and belligerents in time of war, as representing the approximate range of guns at the time. It is in reality a product of the maritime wars in the latter part of the eighteenth and the beginning of the nineteenth century, and its application to the right of fishing is accidental and arbitrary. The boundaries which were formerly proposed as limiting the right to exclusive fishery, independently of any question of the rights of neutrals or the range of cannon, were invariably greater than three miles. The range of vision was employed in Scotland and on the English coast later; its equivalent of fourteen miles was embodied in the Draft Treaty of union between England and Scotland in 1604, and was proposed again in 1618; and Sir Philip Meadows, the most able opponent of extravagant claims to maritime sovereignty, favoured a similar distance in 1689. Limits of eight miles and ten miles to be enforced against foreigners were fixed in the Fishery Bill passed by the House of Commons in 1660, while as late as 1824 and 1827 the Dutch Government decreed a limit of six miles for their fishermen on the British coasts. We have seen, too, that the wider extent of sea in which rights of exclusive fishery are claimed by the Scandinavian and Iberian states exists in great measure because those Powers established their limit without reference to Bynkershoek’s doctrine, and before indeed it became prevalent.

The same need of a wider limit is shown in the municipal legislation of many countries, which was specially designed with the object of preserving sea fisheries, as well as in certain international agreements. There are two classes of sea fisheries which have received special treatment beyond the ordinary limits of territorial waters, and both on the same principle—viz., 695 that the action of man, if unrestrained, would lead to their destruction and economic extinction. They are those for marine mammals, as seals and cetaceans, and for certain shell-fishes and coral. A considerable number of countries have legislated for the preservation of seals, and some of the enactments at least apply beyond the ordinary limits. Examples may be found in the Canadian statute of 1886,1274 which refers also to whales and porpoises; the Russian law dealing with the sealing industry in the White Sea; the Norwegian law fixing a close-time for whales in the Varangerfjord; and the concurrent international legislation of Great Britain, Sweden, Norway, Russia, Germany, and Holland concerning the Jan Mayen seal fishery in the Atlantic east of Greenland.1275 A recent instance is afforded by the regulations which were prescribed for British and American citizens and subjects by the Tribunal of Arbitration for the purpose of protecting and preserving the fur-seal in Behring Sea. By these regulations the killing, capture, or pursuit of this animal was forbidden within a zone of sixty geographical miles around the Pribilov Islands, comprising about 15,000 square miles of sea; a close-time was fixed between 1st May and 31st July on the high sea within an immense area—viz., north of 35 degrees North latitude and eastwards of 180 degrees West longitude; only specially licensed sailing vessels, with canoes or undecked boats propelled by paddles, oars, or sails, were at liberty to carry on fur-sealing operations where and when the fishing was allowed; the use of nets, firearms, and explosives was forbidden, except shot-guns outside of Behring Sea, and some minor conditions were laid down.1276

Another instance is the agreements entered into between Russia on the one hand and Great Britain and the United States 696 on the other, by which a zone of ten marine miles on all the Russian coasts of Behring Sea and the North Pacific Ocean, and a zone of thirty marine miles round the Commander Islands and Robben Island, were closed to sealing for the fur-seal.1277

The other class of fisheries referred to, for sedentary animals 697 connected with the bottom, such as oysters, pearl-oysters, and coral, which are found in shallow water, as a rule, and usually near the coast, have always been considered as on a different footing from fisheries for floating fish. They may be very valuable, are generally restricted in extent, and are admittedly capable of being exhausted or destroyed; and they are looked upon rather as belonging to the soil or bed of the sea than to the sea itself. This is recognised in municipal law, and international law also recognises in certain cases a claim to such fisheries when they extend along the soil under the sea beyond the ordinary territorial limit. Cases in point are the pearl-fisheries on the banks in the Gulf of Manar, Ceylon, which extend from six to twenty-one miles from the coast, and are subject to a colonial Act of 1811, which authorises the seizure and condemnation of any boat found within the limits of the pearl-banks, or hovering near them: boats or vessels navigating the inner passage are prohibited from hovering or anchoring in water deeper than four fathoms, and those navigating the outer passage from hovering or anchoring within twelve fathoms. These pearl-fisheries are very valuable, and have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction; and the laws referred to apply also to foreigners. Another case is the pearl-fisheries in Australia. In Western Australia certain Acts are applied far beyond the three-mile limit, though apparently only against British subjects,1278 and a similar Act, of 1888, applied in Queensland to extra-territorial waters west of Torres Strait. The pearl-fisheries of Mexico and Columbia are also subject to regulation beyond the ordinary three-mile limit. Examples of extra-territorial jurisdiction over beds of the common edible oyster are to be found in the British conventions with France in 1839 and 1867, by which the Bay of Granville was reserved to France (see p. 612), and in the last of these conventions (Article ix.) a close-time was provided in the English Channel; and likewise in the proceedings concerning the Arklow and Wexford banks, off the Irish coast (see p. 621). Coral-beds in the Mediterranean, off the coasts of Algeria, Sardinia, and Sicily, are in a similar way regulated 698 by Italian and French laws beyond the ordinary three-mile limit.

Even in regard to the class of fisheries for what is termed “floating” fish—that is to say, the ordinary fisheries for sea fishes, carried on usually by nets and lines—there are a number of enactments conferring jurisdiction, or which have conferred jurisdiction, beyond the distance of three miles from shore. Old English and British Acts, previously referred to (p. 608), fixed limits of four-and-a-half and five miles from the coast, within which distance the use of certain apparatus, as drag-nets and trawls, was prohibited. In the Herring Fishery Act of 1808, which provided for the appointment of commissioners for the herring fishery, and for the regulation of the fishery and the curing of herrings, jurisdiction was extended over “all persons” engaged in catching, curing, and dealing in fish in all the lochs, bays, and arms of the sea, and also within ten miles of the coasts.1279 At the Isle of Man an Act of Tynwald prohibited herring-fishing at a certain season within nine miles of the shore,1280 and other instances might be given where municipal Acts extended jurisdiction beyond the ordinary three-mile limit for similar purposes.

It is, however, in connection with the great development of trawl-fishing from steamers in recent years, that the question of the inadequacy of the ordinary three-mile limit for the preservation and regulation of fisheries has been brought to the front, and it is around this method of fishing that most of the 699 controversies affecting the territorial waters, at least in Europe, have gathered.1281 It is therefore necessary to understand something about it, and how it is that it has given rise to demands for the extension of the ordinary limits and for the closure of large areas beyond these limits. It is the most effective and at the same time the most destructive method of fishing ever made use of. It differs from hook-and-line fishing, in which only a few kinds of fish are taken at the same time, according to the size of the hook and the kind of bait, and from gill-net or drift-net fishing, which is adapted, according to the dimensions of the mesh, to capture a particular fish, as herring or mackerel. Trawling consists essentially in dragging along the bottom of the sea a great bag of netting, which captures a large variety of fishes, big and little; and it may involve, at certain places and in certain seasons, the destruction of immense quantities of edible fishes too small to be marketable, and which are thrown back, dead, into the sea.1282 It is a very old method, but until about a century ago it was confined on the British coast to the mouth of the Thames and neighbourhood and to certain localities in the Channel, its headquarters being Barking and Brixham. Trawling was then restricted to shallow water; the boats were small and the trawls were such as a man could carry on his shoulders. At the close of the French war, Brixham trawlers began to migrate eastwards, prospecting for new grounds, fixing their temporary headquarters first at Dover, then at Ramsgate in 1818, and at Harwich in 1828. Continuing their explorations, the Dutch coast was visited about 1830 and the southern part of the Dogger Bank a few years later, and in 1837 a great impetus was given to trawling by the discovery of enormous quantities of soles in the Great Silver Pit, south of the Dogger. Trawlers flocked thither from all quarters; the Brixham men fixed upon Hull, first as their temporary, and then as their permanent home, and from this time North Sea trawling was firmly established. It was not until 1858, little more than half a century ago, that trawlers began to be employed from Grimsby, which is now by far the greatest fishing-port in the world. Gradually the 700 enlarging fleets of trawlers pushed northwards and eastwards as new grounds were discovered. By 1860 the whole of the Dutch coast and the coast of Schleswig was frequented; ten years later the Danish coast was included, and, for the first time, the whole of the Dogger Bank, as well as large areas north and west of it, off the coast of England and Scotland. About 1875 the Great Fisher Bank, which lies about 200 miles east of the Scottish coast, began to be visited, and in 1891 the English trawlers boldly pushed on to Iceland, where enormous catches of fish were obtained.

