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 nternational 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.

This sovereignty is, however, limited by conditions established by international law; indeed, it is precisely because the freedom of navigation is of such great importance to all States that the right of innocent passage through the territorial sea has been generally recognized.

There may be said to have been agreement among the delegations on these ideas. With regard, however, to the breadth of the belt over which the sovereignty of the State should be recognized, it soon became evident that opinion was much divided. These differences of opinion were to a great extent the result of the varying geographical and economic conditions in different States and parts of the world. Certain delegations were also anxious about the consequences which, in their opinion, any rules adopted for time of peace might indirectly have on questions of neutrality in time of war. The Committee refrained from taking a decision on the question whether existing international law recognizes any fixed breadth of the belt of territorial sea. Faced with differences of opinion on this subject, the Committee preferred, in conformity with the instructions it received from the Conference, not to express an opinion on what ought to be regarded as the existing law, but to concentrate its efforts on reaching an agreement which would fix the breadth of the territorial sea for the future. It regrets to confess that its efforts in this direction met with no success.

The Preparatory Committee had suggested, as a basis of discussion, the following scheme:

1. Limitation of the breadth of the territorial sea to three miles.

2. Recognition of the claim of certain States specifically mentioned to a territorial sea of greater breadth.

3. Acceptance of the principle of a zone on the high sea contiguous to the territorial sea in which the Coastal State would be able to exercise the control necessary to prevent, within its territory or territorial sea, the infringement of its Customs or sanitary regulations or interference with its security by foreign vessels, such control not to be exercised more than twelve miles from the coast.

The Committee was unable to accept this scheme. Objections were raised by various delegations to each of the three points in turn.

The fixing of the breadth at three miles was opposed by those States which maintain that there is no rule of law to that effect, and that their national interests necessitate the adoption of a wider belt. The proposal to recognize a wider belt for these States and for them alone, led to objections from two sides: some States were not prepared to recognize exceptions to the three-mile rule, while the above-mentioned States themselves were of opinion that the adoption of such a rule would be arbitrary and were not prepared to accept any special position which was conceded to them merely as part of the terms of an agreement. The idea embodied in the third point, namely, the acceptance of a contiguous zone, found a number of supporters though it proved ineffective as the basis for a compromise.

So we see that few indeed are the nations of the earth claiming that the 3-mile rule is law, or that it ought to be law, and numerous are the nations which reject outright the rigid 3-mile rule. It will be observed that many of the nations offer no objection to a 3-mile rule for all purposes, provided there may be added to that another zone over which jurisdiction may be exercised for special purposes, such as the protection of the customs, or "security of the realm"

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This detailed review shows that the rigid 3-mile limit rule, even for territorial waters, is rejected by a substantial majority of the civilized nations of the world which have made any declaration on the subject. And when the majority of the civilized nations of the world refuse some proposition that is advanced as international law, one may only justly reach the conclusion that the proposition so advanced is not international law in any true sense of the word, because one of the essential elements of any part of international law is that it shall be generally acquiesced in and adhered to by the civilized nations.

Can it be justly or even reasonably said that one or two or three civilized nations, because they are great and powerful, have any shadow of right to impose their will upon equally civilized but weaker nations under some unaccepted claim of international law. For example, Norway and Sweden are among the most highly civilized

nations of the earth, outstanding in accomplishment, rich in culture. They reject the 3-mile-limit rule, as do many other nations also possessed of a high civilization. Can it be justly said that Great Britain, Japan, and the United States, either singly or jointly, have any just right to impose on these other nations the rigid 3-mile formula? Surely, to ask that question is to answer it.

CLOSED SEAS AND BAYS

Throughout all the centuries certain nations have claimed, and not only claimed but exercised, exclusive jurisdiction over certain seas and bays not ordinarily considered a part of the open ocean. Some of these waters are nevertheless of considerable extent, such as the Adriatic Sea and Hudson Bay. In many cases such waters are more than 6 miles wide at their connections with the open ocean. This is true of Delaware Bay, Chesapeake Bay, of the Westfjord in Norway, and of Hudson Bay. It is impossible to deduce from the claims so made and exercised any general, rigid rule of international law, and that fact constitutes another argument why the establishment of a fixed and unwavering 3-mile limit is impracticable and contrary to the general welfare of the nations.

It is usually thought, however, that in order to be justified the claims to closed seas, which we are now discussing, should rest upon historic grounds, in that, in order to be entitled to the respect of other nations, it must appear that the claims have been made and asserted for substantial reasons and have been generally recognized by other civilized nations.

There is substantial reason for the assertion of such claims of exclusive territorial jurisdiction over comparatively limited seas, for the other rule would throw such seas open to the use of all nations and thus might easily lead to clashes eventuating in armed conflict. In such cases a rigid 3-mile-limit rule would make almost certain the drifting of fishing or other vessels within the limit of 3 miles from shore and their resultant seizure by the nation owning the upland. Such seizures would inevitably result in protests and recriminations and might lead to war. The safer and better rule is that the claims of exclusive jurisdiction or title of the nation which owns the surrounding land should be recognized as one of the proper and natural advantages thereby given to that nation. Moreover, the establishment of a 3-mile limit, and no more, would permit the warships of foreign nationals to penetrate to a point just without 3 miles from shore under claim of international law, thus endangering the shores thus approached within the narrow seas, and again making more likely the occurrence of incidents leading to war. In some cases the rule has been adopted that such a sea is a closed sea if the entrance is not more than 6 miles wide. In other cases, by agreement or by asserted claim, the limit of the width of the entrance to establish a closed sea has been 10 miles. In some cases the sea has been called a closed sea if one headland at the mouth is discernible from the other.

