Abstract
Chapter three, covering a very long span of time, mirrors, we believe, the slow growth of western civilization, population, and technology during that period. Toward the end of the period, populations had begun to show marked rates of growth; the nation-State system as we know it had come into being; and weapons of war had reached a plateau in their development. War itself had become more and more an activity that had to be regulated so as not to encroach upon non-participating States. Moreover, as war and the preparation therefor became more expensive, it became less and less the whimsical sport of monarchs.1 The decision to go to war had to be rationalized to those who were expected to fight or to pay. It is no wonder then that some serious thought and effort were being devoted to the formulation of international rules of conduct. As industrialization, technology, and populations grew, the problems of government and society became more complex and there seem to have arisen increasing tensions between nation-States. There was a need for rules. The purpose of this chapter is to review the patterns of growth in three general areas during the last century and a half in order to show how this growth influenced the development of international rules for bays.
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References
Joseph Schumpeter, Imperialism and Social Classes (1951), Chs. I, II.
CDR Carl H. Amme, USN, “The Not So Gentle Art of Navigation 175 Years Ago”, 80 U.S. Naval Institute Proceedings (Sept. 1954), pp. 1023–1029.
CDR J. B. Hewson, RNR (RET), A History of the Practice of Navigation (1951), pp. 40–42.
Nathaniel Bowditch, The Practical American Navigator, 1958 Edition, p. 30.
LCDR David C. Holly USN, “All for the Purpose of Marking Time”, 79 U.S. Naval Institute Proceedings (Mar. 1953), pp. 303–309.
Hewson, Navigation, p. 252; Bowditch, Navigator, p. 57; Thomas H. Sumner, A New and Accurate Method of Finding a Ship’s Position at Sea by projection on Mercatofs Chart (1843).
Bowditch, Navigator, p. 56. Thereafter followed continuously refined methods for solution of the spherical triangle of celestial navigation. The cosine-haversine formula of 1850 was followed by the work of many naval officers and mathematicians, Such systems as H.O.207 (worked out by LCDR Joseph Y. Dreisonstok U.S.N.), H.O.211 (worked out by LCDR Arthur A. Ageton, U.S.N.) and the monumental H.O.214 (A 9-volume system of tables worked out as a “New Deal” relief measure) are well known to mariners of this author’s vintage.
LCDR Alton B. Moody USNR, “The Nautical Mile, 75 U.S. Naval Institute Proceedings (Nov. 1949), pp. 1257–1262.
Hewson, History, pp. 148–151.
Ibid., p. 65; Bowditch, Navigator, p. 24.
The gyro compass was perfected by the American, Sperry, and the German, H. Anschütz-Kämpfe, working simultaneously, but independently. It was first used successfully in 1911 on the east coast of the United States. Like many another device, war hastened its general use. The pay-off of the instrument and its secure future were ensured in a single event. After the battle of Coronel, in November 1914, VADM Sir Doveton Sturdee, RN, was ordered to proceed with two battle cruisers from England to the South Atlantic. Time was extremely critical and the two ships were in Southampton unable to sail because of an inpenetrable fog. Their magnetic compasses were completely out of adjustment by reason of recent armorplate alterations. Mr. Elmer Sperry, Jr., who had been trying to sell his new compass to the Admiralty, was summoned from his hotel room to install his model compass in the flagship H MS Invincible. (The Admiralty had previously rejected the compass). He installed the compass and the two ships were able to get out of port. They arrived in Port Stanley, Falkland Islands, twenty-one hours before the appearance of VADM Graf von Spee IGN and his squadron. The result was the sea battle of 8 December 1914. All German ships but SMS Dresden were lost. John van Duyn Southworth, “The ‘Yankee’ Device,” 85 U.S. Naval Institute Proceedings (Apr. 1959), pp. 97–103; H. Müller, Cruiser Warfare in the South Pacific (Unpublished diary, U.S. Naval War College, 1922). The Imperial German Navy commenced installing the gyro compass in submarines in about 1910. Bernard Brodie, Sea Power in the Machine Age (1941), p. 296.
