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The North Atlantic
Fisheries Dispute
BY
JAMES WHITE, F. R. S. C.
SECRETARY OF THE COMMISSION
OF CONSERVATION
ILLUSTRATED WITH TWO MAPS
Reprinted from the Report of the Commission
of Conservation, entitled:
"Lands, Fisheries and Game and Minerals, 19n."
OTTAWA : COMMISSION OF CONSERVATION , 1911
■SE©l5R7VPS¥-DBPT^
NORTH ATLANTIC FISHERY LIMITS
HAGUE TRIBUNAL
September 7'\ 1910
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NORTH ATLANTIC FISHERIES DISPUTE
By James White, F.R.S.C.
Secretary, Commission of Conservation
The decision of the Hague Tribunal, rendered Sept, 7,. 3910, prac
tically ended differences that have, for nearly a century, <».iist;'d between ■
Canada and Newfoundland, on the one hand, and the United States,, on
the other. Before discussing the award, it is necessary to state brieilj
the history of the dispute that was referred to the Tribiinal.
On Nov. 30, 1782, the provisional articles of the treaty
Treaty of of peace were signed at Paris by Richard Oswald on the
Paris, 1782 ^^^^ ^^ Great Britain, and by John Adams, Benjamin
Franklin and John Jay on the part of the United States. On September
3, 1783, the definitive treaty of peace, commonly known as the Treaty of
Paris, was signed at Paris. Art III of the latter is identical with Art.
Ill of the provisional treaty, and reads as follows : —
"It is agreed that the people of the United States shall continue
to enjoy unmolested the right to take fish of every kind on the Grand
Bank and on all the other banks of Newfoundland ; also in the Gulph of
St. Lawrence, and at all other places in the sea, where the inhabitants
of both countries used at any time heretofore to fish ; and also that the
inhabitants of the United States shall have liberty to take fish of every
kind on such part of the coast of Newfoundland as British fishermen
shall use (but not to dry or cure the same on that island) ; and also on
the coasts, baj's and creeks of all other of his Britannic Majesty's
dominions in America; and that the American fishermen shall have
liberty to dry and cure fish in any of the unsettled bays, harbours and
creeks of Nova Scotia, Magdalen Islands and Labrador, so long as the
same shall remain unsettled; but so soon as the same or either of them
shall be settled, it shall not be lawful for the said fishermen to dry or
cure fish at such settlement, without a previous agreement for that
purpose with the inhabitants, proprietors or possessors of the ground."
This article conceded :
(1) The right of the Americans to take fish on the "banks" of
Newfoundland, in the gulf of St. Lawrence and in the sea,
(2) The liberty to take fish on the coasts of Canada and New-
foundland.
(3) The liberty to dry and cure fish in the unsettled portions of
the coasts of Canada and Newfoundland.
991056
NORTH ATLANTIC FISHERIES DISPUTE
By James White, F.R.S.C.
Secretary, Commission of Conservation
The decision of the Hague Tribunal, rendered Sept, 7,J910, prac
tically ended differences that have, for nearly a century, t>.iist.;-d between .
Canada and Newfoundland, on the one hand, and the. United States,, on
the other. Before discussing the award, it is necessary to stA'ct briellj
the history of the dispute that was referred to the Tribunal.
On Nov. 30, 1782, the provisional articles of the treaty
Treaty of of peace were signed at Paris by Richard Oswald on the
Paris, 1782 ^^^^ ^^ Great Britain, and by John Adams, Benjamin
Franklin and John Jay on the part of the United States. On September
3, 1783, the definitive treaty of peace, commonly known as the Treaty of
Paris, was signed at Paris. Art. Ill of the latter is identical with Art.
Ill of the provisional treaty, and reads as follows : —
"It is agreed that the people of the United States shall continue
to enjoy unmolested the right to take fish of every kind on the Grand
Bank and on all the other banks of Newfoundland ; also in the Gulph of
St. Lawrence, and at all other places in the sea, where the inhabitants
of both countries used at any time heretofore to fish ; and also that the
inhabitants of the United States shall have liberty to take fish of every
kind on such part of the coast of Newfoundland as British fishermen
shall use (but not to dry or cure the same on that island) ; and also on
the coasts, bays and creeks of all other of his Britannic Majesty's
dominions in America; and that the American fishermen shall have
liberty to dry and cure fish in any of the unsettled bays, harbours and
creeks of Nova Scotia, Magdalen Islands and Labrador, so long as the
same shall remain unsettled ; but so soon as the same or either of them
shall be settled, it shall not be lawful for the said fishermen to dry or
cure fish at such settlement, without a previous agreement for that
purpose with the inhabitants, proprietors or possessors of the ground."
