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The Historical Origins of the Three-Mile Limit

Published online by Cambridge University Press:  30 March 2017

H. S. K. Kent
H. S. K. Kent*
Affiliation:
Jesus College, Cambridge
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Extract

The generally accepted view that the three-mile limit originated from the cannon-shot rule, has recently been challenged by Mr. Wyndham Walker in an article on “Territorial Waters: the Cannon Shot Rule.”

Type
Research Article
Information
American Journal of International Law , Volume 48 , Issue 4 , October 1954 , pp. 537 - 553
Copyright
Copyright © American Society of International Law 1954

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References

* The author wishes to thank Mr. C. H. Wilson, Fellow and Burser of his college, for generously having made available to him his unpublished notes on Danish-Dutch disputes over fisheries in the eighteenth century.

1 In British Year Book of International Law (Oxford, 1945), pp. 210 ff.

2 Ibid., p. 213.

3 Ibid., p. 228. It may be added in explanation that the Danish-Norwegian league of the eighteenth century–though not the Swedish–measured 4 marine miles, while the nautical league of the Mediterranean countries usually was nearer 3 miles.

4 See below, p. 550 et seq.

5 See below, p. 548 and note 66.

6 Public Record Office, London, State Papers (hereafter cited as State Papers), Domestic, Vol. 47, f. 111, reproduced in facsimile by Fulton, T. W., The Sovereignty of the Sea (Edinburgh & London, 1911), p. 156 Google Scholar: “For that it is by the Lawe of nacions, no Prince can Challenge further into the Sea than he can Co͂mand with a Cannon except gulfes within their Land from one point to an other.” Fulton believes this to be the first mention of the rule.

7 Raested, A., La Mer Territoriale (Paris, 1913), p. 103 Google Scholar, note 1; see also State Papers, Foreign, Foreign Ministers in England, Vol. 1, Memorial of Søhlenthal, Danish envoy to England, dated Hanover, Aug. 17, 1741, New Style.

8 State Papers, Foreign, Foreign Ministers in England, Vol. 1, Memorial of Søhlenthal, dated Hanover, Aug. 17, 1741 N. S.; as also Eaested, op. cit., and Strømme, Kongens, Historiske og folkeretlige undersøkelser angoaende sjøterritoriet (Kristiania, 1912) pp. 305–306 and 333–335Google Scholar.

9 See below, p. 552.

10 Fulton, op. cit., p. 528. Cf. Meijer, C. B. V., The Extent of Jurisdiction in Coastal Waters (Leiden, 1937), p. 492 Google Scholar, that regulations over fisheries were unnecessary during the seventeenth and eighteenth centuries in Norwegian waters, as foreign fishermen kept to fishing-grounds lying 6–10 leagues off the coast.

11 Fulton, op. cit., pp. 175 and 528.

12 Eegister of Privy Council, Scotland, Vol. XI, p. 328.

13 Commons’ Journals, Vol. I, pp. 320–323.

14 See below, p. 541.

15 Diplomatarium Groerilandicum, 1491–1814 (ed. Louis Bobé, Copenhagen, 1936), p. 24: “… forbyde Vi hermed … samme Fart paa Voris Strømme for bemelte Grønland og andre Voris Lande og Insuler herefter, uden Voris a. n. Passer og Tilladelse.” It should be noted that much confusion over Greenland and Spitsbergen is due to English and Danish seventeenth and also eighteenth-century nomenclature. Spitsbergen, on discovery late in the sixteenth century, was believed to be part of Greenland, and as such was claimed by Denmark. Spitsbergen retained the name “Greenland” in English seventeenth-century literature after it was known to be an island, and is indexed under that name in the Calendars of State Papers. Greenland itself was generally called “Groneland.” Fulton, op. cit., failed to note this, and his accounts of the diplomatic disputes over Greenland and Spitsbergen in the seventeenth century should therefore be read with caution. Accurate accounts are found in Sir Martin Conway’s No Man’s Land–A History of Spitsbergen (Cambridge, 1906), passim.

16 Whaling by itself without barter with the coastal dwellers was regarded as having been unprofitable; see Beaujon, , The History of Dutch Sea Fisheries, in Vol. IX of The Fisheries Exhibition Literature (London, 1883), p. 426 Google Scholar.

