5i8 APPENDIX 



within three miles of a line drawn from headland to headland." (American Case 

 Appendix, page 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 mar- 

 ginal belt of territorial waters. The old rule of the cannon-shot, crystallized 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 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 reason- 

 ably should be extended with the accrued possibility of offense 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 marginal 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, page 129, in which he also strongly recommends these 

 limits.) This is the doctrine which Westlake, the eminent English writer on Inter- 

 national Law, has summed up in very few words: "As to bays," he says, "if the en- 

 trance 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 open 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 littoral 

 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, page 187.) But the 

 learned author takes care to add: "But although this is the general rule it often meets 

 with an exception 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, notwithstanding that their entrance is wider than 

 the general rule for bays would give as a limit for such appropriation. " And he pro- 

 ceeds to quote as examples of this kind the Bay of Conception in Newfoundland, which 

 he considers as wholly British, Chesapeake and Delaware Bays, which belong to the 

 United States, and others. [Ibid., page 188.) The Institute of International Law, 

 in its Annual Meeting of 1894, recommended a marginal belt of six miles foi: the general 

 line of the coast and as a consequence established that for bays 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 United States proclaimed the 

 right to the exclusive jurisdiction of certain bays, 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 reasons which go always back to the doctrine of protection. ' Lord 

 Blackburn, one of the most eminent of English Judges, in delivering the opinion of 