In fact, there is no rigid rule which is recognized by the nations, and much if not everything depends upon claims asserted and maintained. Chancellor Kent wrote in 1826: "Considering the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime juris

diction; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi." (Commentaries of American Law, vol. 1, p. 29. Also, Is Hudson Bay an Open Sea? 6 Am. J. 409, 425. Jessup, 359, 360.)

In the North Atlantic Fisheries arbitration, Senator Root argued as follows:

The United States had no rights over Delaware Bay unless she elected to appropriate Delaware Bay, as she did. Great Britain had no rights and could have no rights over the Bay of Fundy, over Chaleur, Miramichi, Conception, Placentia, White Bay, unless she elected to appropriate them. The writers say these bays, more than double the width of the territorial zone, may be prescribed for. That is what Stowell says in the "Twee Gebroeders" case. He says an area of sea outside of the limits may be prescribed for. Phillimore says:

"Besides the right of property and jurisdiction within the limit of cannon shot from the shore, there are certain portions of the sea which, though they exceed this verge, may, under special circumstances, be prescribed for."

The Attorney General here in his argument says (p. 1103):

"If you want to be acknowledged as the possessor of a bay you must claim it." Very just.

Chitty speaks of appropriating gulfs and straits, in a quotation my friends have read on the other side.

De Martens speaks in a quotation read by the British counsel, in these words: "A nation may occupy and extend its dominions beyond" this recognized limit. To prescribe for a thing is to claim it upon the ground of possession. Argument of Elihu Root; North Atlantic Coast Fisheries Arbitration, pp. 2151 and 2152.)

It has been suggested by some writers, including the League of Nations Committee of Experts for the Progressive Codification of International Law (Cod. Com. Rep. p. 14) that in the case of bays which are bordered by the territory of a single State, the territorial sea shall follow the sinuosities of the coast, except that it shall be measured from a straight line drawn across the bay at the part nearest the opening toward the sea, where the distance between the two shores of the bay is 12 marine miles "unless a greater distance has been established by a continuous and immemorial usage."

In former times Great Britain, along with much else, claimed all of the land within its headlands, such waters being known as the King's chambers. But this claim is no longer asserted by the British Government as its ordinary territorial limit.

Despite all of the assertions to the contrary, claims of territorial waters have been, almost without break, asserted and maintained as to any partially enclosed waters where the nation asserting the claim has sovereignty over the land which largely surrounds such waters.

The subject of historic closed seas was ably discussed in the arbitration of the North Atlantic Fisheries, although in that particular case the question was not so much one of international law as of treaty interpretation, for the treaty of 1782 between the United States and Great Britain confirmed to the American fishermen the right to fish "on the coasts, bays, and creeks" of all British North American dominions not specifically referred to.

The treaty of 1814 made at Ghent made no reference to the subject, probably for the reason that the treaty makers could not agree upon à solution. In 1818 another treaty was entered into by the United

States and Great Britain which specified certain districts or places where the "right" or "liberty" of Americans to fish was recognized, and then provision was made that "the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within 3 maine miles of, any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above-mentioned limits."

The treaty of 1818 did not end the argument. The British authorities claimed the right to exclude American fishermen from all bays regardless of their size and claimed that the limit described in the treaty should be measured 3 miles from a line drawn from headland to headland. Against this claim the United States protested.

Sharp disputes arose over the definition of the word "bays" in the treaty. The United States contended that the word "bays" meant those smaller indentations. The British contended that the word "bays" was used in a geographical sense and included the great portions of water marked on maps which are generally designated as bays. While the United States was urging a very narrow limitation of territorial jurisdiction with respect to "bays" indenting the coast of Canada, at the same time it has always claimed complete and exclusive jurisdiction over the waters of Chesapeake and Delaware Bays, which are more than 6 miles wide at the mouth. As has been shown, Senator Elihu Root, who made the principal argument for the United States, pointed out that jurisdiction over bays should be based upon a claim definitely asserted and maintained and that such jurisdiction could not be considered as existing unless the country embracing the bay has asserted it. In the course of his argument, Mr. Root observed that Great Britain and the United States agreed as between themselves that the cannon shot, conventionally treated as being 3 miles in length, should be considered the extent of complete territorial sovereignty. And that it was not necessary to assert any claim in order to be entitled to sovereignty over such a 3-mile strip of water surrounding the coast. He also observed that as the cannon shot grows longer there is a tendency to increase the width of this territorial zone for two reasons, because a country can defend itself across a wider zone and because a country is able to attack across a wider zone. He justified the claim of the United States over Delaware Bay and Chesapeake Bay because of a claim to sovereignty over those bays, which had been asserted and maintained consistently by the United States.

The British representatives urged that the bays mentioned in the treaty should be measured from headland to headland and that all within the headlands should be considered as under the sovereignty of the other.

The tribunal decided that in the case of bays the 3 marine miles should be measured from a straight line down across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the 3 marine miles are to be measured following the sinuosities of the coast. The tribunal felt, however, that though this decision was correct in principle, it was not entirely satisfactory as to its practical applicability, and therefore it recommended that in every bay not specifically provided for otherwise, the limit of exclusion ought to be drawn 3 miles seaward from a

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