17 Danmark-Norges Traktater, 1623–1750, med dertil hørende Aktstykker (ed. L. Laursen, Vol. IX, Copenhagen, 1933), pp. 189 ff.

18 Raested, Kongens Strømme, p. 246, citing documents in the Danish State Archives, Copenhagen, Section Frankrig A, 1689–1693.

19 Raested, La Mer Territoriale, p. 111.

20 Ed. Johnsen, O. A., Innberetninger fra den franske Legasjon i Kjøberihavn vedrørende Norge (Correspondance Consulaire), Vol. I (Oslo, 1934), pp. 38–39 Google Scholar. To be cited below as Correspondance Consulaire.

21 Walker, loc. cit., p. 215, quoting letter of July 31, 1691, to the French envoy at Copenhagen, de Martangis, in Archives Nationales (Paris, Collection de la Marine).

22 Correspondance Consulaire, p. 45, Martangis to Pontehartrain, despatch of Aug. 21, 1691.

23 Ibid., pp. 46–47, Pontehartrain to Martangis, instruction of Sept. 5, 1691.

24 Ibid., pp. 51–52, Martangis to Pontchartrain, despatch of Oct. 2, 1691.

25 Walker, loc. cit., p. 215.

26 Correspondance Consulaire, pp. 57–105, passim.

27 Aubert, L., Rapport et Annexe, “Définition et régime de la mer territoriale,” in Annuaire de l’Institut de Droit International, Vol. XI (Paris, 1892), p. 144 Google Scholar.

28 Fulton, op. cit., pp. 529–530.

29 Bobé, L., “Den Grønlandske Handels og Kolonisations Historie,” in Meddelelser om Grønland, Vol. 55, No. 2 (Copenhagen, 1934), pp. 29 fGoogle Scholar.

30 State Papers, Foreign, Denmark, Vol. 79, despatch of Oct. 4, 1740, N. S.

31 Ibid., despatch of Oct. 15, 1740.

32 See above, p. 540.

33 Raested, La Mer Territoriale, pp. 117 ff.; and State Papers, Foreign, Denmark, Vol. 79, despatch of Nov. 5, 1740.

34 See below, p. 548, note 66.

35 Printed in British and Foreign State Papers, Vol. I, 1 (London, 1841), pp. 375 ff.

36 State Papers, Foreign, Denmark, Vol. 79, despatches of Feb. 28, 1741; Vol. 80, despatches of March 4, 1741, June 3, June 6, and June 27, 1741 (all New Style); and ibid., instruction of April 24, 1741 (Old Style).

37 L. Bobé, Den Grønlandske Handel, p. 48. Cf. Wyndham Walker, loc. cit., p. 223, that “The dispute itself seems to have remained unsettled.”

A royal decree of Oct. 22, 1758, extended the prohibition on trading to Greenland within four leagues of Danish settlements there. Diplomatarium Groerilandicum, p. 326, entry 261. This order, making the four-league limit uniform in the Arctic possessions, superseded two earlier orders of April 9, 1740, and May 26, 1751, which provided for a prohibited zone for trading of fifteen leagues. See Vahl, M. and Andrup, G. C. (eds.), Greenland, published by Directorate of Geological and Geographical Investigation, Vol. III (London, 1929), p. 21 Google Scholar. This multiplicity of orders on trading is explained by the Greenland and Iceland trade being a royal monopoly carried on by a royal company, or by a private monopoly company operating under a royal concession.

38 Søhlenthal, Danish envoy to London, to Secretary of State for Northern Department, Hanover, Aug. 17, 1741. State Papers, Foreign, Foreign Ministers in England, Vol. 1.

39 Boeck, T. O., Översigt over Litteratur, Love, Forordninger … vedrørende de norske Fiskerier (Christiania, 1866), p. 12 Google Scholar.

40 C. B. V. Meyer, op. cit., p. 500.

41 Rescripter, Besolutioner og Collegial-Breve for Kongeriget Norge i Tidsrummet 1660–1813 (ed. J. A. S. Schmidt, Christiania, 1841), Vol. I, pp. 334–335: Rescription of Feb. 10, 1747. Cited below as Rescripter.

