The High Contracting Parties respectively retain their rights and claims, without prejudice by reason of this agreement, with respect to the extent of their territorial jurisdiction.

It is plain from the text of the article, and still more certain from the conversations which occurred when the treaties were under discussion, that the larger number of the nations with whom we made these treaties would not agree that 3 marine miles from the coast outward was the proper limit of territorial jurisdiction in all cases.

These treaties show, as perhaps nothing else can show, that the 3mile limit rule is not supported by even a fair majority of the civilized nations of the world and can have no just claim to be considered as a part of the law of nations. The rule has no sanction except the preponderent naval force of the particular nations which assert it to be an integral part of international law. The question as to the proper extent of territorial jurisdiction at sea has been considered on several occasions by international bodies such as the special commissions of the League of Nations.

INTERNATIONAL DISCUSSIONS

On January 29, 1926, there was communicated to the Council, the members of the League, and other governments, a report on territorial waters prepared by a subcommittee of the committee of experts, consisting of M. Schucking, M. de Magalhaes, and Mr. Wickersham, embracing a draft of a convention and finally a text of an amended draft. Article I of the amended draft in defining the character and extent of the rights of the riparian nation states that it "possesses sovereign rights over the zone which washes its coast, insofar as, under general international law, the right of the common user of the international community or the special rights of any State do not interfere with such sovereign rights" and that such "sovereign rights shall include rights over the air above the said sea and the soil and subsoil beneath it."

Article II, in defining the extent of the rights of the riparian State, provides that the "zone of the coastal sea shall extend for 3 marine miles (60 to the degree of latitude) from low-water mark along the whole of the coast" and that beyond "the zone of sovereignty, States may exercise administrative rights on the ground either of custom of of vital necessity. There are included the rights of jurisdiction necessary for their protection. Outside the zone of sovereignty no right of exclusive economic enjoyment may be exercised." "Exclusive rights to fisheries" were left to "existing practice and conventions."

France, Italy, the Netherlands, and Poland replied that they considered the regulation of the question of territorial waters to be impossible or difficult, because of the divergent views of the various States and because of the failure of past efforts to regulate it. It is to be noted that France exercises customs jurisdiction for 4 leagues under her municipal laws and Italy for 10, and in some cases, 5, kilometers. Norway, Sweden, and Portugal replied that they were unable to sign a convention which fixes 3 miles as the extent of the coastal sea, basing their refusal upon their laws and long-established usage in exercising jurisdiction for customs and for other purposes beyond that distance, and upon their local economic necessities. They objected to uniform line for all countries for the reasons that due con

sideration should be given to the various characteristics of the different coasts and to the question of maintaining for the coastal population the exclusive privilege of exploiting the economic wealth of the marginal waters.

The Norwegian reply stated that according to Norwegian opinion and practice that country possesses full sovereignty within the limits of her territorial sea and that for 10 marine miles beyond these limits its customs laws are applied to foreigners; and that from time immemorial the Norwegian Government has claimed for her "territorial sea a breadth which has never been less than 1 geographical league (one-fifteenth of an equatorial degree, or 7,420 meters)."

The Swedish Government replied that for over a century the territorial waters of Sweden have been regarded as extending for a distance of 4 sea-miles from the coast and that such a claim is not a departure from "present-day international usage."

The reply of Portugal stated that the zone of sovereignty should extend to 12 marine miles from low-water mark, and that beyond this zone states should be allowed to occupy the sea for special purposes. Portugal further asserted that she "is unable to forego a very much wider limit to her territorial waters than 3 miles, since it is absolutely necessary for her to preserve the species of fish which inhabit her waters, these fisheries contributing largely toward the feeding of her population and the employment of her industries. If these species become rare or disappear, Portugal's economic crises, which is already acute, will be considerably aggravated."

The replies of Egypt, Estonia, Finland, Germany, Greece, Spain, and Cuba indicated that they would probably be willing to accept 3 marine miles as the extent of the coastal sea, over which the State possesses sovereign rights, with jurisdiction to exercise certain administrative rights beyond that distance.

