the National Prohibition Act while in the ports and within the territorial waters of the United States, and equally without the jurisdiction of those laws when without the ports and the territorial waters of the United States. After this decision it was no longer possible for foreign vessels to offer to passengers on the high seas sailing out of American ports and coming into American ports, all of the commercial advantages attendant upon the availability of alcoholic liquor on board such vessels, to the exclusion of corresponding advantages on board vessels of the United States.

Then for the first time it was discovered that the "principle" was of not such importance after all, and so the so-called rum treaty was made between Great Britain and the United States whereby it was agreed that the British Government would make no objection to the search and seizure in proper cases of British flag vessels within 1 hour's sailing distance of those vessels from the shores of the United States and the ports of the United States. It was agreed that the liquors used as ship stores on board the British vessels might be brought into the territorial waters of the United States under seal. It was further provided with respect to the clause relative to 1 hour's sailing distance of the vessels mentioned, that in the event a foreign vessel made contact of the shore by a smaller vessel, the speed of the smaller vessel should determine whether search and seizure might be made. This treaty with Great Britain was signed in Washington on January 23, 1924, and it followed quite promptly the decision of the Supreme Court in the Cunard Steamship Co. case which was rendered on April 30, 1923. Here we see an instance where principles of great importance were found to be not so important when they came into conflict with commercial advantages. However, Great Britain insisted and the United States agreed that article 1 of the treaty should contain the following:

The High Contracting Parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coast line outwards and measured from low-water mark constitute the proper limits of territorial waters.

The United States shortly thereafter signed treaties on the same subject with a number of other nations, namely: Germany, May 19, 1924; Sweden, May 22, 1924; Norway, May 24, 1924; Denmark, May 29, 1924; Italy, June 3, 1924, Canada, June 6, 1924; Panama, June 6, 1924; France, June 30, 1924; the Netherlands, August 21, 1924; Belgium, December 9, 1925; Mexico, December 23, 1925; Spain, February 10, 1926; Cuba, March 4, 1926, and March 11, 1926; Greece, April 25, 1928; Japan, May 31, 1928; Chile, May 27, 1930; and Poland, June 19, 1930.

It will be observed that article 1 of the convention with Great Britain, which has been quoted, is also embraced in the treaties made with the Netherlands, Germany, Cuba, Panama, and Japan; but in negotiating the treaties with the other nations mentioned, namely, Norway, Sweden, Belgium, Denmark, France, Italy, Spain, Chile, Greece, and Poland, those nations declined, and, in fact, flatly refused, to say in the conventions severally entered into with them, that 3 marine miles extending from the coast line outwards and measured from low-water mark should constitute the proper limits of territorial waters. The corresponding formula used in the conventions with the nations mentioned, reads as follows:

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 I 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.

1

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.'