The German, H. Anschütz-Kämpfe, designed his compass after his plans to go to the north pole by submarine in 1900 were frustrated by the absence of reliable navigational equipment. T. E. Curtis and J. M. Slater, “Inertial Navigation in Submarine Polar Operations of 1958”, 5 Navigation (Spring 1959), pp. 275–283.
Bowditch, Navigator, p. 29; Aids to Navigation Manual, U.S. Coast Guard (1952), pp. 35.
Report of International Maritime Conference, 1889, vol. III.
LT. Kenneth A. Andersen USN, “Lead Kindly Light”, 77 U.S. Naval Institute Pro-ceedings (Apr. 1951), pp. 405–409.
An excellent example on the coast of Norway is shown in W. R. Mead. An Economic Geography of the Scandinavian States and Finland (1958), at page 175.
Robert Morgan, World Sea Fisheries (1956), Chs. IV and V.
RADM C. L. Nichols USN (RET), “The International Hydrographic Bureau”, 77 U.S. Naval Institute Proceedings (July 1951), pp. 717–720. (An American officer is usually one of the three directors of the Bureau. At present RADM Knox USC&GS (RET) serves in this capacity. RADM Nichols is a former director).
An exception is the case of the United States where Sailing Directions show the boundaries inside which mariners are to comply with Inland Rules of the Road.
Hewson, History, pp. 218–222. Mr. R. P. Curtis of the Raytheon Company has written in that company’s house magazine an excellent short article on the technical history of this equipment. R. P. Curtis, “The Fathometer.” See also, Arthur H. Lynch, Making Life Safe at Sea (1922).
Kenneth V. Curtis, Raytheon Manufacturing Company, “New Developments in Depth Sounding Equipment,” a paper presented at a meeting of Radio Technical Commission for Marine Services, 13 October 1952; 11 November 1957 Report of U.S. Army Enigeer Conference on Electronic Developments as Aids to the Surveying-Dredging Computing Processes. LT Henry C. Bailey USN, “The Evolution of Deep Sea Sounding Methods,” 63 Journal of American Society of Naval Engineers (May 1951), pp. 349–362.
“Deep Mystery” 320 Industrial Bulletin of Arthur D. Little, Inc. (May 1955), pp. 1–2.
CAPT F. J. Wylie RN (RET), “Automation in Marine Navigation,” XII The Journal of the Institute of Navigation (Apr. 1959), pp. 163–183; Thomas J. Kelly, “Improvement in Radar Presentation,” paper presented at International Meeting on the Use of Radar at Sea, Genoa, Italy, 16 May 1957; CAPT David R. Hull USN (RET) “Safe Passage,” Marine News (Feb. 1956), pp. 18–28; K. V. Curtis, “A Discussion of ‘Anti-Collision and Piloting Segment’,” 25 Oct. 1956, (Paper presented at meeting of Radio Technical Commission for Marine Services).
This equipment is installed to assist in collision prevention but its use for harbor traffic control and coastal warning is a natural development. Earle Porter, “The Small Boat Radio” 12 May 1959. CAPT F. J. Wylie RN (RET), “The Future of Marine Electronics — the International Viewpoint,” paper delivered at New York meeting of Radio Technical Commission for Marine Services, 25 October 1956. LCDR Edward F. Oliver USCG, “Ships that Pass in the Night,” 85 U.S. Naval Institute Proceedings (Nov. 1959), pp. 70–78.
“The Admiralty Chart,” The Journal of the Institut of Navigation (Apr. 1959), pp. 163–183. Captain Wylie has this to say on charts: “Major changes in charts in general use will, of course, be made only after trials have proved their worth. Practical experience in the use of radar brings to light new information every day.” The Use of Radar at Sea (1953), p. 133.
The perhaps classic view and explanation of the 10-mile rule is that of John Basset Moore in his letter to Mr. Barclay, quoted in 13 Annuaire de L’Institut de Droit International, p. 146. part of this letter is requoted.
