but it is not quite correct in its assumption that other Governments were of the same opinion as the British Government. The replies of other Governments were shortly as follows:The United States Government was not disinclined to adhere, if a number of other Powers also adhered. The German Government thought that the question was not yet ripe to be settled by an International Convention, but was disposed to deal with existing difficulties by separate arrangements. The Russian Government was favourable to the proposal, and promised to attend the conference if the principal maritime Powers accepted the invitation also. The answer of the Spanish Government was practically the same, and the Portuguese Government accepted unconditionally. It is true that the Dutch Government placed the matter before the Governments of Europe in a way that seemed to pledge them to accept an extension of the width of the margin from three to six miles, and Lord Salisbury's objection may have been chiefly to this widening of the zone. New considerations have arisen out of the Russo-Japanese war, especially in connection with the laying of floating mines. and mine fields;1 and the distinction made in the Institute and Association rules between the zone necessary for the protection of fishery rights and that necessary in time of war for the protection of the neutral coast-line and coast traffic, seems to have been amply justified by subsequent events. As regards fishery rights, on the other hand, a great difference of views still prevails. With both Norway and Spain, diplomatic difficulties may any day result from both of these countries claiming jurisdiction over a larger margin of coast waters than the ordinary three-miles. English trawlers fishing within the Spanish six-miles limit expose themselves under Spanish law to penalties; this has already, it seems, given rise to trouble. 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 recent conference at Hull of the National Sea Fisheries Protection Association (Sept. 18, 19, and 20, 1906), when a resolution was adopted in favour of maintaining the present three-mile limit on grounds of expediency, which deserve serious consideration.2 It seems practically impossible to regulate fishery rights in accordance with any uniform limits. The necessities of preservation of the fish supply justify a claim to the exercise. of jurisdiction by adjacent States over areas which differ so widely that even to fix any reasonable maximum distance from low-water mark would not meet all cases. 1 See p. 59 et seq. 2 Mr. C. Hellyer of Hull, who moved the resolution, produced tables of figures showing that a 13-mile limit would exclude British vessels from an area of over 135,000 nautical square miles of the fishing grounds of Western Europe, i.e. from an area nearly equivalent in size to the trawlable area of the North Sea, or nearly one-third of the total area available for trawling (ex White Sea or Baltic). A 9-mile limit would exclude them from over 80,000 nautical square miles. As the British steam trawling fleet is more than six times greater than that of all other countries combined, the subject cannot be disposed of as involving legal principles only. The subject is, however, far from exhausted with the claims of the trawling industry, as the following passages from an interesting article by an apparently highly com petent correspondent in the Standard of April 9, 1907, show:-"During the spring of the present year there has been a recrudescence of the old grievance on the part of British fishermen against alien trawlers. The agitation has assumed proportions never before approached. The starting point of this outcry was an incident which occurred off Start Point on the evening of March 2 last. The Plymouth fishing boat Shamrock was riding to her nets upon the mackerel grounds. A French steam trawler was seen approaching, and, although the English boat was showing her regulation lights, the steam vessel continued holding her course. . . . The Frenchman came sweeping past within musket shot, dragging his trawl right athwart the Plymouth boat's gear. Her number and port of registry were carefully concealed by a corner of sail thrown over the lettering. The wire rope by which steam trawlers drag their nets cut through the Shamrock's riding rope, the whole wall of her meshes was carried away by the foreign trawler, and her skipper returned to Plymouth a ruined man for the rest of the fishing season. I boarded the vessel myself the following morning, and can vouch for the absolute accuracy of the narra. tive. I have spoken of this incident as the starting point, but it would be, perhaps, more correct to term it the culminating point in a long series of similar acts of depredation. At the time of its occurrence there were known to be no fewer than one hundred and fifty alien steam trawlers upon the mackerel grounds between Dartmouth and Eddystone. It may be explained that these boats were fishing well outside the three-mile limit, and that, consequently, by all the laws of freedom of the sea, they had as much right there as our own fishers. The great industry of sea fishing may be broadly classed under two heads, trawling