During this period, while the fishing-grounds were being vastly extended, great improvements were made in the means of catching the fish and bringing them to market. The trawling vessels gradually increased in numbers, size, speed, and storage capacity; the trawl-net grew larger and more efficient; the use of ice for the preservation of the fish enabled distant grounds to be visited, and the deeper waters of the north necessitated the substitution of steam-power for hand-labour in hauling the nets on board; the “fleeting” system, by which steam-carriers collected the fish each morning and brought them rapidly to market, allowed the fleets of sailing smacks to remain on the grounds constantly fishing for many weeks at a time. Then the industry was revolutionised by the substitution of steam vessels for the sailing smacks, a change which began about 1878; and trawling, which was at first a summer occupation owing to the frailty of the boats, and then a winter pursuit, as plenty of wind was required to drag the heavier nets, became independent of the season, and almost of the weather. A further improvement was the introduction in 1895 of the otter-trawl instead of the unwieldy beam-trawl, the mouth of the net being kept open by the divergence of two boards, one at each side, on the principle of the kite. This allowed the net to be made very much larger, and also to be used in much deeper water, and commercial trawling is now carried on in depths down to about 200 fathoms.

There has thus occurred during the last generation or so an enormous development in the extent and efficiency of trawl-fishing. The British fleet since about 1885 has grown from some 200 small vessels, of twenty to twenty-four tons, and using trawls of from twenty to thirty feet beam, to an aggregate of 3170 vessels in 1907, of which 1609 were steamers 701 and 918 deep-sea sailing smacks.1283 These figures, however, convey but little impression of the real increase in the catching power. It has been computed, both by practical men and by scientific experts, that the modern steam otter-trawler is approximately eight times more effective in catching fish than was one of the large sailing smacks of a generation ago,1284 and thus the British deep-sea trawling fleet in 1907 was equal to about 13,790 of the older sailing smacks. But in addition to these there are the foreign steam-trawlers which fish on the same grounds, for many other countries have followed the English example in developing deep-sea trawling. The aggregate number of such vessels at the end of 1907 was about 634, of which 224 were French, 239 German, and 81 Dutch;1285 and they would represent 5072 sailing smacks, so that the total trawling fleet of Western Europe was then equal to about 18,862 of the sailing trawlers of twenty or thirty years ago, the sailing trawlers in use on the Continent being left out of account. It has been calculated that the area of the sea-bottom which is swept each day by the nets of this great fleet is equal to about 2000 square miles.

Now, this extraordinary extension of trawl-fishing in recent times bears upon the question of territorial waters in two ways. One relates to the impoverishment of the older fishing-grounds near the coast and in the North Sea. The other relates to the incursion of steam-trawlers on foreign coasts as affecting the fishing of the inhabitants of such coasts.

With regard to the first, there have been many inquiries made by Royal Commissions and Parliamentary Committees, as well as by fishery departments and experts, which show that the excessive fishing has depleted the older banks. In the first of these inquiries, which began in 1863, when there were only from 650 to 700 smacks trawling in the North Sea (and then only in a part of it), the reporters expressed their belief 702 that this method of fishing “in the open sea” was not wastefully destructive, and required no legislative interference, for if any ground were over-fished, the fishing there would become unprofitable, and the trawlers would go elsewhere.1286 The next Commission, in 1878, by which time trawling had greatly developed, came to much the same general conclusions; but they found that a decrease of soles had occurred, and also a decrease of plaice and flounders in some localities, and they recommended that power should be given to the Secretary of State to forbid trawling “in any of the territorial seas,” which power was conferred in 1881.1287 This inquiry was noteworthy as first revealing complaints by the trawlers themselves of the diminution of certain fish and the impoverishment of inshore grounds, and for the advocacy by Grimsby smack-owners of the prohibition of trawling at localities where small fish abound, as the inlets on the Dutch and German coast, the Wash, and off Yarmouth, and even within a nine-mile limit all round the shores of the North Sea. At the next Commission of inquiry, in 1883, the complaints of the trawlers were stronger, and the remedies they proposed more drastic. Those of Hull and Grimsby stated that the numbers of flat fishes, particularly soles, had much diminished; that the nearer grounds were impoverished, and that they had to go much greater distances for their supplies of fish. They expressed the belief that most damage was being done by trawling along the coasts, especially on the Continental side of the North Sea, and that the most effectual remedy would be to prohibit trawling within a ten-mile limit around the whole of the North Sea coasts. The conclusions reached by the Commission were that soles had decreased, and also flat fishes and haddocks in many parts of the territorial waters between Grimsby and the Moray Firth, and they recommended that the Scottish Fishery Board should receive powers to regulate or suspend trawling within territorial waters.1288 703

Fig. 26.—Showing the three-mile limit and a thirteen-mile limit in the North Sea. 704

From this time onwards the demand of the trawlers for some legislative restrictions on trawl-fishing increased to a clamour. At a conference of practical fishermen held in 1883, in connection with the International Fisheries Exhibition at London, statements were made by trawlers as to the enormous destruction of under-sized fish and the depletion of the grounds, and a resolution was passed calling upon the Government to bring about an international conference to consider the desirability of recommending legislation.1289 At another conference, in 1888, they declared that a large and distressing diminution of flat-fishes had occurred in the North Sea; that they viewed the future with alarm unless some steps were immediately taken to protect immature fishes; and they called upon the Government to try to arrange for an international law for the purpose.1290 As no result followed from the representations to the Government, the trawl-owners on the East Coast took independent action in 1890, and formally agreed, as a preliminary step, to prevent their trawlers from fishing in the summer within a very large area of extra-territorial water off the German and Danish coasts, where immature fish were generally caught in great abundance. The line of closure of this area extended along the coast for 130 miles, passing, to the west of Heligoland, at a distance varying from twenty 705 706 to over fifty miles from the shore, and embracing no less than about 3600 square (geographical) miles of water lying outside the three-mile limit as defined by the North Sea Convention. The Conference also pressed for legislation of a national and international character to prevent the sale and purchase of immature fish, and they defined what they meant by that term.1291 For some time at least the vessels of the great trawling companies abstained from fishing within the large area above referred to, but the voluntary arrangement fell through owing to the action of independent “single-boaters,” and the grounds were never effectually closed. The Government went so far to meet the wishes of the trawlers as to issue, through the Foreign Office, invitations from the National Sea Fisheries Protection Association to various Continental Governments to send delegates to a conference in 1890, and representatives from Belgium, France, Denmark, Germany, the Netherlands, and Spain attended a meeting at Fishmongers’ Hall in that year, but no representative of this country was present in an official capacity. Statements of the usual kind were made as to the impoverishment of the fishing-grounds and the necessity of remedial measures in order to keep up the fish supply, and it was 707 resolved, in view of an official international conference being called, to circulate a set of questions regarding the scientific and statistical aspect of the subject.1292

Fig. 27.—Showing the area of the Small-fish Grounds, which the English trawlers desired to have closed for the preservation of immature fish.