“Since you observe that there does not appear to be any very 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 I understand them, as a practical rule. The transgression of an encroachment upon territorial waters by fishing vessels is generally a grave offence, 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 both practicable and safe and not constantly attended with the risk of violating territorial waters, it has been thought expedient not to allow it where the extent of free waters between the three mile line drawn on each side of the bay, is less than four miles. This is the reason of the ten-mile line.” Professor Gidel concurs in this suggestion and then adds a second reason: that a fisherman can usually see the shore five miles away and thus if he is able to dee both shores, he will know he is inside the closing line of a bay. LeDroit international public de la Mer (1934), vol. iii, pp. 544–546. Through the same system of reasoning. Munch arrives at the conclusion that the width of a bay should be 15 or 16 miles. Die techischen Fragen des Küstenmeers (1934), p. 94. Neither Gidel nor Munch takes into account the fact that, assuming good atmospheric conditions, the range of visibility is a direct function of the observer’s height of eye above the waterline.
J. D. van Manen, “Fundamentals of Ship Resistance and Propulsion,” 4 International Shipbuilding Progress (Feb. 1957); LCDR G. C. Manning (CC) USN and LCDR T. L. Schumacher (CC) USN, Principles of Warship Construction and Damage Control (1935), Ch. IV.
There is now ample solid research to demonstrate that Robert Fulton’s “Claremont” was not the first steamboat, although his was perhaps the first practical one. Robert Taggart, “Early Developments in Marine Propulsion” 70 Journal of the American Society of Naval Engineers (May 1958), pp. 191–208. See also Gibbons v. Ogden 9 Wheat. 1 (1824), and Robert E. Cushman, Leading Constitutional Decisions, 10th Ed., (1955), pp. 316–7.
Actually, she steamed for only about 100 hours, and was otherwise, a failure. Frank O. Braynard, Famous American Ships (1956), pp. 22–3.
CAPT R. T. Merrill USCG (RET) “The Decade of Transition — Our Early Steam Navy and Merchant Marine,” 78 U.S. Naval Institute Proceedings (Sep. 1952), pp. 1005–1015.
Bernard Brodie, Sea Power in the Machine Age (1941), p. 35.
Brodie, Sea Power, p. 164.
S. W. Brown, “Modern Practice in Marine Refrigeration.” 61 Journal of the American Society of Naval Engineers (May 1949) pp. 442–449.
Sir Claude Gibb, “Two Thousand Years of Engineering”. 64 Journal of the American Society of Naval Engineers (Feb. 1952), pp. 95–103.
CAPT (E) Edgar C. Smith, RN (RET) “The Hon. Sir Charles A. Parsons,” 66 Journal of the American Society of Naval Engineers (Nov. 1954), pp. 823–828. Sir Charles was the designer of the first practical marine turbine propulsion system. The advantage of the steam turbine is higher speed and greater thermal efficiency at high speeds. A turbine plant requires a smaller propellor than would be required in a reciprocating engine plant of similar horsepower. For similar horsepower output, the turbine plant is smaller and weighs less the than reciprocating engine.
See Chapter I, above.
Robert Morgan, World Sea Fisheries (1956), Ch. 5. Mr. Morgan’s book is outstanding for its discussion of fishing techniques and equipment. Otter trawling and its predecessor technique are vastly more efficient than long-line fishing. These methods, however, can remove so many fish that if used in coastal areas, other fisherman dependent on older methods, may be deprived of a livelihood. This conflict of methods and interests was basically what gave rise to the famous Moray Firth Case of Mortensen v. Peters. Mr. Wilberforce, Counsel for the United Kingdom in United Kingdom v. Norway, argued before the International Court of Justice that current research indicated this potential evil is not as great as feared, and, in any event is susceptible to mitigation through internal regulation. Pleadings, Vol. IV, pp. 153–161. For an example of the international regulation that is relevant, see Convention fot the Regulation of Meshes of Fishing Nets and Size Limits of Fish (1946). British Command Paper No. 8815. The date of entry into force of this Convention was 5 April 1954. Both Norway and the United Kingdom signed and ratified the Convention. MacChesney, Naval War College International Law Situation and Documents 1956, pp. 317–324.
Morgan, Fisheries, p. 71.