and drifting. In the first of these the vessel drags her nets, fashioned like a great purse, over the ground, and picks up all the prime fish of the ocean. In the second case the vessel shoots her nets, which are buoyed along the upper ridge and weighted at the lower, so as to float perpendicularly and form a solid wall of meshes in the water. end of this network barrier rides the boat; to the other end, which may be a mile and a half away, is attached a dan or buoy. The drift nets catch fish which swim near the surface in schools, thus evading the bottom trawl, and include mackerel, herrings, pilchards, and sprats. It is an unwritten international law that trawlers shall trawl by day, and that drifters shall drift by night, so that there shall be no conflict between the two methods. For it stands to reason that if a powerful trawler came dragging her heavy gear right through a fleet of drift boats she would ruin a whole "village" in a single night. The alien trawlers have not respected this rule, hence the trouble. They are seeking the same species of fish as the drifters, which they catch in "flying trawls," or trawls poised to drag through the water at a little distance beneath the surface. . . . To increase the coastal patrol would be but a half measure. There is no use in establishing a complete and effectual guard without defining exactly the terms upon which it may exercise its authority. And before this can be done certain moot points require to be resolved into specific acts of international law. Chief amongst these is the question of the legitimacy of trawling by night upon the drift fishery grounds. Usage is not a sufficiently definite sanction. Unless practical action is speedily taken, an important and most deserving industry, which, after all, is really national in its importance, will have been crushed out of existence by the unchecked exercise of a species of rivalry which disregards all the limitations of fair competition in the pursuit of its end.' At one The Rules adopted by the Institute of International Law are as follows: 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 three miles from low-water mark has been recognised 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 a right of sovereignty over a belt of sea along its coast, subject to the right of inoffensive passage reserved in Article V. This belt is called territorial waters (mer territoriale). Art. II.-Territorial waters extend for six miles (60 to one 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 they are measured from a straight line drawn across the bay from the two points nearest the sea where the opening of the bay is of twelve marine miles in width, unless a greater width shall have become recognised 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 six miles 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 ship, 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 of 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 twelve miles in width, with the following modifications and exceptions: (1) Straits, the coasts 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 by special usage is reserved. XVIII ASSIMILATION OF PRACTICE IN "PACIFIC" Pacific blockade, or as it should rather be called, "blockade in time of peace," an institution of recent origin, is not an operation of war. It is a coercive measure resorted to by maritime Powers which are able to bring into action such vastly larger forces than the resisting State can dispose of, that resistance is out of the question. There has been controversy as to whether the blockading Power has a belligerent right of confiscation in case of violation of the blockade against vessels and cargoes not belonging to the blockaded country. France has leaned to an assimilation of pacific blockade to that recognised by International Law for the benefit of belligerents,1 and Great Britain to the view that a pacific blockade must be confined in its effects to the State blockaded. The blockades of Greece and Crete in 1886 and 1897 are the most authoritative precedents, on account of the number of Powers in whose name they were carried out, and of their effectiveness in the achievement of their object. The British instructions in 1886 were to detain any ships under the Greek flag entering or issuing from any of the blockaded ports, but not ships under a neutral flag, nor even Greek ships, if any part of the cargo on board belonging to any subject or citizen of any foreign Power other than Greece, and other than the blockading Powers, had been shipped "before notification of the blockade or after such notification, but under a charter made before the notification." The blockade of 1897 was notified in the different terms the different circumstances required; but in this case neutral ships and cargoes were subjected, along with those of the blockading Powers, to specific restrictions.1 The rules adopted by the Institute of International Law in 1887 showed the leading jurists of Europe and the then recent practice to be in harmony. These rules are as follows: "1. Vessels under a foreign flag may freely enter in spite of the blockade. "2. A pacific blockade must be officially declared and