"ملف A/5 مصائد اللؤلؤ بالخليج العربي" [و‎‎١‎٠] (٦٢/١٩)

* the mainland of the provinces of Zeh, Tavoy, Mergui, and Tenasserira,
<c and of tlie islands appertaining thereto, including the Mergui
u Archipelngo; as also over all bays, gulfs, and estuaries inter fauces
44 terrce, whether of such mainland or islands, but no further." While
adoptinir the opinion as correct, the Law Officers of the Crown add,
with reference to the Australian and Ceylon fisheries : " The Australian
44 Pearl Fishery Acts are limited in their operation to British subjects,
il and we assume that, in the case of the peirl fisheries in the Mergui
" Archipelago, there lias not been, as in the case of the Ceylon fisheries,
" an immemorial claim to the pearl-oyster fishery beyond the usual
" territorial waters asserted by successive rulers and acquiesced in."
{See Revenue, Statistics, and Commerce Papers, 1893, December.) This
opinion, it is to be observed, was given after the publication of the
award in the B^hring Sea Arbitration, which took pla'je in August of
the s une year. In that arbin ation a claim similar to that susr'jrcsted in
i ■ o '
the sixth paragraph of the? Despatch was put forward on behalf of the
United States ; it was met bv strong arguments on behalf of the British
7 • O O
Government, {see Chapter V1IT. of British Case and Argument, p. 36),
and was negatived by the award. With regard to the Ceylon precedent,
which among others was relied on by the United States in support of
their claim to a right of some sort extending beyond the three-mile
limit, it is pointed out in the argument that tiiese fisheries " have been
44 treated from time immemorial by the successive rulers of the Island
44 as subjects of property and jurisdiction, and have been so regarded
44 with the acquiescence of all other nations." The Ceylon case thus
stated is. in fact, one which illustr.ites the proposition that a portion of
the high sea may be appropriated by dint of actual occupation in the
same way as land may be so occupied. If a similar assertion of owner
ship and acquiescence could be proved with regard to the fisheries in the
Persian Gulf outside the three-mile limit, I think those fisheries would
be taken to be included within the territory of the State to which they
are contiguous. Otherwise, the three-mile limit must prevail, for that
is the rule which a State is supposed to adopt in the absence of express
notice that a larger extent; is claimed (see Hall on International Law,
p. 154).
In order to apply the above principles to the cise of any particular
fishing ground (for I presume there are distinct fishing grounds), it may
be necessary to institute a more detailed inquiry than has already been
made, so that it may be decided whether in that particular case it is
expedient to assert a claim by right of occupation larger than that
which the ordinary rule would justify.
H. H. Shephard.
Enclosure No. 2.
Foreign Office to India Office.
Foreign Office,
Sir, 16th July 1904.
I have laid before the Marquess of Lansdowne your letter of
the 30th June, on the subject of the policy to be pursued in order to
prevent any interference by foreign enterprise with the rights enjoyed
by the tribes under British protection in the pearl fisheries on the
Arabian coast of the Persian Gulf.
^ Lord Lansdowne concurs in the proposal of the Secretary of State for
India to refer the matter to the Law Officers of the Crown, and he would
be glad eventually to see the draft of the case which Mr. Brodrick
proposes to lay before them.
S. 5. B