A remarkable discussion of this matter is that of A. C. Hardy in his article, “The Adaptability and Value of Diesel Engines for Securing Efficiency in Trawlers,” Fishing News, 30 October 1959) p. 1. of Propulsion and Maneuver Supplement). Fishing News is the trade journal of the British fishing industry.
UN Doc. A/Conf. 13/L.54; reprinted in 38 Dept. of State Bulletin (1958), p. in8ff.; reprinted in 52 American Journal of International Law (Oct. 1958), pp. 851–858.
For obvious reasons, it would be premature to elucidate on this statement at this point. Involved, of course, are the East-West struggle, the advent of International Organization, the politicizing of economic issues, the gradual freezing of State positions with concomittant reluctance to settle disputes through judicial means, and the apparent unacceptability on military grounds of solutions based on economic considerations.
Edward H. Carr, Nationalism and After (1945), p. 13. Professor Carr asserts that this state of affairs was the result of a general belief that the economic order was one of absolute laissez-faire, hence impersonal and truly international, and that it was all hinged to the financial machine in the City of London which, in itself, was free of political control or partiality.
Professor Imlah, in his book Economic Elements in the Pax Britannica (1958) has gone into the matter with much more probity and has suggested that Britain’s military strength and security as well as her great economic strength made it possible for her to act in the role of mediator. It would appear that economic growth was considered to be of primary importance and that political differences should interfere as little as possible.
Examples are: Delbert A. Snider, Introduction to International Economics (1954), pp. 88–91; Seymour E. Harris, Internalional and Inter-regional Economics (1957), p. 195; Judd Polk, Sterling (1956), pp. 32–8.
T. S. Ashton, An Economie History of England: The Eighteenth Century (1955), Ch. I. Professor Ashton (Emeritus Professor of History at the London School of Economics), entitles Chapter I of his book, “The People of England.” He explains his research into population studies and records. He concludes that between the years 1695 and 1801, the populations increased by two-thirds. Mr. Carr-Saunders in his monumental work, The Population Problem (1922) places the date of 1760 as the take-off point (p. 300).
Warren S. Thompson, Population Problems (1953), p. 75.
Thompson, Population Problems, p. 77. One is likely to note that these statements by Thompson ignore the rapid growth of populations which, seemingly, have not been affected by the industrial revolution and whose populations are for the most part in a subsistence condition. Carr-Saunders points out that from earliest recorded history on there are evidences of social customs imposing restraints on human reproduction (over and above high mortality rates), of which recognition of limits to feed the offspring is only one. But, he adds:
That which is common to these races, where over-population is suspected, is the absence of hope and fear alike, of ambition and of a standard of living; they are content to subsist on what will just support life.... In these cases we seem always to find that political misfortunes have overtaken these people. They have suffered from oppression in one form or another and gradually the old customs have been lost; hope and ambition have faded from the outlook. Carr-Saunders, The Population Problem, p. 277. This is a statement as to cause which seems to be debated by demographers, for example, see M. K. Bennett, The World’s Food (1954), Ch. I. We shall not attempt any judgments on this question; it is sufficient for our purposes to note the rapid upsurge in world population, and to note that it has occurred in both primitive and highly industrialized countries. 8 Kingsley Davis, “The World’s Population Explosion,” Private Investment: The Key to International Development, James Daniel, Ed., (1958), p. 18. See also: U.S. Foreign Policy, A Study by Stanford Research Institute for U.S. Senate Committee on Foreign Relations, 1959. 9 M. K. Bennett, The World’s Food (1956), Ch. I.
Morgan, World Sea Fisheries (1956), p. 284. Dr. Morgan writes that the best and most easily applied broad criterion of the importance of a country’s fisheries to it as a source of real wealth in terms of food and/or exports (and thus of imports of other goods) is in production per head of total population. Production rate for fisheries is measured in kilograms/head/year. Morgan, Fisheries, p. 140. Examples follow:
Year Country Production Rate
Norway 550 kgm/head/year
United Kingdom 22 „ „ „
Canada 65 „ „ „ 1952
United States 15.5 „
W. S. Woytinsky and E. S. Woytinsky, World Population and Production (1953), Ch. XX.
Morgan, Fisheries, p. 284.
