CO885-(13-15) — Page 142

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PUBLIC

RECORD OFFICE

C.O.

Reference :-

885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

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No. 164.

(NEWFOUNDLAND.)

FURTHER MEMORANDUM BY THE SOLICITOR OF CUSTOMS ON THE LAW IN ENGLAND AS TO THE BOARDING AND SEARCHING OF FOREIGN VESSELS SUSPECTED OF ANY INFRINGEMENT OF THE LAW WITHIN OR WITHOUT THE THREE-MILE LIMIT.

I HAVE now had sent to me under this cover :-

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(a.) A further communication from the Colonial Office in reference to the seizure of

the third vessel mentioned in the previous papers,-"The Bait Bill.' (b.) A further communication from the French Embassy.

With regard to the "Bait Bill," the further information received from the Governor of Newfoundland, enclosing a report from the Commander in Charge of the Bait Protection Service in Placentia and Fortune bays, seems to show almost conclusively that, instead of being outside the territorial waters when visited by the official boat, the "Bait Bill" was considerably inside the three-mile zone of the Lawn group of islands, which are a dependency of the Colony of Newfoundland.

Under these circumstances, there is nothing, on the additional facts with regard to the third boat, which I have to add to what I havo already said in relation to the “Amazone" and the "Virginie."

The letter of Monsieur Jusserand, of the 20th October, opens up some now considerations. I do not imagine the Board will wish to hear anything from me on the first part of it, namely, the question as to whether some compensation ought not to be paid to the owners of the " Amazone" and "Virginie those two vessels; the only remark (taking the whole papers together) which might, for the detention of porhaps, be made on that point, being, to draw attention (without expressing any opinion as to his arguments) to the report of the Attorney-General for Newfoundland, to the effect that he did not think there had been, under all the circumstances, any pecuniary loss whatever in consequence of the seizure and detention of these vessels. In the latter part of Monsieur Jusserand's letter, there are two main points :- (1.) That, in the view of the French Government, it is entirely contrary to International law to search vessels passing through the territorial waters, because there is, in those territorial waters, by universal international consent, freedom of navigation.

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(2.) That operations against, or in respect of, foreign vessels navigating the territorial waters may, under international law, be exercised only by vessels of caractère militaire, and may not be put into execution by mere commissioned cruisers.

In respect to both these points Monsieur Jusserand calls in aid the North Sea Fisheries Convention, agreed to at the Hague on the 6th of May 1882, and which is in the Sche lule to the Sea Fisheries Act of 1883 (46 and 47 Vict. c. 22).

With regard to the first point; the Article in the Convention of the Hague which Monsieur Jusserand points to, is Article II., stating that "the fishermen of each Country, party to the Convention," shall enjoy the exclusive right of fishing within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks"; and the last paragraph of the Article is as follows:—..

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The prosent Article shall not in any way prejudice the freedom of navigation and

anchorage in territorial waters accorded to fishing boats."

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And then it adds the following important proviso:

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"Provided they conform to the special police regulations enacted by the Powers "to whom the shore belongs."

There is no doubt that Monsieur Jusserand is quite correct in saying that it is an established principle of international law that, through that portion of the high, seas which forms the particular territorial zone of each country, there is to be freedom of navigation and passage for the ships of all other countries; but, although this right undoubtedly exists, there is a consensus of opinion by every writer on international law-including, I think, I may safely say, all the French writers on the subject that this right of passage for the ships of other countries is subject to the right of jurisdiction and police in the interests of defence, revenue, and other matters→→

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