This article conceded :
(1) The right of the Americans to take fish on the "banks" of
Newfoundland, in the gulf of St. Lawrence and in the sea,
(2) The liberty to take fish on the coasts of Canada and New-
foundland.
(3) The liberty to dry and cure fish in the unsettled portions of
the coasts of Canada and Newfoundland.
991056
2 COMMISSION OF CONSERVATION
On Nov. 25th — five days before the treaty was signed — the British
commissioners proposed that "the citizens of the United States shall
have the liberty of taking fish of every kind on all the banks of New-
foundland and also in the Gulph of St. Lawrence ; and also to dry and
cure fish on the shores of the Isle of Sables and on the shores of any of
the unsettled bays, harbours and creeks of the Magdalen Islands, in the
Gulph of St. Lawrence, so long as such bays, harbours and creeks shall
continue and remain unsettled ; on condition that the citizens of the said
United States do not exercise the fishery, but at the distance of three
leagues from all the coast belonging to Great Britain, as well those of the
coMt.inent as those of the islands situated in the Gulph of St. Lawrence.
And as to what relates to the fishery on the coast of the Island of Cape
Breton out of the said gulph, the citizens of the said United States shall
not be permitted to exercise the said fishery, but at the distance of
fifteen leagues from the coasts of the Island of Cape Breton."
This proposal was unacceptable to the United States commissioners,
and Adams, who was specially charged with the care of negotiations
respecting the fisheries, made a counter-proposal, which was virtually
the same as the article incorporated in the treaty.
After the war of 1812-14, which was terminated by the Treaty of
Ghent, the British Government maintained that as these 'liberties' were
only privileges to be exercised in British waters and territories, they had
been terminated by the war. When the negotiators met at Ghent, the
British plenipotentiaries stated that "they felt it incumbent upon them
to declare that the British Government did not deny the right of the
Americans to fish generally or in the open seas ; but the privileges form-
erly granted by treaty to the United States of fishing within the limits of
British jurisdiction and of landing and drying fish on the shores of the
British territories would not be renewed without an equivalent."
As a result of these differences, the treaty contained no mention of
the fisheries.
In the following year an American fishing vessel was warned by the
commander of H.M.S. Jaseur not to come within sixty miles of the Brit-
ish coast. Lord Bathurst disavowed this extreme claim, but stated that
the Government of Great Britain "could not permit the vessels of the
United States to fish within the creeks and close upon the shores of the
British territories." Adams, then minister of the United States in Lon-
don, contended that the Treaty of 1783 "was not, in its general pro\ns-
ions, one of those which by the common understanding and usage of
civilized nations, is or can be considered as annulled by a subsequent-war
between the same parties. ' '
Lord Bathurst replied:
"To a position of this novel nature Great Britain cannot accede,
NORTH ATLANTIC FISHERIES DISPUTE 3
She knows of no exception to the rule that all treaties are put an end to
by a subsequent war between the same parties The treaty of
1783, like many others, contained provisions of different characters —
some in their own nature irrevocable, and others of a temporary nature.
.... The nature of the liberty to fish within British limits, or to use
British territory, is essentially different from the right of independence,
in all that may reasonably be supposed to regard its intended duration.
In the third article [of the treaties of 1782 and 1783] Great Britain
acknowledges the right of the United States to take fish on the banks of
Newfoundland and other places, from which Great Britain has no right
to exclude an independent nation. But they are to have the 'liberty'
to cure and dry them in certain unsettled places within His Majesty's
territory. If these liberties, thus granted, were to be as perpetual and
independent as the rights previously recognized, it is difiScult to conceive
that the plenipotentiaries of the United States would have admitted a
variation of language so adapted to produce a different impression ; and,
above all, that they should have admitted so strange a restriction of a
perpetual and indefeasible right as that with which the article concludes,
which leaves a right so practical and so beneficial as this is admitted to
be, dependent on the will of British subjects, in their character of inhab--
itants, proprietors or possessors of the soil, to prohibit its exercises alto-
gether. It is surely obvious that the word 'right' is, throughout the
treaty, used as applicable to what the United States were to enjoy, in
virtue of a recognized independence; and the word 'liberty' to what
they were to enjoy, as concessions strictly dependent on the treaty itself.'