Morgan, Fisheries, p. 140. Lest one be dismayed by the seeming indulgence in generalities manifested in the foregoing statements concerning the economic implications of a country’s fishing industry, the writer, having suffered many frustrations in research aimed at spelling out in more finite detail the economic implications of a country’s fishing industry, takes some comfort in quoting from a recent United Nations Document:
It is clear from these examples alone that in order to assess the effect on national economies of most of the changes likely to occur in a fishery, one would need information on what is technically known as the mobility of factors, i.e., the costs involved in diverting capital, labor and other factors of production to other uses (and vice versa) and on the elasticity of demand. Hardly any such information is available and it is certain that much research would be needed to obtain it. If economic considerations were to be taken into account objectively in determining legal questions connected with the sea fisheries, there would be need for much greater knowledge of the relevant economic factors and consequently for a very great deal of economic investigations. Secretariat of the United Nations Food and Agriculture Organization, The Economic Importance of the Sea Fisheries of Different Countries (Prepatory Document No. 13, United Nations Conference on the Law of the Sea) A/Conf.13/16 of 20 November 1957.
It is doubtful whether anyone has described this process more effectively and succinctly than the late Professor Gidel ih his book, Le Droit international public de la Mer (1934), vol. iii, bk. II, Ch. iii. Despite the lapse of twenty-five years since the publication of this great work, it is still a misfortune that it has not been translated into English.
Dr. Morgan cites the example of the British industry thus:
The great technical complexity and development of British fisheries is the maritime projection of the general industrial development of the past century and a half. Conversely, there are no large modern fishing industries based on otherwise backward countries. Growth and modernization of Asian fisheries, outside Japan, cannot take place on a large scale in the absence of an industrial base to sustain it. World Sea Fisheries, p. 140. Dr. Morgan perhaps suggests a greater disparity between Britain and less industrialized countries than may exist in fact. Britain’s industry can be said to be an outstanding example of the trend toward large enterprise in fishing. J. T. Johnson, in his book, The Sea Fisheries (1920), wrote:
The industry as a whole tends toward concentration, to the use of larger boats, to the need of greater harbors, p. 34.
An excellent account of the exertions of such pressure in the case of the United Kingdom is given by CAPT Christopher B. V. Meyer, RNorN, The Extent of Jurisdiction in Coastal Waters (1927), at pages 118–120. See also, Philip C. Jessup, “L’Exploitation des Richesses de la Mer,” 29 Recueil des Cours de la Haye (Vol. iv, 1929), at pp. 406–9; and Fulton, Sovereignty, pp. 700–715. Deutsch and Eckstein write simply:
As has been amply attested by political studies, such economic changes often are apt to become linked to political changes through the mechanism of interest groups, ... and then proceed at length to document their statement. Karl W. Deutsch and Alexander Eckstein, National Industrialization and the Declining Share of the International EconomicSector, 1890–1957 (Unpublished paper, 1959).
Domenico A. Azuni, The Maritime Law of Europe (1806), p. 206.
Azuni, Law, p. 234.
I Am. State Pap. For. Rel., p. 148; 1 Op. At. Gen., p. 32; I Moore’s Digest (1906), pp. 735–9. Mr. Randolph, of course, primarily from a defense point of view, cited Grotius, Nattel, Puffindorf, Bynkershoek, Seiden and Valin, and emphasized the property characteristics of Delaware Bay and bays in general which tended to constitute them possessions of the littoral States. See also David R. Deener, The United States Attorneys General and International Law (1957), pp. 210–211.
Law Officers of the Crown letter of 9 April 1844, to Lord Aberdeen, Prime Minister. I Lord McNair, International Law Opinions (1956), pp. 350–1. As Professor Moore points out, the above letter made use of the headland theory in conjunction with a treaty in which the term was not used. I Moore’s Digest (1906), p. 785. Actually, the concept of a particular headland theory of bays is a rather confusing one and too much, perhaps, has been said about it. The theory is that the littoral State should enjoy sovereignty over all of the water inside a line drawn from one headland of a bay to another. The important point is that the extent of this line is immaterial. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), pp. 358–9. In the headland theory there appears to be a pre-supposition that every bay has a pair of readily-identifiable headlands — something which a mariner knows is not at all a universal truth. The treaty of 1818 is quoted hereunder at Annex A.
