"Gulfs and bays surrounded by the land of one and the same riparian State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, all gulfs and bays enclosed by the land of more than one riparian State, however narrow their entrance may be, are non-territorial. They are parts of the Open Sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, and they are in time of peace and war open to vessels of all nations including men-of-war."

6

Holland, "Letters to the Times,"" published in 1909, p. 132, et seq.; United States extract, pp. 1 and 2:

"Most authorities would, I think, agree with Admiral de Horsey that the line between 'territorial waters' and 'the high seas' is drawn by international law, if drawn by it anywhere, at a distance of three miles from low-water mark. In the first place the ridiculously wide claims made, on behalf of certain States, by mediaeval jurists were cut down by Grotius to so much water as can be controlled from the land. The Grotian formula was then worked out by Bynkershoek with reference to the range of cannon; and, finally, this somewhat variable test was, before the end of the eighteenth century, as we may see from the judgments of Lord Stowell, superseded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, and judicial decisions.

"The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in The Direct U. S. Cable Co. v. Anglo-American Telegraph Co. (L. R. 2 App. Ca. 394), carefully avoided giving an opinion as to the international law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception, in Newfoundland, on the narrow ground that, as a British Court, they were bound by certain assertions of jurisdiction made in British Acts of Parliament.

"The three-mile distance has, no doubt, become inadequate in consequence of the increased range of modern cannon, but no other can be substituted for it without express agreement of the Powers. One can hardly admit the view which has been maintained, e. g., by Professor de Martens, that the distance shifts automatically in accordance with improvements in artillery. The whole matter might well be included among the questions relating to the rights and duties of neutrals, for the consideration of which by a conference, to be called at an early date, a wish was recorded by The Hague Conference of 1899."

Inasmuch as I conceive that the counsel for Great Britain have misconstrued Grotius, Galiani, Azuni and Burlamaqui, I will, at a later period in the argument, take up these authorities with especial reference to the interpretation put upon their statements by the counsel for Great Britain.

The Printed Argument of the United States has sufficiently discussed the work of Sir Robert Phillimore on international law, which

has been cited, and the Tribunal is respectfully referred to pp. 206 and 207 of the Printed Argument of the United States.

It is, of course, understood that the authorities discussing this subject since the great improvement in ballistics are cited with the knowledge in mind that in 1818 the 3-marine-mile territorial zone and cannon-shot zone were identified, in any event as between the United States and Great Britain. The authorities which have discussed the rule of international law in a later period are cited merely as showing that the principle, upon which the right to jurisdiction rests, has continued, although there may be different opinions as to the extent of exclusive territorial jurisdiction over bodies of water indenting the coast of a country based upon the increase of the powers to defend.

735

Many of these later authors have mentioned the extent of territorial jurisdiction over such waters as comprehending bodies of water 10 miles wide. They have in mind the extent as fixed and determined under certain treaties. In the Printed Argument of the United States this statement is made, at p. 215:

"The United States does not deny that special agreements between various powers have been entered into providing that all bays which do not exceed ten miles in width are territorial bays; and that such treaties or agreements are binding upon the nationals of the signatory powers. The convention of August 2, 1839, between Great Britain and France; the convention of 1867, between the same two powers; the agreement between Great Britain and Germany in 1874; the similar agreement between the German and Danish Governments in 1880; the North Sea Fisheries Convention of May 6, 1882, were all extensions of the territorial sea, and were so regarded."

The action of the Institute of International Law in 1894 was also referred to in the Printed Argument of the United States as showing that, in the opinion of that learned body, the generally recognised maritime belt should be extended to 6 marine miles, and the width of territorial bays to the double of 6 marine miles, or 12 miles. It was recognised throughout the Proceedings of the Institute that this proposal was based upon the extended range of cannon shot.

And I refer the Tribunal to the "Annuaire de l'Institut de Droit International, 1894."

I have, perhaps, sufficiently drawn the attention of the Tribunal to the fact that the present submission does not involve the examination of those particular cases in any portion of the world, "where"— to use the words of the Institute of International Law" continuous and established usage has sanctioned a greater width" of the territorial sea.

It is well established that there are such exceptions, based upon long-continued assertion of jurisdiction and acquiescence in such assertions by other Powers, but it is respectfully submitted that such exceptions require no examination here.

It has already appeared from the long review of the facts in this controversy that there is no evidence whatever of any claim by Great Britain, based on assertion of jurisdiction over any of these bodies of water more than 6 miles in width, and it, of course, necessarily follows that it has not been shown that there was any acquiescence in any such assertion by the United States.

Without taking up in detail the statutes relating to Chaleur and Miramichi Bays, I will refer the Tribunal to the Printed Argument of the United States, at p. 216, as to these statutes cited in the British Case on pp. 113 and 114. I merely wish to cite in addition to what was stated in the Printed Argument of the United States the following decisions from the courts of Great Britain, as to the effect of these unilateral acts of a nation.

In the case of "Le Louis," 2 Dodson, p. 239, Lord Stowell said:"Neither this British Act of Parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded upon principles and impose regulations that are consistent with the law of nations. That is the only law which Great Britain can apply to them; and the generality of any terms employed in an Act of Parliament must be narrowed in construction by a religious adherence thereto."

In the case of Regina v. Keyn (L. R., 2 Ex. Div., p. 210), Chief Justice Cockburn said:

"For where the language of a Statute is general, and may include foreigners or not, the true canon of construction is to assume that the Legislature has not so enacted as to violate the rights of other nations."

