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treaties from 1839 down to the present day, in all of which the ten miles entrance bays are recognized, is the clear sign of a policy. This policy has but very lately found a most public, solemn and unequivocal expression. On a question asked in Parliament on the 21st of February, 1907, says Pitt COBBETT, a distinguished English writer, with respect to the Moray Firth Case, it was stated that, according to the view of the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade and the Board of Agriculture and Fisheries, the term “territorial waters” was deemed to include waters extending 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 and the waters of all bays, the entrance to which is not more than six miles, and of which the entire land boundary forms part of the territory of the same state (PITT COBBETT Cases and Opinions on International Law, Vol. 1, p. 143).
Is there a contradiction between these six miles and the ten miles of the treaties just refererd to? Not at all. The six miles are the consequence of the three miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the ten miles far from being an arbitrary measure are simply an extension, a marign given for convenience to the strict six miles with fishery purposes. Where the miles represent sixty to a degree in latitude the ten miles are besides the sixth part of the same degree. The American Government in reply to the observations made to Secretary BAYARD's Memorandum of 1888, said very precisely: “The width of ten miles was proposed not only because it had been followed in conventions between many other powers, but also because it was deemed reasonable and just in the present case; this Government recognizing the fact that while it might have claimed a width of six miles as a basis of settlement, fishing within bays and harbors only slightly wider would be confined to areas so narrow as to render it practically valueless and almost necessarily expose the fishermen to constant danger of carrying their operations into forbidden waters.” (British Case Appendix, page 416.) And Professor John BASSETT MOORE, a recognized authority on international law, in a communication addressed to the Institute of International law, said very forcibly: “Since you observe that there does not appear to be any convincing reason to prefer the ten mile line in such a case to that of double three miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The ten mile line has been adopted in the cases referred to as a practical rule. The transgression of an en
croachment upon territorial waters by firshing vessels is generally a grave offense, involving in many instances the forfeiture of the offending vessel, and it is obvious that the narrower the space in which it is permissible to fish the more likely the offense is to be committed. In order, therefore, that fishing may be practicable and safe and not constantly attended with the risk of violating territorial waters, it has been thought to be expedient not to allow it where the extent of free waters between the three miles drawn on each side of the bay is less than four miles. This is the reason of the ten mile line. Its intention is not to hamper or restrict the right to fish, but to render its exercise practicabie and safe. When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to make the possibilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than four miles each way from the forbidden lines. In spaces less than this operations are not only hazardous, but so circumscribed as to render them of little practical value.” (Annuaire de l'Institut de Droit International, 1894, p. 146).
So the use of the ten mile bays so constantly put into practice by Great Britain in its fishery treaties has its root and connection with the marginal belt of three miles for the territorial waters. So much so that the Tribunal having decided not to adjudicate in this case the ten miles entrance to the bays of the Treaty of 1818, this will be the only one exception in which the ten miles of the bays do not follow as a consequence the strip of three miles of territorial waters, the historical bays and estuaries always excepted.
And it is for that reason that an usage so firmly and for so long a time established ought, in my opinion, be applied to the construction of the treaty under consideration, much more so, when custom, one of the recognized sources of law, international as well as municipal, is supported in this case by reason and by the acquiescence and the practice of many nations.
The Tribunal has decided that: “In case of bays the 3 miles (of the treaty) are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration characteristic of a bay. · At all other places the three miles are to be measured following the sinuosities of the coast." But no rule is laid out or general principle evolved for the parties to know what the nature of such configuration is or by what methods the points should be ascertained from which the bay should lose the characteristics of
such. There lies the whole contention and the whole difficulty, not satisfactorily solved, to my mind, by simply recommending, without the scope of the award and as a system of procedure for resolving future contestations under Article IV of the Treaty of Arbitration, a series of lines, which practical as they may be supposed to be, cannot be adopted by the Parties without concluding a new treaty.
These are the reasons for my dissent, which I much regret, on Question Five. Done at the Hague, September 7th, 1910.
LUIS M. DRAGO.
Cases and Opinions on International Law. By_Pitt Cobbett, M. A.,
D. C. L. (Oxon). Part I, Peace. 3d ed. London : Stevens and Haynes. 1909. pp. xxiv, 385.
The original edition of Mr. Cobbett's Cases and Opinions on International Law appeared in 1885 in a volume of 263 pages. The present, that is the third, edition of the work is composed of two volumes. The first part, dealing with peace, appeared in 1909.
The original work was highly regarded and has been extensively used as a text-book. It is believed that the third edition will prove even more useful to the student of international law, although perhaps it is too detailed for class-room purposes.
Mr. Cobbett's purpose, as explained in the preface to the original edition, was two-fold: First, to show that “a very large portion of international law rests on authority as trustworthy as that which commands the homage of the English lawyer,” and “ to bring out how much of the law of nations exists in this shape;” second,“ to publish a selection of illustrative cases which may serve as a useful companion volume to existing text-books.” In both of these purposes he was eminently successful. No one can read Mr. Cobbett's collection, either in its original or its present form, without recognizing as unjust the “tendency on the part of English lawyers to regard that body of custom and convention which is known as international law, as fanciful and unreal; as a collection of amiable opinions rather than as a body of legal rules.” And few students of international law would now-a-days deny that “the great body of the rules comprising the maritime law of nations, together with many fundamental rules in other departments, may be found in the judgments and decisions of international tribunals, such as boards of arbitration and courts of prize, some of them presided over by judges fully as eminent as those of the common law. Even where such authority fails, it is still possible to draw on such sources as official documents and records, and opinions given by official jurists to their own governments on matters of international concern."
It is comparatively easy to insist that international law should be considered as an existing legal system and treated as such.
It was a