42 Boeck, op. cit., p. 12.

43 Meyer, op. cit., p. 498, quoting in translation from Danish State Archives, section Norske Tegnelser, 1744–1746.

44 Rescripter, Vol. I, pp. 315 ff. Author’s translation.

45 See above, p. 542.

46 Correspondance Consulavre, pp. 339 ff.

47 Correspondance Consulaire, pp. 339–359.

48 Ibid., pp. 347 ff., Lemaire to Maurepas, Copenhagen, June 6, 1747.

49 Ibid., p. 360, Le Sr. de Mollieu to Maurepas, Calais, July 24, 1748.

50 State Papers, Foreign, Treaties, bundle 29, Treaty of Peace and Commerce with Tunis, June 22, 1762. Art. 3 stipulates: “That if any Ships or Vessels of Christian Nations in Enmity with the King of Great Britain etc., shall at any time hereafter, be met with or found upon the Coast of the Kingdom of Tunis, either at Anchor or otherwise; and not within reach of Cannon-Shot of the Shore; that it shall and may be lawful, for any of His Britannic Majesty’s Ships or Vessels of War, or any English Privateer or Letter of Marque, to take or seize as Prizes any such Ships or Vessels … ”; Art. 4 stipulates, however, that ships belonging to Mahometan states at war with Great Britain shall not be seized “… within the sight of any part of the Coast of the Kingdom of Tunis. …”

These provisions, mutatis mutandis, are also found in Arts. 3 and 4 of the Articles of Peace and Commerce between Great Britain and Algiers, May 14, 1762, in State Papers, Foreign, Treaties, bundle 28.

51 The text of the Convention of July 12, 1756, is in State Papers, Foreign, Denmark, Vol. 101. It is discussed in Th. Boye, Be Vaebnede Neutralitatsforbund (Kristiania, n. d. [1912]), pp. 97 ff.

52 “ … haec tamen Navigatio Baltico in Mart non est susdpienda, utpote quod tutum, estam belli, quam effeetuum ejus omnium permanent immune.”

53 Rescripter, pp. 423 and 439.

54 See above, p. 545.

55 Meyer, op. cit., p. 502.

56 Ibid., pp. 503 f.

57 Public Eecord Office, London, Admiralty Papers, Secretary’s Department, In Letters, Letters from Consuls, ref. Ad. 1/3855, Fenwick to Cleveland, Aug. 11, 1759.

58 State Papers, Foreign, Denmark, Vol. 106, Titley to Holdernesse, Sept. 15, 1759.

59 Ibid., Vol. 99, despatches and instructions of Aug. 23, 29, 30, and Nov. 4, 1755. A party from a British warship had boarded a Swedish vessel in the Sound to search for French goods. On Danish protests, Britain apologized and the officer responsible was dismissed from the service.

60 Public Record Office, London, Chatham Papers, bundle 88, Pro Memoria of Count Bothmer (the Danish envoy to London), dated Sept. 28, 1759; State Papers, Foreign, Denmark, Vol. 106, despatches of Sept. 15, 1759, and ibid., Vol. 109, despatch of Jan. 19, 1760; ibid., Sweden, Vol. 133, despatch of Nov. 6, 1759.

61 State Papers, Foreign, Denmark, Vol. 103, despatch of Oct. 17, 1758, and ibid., Vol. 109, copy of rescript bound in under date of receipt, Feb. 6, 1760.

62 Ibid., Vol. 109, Lords of Admiralty to Secretary of State for Northern Dept., Oct. 30, 1760; and ibid., Memorial of Count Bothmer, Sept. 17, 1760; and ibid., despatches of Sept. 30, Oct. 14, and 21, 1760.

63 Admiralty Papers, Secretary’s Department, In Letters, Letters from Secretaries of State, ref. Ad. 1/4125: Following a letter from Earl of Bute to Lds. of Admiralty, Jan. 20, 1762, asking for the strictest enquiry into the case of Capt. Stewart, is an unsigned note from [Lds. of Admiralty to Secretary of Admiralty], dated Jan. 22 [1762]: “Refer this to Capt. Stewart to answer in the most particular manner, and so that it may be verified upon Oaths if necessary, and to inform the Lords what could induce him to violate the Territorial Jurisdiction of His M. Allies.”