The complaints continuing as to the deterioration of the fisheries, the Government in 1893 appointed a select Committee of the House of Commons to inquire into their condition and to report as to what remedies might be required. The trawlers again gave strong evidence as to the impoverishment of the grounds in the North Sea from over-fishing, the banks having been “fished out” in succession as they were discovered, so that they were compelled to go to distant regions, as Iceland and the Bay of Biscay, to keep up the supplies. Some of them still pressed for an extension beyond the three-mile limit and the prohibition of trawling within ten miles from the shore, especially on the foreign coasts on the eastern side of the North Sea, and in particular that large areas in the extra-territorial waters should be closed by international agreement. The prohibition of the sale of immature flat fishes was also strongly advocated as an indirect means of closing these grounds. The Committee reported that the evidence of all classes of witnesses, “whether trawlers or linesmen, smack-owners 708 or fishermen, scientific experts or statisticians,” showed that a considerable diminution had occurred among the more valuable classes of flat-fishes in the North Sea, which was to be attributed to over-fishing by trawlers in certain localities; and they recommended that the sale of undersized flat-fishes should be forbidden, and that the three-mile limit should be extended for fishery purposes alone, provided it could be effected on an international basis.1293

It does not appear that any action was taken by the British Government in consequence of this report; and as the trawlers had failed to get the large area of the German and Danish coasts closed to them directly, they got a Bill introduced into Parliament to prohibit the sale of undersized flat-fishes, in the belief that an enactment of that kind would result in closing the grounds indirectly. The reasoning on which they proceeded was this. Trawling, to be remunerative, depends upon the capture of a variety of fishes, and it is not possible by an enlargement of the mesh of the net to allow of undersized flat-fishes escaping, without also and at the same time permitting the escape of numerous large marketable round-fishes, as haddocks, as well as of many marketable soles, and fishing under such conditions would be unprofitable. It was also known that it would be futile to return to the sea the undersized fishes after they had been brought on board, because in commercial trawling they are dead or moribund, and might as well be taken ashore as thrown back into the water. It was admitted that the only effective way to protect the immature 709 fish was to prevent the trawl from being used on the grounds; and if this could not be done by direct closure of the area, it might be accomplished by prohibiting the sale of undersized flat-fishes generally; for on these particular “small fish” grounds, or “nurseries,” large fishes are so scarce that trawling is remunerative only by reason of the great quantity of small fishes taken. If the sale of these were forbidden, then trawling in such localities would cease. For an enactment of this kind to succeed, it was obviously necessary that it should apply to the whole kingdom, and it was opposed by fishermen on other parts of the coast; and as it was felt to be extremely problematical whether it would secure the cessation of trawling on the small-fish grounds without at the same time injuriously affecting the fisheries on our own coast and raising the price of fish, the Bill was abandoned. Several subsequent Bills of the same kind shared the same fate, usually after a more or less exhaustive inquiry by a Parliamentary Committee. One of those Committees, consisting of thirteen members of the House of Commons, took evidence in 1900 from the representatives of the trawlers and others, of the character previously described, advocates of the Bill admitting that in their view it was a tentative measure, and that the direct closure of the grounds would be preferable. The Committee thought that it was proved beyond all doubt that there was a serious diminution of flat-fishes, particularly in the North Sea; that the ancient fishing-grounds were much depleted; that the evil was a growing one, and that in default of a remedy the consequences would be disastrous to the industry.1294 One of the causes of the diminution was found to be the vast destruction of immature 710 fish, the direct remedy for which, the Committee said, was either the prohibition of the taking and killing of such fish, or the prohibition of fishing within areas where small fish abound. They were of opinion that the former was practically impossible without prohibiting trawling altogether, while the areas where the small fish congregate could only be closed by a joint international arrangement. The indirect remedy was that proposed by the Bill, and, for reasons such as are stated above, they felt it would not be expedient to pass the Bill into law without further inquiry and investigation. The Committee were of opinion that the subject of the diminution of the fish supply was a very pressing one, and that the situation was going from bad to worse, and they recommended that no effort should be spared, first, to arrange for international treatment of the subject generally, and especially for regulation of the North Sea area; and second, to provide for the adequate equipment of the Government Departments in charge of the subject.1295

The trawlers still pressed for legislation to deal with the wasteful destruction of undersized fish, and continued to pass resolutions on the subject;1296 and another and somewhat modified Bill was introduced into the House of Lords in 1904 by the Department of Agriculture and Fisheries, and remitted to a select Committee of that House. The Committee, after taking much evidence of the usual kind, stated their opinion that the ideal manner of protecting the fishing-grounds in the North Sea where young fish abound would be by an international agreement between all the Powers concerned, and they expressed the hope that the Government would not relax its efforts to secure 711 such a convention. It was thought that, as the first step towards attaining this result, the Bill ought to be passed into law; but the opposition to it was too strong, and it shared the fate of its numerous predecessors.1297

The statements of the trawlers that the older fishing-grounds are impoverished, particularly those in the North Sea, are borne out by the results of statistical and scientific inquiries. It was calculated by Professor W. Garstang that the average catch of bottom fishes, per fishing unit, decreased in the North Sea in the ten years 1889 to 1898 from 60·6 to 32·3; or, in other words, that while the average take of each trawling smack in 1889 was sixty tons, it was only about thirty-two tons in 1898.1298 The official statistics published annually by the Board of Agriculture and Fisheries show that the quantity of bottom fishes taken from the North Sea is declining, while on the other hand the quantity landed in this country from distant waters is greatly increasing.1299

This brings us to the second point, in which the immense development of trawling touches upon the question of territorial waters—namely, the flocking of the trawlers to new grounds on foreign coasts. As the North Sea became, comparatively 712 speaking, more and more exhausted, the vessels were compelled to go farther and farther away in order to maintain the supply.1300 The grounds at Iceland, now so important 713 not only to the British trawlers but to the Germans and the French, were first visited in 1891, and those in the neighbourhood of the Far?e Islands a little later. The operations of the trawlers were at first limited to the south-east coast, but the catches were so enormous, and the enterprise so profitable, that large and seaworthy vessels were specially built for this fishing, which became one of the most important for the English markets.1301 Then the grounds in the Bay of Biscay and those on the coasts of Spain and Portugal began to be frequented, mostly from about the year 1902; and in the next year the operations of the trawlers were extended farther south to the coast of Morocco, as far at least as Agadir (20 deg. N. latitude), and even in some cases to the coast of Mauritania in French West Africa. The vessels fishing in these southern regions, many of them being fitted with refrigerating rooms, land a considerable proportion of their fish in Portugal and elsewhere. A year or two later, in 1905, the enterprising English trawlers opened up new grounds far away to the north-east in Barents Sea, at the very borders of the perpetual ice of the Arctic regions, and increasing numbers make the long double voyage of some 3500 miles thither every summer, and bring back from the neighbourhood of Cape Kanin great quantities of plaice for the English markets.