Rumania and Brazil favored only one zone for all purposes. Rumania acceded to the 3-mile zone but recognized that the territorial zone had been fixed at various distances by the different States. The Brazilian Government urged a wider zone than 3 miles in order that the State might "supervise and police this area for the maintenance of order, the punishment of crime, the regulation of fishing, the prevention of contraband, and the establishment of such general rules as may be deemed necessary for navigation and commerce, without prejudice to the rights of international trade."

The Governments of Great Britain, Denmark, India, the Irish Free State, Japan, New Zealand, and the United States considered the amended draft a useful basis for discussion, but that was about all.

The replies of the various Governments emphasized the fact that there was no uniformity of opinion or practice in regard to the extent of territorial waters and show that under the practice and laws of most nations, jurisdiction for customs purposes has been and is exercised far beyond such waters.

The proceedings of the second committee, which, under the auspices of the League of Nations, on April 3, 1930, held a conference for the codification of international law as applied to the marginal seas, shows clearly the total inability of the representatives of the several nations to agree upon what is or what ought to be regarded as the width of the territorial sea, or the width of the marginal waters over which nations may claim jurisdiction for any purposes. What happened there is so

enlightening that I shall read, first, extracts from the provisional minutes of the thirteenth meeting of the committee, held on the date mentioned, and, second, extracts from the report of the committee, as follows:

M. MUSHAKOJI (Japan). I do not think that we should vote. I think, however, that Mr. Giannini is right in this sense, that it is desirable to know the views of the different delegations. I propose, therefore, that each delegation should in turn state its attitude on this question without any vote being taken, and merely in a few words what its attitude is.

The CHAIRMAN. I think M. Mushakoji's proposal is an excellent one.

M. GIDEL (France). It is to be understood that this is to be a provisional expression of opinion. It is not a categorical or final declaration of our attitude. Each delegation will announce its position in principle.

The CHAIRMAN. I quite agree with what M. Gidel says, and the views expressed must be interpreted accordingly.

Mr. LANDSDOWN (Union of South Africa). I beg to express my view in favour of Basis No. 3, as printed, that the breadth of territorial waters should be three nautical miles.

M. SCHUCKING (Germany). The German delegation is in favour of the threemile rule, together with the existence of an adjacent zone, in the hope that the acceptance of the principle of the adjacent zone may facilitate the acceptance of the three-mile rule by other countries.

Mr. MILLER (U. S. A.). I read one sentence which is contained in various existing treaties of the United States:

"The High Contracting Parties declare that it is their firm intention to uphold the principle that three marine miles extending from the coastline outwards and measured from low water mark constitute the proper limits of territorial waters." M. DE RUELLE (Belgium). We accept the three-mile rule, together with a zone of adjacent waters.

Sir MAURICE GWYER (Great Britain). The British Delegation firmly supports Basis No. 3; that is to say, a territorial belt of three miles without the exercise, as of right, of any powers by the Coastal State in the contiguous zone, and they do that on three grounds, which I will express in as few words as I can: First, because in their view the three-mile limit is a rule of international law already existing adopted by maritime nations which possess nearly 80 percent of the effective tonnage of the world; secondly, because we have already, in this Committee, adopted the principle of sovereignty over territorial waters; and thirdly, because the three-mile limit is the limit which is most in favour of freedom of navigation.

I ought to add that in this matter I speak also on behalf of His Majesty's Government in the Commonwealth of Australia.

Mr. PEARSON (Canada). The Government of Canada is in favour of the three-mile territorial limit for all nations and for all purposes.

M. MARCHANT (Chile). The Chilean Delegation will accept six miles as the breadth of territorial waters without an adjacent zone, or three miles with an adjacent zone.

M. W. HSIEH (China). The Chinese Delegation accepts the Basis of Discussion No. 3 in principle.

M. ARANGO (Colombia). I am in favour of the six-mile limit.

M. DE ARMENTEROS (Cuba). The Cuban Delegation is against Basis No. 3. I pronounce myself in favour of six miles with an adjacent zone.

M. LORCK (Denmark). We are in principle in favour of Basis of Discussion No. 3, but as the rules concerning bays are very unsettled and the question of bays is of great importance to Denmark, it is impossible for me to give a definite decision at the moment.