Two additional authorities to the same effect are:

Cope v. Doherty, 2 De Gex and Jones, 614;

Jeffreys v. Boosey, 4 H. L. Cases, 926.

The citation in the British Case from Taylor's "International Public Law" and Wheaton's " Elements of International Law," and from Kent's "Commentaries," have been sufficiently, it would seem, discussed in the Printed Argument of the United States, beginning at p. 218 and going to p. 220 inclusive, and I shall not take the time to further discuss the works of these authors, because it seems clear, as stated in the Printed Argument of the United States, that they were not taking positions in opposition to the present contention of the United States.

One observation, however, might be added here. Chancellor Kent was not stating a fact as to these large claims of the United States, but was expressing an opinion as to what he thought might be claimed, and was confining his discussion strictly to claims "for fiscal and defensive purposes."

736

I desire to discuss somewhat in detail the views of Dr. Oppenheim, Whewell Professor of International Law at the University of Cambridge, as stated in his work on international law.

At p. 246 of vol. I he states:—

"It is generally admitted that such gulfs and bays as are enclosed by the land of one and the same riparian state, and whose entrance from the sea is narrow enough to be commanded by coast batteries erected on one or both sides of the entrance, belong to the territory of the riparian state, even if the entrance is wider than two marine leagues, or six miles."

This statement is clearly based upon the increased range of shore batteries, for on p. 241 the author states:

"With regard to the breadth of the maritime belt various opinions have in former times been held and very exorbitant claims have been advanced by different states, and although Bynkershoek's rule that terræ potestas finitur ubi finitur armorum vis is now usually recognized by theory and practice and consequently a belt of such breadth is considered under the sway of the riparian state as is within effective range of the shore batteries, there is still no unanimity on account of the fact that such range is day by day increasing. Since at the end of the 18th century the range of artillery was about three miles or one marine league, that distance became generally recognized as the breadth of the maritime belt; but no sooner was the common doctrine originated than the range of projectiles increased with the manufacture of heavier guns, and although many states and municipal laws and international treaties still adhere to a breadth of one marine league, the time will come when by a common agreement of the states such breadth will be very much extended."

Professor Oppenheim then makes it very clear on p. 247, that no bay belongs exclusively to the territory of the riparian state whose entrance is so wide that it cannot be commanded by coast batteries, in the absence of specific assertion of and acquiescence in exclusive jurisdiction.

"Gulfs and bays, surrounded by the land of one and the same riparian state, whose entrance is so wide that it cannot be commanded by coast batteries, and further, all gulfs and bays enclosed by the land of more than one riparian state, however narrow their entrance may be, are non-territorial. They are parts of the open sea, the marginal belt inside the gulfs and bays excepted. They can never be appropriated, and they are, in time of peace and war, open to vessels of all nations, including men-of-war."

Sir Robert Finlay read an extract from Grotius in order to show that any body of water, large or small, indenting the territory of a country was necessarily a part of the territory of the State possessing the surrounding land. Counsel in the report of his argument at p. 251 stated:

"I shall submit that that assertion of one of the great writers on international law there strikes the true note in what he says as to the proportion of the inlet to the land which surrounds it. Where you have a very deep inlet with a comparatively narrow entrance, such an inlet may reasonably be considered as belonging to the territory by which it is surrounded where that territory belongs to one nation. or country."

The extracts cited by counsel from Grotius's "De Jure belli ac pacis," lib. II, ch. III, sec. 7, reading from Whewell's edition and translation of Grotius, vol. I, p. 259, were:

"We have begun to speak of the sea; we must now finish what we have to say on the subject. Rivers may be held as by occupation, though neither their upper or lower extremity be included in the territory, but cohere with superior or inferior water, or with the sea. It is sufficient that the greater part, that is, the sides, are enclosed with banks, and that a river is something small in comparison with the land."

Section 8. "By this it appears that a portion of the sea also may be occupied by him who possesses the land on each side; although it be open at one end, as a bay, or at both, as a strait; provided it be not such a portion of the sea as is too large to appear part of the land. And what is lawful to one people, or kin, seems also to be lawful to two or three, if they, in like manner, wish to occupy the sea which lies among their dominions. And thus two rivers which flow between two peoples are occupied by both, and thus divided."

Sir Robert Finlay stated at pp. 254-5 of the report of his argument that however great the divergence among writers as to the size of bodies of water which might be properly considered territorial— "after all the question comes back to the principle enunciated by the great master and founder of international law, Grotius. He really deals with the matter on principle, in a way which contrasts favorably with some of his successors. He says if you have got an inlet of that character, having regard to its dimensions and con737 formation with reference to the lands which surround it, it may fairly be considered as territorial, and that was the only established principle at that time, and I shall submit to the Court that it is the only established principle at the present day, although various suggestions of modifications have been made."

On this "established principle" the learned counsel proceeded to build up a theory of law which he contends is in conformity with the British position in this submission.

I submit that an examination of Grotius with care will make clear his true meaning.

What Grotius stated was "that a portion of the sea may be occupied by him who possesses the land on each side, although it be open at one end as a bay, or at both, as a strait, provided it be not such a portion of the sea as is too large to appear part of the land."

In commenting upon rivers this great master of international law said "a river is something small in comparison with the land.”

The counsel for Great Britain did not read a further extract from Grotius which appears in book 2, p. 3, section 13, of Whewell's edition of vol. I, at p. 266. The section reads:

"The empire of a portion of the sea is, it would seem, acquired in the same way as other lordships: that is, as above stated, as belonging to a person, or as belonging to a territory; belonging to at person, when he has a fleet which commands that part of the sea;