Examples are: The Schooner Washington and the Argus, sailing in the Bay of Fundy and Caw Bay, respectively. Their cases came before Umpire Bates in 1853. IV Moore’s Arbitrations, p. 4344; I Moore’s Digest, p. 787; The Fortune Bay case of 1878 and the Aspee Bay Case of 1881, I Moore’s Digest, p. 807. The U.S.-Canadian disputes over the 1818 treaty finally led to the North American Fisheries Arbitration of 1910, which is discussed below.
I Moore’s Digest, p. 782; IV Am. State Papers, For. Rel. pp. 380–406.
Fulton, Sovereignty of the Sea (1911), pp. 607–615.
Convention between Her Majesty and the King of the French, defining and regulating the Limits of the Exclusive Rights of the Oyster and Other Fishery on the Coasts of Great Britain and of France, Paris, 2 August 1839; Herstlet, Treaties, vol. 5, p. 89. Implementation of this treaty was, in Great Britain, in the Act 6, 7 Victoria, cap 79 (Herstlet, Treaties, vol. 6, p. 414), entitled The Sea Fisheries Act, 1843. An excellent discussion of this treaty and the circumstances attending it is contained in L. Larry Leonard, International Regulation of Fisheries (1944), pp. 35–42.
Seton-Watson, Britain in Europe, pp. 198–201; J. A. R. Marriott, The Eastern Question, A Study in European Diplomacy, 4th Ed., (1940), pp. 239–41.
Imlah, Pax Britannica, p. 147.
Knight, Barnes, and Flügel, Economic History of Europe (1928).
Although there were numerous violations of the treaty provisions, by the fishermen of both parties, it would appear that no force other than that of fishery police was used at any time. The defense or military element were completely absent, and it does not appear that gun-fire ranges per se were considered in establishing the 10-mile rule. Reports of the Commissioners for the Herring Fishing 1839, 1840, 1841.
Fulton, Sovereignty of the Sea (1911), p. 619.
LVII British and Foreign State Papers, p. 8.
I Moore’s Digest, p. 786.
Fulton, Sovereignty, p. 627.
Fulton, Sovereignty, p. 634.
Fulton, Sovereignty, p. 634, Sir Cecil Hurst explains the “incidental” way in which this came about. He writes that the framers of the Convention thought it was the fisheries outside territorial waters they were to regulate and therefore they were to agree on a definition of the waters which were not subject to the convention. “The Territoriality of Bays,” The British Yearbook of International Law 1922–23, pp. 42–54.
One should hasten to add, however, that on 15 February 1888, there was signed in Washington a treaty providing for a mixed commission to delimit the British waters, bays, creeks, harbors and coasts described in the Convention of 1818. One of the provisions of the treaty read in part: “... but at every bay, creek, or ... harbor, not otherwise specially provided for in this treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles.” The treaty failed to receive the constitutional approval of the U.S. Senate. Fulton writes, at page 629, that it was the United States who proposed the 10-mile line, and that Great Britain consented only after strong objection.
On the other hand, there may have been a reluctance on the Governments to take a position of this matter, although information in these premises is extremely sparse. Lord McNair records this instance where such a position was requested:
The Danish Government having represented to the British Government the desirability of arriving at an understanding as to the meaning of the word ‘bay’ occuring in the North Sea Fisheries Convention of 1882, which is scheduled to the Sea Fisheries Act, 1883, it was proposed by certain interested British Departments to define a bay as including all indentations of the coast, irrespective of size. The Law Officers ... advised (5 December 1899, General) against this or any definition:
Each case should be decided as it arises. It is quite clear that a bend in the coast, very shallow in proportion to its lateral extension, is not a bay, and no limit can be fixed by way of general definition. On the other hand, to define “bay” as including what are generally called gulfs might lead to difficulties of another sort, as territorial jurisdiction is, in many cases, claimed over gulfs, though more than 10 miles across, if they extend far inland. I International Law Opinions, p. 361.