Abdul Hamed BADAWI PACHA (Egypt). We are in favour of three miles territorial water, together with an adjacent zone.

M. ANGULO (Spain). In accordance with their amendment, the Spanish Delegation is in favour of six miles territorial water, together with an adjacent zone. M. VARMA (Estonia). The Estonian Delegation wishes for the three miles territorial water, and an adjacent zone.

M. ERICH (Finland). For reasons of solidarity with its neighbours the Scandinavian States, the Finnish Delegation favours a zone of four miles for territorial waters, provided an adjacent zone of sufficient width is granted to her at the same time. In the latter case the Finnish Delegation could also accept a threemile zone, but primarily she favours a four-mile zone. If, contrary to expecta

tions the majority of the Commission did not pronounce in favour of an adjacent zone, the Finnish Delegation reserves the right to come back to this question and to take a different attitude regarding the depth of territorial waters.

M. GIDEL (France). France has no objection to the acceptance of the threemile rule, provided that there is a belt of adjacent waters, and subject to the rules which may be agreed to in regard to the method of determining the datum line of the territorial belt.

M. GIANNINI (Italy). May I ask my French colleague the meaning of the reservation he has made?

M. GIDEL (France). I will explain myself more fully on a subsequent occasion as I would not wish to prolong this process of voting. I thought however that had made my meaning sufficiently clear; we desire an adjacent zone and we accept the three-mile limit provided that a solution satisfactory to us is arrived at with regard to the datum line of the territorial belt.

M. SPIROPOULOS (Greece). The Greek Delegation has already stated that they accept the three-mile rule. They would even be prepared to accept two miles in the interests of the freedom of navigation if all States were prepared to accept it. As we have already accepted the three-mile limit and the principle of sovereignty, the Greek Delegation considers that no adjacent zone is necessary. However, as there are some countries which desire a greater extent than three miles of territorial waters, they would even be prepared to accept an adjacent zone, particularly as Greece, according to the legislation at present in force, already possesses

one.

Sir Ewart GREAVES (India). The Government of India accepts Basis No. 3. Mr. Charles GREEN (Irish Free State). The Government of the Irish Free State accepts Basis No. 3 as printed, but recognises that, in certain countries and for certain purposes, there are requirements of the nature set out in Basis No. 5. M. BJORNSSEN (Iceland). The Icelandic Delegation accepts four miles. M. GIANNINI (Italy). Six miles.

M. MUSHAKOJI (Japan). The Japanese Delegation accepts the three-mile limit without an adjacent zone.

M. ALBAT (Latvia). The Latvian Delegation accepts six miles with an adjacent

zone.

M. RAESTAD (Norway). As there is no binding rule of international law on this question, the Norwegian Government considers that it is necessary to take into consideration the requirements of the different countries. The Delegation pronounces in favour of the limit of four miles; that rule is older than the threemile rule.

With regard to other countries, the Norwegian Government would be prepared to recognise a greater width of territorial waters provided, as is stated in the Norwegian Government's printed reply, that the demand was based on continuous and ancient usage.

With regard to adjacent waters, they must be limited by the needs regarding customs and security.

Admiral SURIE (Netherlands.) The Netherlands Delegation cannot give an opinion on the question of adjacent waters until it is informed what rights will be involved. It is, however, prepared to accept Basis No. 3 as regard the breadth of the territorial waters, which it accepts at three miles.

It bases its decision, first, on the necessity of safeguarding the interest of commercial navigation on the high seas, and secondly, on the consideration of not placing any too heavy obligations on the Coastal State.

M. SEPAHBODI (Persia). The Persian Delegation accepts the six-mile rule with an adjacent zone.

M. MAKOWSKI (Poland). The Polish Delegation is in favour of a three-mile breadth of territorial waters together with an adjacent zone sufficiently wide to enable the Coastal State to protect its legitimate interests.

M. DE MAGALHAES (Portugal). The Portuguese Delegation has already said that it desires a territorial belt of twelve miles in width, but it is prepared to accept a belt of six miles provided there is an adjacent zone also of six miles in width.

