104 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



the liberty to fish near the shores or portions of the shores, and if 

 what has been renounced in the words of the treaty is the liberty to 

 fish on or within three miles of the bays, creeks and harbours of His 

 Britannic Majesty's dominions, it clearly follows that such liberty 

 and the corresponding renunciation refers only to such portions of 

 the bays which were under the sovereignty of Great Britain and 

 not to such other portions, if any, as form part of the high seas. 



And thus it appears that, far from being immaterial, the terri- 

 toriality of bays is of the utmost importance. The treaty not con- 

 taining any rule or indication upon the subject, the Tribunal cannot 

 help a decision as to this point, which involves the second branch of 

 the British contention that all so-called bays are not only geogra- 

 phical, but wholly territorial as well, and subject to the jurisdiction 

 of Great Britain. The situation was very accurately described on 

 almost the same lines as above stated by the British memorandum 

 sent in 1870 by the Earl of Kimberley to Governor Sir John Young: 

 " The right of Great Britain to exclude American fishermen from 

 waters within three miles of the coasts is unambiguous and. it is 

 believed, uncontested. But there appears to be some doubt what are 

 the waters described as within three miles of bays, creeks or har- 

 bours. ^A^ien a bay is less than six miles broad its waters are within 

 the three-mile limit, and therefore clearly within the meaning of the 

 treaty; hut when it is nnove than that breadth^ the question arises 

 whether it is a bay of Her Britannic Majesty''s dominions. This is a 

 question which has to be considered in each particular case with 

 regard to international law and usage. "When such a bay is not a 

 bay of Her Majesty's dominions, the American fishermen shall be 

 entitled to fish in it, except within three marine miles of the ' coast ' ; 

 when it is a bay of Her Majesty's dominions, they will not be entitled 

 to fish within three miles of it, that is to say (it is presumed), within 

 three miles of a line drawn from headland to headland." (United 

 States Case Appendix, p. 629.) 



Now, it must be stated in the first place that there does not seem to 

 exist any general rule of international law which may be considered 

 final, even in what refers to the marginal belt of territorial waters. 

 The old rule of the cannon-shot, crystallised into the present three 

 marine miles measured from low water mark, may be modified at a 

 later period, inasmuch as certain nations claim a wider jurisdiction, 

 and an extension has already been recommended by the Institute of 



International Law. There is an obvious reason for that. The 

 129 marginal strip of territorial waters, based originally on the 



cannon-shot, was founded on the necessity of the riparian State 

 to protect itself from outward attack, by providing something in the 

 nature of an insulating zone, which very reasonably, should be ex- 



