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it is disuse and disuse alone which has led to a restriction of the rights of the Sovereign in the bed of the sea, it follows that in cases where there has been effective occupation of a portion of the bed of the sea within the meaning of the principle enunciated by Hall, and such occupation still continues, there has been no abandoning of the rights of ownership, and consequently the ownership still continues. Assuming that this proposition is sound, it removes a difficulty which has found expression in writings on international law as regards sedentary fisheries occurring outside the three-mile limit. Vattel's statement : "Who can doubt that the pearl fisheries of Bahrein and Ceylon may lawfully become property?" ceases to cause any difficulty to even the stoutest upholders of the principle that the limits of the territorial belt are not more than three miles if it is realised that the exclusive right to the pearls to be obtained from the banks flowed from the ownership of the bed of the sea where the banks were situated, and not from any claim to maritime jurisdiction over the waters. Wherever it can be shown that particular oyster beds, pearl banks, chank fisheries, sponge fisheries or whatever may be the particular form of sedentary fishery in question outside the three-mile limit have always been kept in occupation by the Sovereign of the adjacent land, ownership of the soil of the bed of the sea where the fishery was situated may be presumed, and the exclusive right to the produce to be obtained from these fisheries may be based on their being a produce of the soil. Ownership of the soil by the Sovereign of the country under such circumstances must carry with it the right to legislate for the soil so owned and for the protection of the wealth to be derived from it, and no doubt need be felt as to the binding force of the various enactments which have been issued for the protection of these sedentary fisheries outside the three-mile limit.

The instances where ancient usage justifies a claim to sedentary fisheries outside the three-mile limit do not seem to be numerous, and of those which are known some appear to be situated in bays or gulfs which are claimed as part of the national territory by the State contiguous to whose shore they lie. For instance, the chank fisheries and the pearl fisheries in the Gulf of Manaar have been the subject of regulation by local ordinances, etc., throughout the nineteenth century. The pearl and chank fisheries in the Gulf of Manaar were claimed from early times by

the successive Portuguese, Dutch and British masters of the neighbouring territory, and there can be little doubt but that a good title to the ownership of these beds can be made out, based on long-continued occupation. Both the Gulf of Manaar and Palk's Bay, the two great bays which divide India from Ceylon and are separated from each other by the long stretch of islets known as Adam's Bridge, would probably be claimed as part of the national territory, and not part of the high seas at all. Palk's Bay at any rate has now been held by the Madras Courts 1 to be an integral portion of the British Dominions, and if the question arose a similar decision might possibly be given as to the Gulf of Manaar. Even if it were not, however, the claim to the ownership of the pearl and chank beds in that gulf could be based on long usage and uncontested enjoyment; and the right to legislate with regard to these beds could be rested. on the ground of their ownership.


Another instance which can be cited, and one where there is no doubt that the site forms part of the high seas, is that of the oyster beds off the east coast of Ireland. By the Sea Fisheries Act of 1868 2 power was taken to issue an Order in Council enabling the Irish Commissioners to regulate the dredging for oysters on any oyster beds within a distance of twenty miles seawards from a straight line between Lambay Island and Carnsore Point. Some of these banks were between ten and twenty miles beyond the three-mile limit.

The above are instances where the State interested formed part of the British Empire. The same principle must of necessity apply also to sedentary fisheries on banks claimed by foreign Governments. The Bey of Tunis has, for instance, claimed the exclusive right to the sponges on a bank outside the three-mile limit off the coast of Tunis by the continuous and unquestioned enjoyment of the fructus of these banks. Such enjoyment would constitute a title to the bank which foreign States would no doubt recognise and would oblige their nationals to recognise. Similarly, Mexico is said to have legislated for regulating pearl fisheries off the Mexican coast though outside the three-mile limit.

