DISSENTING OPINION OF DR. DRAGO ON QUESTION FIVE. HI 



Is there a contradiction between these six miles and the ten miles 

 of the treaties jnst referred to? Not at all. The six miles are the 

 consequence of the three miles marginal belt of territorial waters in 

 their coincidence from both sides at the inlets of the coast and the 

 ten miles far from being an arbitrary measure are simply an exten- 

 sion, a margin given for convenience to the strict six miles with 

 fishery purposes. Where the miles represent sixty to a degree in 

 latitude the ten miles are besides the sixth part of the same degree. 

 The American Government, in reply to the observations made to Sec- 

 retary Bayard's memorandum of 1888, said very precisely: "The 

 width of ten miles was proposed not only because it had been followed 

 in conventions between many other Powers, but also because it was 

 deemed reasonable and just in the present case; this Government, 

 recognising the fact that while it might have claimed a width of 

 six miles as a basis of settlement, fishing within bays and harbours 

 only slightly wider would be confined to areas so narrow as to render 

 it practically valueless and almost necessarily expose the fishermen 

 to constant danger of carrying their operations into forbidden 

 waters." (British Case Appendix, p. 416.) And Professor John 

 Basset Moore, a recognised authority on international law, in a com- 

 munication addressed to the Institute of International Law, said 

 very forcibly : " Since you observe that there does not appear to be 

 any 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 

 133 mile line has been adopted in the cases referred to 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 offence is to be committed. In order, therefore, 

 that fishing may b'^ jiracticable and safe, and not constantly attended 

 with the risk of violating territorial waters, it has been thought to be 

 expedient not to allow it where the extent of free waters between the 

 three miles drawn on each side of the bay is less than four miles. 

 This is the reason of the ten mile line. Its intention is not to hamper 

 or restrict the right to fish, but to render its exercise practicable and 

 safe. When fishermen fall in with a shoal of fish the impulse to 

 follow it is so strong as to make the possibilities of transgression very 

 serious within narrow limits of free waters. Hence it has been 

 deemed wiser to exclude them from space less than four miles each 

 way from the forbidden lines. In spaces less than this operations are 

 not only hazardous, but so circumscribed as to render them of little 

 practical value." ("Annuaire de ITnstitut de Droit international," 

 1894, p. 146.) 