Fig. 28.—Chart showing the Fishing-grounds frequented by British trawlers. Depths under 100 metres represented in black; those from 100 to 200 metres in shading. From Report of the Board of Agriculture and Fisheries for 1906.

Thus the great enterprise and energy of British trawlers, supported by large capital, have enabled them to exploit the available grounds from far beyond the Arctic circle almost to the tropics, and it is from those distant regions that an increasing proportion of the fish supply is being drawn.1302 The influx of alien vessels, the most powerful and efficient fishing machines in existence, along these foreign coasts is not, as was naturally to be expected, viewed with satisfaction by the native fishermen. They see the fishing-grounds which they had so long 714 been accustomed to consider as their own—in many cases lying within the territorial waters preserved to them by the laws of their own country, though possibly outside “the ordinary three-mile limit”—invaded and exploited by foreigners, and their own livelihood threatened. They fear that what has occurred in the North Sea will happen along their own coasts; that the fishing-grounds, often of limited extent, will be impoverished and exhausted for the sole benefit of the foreigners, and their efforts to maintain themselves and their families rendered difficult or impossible. They observe from their boats the immense hauls of fish made by the huge trawl-nets, and the great waste that is often involved.1303 One cannot be surprised that the fishermen, and those who sympathise with them, feel indignation at the invasion of their waters by foreign trawlers, and that great meetings have been held, as in Spain and Portugal, to demand redress, and that at least the same limit as applies to natives pursuing similar methods should be enforced on the foreigners, or an international conference called to arrange for an equitable limit, or equitable treatment, which would have regard for the rights of all concerned.1304

From the foregoing description of the problems associated 715 with the modern development of trawling, it will not be difficult to understand the scope and nature of the legislation which has been devised in various countries to preserve the native fisheries for the inhabitants of the coast. It may be said that in practically all of them, trawl-fishing is either entirely prohibited within territorial waters or is subjected to various regulations, for the most part with the view of allowing minor forms of trawling, as that for shrimps, to be carried on. In those countries which have a zone of territorial water extending beyond the ordinary three-mile limit, it is prohibited within that zone, as in Norway, Spain, and Portugal, and even up to twelve miles from the shore; while in some others in which three miles is in use as the ordinary limit for exclusive fishing, trawling is forbidden at distances beyond that limit. In Italy and Austria steam-trawling is not allowed within five miles of the coast. In Scotland and Ireland it is prohibited in certain specified waters, which extend much beyond a three-mile boundary. As recent legislation, or byelaws made with the authority of Parliament, bearing upon these prohibitions have given rise to much controversy, it is desirable to consider them with a little care.

In England, where the administration of the local fisheries around the coast is in the hands of various Sea Fisheries District Committees, numerous byelaws have been made and are in force, with the sanction of the Board of Agriculture and Fisheries, prohibiting or regulating trawling of one kind or another in the waters under the control of the Committees. None of the byelaws appear to apply to parts of the sea beyond the ordinary three-mile zone, though it is open to question whether the wording of the Act, by which the Committees were created, does not give power in that direction.1305 716

The Irish Fishery Department have made a very large number of byelaws, at various times and under various Acts, for the regulation or prohibition of trawling. Of these some forty-four are at present in force, twenty-two applying to all trawling and twenty-two to steam trawling alone, and one or two of them date from the years 1842 and 1851.1306 Under these byelaws trawling in one form or another is prohibited entirely or under certain conditions at most parts of the coast of Ireland; and on certain parts of the coast not inconsiderable stretches of the sea, beyond the three-mile limit and the limit for bays as defined in the fishery conventions, are closed against this method of fishing. The lines around the coast within which trawling is prohibited, in many instances pass between headlands which may be as much as twenty-six, and even forty-three, miles apart; not infrequently they are drawn, not between headlands, but from one light-ship to another, and these light-ships may be four or five miles from land and twenty miles apart. Sometimes the closing line is placed three miles to the seawards of such base-lines; and they may pass from about two to seven or eight miles outside the limit as defined in the conventions, and in some instances up to ten or eleven miles from low-water mark on the shore.

It is obvious that the principle upon which these lines have been drawn has been one of convenience. They differ entirely from the lines of closure in the two Scottish Firths referred to below, which are inter fauces terr? with the lines passing from headland to headland. But all the lines on the Irish coast are well within the range of guns from the shore, and are thus, according to the Law of Nations, within the territorial sea. The aggregate area beyond the ordinary limits of the conventions amounts to a little over 400 square (geographical) miles.

It does not appear that foreign trawlers have been found contravening the Irish byelaws to any great extent. Between June 1904 and September 1905 seven steam-trawlers and one sailing-trawler were captured fishing within the limits, one of the former being registered in a foreign country, and, with regard to it, the official report says “it was found impossible 717 to enforce the order made by the magistrates against the owner and skipper.” It is added that “it is thought, however, that means have been found within the existing law of compelling foreign trawlers to observe the byelaws affecting Irish territorial waters.”1307

It is, however, with reference to the legislation for Scotland, under which certain areas are closed against trawling, that the main controversies have been raised. Several statutes gave power to the Fishery Board for Scotland to regulate trawling. The first was an Act of 1881,1308 which empowered the Board of Trade to restrict or prohibit this method of fishing “in any area being part of the sea adjoining the United Kingdom, and within the territorial waters of Her Majesty’s dominions, within the meaning of the Territorial Waters Jurisdiction Act, 1878” (see p. 591); which power was transferred to the Scottish Board by subsequent Acts.1309 Then the Sea Fisheries (Scotland) Amendment Act, of 1885,1310 empowered the Board to make byelaws for restricting or prohibiting, either entirely or subject to such regulations as might be provided, any method of fishing “in any part of the sea adjoining Scotland, and within the exclusive fishery limits of the British Islands,” when they were 718 satisfied that such mode of fishing was injurious to any kind of sea fishing within that part, or in order to make experiments and observations to ascertain this, or for fish-culture: and such byelaw was not to be valid until it had been confirmed by the Secretary for Scotland. Several byelaws under this Act were made, prohibiting trawling within certain areas on the coast of Scotland within the ordinary limits.1311 It may well be questioned, in view of the definition of the “territorial waters of Her Majesty’s dominions” in the Territorial Waters Jurisdiction Act, and of the “exclusive fishery limits of the British Islands” in the Sea Fisheries Act, 1883,1312 whether these powers were restricted to the three-mile limit and to bays whose width was not greater than ten miles; but it is noteworthy that a byelaw with reference to the Firth of Clyde was not confirmed by the Secretary for Scotland, presumably because it was considered at the time to be ultra vires.1313

In 1889, however, an Act was passed which directly prohibited trawling “within three miles of low-water mark of any part of the coast of Scotland” (except the Solway and Pentland Firths), and within the waters specified in a schedule annexed, except in such parts as might from time to time be permitted by byelaws of the Fishery Board; and the Board was further empowered to forbid trawling within any area or areas in the Moray Firth between Duncansby Head and Rattray Point, which may be regarded as its headlands.1314 The waters specified in the schedule included the areas closed under the then existing byelaws, as well as a number of bays, lochs, and areas, the most important of which was “the waters inside a line drawn from Corsewall Point, in the County of Wigton, to the Mull of 719 720 Cantyre, in the County of Argyll”—that is to say, the Firth of Clyde. In this Act, it will be noted, nothing is said about bays, save in this schedule, and an examination of the charts shows that the waters specified in the schedule, twenty-five in number, would all, with a single exception, be included in the limits of exclusive fishing as defined in the North Sea Convention. Presumably the bays on the coast of Scotland which are not mentioned in the schedule do not come under the provisions of this Act beyond the distance of three miles from low-water mark on their shores. The exception referred to is the Firth of Clyde (fig. 29), where the line of closure is about twenty-eight miles in length, within which trawling was directly prohibited by the Act. The area of water outside the ordinary limits of the conventions which is thus embraced amounts to about 380 square (geographical) miles.