Between 1815 and 1818 many American fishing vessels
Convention found fishing in British waters were seized and much ill-
of 1818 feeling was engendered. On Oct. 20, 1818, a Convention
was signed at London, the first article of which read as follows :
ARTICLE I
"Whereas differences have arisen respecting the liberty claimed by
the United States for the inhabitants thereof, to take, dry and cure fish
on certain coasts, bays, harbours and creeks of His Britannic Majesty's
domiinons in America, it is agreed between the high contracting parties
that the said inhabitants of the United States shall have forever, in com-
mon with the subjects of His Britannic Majesty, the liberty to take fish
of every kind on that part of the southern coast of Newfoundland which
extends from Cape Ray to the Rameau Islands, on the western and nor-
thern coast of Newfoundland from the said Cape Ray to the Quirpon
Islands, on the shores of the Magdalen Islands, and also on the coasts,
bays, harbours and creeks from Moiuit Joly on the southern coast of
4 COMMISSION OF CONSERVATION
Labrador, to and through the Streights of Belleisle and thence north-
wardly indefinitely along the coast, without prejudice, however, to any of
the exclusive rights of the Hudson's Bay Company ; And that tlie Ameri-
can fishermen shall also have liberty forever to dry and cure fish in any
of the unsettled bays, harbours and creeks of the southern part of the
coast of Newfoundland hereabove described, and of the coast of Labra-
dor; but so soon as the same, or any portion thereof, shall be settled, it
shall not be lawful for the said fishermen to drj' or cure fish at such por-
tion so settled, without previous agreement for such purpose with the
inhabitants, proprietors or possessors of the ground. And the United
States hereby renounce forever anj' liberty heretofore enjoyed or claim-
ed by the inhabitants thereof, to take, dry, or cure fish on or within three
marine nn'les of any of the coasts, bays, creeks or harbours of His Brit-
annic Majesty's dominions in America not included within the above
mentioned limits; Provided, however, that the American fisherman shall
be admitted to enter such l)ays or harbours for the purpose of shelter
and of repairing damages therein, of purchasing wood, and of obtaining
water, and for no otlier purpose whatever. But they shall be luider
such restrictions as may be necessary to prevent their taking, drying or
curing fish therein, or in any other manner wliatever abusing the priv-
ileges hereby reserved to them."
By this article, the right to fish
(1) On the "banks" of Newfoundland,
(2) In the gulf of St. Lawrence, and
(3) At all other places in the sea,
remains as under the treaty of 1783.
The liberties granted are:
I. To take fish on the following British coasts —
(a) The southwestern coast of Newfoundland between cape Ray
and the Rameau islands.
(b) The western coast of Newfoundland between eape Ray and
the Quirpon islands.
(c) The shores of the Magdalen islands, and
(d) The coast of Labrador from mount Joly eastward and north-
ward indefinitely, "witliout prejudice, however, to any of the exclusive
rights of the Hudson's Bay Company."
II. To dry and cure fish on —
(a) The unsettled bays, harbours and creeks of the south-western
coasts of Newfoundland between cape Ray and the Rameau islands, and
(b) The coast of Labrador.
In 1819, an Imi)erial Act was passed which recited the gravamen
of Art. I and provided penalties for fishing in the 'excluded' waters.
NORTH ATLANTIC FISHERIES DISPUTE 5
From time to time, seizures were made, but little trouble occurred until
the passage by the legislature of Nova Scotia of the 'Hovering Act.'
This Act, passed in 1836, provided penalties for hovering within three
miles of the coasts or harbours.
Between 1818 and 1854, forty-three vessels were seized. Until 1841,
the British construction of the treaty respecting the headland question
and the right to piirchase bait and supplies, or to tranship cargoes, was
practically unprotested by the United States. In 1841, the United
States Minister at London complained of the application of the headland
rule and of the severity of the Nova Scotia statutes relatijig to the pro-
tection of the fisheries. The Government of Nova Scotia regarded with
great anxiety the possibility of any relaxation of the regulations or the
abandonment of any of their contentions. They requested that a series
of questions respecting the points at issue be submitted to the legal
advisers of the Home Government.
The Law Officers of the Crown replied that:
(1) Citizens of the United States had no rights other than those
ceded to them by the Convention of 1818.
(2) Except within certain defined limits, they were excluded from
fishing within three miles of the coast of British America and that the
three miles was to be measured from a line drawn from headland to
headland — the "extreme points of land next the sea of the coast or of
the entrance of the bays ... we are of the opinion that the term head-
land is used in the treaty* to express the part of the land we have before
mentioned, excluding the interior of the bays and the inlets of the coast."
(3) No foreign country had the right to use or navigate the gut of
Canso.
(4) American citizens had "no right to land or conduct the fishery
from the shores of the Magdalen islands. ' '
(5) "The liberty of entering the bays and harbours of Nova Scotia,
for the purpose of purchasing wood and obtaining water, is conceded
in general terms, unrestricted by any restrictions, expressed or implied."
Of the foregoing, the most prominent point of difference was what
is known as the "headland" controversy, referred to in answer IT of the
Hague Tribunal decision.
By Art. I of the Convention of 1818, the United States renounced
the liberty "to take, dry or cure fish on or within three marine miles
of any of the coasts, bays, creeks or harbours" not included within cer-
tain specified limits. The colonists claimed that United States fishermen
were excluded from all bays, such as the bay of Fundy, Chaleur bay,
*This is an error on the part of the Law Officers. The word 'headland' does
not appear in the treaty.
