DISSENTING OPINION OF DR. DRAGO ON QUESTION FIVE. 105 



tended with the accrued possibility of offence due to the wider range 

 of modern ordnance. In what refers to bays it has been proposed as a 

 general rule (subject to certain important exceptions) that the uiar- 

 ginal belt of territorial waters should follow the sinuosities of the 

 coast more or less in the manner held by the United States in the 

 present contention, so that the marginal belt being of three miles, 

 as in the treaty under consideration, only such bays should be held 

 as territorial as have an entrance not wider than six miles. (See Sir 

 Thomas Barclay's report to Institute of International Law, 1894, p. 

 129, in which he also strongly recommends these limits.) This is the 

 doctrine which "Westlake, the eminent English writer on international 

 law, has summed up in very few words: "As to bays," he says, 

 " if the entrance to one of them is not more than twice the width of 

 the littoral sea enjoyed by the country in question — that is, not more 

 than six sea miles in the ordinary case, eight in that of Norway, and 

 so forth — there is no access from the of)en sea to the bay except 

 through the territorial water of that country, and the inner part of 

 the bay will belong to that country, no matter how widely it may 

 expand. The line drawn from shore to shore at the part where, in 

 approaching from the open sea, the width first contracts to that 

 mentioned, will take the place of the line of low water, and the litto- 

 ral sea belonging to the State will be measured outwards from that 

 line to the distance of three miles or more proper to the State;" 

 (Westlake, vol. i, p. 187). But the learned author takes care to add: 

 " But although this is the general rule, it often meets with an excep- 

 tion in the case of bays which penetrate deep into the land and are 

 called gulfs. Many of these are recognized by immemorial usage as 

 territorial sea of the States into which they penetrate, notwithstand- 

 ing that their entrance is wider than the general rule for bays would 

 give as a limit for such appropriation." And he proceeds to quote as 

 examples of this kind the Ba}' of Conception in Newfoundland, which 

 he considers as wholly British, Chesapeake and Delaware Bays, 

 which belong to the United States, and others. {Ibid., p. 188.) The 

 Institute of International Law, in its annual meeting of 1894, recom- 

 mended a marginal belt of six miles for the general line of the coast, 

 and as a consequence established that for baj^s the line should be 

 drawn up across at the nearest portion of the entrance toward the sea 

 where the distance between the two sides do not exceed twelve miles. 

 But the learned association very wisely added a proviso to the effect 

 " that bays should be so considered and measured unless a continuous 

 and established usage has sanctioned a greater breadth." Many great 

 authorities are agreed as to that. Counsel for the LTnited States 

 proclaimed the right to the exclusive jurisdiction of certain baj^s, no 

 matter what the width of their entrance should be, when the littoral 

 nation has asserted its right to take it into their jurisdiction upon 