Fig. 29.—The Firth of Clyde, showing the line of closure and the ordinary three-mile limit.

Under the section referring to the Moray Firth, a byelaw was passed in 1890 giving effect to its provisions within a straight line drawn from the Ord of Caithness to Craighead near Buckie, the extent of water enclosed, beyond the ordinary limits, being about 310 square miles. This was replaced by another byelaw in 1892, in which the line of closure to trawling was from Duncansby Head to Rattray Head, a distance of about 73 geographical miles, the area of sea enclosed between it and the ordinary limits amounting to approximately 1480 square (geographical) miles (fig. 30). It is this byelaw that has of late given rise to discussion in relation to the operations of foreign trawlers within the Moray Firth, as is explained below.

In 1895 another Bill was introduced into the House of Lords by the Lord Privy Seal (Lord Tweedmouth), with the object, among other things, of extending a similar jurisdiction over the waters washing the east coast of Scotland. The line at first chosen in this case was a very long one, running along the open coast from Rattray Head to the Farne Islands, a distance of about 120 miles, and passing a little over thirty miles east of Fife Ness.1315 It was proposed later to give power 721 to prohibit trawling in any area or areas within eighteen miles of the coast.1316 In the Act as passed the distance was reduced to thirteen miles from the coast in areas under the jurisdiction of the Crown, and no area was to be so regarded unless the powers conferred had been accepted as binding upon their own subjects with respect to such area by all the states who were parties to the North Sea Convention.1317 This section of the Act has remained inoperative, and no byelaws have been made under it; and there appears to be no evidence as to whether the views of other Powers have been obtained.

In the Moray Firth, closed to trawling by the byelaw above referred to, foreign trawlers began to make their appearance first of all in 1895, when a Danish vessel came. Two years later it returned, and a German trawler also, which was prevented from landing its fish at Aberdeen,—an act of the Crown, which was tested by a case in the Court of Session and upheld by it. In 1898 foreign trawlers appeared in the Firth in considerable numbers, and, it was reported, carried on their operations in such a reckless manner as to involve a great deal of damage to the gear of the net and line fishermen.1318 These vessels appear to have been mainly Danish, but there were a few Belgian, Dutch, and German, and they came for the most part intermittently and for brief periods, some of them appearing 722 only once or twice in a year. Soon, however, the Firth was invaded by a fleet of trawlers flying the Norwegian flag, although it was known that Norway possessed no steam trawlers,1319 and these vessels fished regularly in the Moray Firth, carrying their fish to Grimsby, where they were landed and sold. It was soon discovered, and admitted, that these trawlers were in reality English, so far as capital, management, and crew were concerned, but they were registered in Norway in order to evade the British statute, and they soon obtained a practical monopoly of trawling in the Moray Firth. In 1901 there were fourteen or fifteen of them, but by 1905 they had increased to twenty-nine or thirty; while the visits of trawlers of other nationalities had diminished to nine in 1903, to six in 1904, and to two in each of the three following years. In 1903 and 1904 thirteen convictions were recorded against foreign trawlers, eight in connection with the Moray Firth and five in connection with the Clyde; in 1905 the number rose to fifteen for the Moray Firth and six for the Clyde. In all these cases the charge was for trawling within the ordinary three-mile limit. In 1905 a case was brought against Martin Olsen, the Norwegian “flag-master” of one of the trawlers registered in Norway, the Catalonia, for trawling within the Dornoch Firth in contravention of the Act of 1889, and byelaw No. 2, made under the Act of 1885. The place where the offence was committed was beyond the distance of three miles from the shore, but it was within three miles of the ten-mile base-line across the Dornoch Firth, and therefore within the exclusive fishery limit as defined in the conventions, and within one of the areas scheduled in the Act of 1889. The Sheriff-Substitute at Dornoch sustained Olsen’s plea of no jurisdiction, on the ground that the Catalonia was registered in Norway, and Norway was not one of the Powers signatory to the North Sea Convention. On appeal to the High Court of Justiciary the decision was reversed, the judges holding that the prohibition in the Act of 1889, being quite general in terms, was applicable to foreigners as well as to 723 British subjects, and that it was not for them to draw a distinction which had not been made by Parliament.1320

Fig. 30.—The Moray Firth, showing the line of closure.

This decision was the means of raising the question whether the byelaw did not apply to foreigners equally with British subjects in the whole extent of the Firth, and a series of cases were brought before the Sheriff to test the point. Three prosecutions were instituted, one against Emmanuel Mortensen, a Dane, master of the Niobe, of Sandefjord, Norway, for trawling at a point about five miles off Lossiemouth; another against Thomas Robinson, a British subject, master of the Verbena of Stavanger, Norway, for trawling at a point five miles S.S.E. of Garty Point, Sutherlandshire; and the third against Arthur Lambert, a British subject, fishing-master of the Pinewold, registered at Sandefjord, Norway, for trawling at a distance of seven miles from Tarbetness. Convictions were obtained in all cases in the Sheriff Court of Dornoch, 724 mainly on the same ground as in the above case, that the statute was general and applied to all persons, but Sheriff (now Lord) Guthrie also held that the Moray Firth was within the territorial waters of Scotland.1321

The case in regard to Mortensen was appealed and was heard by the full bench of twelve judges of the High Court of Justiciary, who unanimously upheld the conviction and dismissed the appeal. The leading opinion was delivered by the Lord Justice-General (Lord Dunedin), who treated the question as one of construction, and of construction only, since the court had nothing to do with whether an Act of the Legislature was ultra vires or in contravention of international law; they had only to give effect to it. The terms of the Act, applying to “every person” committing the offence within an area which was precisely defined, made the inference strong that it was meant to apply to all persons whatsoever; and this inference was further strengthened by the consideration that the clear object of the Act was to stop trawling, and that object would be defeated or rendered less effective if the prohibition applied only to British subjects, while leaving those of other nations free. With regard to the territorial or non-territorial character of the place where the Niobe had been trawling, Lord Dunedin said that while it might be assumed that within the three-mile limit the territorial sovereignty would be sufficient to cover such legislation, that was not a proof of the counter proposition, that outside the three miles no such result could be looked for. There were at least three points which went far to show that the locus was intra fauces terr?: (1) the dicta of the Scottish Institutional Writers, as Stair and Bell;1322 (2) the fact that the same statute puts forward claims to analogous places, as, e.g., the Firth of Clyde; (3) there were many instances in decided 725 cases where the right of a nation to legislate for waters more or less landlocked, though beyond the three-mile limit, had been admitted. “It seems to me, therefore,” continued Lord Dunedin, “without laying down the proposition that the Moray Firth is for every purpose within the territorial sovereignty, it can at least be clearly said that the appellant cannot make out his proposition that it is inconceivable that the British Legislature should attempt for fishery regulation to legislate against all and sundry in such a place. And if that is so, then I revert to the considerations already stated, which, as a matter of construction, make me think that it did so legislate.” He did not think any argument could be drawn from the definition of “exclusive fishery limit” in the North Sea Convention, inasmuch as the Convention, as a whole, did not deal with what was here in question—viz., mode of fishing; and the Act treated subjects and foreigners alike in the matter.

