726 THE SOVEREIGNTY OF THE SEA 



"so arbitrary and artificial as that of the ten -mile limit 

 measure," for which the appellant contended. Perhaps the 

 most interesting part of Lord Kyllachy's opinion concerned 

 the bearing of the North Sea Convention on the case. If 

 the question had been one of exclusive fishing privileges, the 

 bearing of the Convention might have been important. " But 

 exclusive fishing privileges or, at all events, exclusive fishing 

 privileges as defined by convention are one thing ; territorial 

 jurisdiction, proprietary or protective, is a different thing. . . . 

 There is certainly nothing in the Convention, at least nothing 

 was brought under our notice, which in the least conflicts with 

 the right of the several contracting nations to impose each of 

 them within its territorial limits (whatever these are) restric- 

 tions universally applicable against injurious practices or modes 

 of fishing such as are by this statute and byelaw imposed here. 

 In other words, there is nothing in the statute and byelaw in 

 question which at all interferes with the exclusive fishing 

 privileges of the several nations." He could not consent to 

 the argument that the Convention had introduced a new 

 chapter into international law establishing, with respect to 

 the definition of bays and estuaries, new and artificial rules. 

 The other judges who gave their reasoned opinions expressed 

 similar views, both as to the construction of the Act, the 

 possibility or probability that the Moray Firth was a territorial 

 bay by the law of nations, and as to the distinction between 

 the limits of exclusive 'fishing as defined in the Convention 

 and the right of the bordering state to regulate the fishery 

 beyond that limit and within its territorial waters, provided 

 the regulations applied equally to all. 1 



It is to be noted that although the question was strictly one 

 of the construction of the Act, the judges had necessarily, in 

 reaching its true meaning, to consider certain aspects of inter- 

 national law in relation to the territorial sea. From the above 

 summary of their opinions, it is evident that the most eminent 

 Scottish lawyers are in agreement with the modern publicists 

 whose views have been referred to in a previous chapter, both 

 in rejecting the three-mile limit as the farthest boundary of 

 territorial sovereignty and as to the ten-mile rule (to say 

 nothing of the six-mile theory) for bays. It may, however, be 

 questioned as to how far the doctrine of independent territorial 



1 Court of Session Reports, 8 Fraser, p. 93. 