notified, and must be maintained by a sufficient force. "3. Vessels of the blockaded Power which do not respect such a blockade may be sequestrated. The blockade having ceased, they shall be restored with their cargoes to their owners, but without compensation of any kind being due." 1 The British Notification of the Blockade of the Island of Crete" was as follows: FOREIGN OFFICE, March 15, 1897. "It is hereby notified that the Marquess of Salisbury, K G., Her Majesty's principal Secretary of State for Foreign Affairs, has received a telegraphic despatch from Kear-Admiral Harris, commanding Her Majesty's naval forces in Cretan waters, addressed to the Lords Commissioners of the Admiralty, and dated the 18th of March, announcing that the Admirals in command of the British, Austro-Hungarian, French, German, Italian, and Russian naval forces have decided to put the Island of Crete in a state of blockade, commencing the 21st March, 8 a.m. The blockade will be general for all ships under the Greek flag. Ships of the Six Powers or neutral Powers may enter into the ports occupied by the Powers and land their Merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets. The limits of the blockade are comprised between 23° 24′ and 25° 30' longitude east of Greenwich, and 35° 48′ and 34° 45′ north latitude." If these rules had been the subject of an international agreement in 1897, paragraph 1 of them would have been violated. The objection to the terms of paragraph I could be overcome by modifying it as follows: "Vessels under a foreign flag shall, as far as practicable, be allowed to freely enter and issue in spite of the blockade, subject always to indemnification for loss in case they should be arrested." There would always be the alternative of making the blockade an act of war, as in the case of the action taken by Great Britain, Germany, and Italy in 1902-1903 against Venezuela, which was not a pacific blockade, but war with all its consequences for belligerents and neutrals, as stated in the Foreign Office notice published in the London Gazette of December 20, 1902.2 2 The text of the Foreign Office notice was as follows: "It is hereby notified that as the United States of Venezuela have failed to comply with the demands of His Majesty's Government, a blockade by His Majesty's naval forces of the ports of La Guaira, Carenero, Guanta, Cumana, Carupano, and the mouths of the Orinoco, is declared, and such blockade will be effectively maintained from and after the 20th day of December, subject to an allowance of the following days of grace: For vessels sailing before the date of this notification from West Indian ports, and from ports on the east coast of the continent of America, ten days for steamers and twenty days for sailing vessels; from all other ports, twenty days for steamers and forty days for sailing vessels; for vessels lying in ports now declared to be blockaded, fifteen days. Vessels which attempt to violate the blockade will render themselves liable to all measures authorised by the laws of nations and the respective treaties between His Majesty and the different neutral Powers.-December 20, 1902." XIX FOR ENFORCEMENT OF EMPLOYMENT OF ARMS WHERE the purpose of exacting reparation from a South American Republic for an outrage against a citizen of a foreign nation, said President Roosevelt in his Message of December 5, 1905, leads a foreign nation to employ force, there is nothing in the Monroe Doctrine to oblige the United States to interfere save to see that the punishment does not assume the form of territorial occupation in any shape." "The case," he went on to say, "is more difficult when it refers to a contractual obligation. Our own Government has always refused to enforce such contractual obligations on behalf of its citizens by an appeal to arms. It is much to be wished that all foreign Governments would take the same view. But they do not; and, in consequence, we are liable at any time to be brought face to face with disagreeable alternatives. On the one hand, this country would certainly decline to go to war to prevent a foreign Government from collecting a just debt; on the other hand, it is very inadvisable to permit any foreign Power to take possession, even temporarily, of the Customs Houses of an American Republic in order to enforce the payment of its obligations, for such temporary occupation might turn into a permanent occupation. The only escape from these alternatives may at any time be that we must ourselves undertake to bring about some arrangement by which so much as possible of a just obligation shall be paid. It is far better that this country should put through such an arrangement, rather than allow any foreign country to undertake it. To do so ensures the defaulting Republic from having to pay debts of an improper character under duress, while it also. ensures honest creditors of the Republic from being passed by in the interest of dishonest or grasping creditors. Moreover, for the United States to take such a position offers the only possible way of ensuring us against a clash with some foreign. Power. The position is, therefore, in the interest of peace as well as in the interest of justice." |