Lord Kyllachy also held that, on the point of construction, the intention of the Act was that in no part of the area should trawling be practised by anybody; the terms were definite and applied to a quite definite area; it would be easier to suppose that the Legislature had reached even an erroneous conclusion as to the extent of its jurisdiction, than that it had resolved deliberately to impose a futile restriction upon its own countrymen and at the same time to create a hurtful monopoly in favour of foreigners. With regard to the territorial or non-territorial character of the Moray Firth, it seemed vain to suggest that according to international law there was any part of it which was simply an area of the open sea, and thus in the same position as if it were situated, say, in the middle of the German Ocean. The whole Firth was prima facie a “bay,” with two well-marked headlands, and stretching inwards for many miles into the heart of the country. All that could be said against this was that at its outer end the Firth was very wide, and of a size, if not also of a configuration, somewhat beyond what is usually characteristic of bays and estuaries; but that might or might not be so, and the cases of the Bristol Channel, the Firth of Clyde, and the Firth of Forth would have to be considered before the proposition could be affirmed. There was no established rule on the subject in international law, and in particular no rule 726 “so arbitrary and artificial as that of the ten-mile limit measure,” for which the appellant contended. Perhaps the most interesting part of Lord Kyllachy’s opinion concerned the bearing of the North Sea Convention on the case. If the question had been one of exclusive fishing privileges, the bearing of the Convention might have been important. “But exclusive fishing privileges—or, at all events, exclusive fishing privileges as defined by convention—are one thing; territorial jurisdiction, proprietary or protective, is a different thing.... There is certainly nothing in the Convention, at least nothing was brought under our notice, which in the least conflicts with the right of the several contracting nations to impose each of them within its territorial limits (whatever these are) restrictions universally applicable against injurious practices or modes of fishing such as are by this statute and byelaw imposed here. In other words, there is nothing in the statute and byelaw in question which at all interferes with the exclusive fishing privileges of the several nations.” He could not consent to the argument that the Convention had introduced a new chapter into international law establishing, with respect to the definition of bays and estuaries, new and artificial rules. The other judges who gave their reasoned opinions expressed similar views, both as to the construction of the Act, the possibility or probability that the Moray Firth was a territorial bay by the law of nations, and as to the distinction between the limits of exclusive fishing as defined in the Convention and the right of the bordering state to regulate the fishery beyond that limit and within its territorial waters, provided the regulations applied equally to all.1323

It is to be noted that although the question was strictly one of the construction of the Act, the judges had necessarily, in reaching its true meaning, to consider certain aspects of international law in relation to the territorial sea. From the above summary of their opinions, it is evident that the most eminent Scottish lawyers are in agreement with the modern publicists whose views have been referred to in a previous chapter, both in rejecting the three-mile limit as the farthest boundary of territorial sovereignty and as to the ten-mile rule (to say nothing of the six-mile theory) for bays. It may, however, be questioned as to how far the doctrine of independent territorial 727 regulation of fisheries beyond the limit of exclusive fishing, as defined in the Conventions, will be accepted as applied to the signatories of the Conventions. It is not expressly stated in the Conventions that the waters outside the exclusive fishery limits shall be free and common to all; but that is implied even in the title of the last of them,1324 and the Convention, in point of fact, lays down such regulations for the conduct of the fishery, outside the exclusive fishery limits, as appeared to the signatories at the time sufficient for the equitable enjoyment of the common right. It would be easy to conceive of general regulations being applied independently at particular places by one state, which would have the effect of abridging the common right of the other states, without affecting the interests of its own subjects—on the principle of the invitations which the fox and the stork issued to one another in the fable. That the intention was to leave the fisheries outside the limits mentioned free, except in so far as the regulations agreed upon affected them, is clear from the proceedings at the conference at The Hague. As regards other states, however, such as Norway, which were not signatories of the Conventions, it is equally clear that, up to the utmost bounds of the territorial waters, regulations may not only be imposed on their subjects, but they may be excluded from the fisheries altogether.

The effect of the decision of the High Court of Justiciary was apparently to keep the foreign trawlers out of the Moray Firth for a short time. But very soon a number of them came back again from Grimsby, with express instructions from the owners to fish in the Moray Firth. On 31st January 1907 six masters, all foreigners, of trawlers registered in Norway, were charged at Elgin Sheriff Court with thirteen separate contraventions of the byelaw, committed between 23rd November and 22nd December 1906, at various distances from about five to twelve miles from the coast; on conviction, penalties of ￡100 or sixty days’ imprisonment were imposed, and five of the men went to prison. On 4th February other two masters of foreign trawlers were convicted of a corresponding offence at Wick Sheriff Court. At the trial at Elgin, the Norwegian Vice-Consul 728 at Aberdeen read a protest, at the instance of the Foreign Minister of Norway, against the conviction of the masters of three of the Norwegian vessels which he named, provided the trawling with which they were charged had taken place “outside the territorial limits.”1325

Representations were also made to the British Foreign Secretary by the Norwegian Minister in London (Dr F. Nansen), and the men were released on 9th February,1326 the decision of the Scottish High Court being thus in effect set aside. It was subsequently explained that in taking this action Norway was merely making a formal stand for the rights of her flag, since the trawlers had been registered in Norway in a legal way, Norwegian subjects were concerned, and no claim had been put forward on behalf of the British Government to the Moray Firth as being territorial in character. In point of fact, the Norwegian Government was in full sympathy with the policy of keeping the pseudo-Norwegian vessels out of the Moray Firth,1327 and they immediately, after the formal protest referred to, issued orders warning all owners of Norwegian trawlers fishing in the Moray Firth to cease from doing so, and not to expect the support of their Government in case of proceedings being taken against them in Scotland.1328 It does not appear that any advantage was taken of this proceeding for further prosecutions of Norwegians contravening the law; but 729 it was decided to proceed against British subjects who might be found on the foreign vessels which were violating it, and who were undoubtedly under the jurisdiction of British courts. On March 20th twelve cases were brought before the Elgin Sheriff Court, the men charged being the “fishing-masters” of the foreign trawlers,1329 and the only one who appeared was fined fifty pounds for each of three offences, or fifteen days’ imprisonment. A little later, on 17th April, fifteen fishing-masters of foreign trawlers, one of which was Swedish, all British subjects belonging to Grimsby, were charged in the same court for trawling within the Moray Firth outside the ordinary limits, and on conviction small fines were imposed. Similar cases were brought against eleven men in July, who were charged with twenty-eight offences committed between 2nd March and 24th June, and still smaller penalties were imposed.1330