The term “ally” was then loosely, and presumably thankfully, applied to a state not at war with Great Britain.

64 Calendar of Home Office Papers, 1760–1765 (London, 1878), pp. 170 f., entry 544, Report of Advocate and Attorney General, April 7, 1762: “By His Majesty’s command, the case was referred to the Lords of the Admiralty … to take care that proper satisfaction should be made … Capt. Stewart did not deny the fact; and the apology being by no means satisfactory, His Majesty thought his honour concerned to make a proper reparation, at least that the prize should be restored.” In excuse, Capt. Stewart had stated that “ … French privateers lurked and sheltered themselves along the coast of Norway, ready to put to sea at every opportunity; … [he] did not know that his Danish Majesty considered privateers and their prizes lurking between rocks, at a distance from any fort, village, or harbour, to be under his protection…. ”

The case itself is described in State Papers, Foreign, Denmark, Vol. 112, letters, despatches, depositions and instructions of Oct. 10 and Dec. 1, 1761; and ibid., Vol. 114, Jan. 8, May 11, and June 15, 1762. In his desptach of Dee. 12, 1761, ibid., Vol. 112, Titley reported the Danish Foreign Minister, Baron Bernstorff, as complaining over “ … the violation of His Danish Majesty’s Sovereignty and the Immunity of His Coasts.” Titley continued that French privateers “ … do not always observe the Bules prescribed, but often take Our Ships even within the prohibited Limits; and then carrying them into Port, easily meet with Favour and Protection from the Inhabitants on account of the Profit arising from the Sale of confiscated Cargoes. This irritates Our Cruisers, who not thinking Themselves obliged to show more Respect to the Country, than the Enemy does, follow the Captors every where, and cut away Their Prizes, especially from the Out-Harbours; where, as no Battery or Flag appears, They esteem Their Transgressions against the Sovereign so much the less.” The presence of a flag in a settlement would probably have indicated the residence of a royal official.

65 Ibid., Vol. 106, despatch of Titley to Holdernesse of Aug. 14, 1759, reporting that British ships had been captured by French privateers “ … within the prohibited Distance from the Coast of Norway and Jutland.” Denmark promised to investigate.

66 Ibid., Vol. 112, Titley to Holdernesse, despatch of Jan. 6, 1761, and enclosures: Titley reported that Baron Bernstorff, the Danish Foreign Minister, had sent him the enclosed papers relating to protests over the capture of the Ellen, Edward Eigg, master, and the Squirrel, John Benn, master, who “ … were seized and ransomed by French Privateers within the forbidden Limits of Denmark … His Excellency [Baron Bernstorff] does not give this Representation [below] of the French Court as a final Answer upon the matter in dispute … ” as the Danish envoy at Paris had instructions to continue his protests: “The Limits, wherein the Danish Ministers would have no Hostilitys committed by Either of the Warring Powers, are, a Distance of one Mile or League (of Fifteen to the Degree) from Land upon all Their Coasts; as also the whole narrow Sea, called the Cattegat, reaching from the Point of Schagen in Jutland to the Point of Falsterboe in Sweden; but from the Memorial here inclosed it does not appear that the French have yet agreed to respect either of the Limits abovementioned. Tis proved by the Bill of Bansom, & contradicted by Nobody, that Capt. Bigg’s Ship, the Ellen, was taken about Three Leagues from Lessoe, an Island situated far within the Cattegat; but the French, paying no Eegard at all to the pretended Immunity of that Sea, declare the Capture absolutely Irrecoverable, as having been made at the Distance of Three Leagues from Land … The Squirrel, Capt: Benn’s Ship, was taken at the distance of Two or Three English Miles from the Point of Schagen. This was attested upon Oath before the Magistrate of Elsinore (without any Contradiction from the Privateer or His Agents) not only by Capt: Benn & His Crew, but also by Two Other Brittish Ship Masters, Boulton & Torrington, who happened to be Eye Witnesses of the Capture….” The depositions had been sent to France where ““ The Conseil des Prises, however, has set them aside as Partial; & upon the Deposition of the Privateer & His Crew, alledging that the said Ship was taken about Six Leagues from Land,” the Squirrel was declared good prize. “Besides this chicane about sufficient Testimony, the French make another Difficulty concerning the Distance. They seem indeed to think that the Territorial Bight may extend to Three Miles, the possible Beach of Cannon Shot from Land; but this Measure is short of the League (of Fifteen to a Degree) required by Denmark. And the Memorial adds, il s’agit de savoir, si, pour le Dannemarc et la Norvegue, on peut convenir de I’Espace d’une Lieue, comme la Cow de Copenhague semble le desirer. M. de Bernstorff owns that they are not satisfied Here with this Answer; & surely They have no reason to acquiese in it. For by this Exposition … the French have plainly discovered that They do not look upon Prizes, made within the Limits hitherto forbidden by His Danish Majesty, to be unlawfull.”