The maintenance of a State's property rights in special areas outside the three-mile limit when more extensive general claims

1 Annakumaru Pillai v. Muthupayal, 1903, 27 Indian Reports, Madras Series, 551. 2 31 & 32 Vic. c. 45, sec. 67.

to sovereignty, jurisdiction and property were abandoned is in no way inconsistent with the principles laid down by Oppenheim,1 that the sub-soil beneath the bed of the open sea outside the marginal belt of territorial waters is a no man's land, property in which can be acquired on the part of the littoral State through occupation starting from the sub-soil beneath the bed of the territorial maritime belt. Tunnelling in the sub-soil for purposes of mining or communications seems to be the only aspect of the problem which Oppenheim had in mind, but the principles he lays down are in no way inconsistent with the recognition of a right of exclusive ownership arising from long and undisputed occupation of sedentary fisheries lying on the surface of the bed of the sea.

The International Convention for the Protection of Submarine Cables (Paris, March 14, 1884) does not run counter to this theory of the bed of the sea being a no man's land in which property can be and is acquired by occupation. The effect of the convention is to place submarine cables under a kind of common protection, as all the parties to the convention accept the view that wilful injury to a cable outside territorial waters is an offence to be punished in the courts of the country of the vessel doing the damage. There is nothing exclusive in character about the occupation of the sea bed occasioned by the laying of a submarine cable. The mere fact that one cable is there already does not prevent another from being laid across it; hence there is no need for the application of the principle that sovereignty and property of the sea bed are acquired by the occupation which the first comer achieves by the laying of his cable. There is no call for the recognition of exclusive rights. All that is necessary for safeguarding the position of the cable owner and for the maintenance and encouragement of cable communications is some method of protection of the cable by the recognition of its right to be there and by ensuring the punishment of those who injure it. It is not so with a submarine tunnel or with a mine driven out into the sub-soil beneath

the high seas. Unless the rights created by such operations were exclusive the works would be valueless, for at any moment they would stand the risk of destruction through contact with similar works carried out by some other party.

It cannot be too strongly emphasised that the recognition 1 International Law, 3rd ed., Vol. I. pp. 451–455.

of special property rights in particular areas of the bed of the sea outside the marginal belt for the purpose of sedentary fisheries does not conflict in any way with the common enjoyment by all mankind of the right of navigation of the waters lying over those beds or banks. Nor does it entail the recognition of any special or exclusive right to the capture of swimming fish over or around these beds or banks.

To sum up so far as Great Britain at any rate is concerned, the ownership of the bed of the sea within the three-mile limit is the survival of more extensive claims to the ownership of and sovereignty over the bed of the sea. The claims have become restricted by the silent abandonment of the more extended claims. Consequently, where effective occupation has been long maintained of portions of the bed of the sea outside the threemile limit, those claims are valid and subsisting claims, entitled to recognition by other States.

The claim to the exclusive ownership of a portion of the bed of the sea and to the wealth which it produces in the form of pearl oysters, chanks, coral, sponges or other fructus of the soil is not inconsistent with the universal right of navigation in the open sea or with the common right of the public to fish in the high seas.





Fellow and Lecturer of Gonville and Caius College, Cambridge, Lecturer in International Law at the London School of Economics and Political Science.

THE time has now arrived when it is perhaps worth while attempting an estimate of the controversy upon this subject which has continued since the outbreak of the recent war, and of the modifications in the ante bellum position which appear to have been established as the result. That the controversy should have arisen is not surprising, for the reason stated by Lord Parker in 1916:

"Joint-stock enterprise and English legislation and decisions about it have developed mainly since this country was last engaged in a great European war and have taken little, if any, account of warlike conditions.” 1

This is essentially one of those parts of public international law which can only be handled with safety by considering in the first instance the relevant municipal law; and the most useful contribution to the subject that can be made is for each writer to state the law of his own country. Then, and only then, can one proceed to the further questions, whether there is any communis opinio among a sufficiently numerous and important body of States to enable one to formulate any rules as recognised by public international law, and, if not, whether it is possible and desirable to achieve any such recognition by international convention. Accordingly we shall devote ourselves to an examination of the English municipal law, adding a few very brief notes upon the law of the United States and of France. The order of our treatment will be as follows:

I. The ante bellum position in England.

II. The Daimler Case.

III. Summary of principal other English decisions.

IV. Observations on the Daimler doctrine.

1 Continental Tyre and Rubber Co. v. Daimler Co. [1916], 2 A.C. at p. 344.

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