Considerable discussion was evoked by the various occurrences above referred to. Resolutions were passed at various meetings of fishermen in Scotland in favour of the byelaw being strictly enforced, and asking that an international arrangement should be come to if necessary to enable that to be done. At meetings of trawl-owners, on the other hand, held at Grimsby and elsewhere, resolutions to the opposite effect were agreed to, and the Government were requested to maintain the “three-mile international territorial limits as now defined.” In the Houses of Parliament also numerous questions were put to Ministers on the subject, and there were several debates of a more or less formal kind. It appears that the Foreign Office had come to the conclusion that the Act of Parliament as interpreted by the High Court of Justiciary was in conflict with international law;1331 and that view having been taken, it was obvious that it would be necessary, if the statute was to have 730 equal effect on foreigners, that some international arrangement, such as had been previously recommended by the select Committees of the House of Commons and the House of Lords,1332 should be reached. It appears that there would have been no difficulty in arranging such an agreement with Norway, which was desirous of entering into negotiations for the purpose; but it was felt by the Foreign Office that, while an arrangement of the kind would not bind other Powers, questions of reciprocity might be raised, and British trawlers might be excluded from similar areas on foreign coasts. They therefore declined to enter upon negotiations with foreign Powers until the whole policy had been carefully considered.1333 One point of view which was taken was indicated in a speech of the Under-Secretary for Foreign Affairs (Lord Fitzmaurice) in the course of a debate in February 1907, which had been initiated by Lord Balfour of Burleigh. He stated that according to the views hitherto accepted by the chief departments of the Government—the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agriculture and Fisheries—and apart from the provisions of special treaties, territorial waters were: “First, the waters which extend from the coast-line of any part of the territory of a State to three miles from the low-water mark of such coast-line; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom, however, and by treaty and in special convention, the six-mile limit has frequently been extended to more than six miles.”1334 The Lord Chancellor, it may be said, was absent through illness; and the declaration quoted, though it represents what has been the general, but by no means the invariable, attitude of the British Foreign Office in dealing with territorial waters, is not in accordance with the law of nations, as is shown in the foregoing chapters. Nor does it agree with the opinions expressed in a former debate by the late Lord Salisbury, so long the distinguished Foreign Minister of this country, by 731 Lord Halsbury, the former Lord Chancellor, and by Lord Herschell, the then Lord Chancellor (see p. 592), in which Lord Salisbury said “great care had been taken not to name three miles as the territorial limit.” Nor is it in agreement with the carefully considered and most explicit reservations made in the Territorial Waters Jurisdiction Act, both in regard to the extent of the territorial waters and the rightful jurisdiction of the Crown beyond three miles from the shore under the law of nations, conferred by Act of Parliament, or by law existing, and the similar reservations in certain other Acts previously referred to. Even more singular is the novel statement as to what constitutes a territorial bay. A six-mile limit of the kind will obviously confer in the great majority of cases no greater extent of sea than the three-mile limit on an open coast, and it is thus opposed to one of the best-recognised principles of international law relating to the subject. The only part of the world where it appears to be in force is in British North America, with reference to subjects of the United States. The history of how it came to be applied at all is told in a previous chapter, in which it is also shown that the British Government as late as 1887 rejected even the ten-mile limit for bays, as involving a surrender of fishing rights, and as being contrary to the law of nations (p. 629), and they have made declarations equally emphatic on other occasions.1335

But in a subsequent debate Lord Fitzmaurice appears to have qualified his statement, and quoted the observation of Lord Salisbury that where the coast was “folded and doubled,” as 732 where bays exist, it was an unsettled question in international law how far territorial waters extend in such cases.1336

Rather a different view was taken by the Lord Chancellor, a few weeks later, in the course of another debate about the Moray Firth. Lord Loreburn confined himself to saying that the obvious contention of other nations, and one very difficult to encounter, if we tried to make byelaws under our own law in regard to waters within a line from headland to headland eighty-five miles apart, would be that we might be trying to legislate for the high seas.1337 And in a debate in July 1908, the Secretary for Foreign Affairs (Sir Edward Grey) put the matter in an exceedingly lucid manner. Parliament had recognised the contention, he said, that there ought to be special regulations, especially in regard to the Moray Firth, going far beyond the three-mile limit; and, like other members of the Government, he condemned the action of British subjects who, knowing perfectly well the law, made use of a foreign flag to evade the regulations of the Moray Firth, which it was obviously the desire of Parliament should be enforced. But when they came to the question of enforcing the law on foreign subjects, they were placed in a very difficult position. The national policy of this country hitherto “had been to uphold the three-mile limit, but to protest against and to resist by every means in our power the pretension of any foreign country to enforce its own jurisdiction on the sea beyond the three-mile limit.” We had contended before international tribunals, as in the Behring Sea Arbitration, that the three-mile limit is the only one we can recognise as the limit of foreign jurisdiction over British vessels; and suppose we attempted to enforce a doctrine going far beyond the three-mile limit on foreign ships, how could we 733 contend before an international tribunal for a doctrine precisely the reverse of that which we have always upheld on previous occasions? It followed from this that “if there was to be a modification of the rules relating to trawling in the North Sea, it must be by agreement with foreign Powers”—that was really the practical point upon which the matter turned. But in an important question affecting the interests of the country at large, it was impossible for the Foreign Office to approach other Powers with the view of reaching an agreement until it was quite clear that it was in the interest of a policy which had been adopted, affirmed, and declared by the Government to be a policy which was in the general national interest of the United Kingdom. Judging from the very great force with which the case in such regions as the Moray Firth had been presented, and the strong feeling that existed and which was not confined to the Moray Firth, it had always seemed to him that there was a case for grave consideration as to whether any new regulations were required for the preservation of the fishing industry in the North Sea at large. Trawling was a perfectly legitimate industry in which large capital was invested, and if further restrictions were to be imposed on it, it must be because a really important national interest required it; it would not be right to adopt in the interests of particular localities any special restrictions which might result in diminishing the supply and raising the price of fish. But, having laid down these two principles, Sir Edward Grey thought it was equally true that if the supply of fish from the North Sea is being affected by want of further regulations, then the interests of any particular industry must be subordinated to the general interest, which in the long-run was also the interest of the industry itself. “If it be the case,” he proceeded, “that in areas like the Moray Firth, which are important breeding-grounds, the supply of fish is being seriously interfered with by the prosecution of trawling in narrow waters, then it becomes a matter of national interest that we should, as soon as possible, come to some agreement with foreign Powers under which we should be able to make the arrangements which prove to be necessary in the national interest at large.” The subject was one requiring the deliberate investigation of the Government, and the investigation was proceeding; and they should know in the course of a reasonable time whether or not the Government 734 thought they had a case for approaching other Powers, and if so what were the grounds and propositions they should ask those Powers to agree to. With regard to bays, the Foreign Secretary said it had generally been understood that the qualification of the three-mile limit applied to bays ten miles wide, and they must be very careful as to how far they pressed the doctrine as to the width of a bay, or laid down an international doctrine on any particular bay. They must think of what the application of it might be in other parts of the world.1338

In this statesmanlike speech the case was put temperately and fairly. Whether the Moray Firth is or is not a territorial bay, it has been the general practice of the British Government to contend for the ordinary three-mile limit, at least on open coasts, in relation to fishery questions. If there are clear reasons for the extension of this limit at any part of the coast, or in the North Sea generally, in the common interests of the fisheries, as recommended by the select Committee of the House of Commons in 1893; or for the prohibition of trawling within a great area on the Continental coast, as urged by the English trawlers, and recommended by the Parliamentary Committees of 1900 and 1904; or if it is believed to be necessary to regulate the fisheries in any way beyond the ordinary limit, then obviously the best method is to endeavour to come to an arrangement with the other Powers concerned. There are precedents for this course in British policy. By treaties with France, the British Government agreed to bind British subjects not to fish for oysters or any kind of fish within Granville Bay in waters beyond the ordinary limit. In the interests of the preservation of the fur-seal, in which the United States was mainly concerned, they agreed to prohibit British subjects from taking them within a limit of sixty miles around the Pribilov Islands, and to compel them to observe a close-time on the high seas, and to use only the primitive spear. They have also by treaty agreed to respect various other limits beyond the ordinary three miles in the interest of the preservation of other kinds of seals. The case of the North Sea, or of that inlet of it known as the Moray Firth, is on the same footing as these. The question is not one of the extension of territorial sea qua 735 territorial sea, but of special regulations independent of it, and exclusively relating to the fisheries.