Attached to Titley’s despatch is a copy of the memoire handed by the Due de Choiseul to the Danish envoy at Paris, dated Nov. 11, 1760. As to the Squirrel, the papers submitted are testimony on the distance from shore. This testimony is rejected. As to the Ellen, “ … le Billet de Rançon dit expressement que le Ellen a été pris á la Hauteur de Trois Lieues de Lesso dans le Categat, ce qui ôterait toute Difficulté et le Fondement d’une juste Reclamation, á moins qu’on ne foumisse des preuves contraires ….” Beturning to the Squirrel, the memorial continues: “Quant á l’Eloignement de Terre, en prenant même la Distance telle que les Anglois l’ont deposée, elle est de Trois Milles, et d’une Lieue au moins. Il est reconnû, que e’est la portée possible de Canon, qui fait le Droit du Territovre, et U s’agit de savoir … [as above]. Rien ne peut mieux decider cette question, qui en est une, que la Beciprocité….”

It should be noted that both ships had been taken to France and not been brought into a Norwegian harbor as was usual. Their crews, as was the practice in such cases, had been put ashore.

67 Admiralty Papers, Secretary’s Department, In Letters, Letters from Consuls, ref. Ad. 1/3833. Bound in under date.

The reasons given for the imposition of a neutral belt are in agreement with Samuel Pufendorf, De Jure Naturae (1672), Liv. IV, cap. V, sees. 7–8 (cited by Walker, loc. cit., p. 224), who held that, since the invention of warships, a country may be regarded as having possession of those parts of the sea which act as its ramparts. Wyndham Walker, loc. cit., indicates that Pufendorf nowhere shows any acquaintance with the cannon-shot rule.

68 Modee, R. G., Utdrag utur alle ifrân den 7 dec. 1718 utkomme Publique Handlingar, Placater, Forordnvngar … (Stockholm, 1742– ), pp. 1684 ff.Google Scholar: “Den 28 Jul. Reglement för Kongl. Maj:ts Orlogs-Steff sd wãl som Kommiss-hafware ….”

69 L. S. von Holstein, in Stoclcholms Dagblad, Dec. 10, 1924, cited by Jessup, P. C., Law of Territorial Waters and Maritime Jurisdiction (New York, 1927), pp. 35–37 Google Scholar. It may be noted that the Swedish mile or league was equal to the modern nautical mile of 60 to the degree.

70 State Papers, Foreign, Sweden, Vol. 103: “Rapport des Colleges de la Chancellerie Boyale et de Commerce touchant quelques incidens relatifs aux Armateurs françois dans la mer du Nord. Fait á Stockholm le 19 juin 1759. Traduit du Suedois.”

71 The ordinance is printed in Aubert, op. cit., p. 145. It will be noted that no mention was made of measuring the one-league limit from base-lines connecting outlying parts of the coast, and territorial waters claimed followed therefore in detail the outlines of the coast. The first mention of base-lines does not occur till later.

72 This view is taken by Meyer, op. cit., pp. 507 ff.; and Raested, Kongens Strømme, pp. 344 f.

73 Jessup, Territorial Waters, p. 39.

74 See above, pp. 543 ff.

75 See Vahl and Andrup, op. cit., pp. 21 f., that the ordinance of 1812 applied to the Greenland fisheries.