Sir Cecil Hurst, “The Territoriality of Bays,” BYIL 1922–3, p. 4411.
It is tempting, of course, to undertake more or less thoroughgoing discussions of a number of these cases. In most instances this has been done repeatedly by others and there is little purpose to be served in going over the same ground. In 1956, Professor MacChesney recorded what was up to that time a fairly complete bibliography of the voluminous comment on United Kingdom v. Norway; he records twenty-three different articles. U.S. Naval War College International Law Situation and Documents 1956, pp. 62–65.
Scots Law Times Rep. 227 (1906); Fulton, Sovereignty pp. 717ff; 169 Hansard, Pari. Debates (4th Series), col. 979ff; 170 Ibid., col. 472; 196 Ibid., col. 236; Ralph Jones, Unpublished Naval War College Manuscript (1957).
Moore’s Digest, pp. 767–874; Dana Frank Fleming, The Treaty Veto of the American Senate (1930), pp. 68–72; Jessup, Lam of Territorial Waters and Maritime Jurisdiction (1927), pp. 364–382.
Fleming, Treaty Veto, p. 71, citing Senator Morgan (D., Alabama) in Congressional Record, 1st Session, Vol. 19, Part 8, pp. 7158–60. (50th Congress).
Dr. Jessup discusses in considerable detail the argument of the American agent, Mr. Elihu Root. See also, Bacon and Scott, eds. North Atlantic Coast Fisheries Arbitration at the Hague — Argument on behalf of the United States by Elihu Root (1917); Proceedings in the North Atlantic Coast Fisheries Arbitration 12 vols., U.S. Senate Doc. No. 870, 61st Cong., 3rd Sess. 1912.
III Malloy 2632, 2635.
International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1951, PP- 116–206; International Court of Justice, Fisheries Case, Pleadings, Oral Arguments and Documents (1951); Jans Evensen, “The Anglo-Norwegian Fisheries Case and its Legal Consequences,” 46 American Journal of International Law (1952), pp. 23–30; Brunson MacChesney, U.S. Naval War College International Law Situation and Documents 1956, pp. 59–136; J. H. W. Verzijl, “Territorial Controversies before the International Court of Justice,” I Netherlands International Law Review (1954), pp. 234–267; R. O. Wilberforce, “Some Aspects of the Anglo-Norwegian Fisheries Case”, 38 Transactions of the Grotius Society (1952), pp. 151–168; C. H. M. Waldock, “The Anglo-Norwegian Fisheries Case,” 28 British Yearbook of International Law (1951), pp. 114–171; D. H. N. Johnson, “The Anglo-Norwegian Fisheries Case,” I International and Comparative Law Quarterly (4th Series, 1952), pp. 145–179; Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law,” 30 British Yearbook of International Law (1953), pp. 1–70.
See Chapter FIVE, Section B.
Pleadings, vol. I, p. 450.
An incidental terminological shortcoming noted in Dr. Garcia Amador’s work is his designating inland waters as synonymous with internal waters. (At page 52 of his Exploitation and Conservation). As noted in Chapter ONE, above, these terms do not mean the same thing in the domestic law of the United States.
J Moore’s Digest (1906), pp. 780–1.
Nevertheless, Annex II of the French Instructions sur L’application du Droit international en Cas de Guerre, dated 19 December 1912, shows that as of that date the extent of Russian, Swedish and Italian territorial waters was the range of cannon. U.S. Naval War College. International Law Topics and Discussions (1913), p. 24.
Lauterpacht writes that this was due to three factors: The attitude of the United States in 1793 and 1818; the permanent neutralization of Switzerland; and the 1856 Declaration of Paris. Oppenheim’s International Law, Vol. II, 7th Ed. (1952), pp. 631–4.
U.S. Naval War College, International Law Situations, 1908, pp. 117–255.
U.S. Naval War College, International Law Topics, 1909.
Kleen. Lois et usages de la Neutralité, 1900 vol. I, p. 530; U.S. Naval War College, Inter-natioanl Law Topics and Discussions, 1913, pp. n-35.