From what has been said in foregoing pages as to the impoverishment of the fishing-grounds in the North Sea, and the various remedies that have been at one time or another proposed by the English trawlers and by Parliamentary Committees with the view of maintaining the fish supply, it might appear that a very good case already existed for approaching foreign Powers with the object of arranging for general regulations beyond the ordinary limit, and one far weightier than that which brought about the conference at The Hague and the North Sea Convention in 1882 (see p. 631).

Two probable reasons may be advanced for the delay in giving effect to the recommendations of the various Committees of Parliament. The first is that a very important international investigation of the North Sea and adjacent waters has been in progress for a number of years and is still going on. On the invitation of the Swedish Government, representatives of Great Britain, Germany, Russia, the Netherlands, Denmark, Sweden, and Norway met at Stockholm in June 1899, and again at Christiania in May 1901, to discuss and arrange an organisation and a programme for an international scientific investigation of the North Sea, the Norwegian Sea, and the Baltic, in the interests of the fisheries; and in July 1902, the first meeting of the body so constituted, the International Council for the Exploration of the Sea, was held at Copenhagen. Since then all the maritime countries of Western Europe, with the exception of France, have engaged in these researches.1339 This country entered into the arrangement with special reference to the fisheries in the North Sea, and with a very practical end in view—namely, to secure a careful inquiry into the effect of the methods of fishing in the North Sea, and to promote a scheme for determining whether 736 protection against overfishing was required; and, if so, where, when, and how such protection should be given.1340 Much strong criticism has been passed as to the origin, the methods, and the programme of these investigations,1341 and while they have naturally resulted in large additions to our knowledge of the physical 737 and biological conditions of the sea, of the life-history of fishes, and of certain fishery questions, no report has yet appeared dealing with the fundamental problem as to overfishing and any remedies which may be required to safeguard the fish-supply; and it is doubtless such information that is referred to by the Foreign Secretary as essential before Foreign Powers can be approached. An opinion was, however, early expressed as to the particular question of the Moray Firth. The Conference held at Christiania in 1901, at which all the Powers signatory to the North Sea Convention (with the exception of France) were represented, passed a resolution to the effect that “in distinct areas of the sea, as for example the Moray Firth, in which any Government has undertaken scientific experiments in the interest of the fisheries, and in which the success of the experiments is being hindered by the operations of trawlers, it is to be desired that measures be adopted for the removal of such hindrances.”1342

The second probable reason that nothing has yet been done to arrive at an international understanding appears to be that the representatives of the great trawling industry have changed their minds within the last few years. Since foreign coasts have been exploited with immediate financial success to the trawling companies, their interest in the North Sea has diminished. They fear that if the question of fishery regulations beyond the ordinary three-mile limit is opened up with foreign Powers in the interest of the North Sea fisheries, proposals may be made, as a quid pro quo, by some of the other Powers for similar regulations on their coasts; and it is evident from the statements made in Parliament that this view has hitherto prevailed.1343 One would have thought that a quid pro quo which closed to trawling the great area off the Continental coast, which English trawlers for more than fifteen years have been vainly asking to be closed by international arrangement, would be satisfactory to them. Or that a fishery limit of nine or ten miles on the other side of the North Sea, or all around it, which they thought some years ago to be the best remedy for the 738 depletion of the fishing-banks, would meet with their approval. These areas, compared with the whole of the North Sea, are comparatively of small extent (see fig. 26). The area of the North Sea between the three-mile line and a nine-mile limit amounts to about 12,000 square miles, or 7·4 per cent of the whole area beyond three miles from the shore; and the area between the three-mile line and a thirteen-mile limit amounts to about 20,000 square miles, or 12·3 per cent.

Meanwhile, the condition of the fishing-grounds in the North Sea is described as serious by those who ought to know most about it—the trawlers who are daily working there; and if no remedy is timeously applied, the measures which will eventually be necessary will transcend those which are now proposed.1344

But if it be imprudent to postpone indefinitely the seeking of an international remedy for the depleted fisheries of the North Sea, because the trawling industry fears that retaliatory measures may be proposed against British trawlers on some foreign coasts, it may be questioned, on the other hand, whether the action taken to obviate such measures has always been well-judged or in accordance with the true comity of nations. On strictly selfish grounds, and for immediate profit, it is doubtless justifiable to make every fishing-bank, wherever it is situated, available for the enterprise of British capital, irrespective of the interests of the inhabitants of the adjoining coast, if that can be managed. If, indeed, the resources of the sea were inexhaustible,—if it was impossible for the operations of man to diminish the abundance of fish,—then no limit of exclusive fishing would be necessary: only such regulations would be required as would enable fishing operations to be conducted in an orderly manner. But the condition of the North Sea alone proves the opposite. It shows also, what is well enough understood, that unrestrained trawling on any 739 banks will, in course of time, materially reduce their productiveness; and the rapidity of the impoverishment will very largely depend upon the intensity of the fishing and the extent of the grounds. That being so, it may well be said that a measure of protection on the banks which are still productive along foreign coasts would be in the permanent interest of the English trawling industry itself, as well as in the interest of the coast population.1345

On some of those coasts the local population are dependent on the fish they catch on the neighbouring grounds, which are often of limited extent, and it is reasonable and just that they should endeavour to preserve this supply for their own use and advantage. At Iceland, for example, the area of the possible fishing-grounds between the ordinary three-mile limit and a depth of 200 metres (or 109 fathoms), including places where trawling is not practicable, amounts to about 36,600 square miles, compared with nearly 312,000 square miles between the same limits off the British Isles.1346 It was recently stated in the House of Lords, by Lord Heneage, that the Icelanders, with the view of preserving their fishing-grounds, a few years ago brought forward a law in the Althing, or local Parliament, to extend the limit of exclusive fishing to seven miles around their coast. It was also said that in 1901 they passed laws for enclosing extra-territorial waters. 740 As soon as these proceedings came to the knowledge of the English trawl-owners, the National Sea Fisheries Protection Association made a representation on the subject to the Foreign Office, and in consequence of this the Danish Government took action, and the law was prevented from coming into operation.1347 And any such action in the future was effectually prevented by the immediate negotiation of an international convention in which a three-mile limit was fixed for Iceland and Far?e (see p. 647) so far as concerned British fishermen. Then with respect to the coasts of Spain and Portugal, where the available grounds are narrow, amounting altogether between the three-mile limit and the 200-metre line to 15,460 square miles (see fig. 28), intimation has been made by the British Foreign Office, at the instance of the National Sea Fisheries Protection Association, that jurisdiction will not be recognised over British vessels beyond three miles from the shore, and the national regulations in regard to trawling are thus rendered comparatively ineffective. With regard to Norway, moreover, where the area between the three-mile limit and the 200-metre line exceeds 30,000 square miles, it appears that soon after her separation from Sweden, in 1905, the British Foreign Office made the proposal that she should join in the North Sea Convention (which, along with Sweden, she refused to do in 1882), so that the ordinary three-mile limit might be imposed along the Norwegian coast; but the proposal was rejected.1348

In view of the evidence that has been adduced, the recommendations of the various Committees of Parliament that have inquired into the subject, and the statements made in the House of Commons, it may be assumed that an international conference of the Powers bordering the North Sea will be convened, to consider how fishery regulations may be made more effective, whether by extension of the limits of exclusive fishery or otherwise, as soon as the results of the international fishery investigations justify that course.

The End