The reason for the claim of a territorial belt of six miles is, firstly, because of the special position of Portugal on the continental plateau and its possession of fisheries which are vital to its interests, and secondly, for a general reason; that is to say, that the three-mile limit is inadequate, as is proved by the claims for adjacent waters which have been put forward by many other countries, some of them demanding a great width for the adjacent zone.

They therefore accept the six-mile belt together with adjacent waters, and in those adjacent waters they demand to be accorded police rights over fisheries such as have been recommended in all recent fishery congresses.'

M. MEITANI (Roumania). The Roumanian Delegation accepts a territorial belt of six miles and reserves its attitude on the question of adjacent waters.

M. SJOBORG (Sweden). The Swedish Delegation desires a territorial belt of four miles in width, but recognizes as legitimate the other historic belts at present in force in a certain number of countries, that is, for example, three and six mile

zones.

M. SETENSKY (Czechoslovakia). The Czechoslovak Delegation desires the greatest possible freedom of navigation, but not having any coast line they consider that they should abstain from proposing a definite extent for the zone of territorial waters.

CHINASI BEY (Turkey). The Turkish Delegation desires a six-mile belt of territorial waters with an adjacent zone.

M. BUERO (Uruguay). The Uruguayan Delegation desires a territorial belt of six miles and reserves its attitude on the question of adjacent waters.

M. NOVAKOVITCH (Yugoslavia). The Yugoslav Delegation desires a territorial belt of six miles and reserves its attitude on the question of adjacent waters.

M. DE VIANNA-KELSCH (Brazil). The Brazilian Delegation accepts a territorial belt of six miles for all purposes.

M. EGORIEW (U. S. S. R.). If one takes into consideration the state of positive law at the present time, as it can be discovered in the legislation of the different States through treaties and diplomatic correspondence, it is necessary to recognise the great diversity of view which exists regarding the extent in which the exercise of the rights of the Coastal State exists in the waters called territorial and adjacent. The exercise of such rights for all purposes or for certain purposes is admitted sometimes within the limit of three, sometimes four, six, ten, or twelve miles.

The reasons, both historical and theoretical, invoked by some States and disputed by others, cannot be put into opposition to these facts and the rule or actual necessity for States to ensure their needs, particularly in waters long the coast which are not used for international navigation. This aspect which has been already noted in the literature on the subject, as well as in debates, in this Commission, cannot be overlooked.

Under these conditions it would be better to confine oneself to a general statement to the effect that the use of international maritime waterways must under no conditions be interfered with.

EXTRACTS FROM REPORT

The Second Committee was appointed to study the Bases of Discussion drawn up by the Preparatory Committee with regard to territorial waters (see Document C. 74. M. 39. 1929 V). After a general discussion, this Committee formed two Sub-Committees, the first to examine Bases of Discussion Nos. 1, 2, 5, and 19 to 26, inclusive, the second to examine Bases Nos. 6 to 18, inclusive. Bases Nos. 3, 4, 27, and 28 were reserved for consideration by the full Committee. The results of the work of the Sub-Committees were embodied in two reports and submitted to the Committee.

The Committee appointed as its Chairman M. Goppert, Delegate of Germany; as Vice-Chairman, His Excellency M. Goicoechea, Delegate of Spain; and as its Rapporteur, Professor Francois, Delegate of the Netherlands.

The Chairman of the First Sub-Committee was His Excellency M. Barbosa de Magalhaes, Delegate of Portugal, the Second Sub-Committee being presided over by the Chairman of the plenary Committee, M. Goppert. The Second Sub-Committee appointed a special Committee of Experts, which defined for it certain technical terms. This Committee was presided over by Vice-Admiral Surie (Netherlands). Other special committees were set up to study particular questions.

The discussions of the Committee showed that all States admit the principle of the freedom of maritime navigation. On this point there are no differences of opinion. The freedom of navigation is of capital importance to all States; in their own interests they ought to favour the application of the principle by all possible

means.

On the other hand, it was recognized that international law attributes to each Coastal State sovereignty over a belt of sea round its coasts. This must be regarded as essential for the protection of the legitimate interests of the State. The belt of territorial sea forms part of the territory of the State; the sovereignty which the State exercises over this belt does not differ in kind from the authority exercised over its land domain.