Henry G. Crocker, Extent of the Marginal Sea (1919), pp. 487–508; U.S. Naval War College, International Law Situations, 1908, pp. 98–113, 194–197.
Robert W. Tucker, U.S. Naval War College International Law Studies, 1955, p. 303; H. A. Smith, The Law and Custom of the Sea 2nd Ed. (1950), p. 95. See, further, U.S. Naval War College International Law Situations, 1932, pp. 99–107, on the “illegal” use of mines during World War I.
Hackworth, Digest of International Law (1943) vol. VII, pp. 232–242; Tucker, NWC 1955, pp. 219–26.
An outstanding discussion of Neutrality and Territorial Waters is contained in U.S. Naval War College, International Law Situations, 1931, pp. 33–93.
Myres S. McDougal and William T. Burke, “Crisis in the Law of the Sea: Community Perspectives versus National Egoism,” 67 Yale Law Journal (Feb. 1958), p. 551ff.
The McDougal-Bufke method of solution is theoretically air tight: Through use of a systematic check-off list of research and information subjects, the matter is studied in every possible detail. In this case the topics are listed under the general headings of: The Claim to Authority Arrested, The Counterclaim, and the Modality and Degree of Interference. The authors have concocted a beautiful blue-print for someone else to do the work. Just how this work is to be managed is never touched upon. There is little useful purpose in commenting in detail upon this article, save to assess it broadly from three points of view:
a. The International Lawyer: The methodology indicated by the check-off lists might be excellent for formulating one’s case before the International Court; it might be an excellent guide for a Judge of the International Court.
b. For the “authoritative decision-maker”: It is difficult to foresee that one in such a position would read or understand the article. In other words, as a guide to action it lacks communicating qualities and is therefore nearly useless. This writer might at some future time quite possibly be required to advise a decision maker on some of the very matters discussed in the instant article. It would require a great imaginative strain and no little ingenuity to transcribe the propositions of this article into a useable blue-print for policy action.
c. For the practicing mariner and student of the law of the sea: The latter part of the article, pages 574–588, suggests that the authors may not have qualified themselves completely through technical research preparatory to constructing the framework they propose.
Judge [Sir Hersch Lauterpacht addresses this point with caution: “While, therefore, the codification of international law under the aegis of the United Nations must continue to be be regarded as a rational and practical object of the collective endeavor of Governments, the achievement of part of that object by other means, and in particular through the activity of the International Court itself, acquires special significance. The Development of International Law by the International Court (1958), p. 7.
Judge Lauterpacht, in commenting upon this action in his Development (1958), pp. 190–1, is more restrained than in his 8th Edition of Oppenheim, but he is none the less pointed.
Lauterpacht writes: “It is possible that, far from holding that the size of the bay is irrelevant, the intention of the court was to lay down that if the shores are very far apart then they must be considered as separate coasts to which, therefore, the principle of the general direction of the coast does not apply.” Oppenheim’s International Law, vol. I, 8th Ed., p. 507n.
Lauterpacht, Oppenheim, p. 507.
Charles de Visscher in Theory and Reality in Public International Law (1957), at pp. 154–5, defends this action as does former Judge Manley O. Hudson in “The Thirtieth Year of the World Court,” 46 American Journal of International Law, (1952), pp. 609–630.
See Shabtai Rosenne, The International Court of Justice (1957), Ch. XIII. Mr. R. O. Wilberforce suggests that language differences and the diverse backgrounds of the members may contribute to the difficulties. “Some Aspects of the Anglo-Norwegian Fisheries Case,” 38 Transcations of the Grotius Society (1952), pp. 151–168.
It is to be noted that Judge Hackworth (U.S.), in his terse concurring opinion, indicated that he agreed with operative part of the judgment solely because the Norwegian Government had proved the existence of an historic title to the disputed water areas. It would have more helpful had he seen fit to share with the world the breath and depth of his probity.
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© 1963 Martinus Nijhoff, the Hague, Netherlands
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Strohl, M.P. (1963). Development from 1800 to the Present. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_4
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