6 COMMISSION OF CONSERVATION
etc., irrespective of the width at the mouth. The United States, on the
other hand, contended that the 'line of exclusion' followed the sinu-
osities of the coast, except that in bays, it was to be drawn from headland
to headland when the distance apart did not exceed six miles. For inaiiy
years, the English interpretation had been accepted by the Americans.
Thus, in 1852, Mr. Webster admitted that "by a strict and rigid construc-
tion of this Article [Art. I, Treaty of 1818], fishing vessels of the United
States are precluded from entering into bays and harbours of the British
Provinces, except for the purpose of obtaining shelter, repairing damages
and obtaining wood and water. A bay, as is usually understood, is an
arm or recess of the sea entering from the ocean between capes and head-
lands ; and the term is applied equally to small and large tracts of water
thus situated. It is common to speak of Hudson's Bay or the Bay of
Biscay, although they are very large tracts of water."
The headland doctrine was formally challenged by the United States
in 1843, and followed by much diplomatic correspondence. In 1845,
Lord Aberdeen informed Mr. Everett that the headland rule would be
relaxed so far as the main body of the bay of Fundy was concerned.
This concession, once made, it was never possible to regain and, but
for the strong remonstrances of the Governments of Nova Scotia and New
Brunswick, the Home Government would have made the same conces-
sions with reference to all other "bays of which the mouths were more
than six miles wide."
In the case of the Washington, which was referred to the Claims
Commission appointed under the Convention of Feb. 8, 1853, the umpire
gave the casting vote in favour of the United States contention "that
the bay of Fundy is not a British bay nor a 'bay' within the meaning of
the word used in the Treaties of 1783 and 1818." The umpire, Mr. Bates,
was a junior member in an American branch of an English banking
house and was chosen by lot. "It would have been absurd that either
country should have been willing to accept the decision of Mr. Bates on
a question of international law, as to the rights of either, or as to any
interpretation of a treaty."
Reciprocity From 1839 to 1854, numerous seizures were made. To
Treaty of 1854 adjust the points of diflference between the two nations,
the British Government, in 1854, sent Lord Elgin to tlie United
States and, in the same year, he concluded a treaty in relation to the fish-
eries and to commerce and navigation. The first article of this treaty,
commonly known as the Reciprocity Treaty of 1854, conceded to United
States fishermen "the liberty to take fish of every kind, except shell-fish,
on the seacoasts and shores, and in the bays, harbours, and creeks of
Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the
NORTH ATLANTIC FISHERIES DISPUTE 7
several islands thereunto adjacent, without being restricted to any dis-
tance from the shore, with permission to land upon the coasts and shores
of those colonies and the islands thereof, and also upon the Magdalen
Islands, for the purpose of drying their nets and curing their fish."
The second article conceded to British fishermen similar privileges
on the eastern coast of the United States, north of the 36th parallel. The
third article provided for reciprocal free trade between the United
States and Canada and Newfoundland in various products.
The Reciprocity treaty was terminated by the United States in 1866.
From 1866 to 1869, licenses were granted to United States fishing vessels,
at first at the rate of 50 cents and, finally, at the rate of $2 per ton for each
season, for the same liberties as were granted under the Reciprocity
treaty. In 1868 the Dominion Government passed a "Hovering Act"
which practically re-enacted the Nova Scotia statute of 1836. It was
amended in 1870 and in 1871, the regulations and penalties being made
more stringent.
In 1870 the granting of fishing licenses was discontinued. In a com-
munication to the United States it was stated that the British Govern-
ment were of the opinion that, by the treaty of 1818, the United States
had "renounced the right of fishing, not only within the three miles of
the colonial shores, but within three miles of a line drawn across the
mouth of any British bay or creek It is, therefore, at present the
wish of Her Majesty's government neither to concede nor for the present
to enforce any rights which are in their nature open to any serious
question. Even before the conclusion of the reciprocity treaty Her
Majesty's government had consented to forego the exercise of its strict
right to exclude American fishermen from the Bay of Fundy, and they
are of opinion that, during the present season, that right should not be
exercised in the body of the Bay of Fundy and that American fishermen
should not be interfered with, either by notice or otherwise, unless they
are found within three miles of the shore, or within three miles of a line
drawn across the mouth of a bay or creek which is less than ten geo-
graphical miles in width, in conformity with the arrangement made with
France in 1839 .... Her Majesty's government do not desire that the
prohibition to enter British bays should be generally insisted on except
when there is reason to apprehend some substantial invasion of British
rights."
Treaty of Wash- In 1871, a Joint High Commission met at Washington
ington, 1871 and, on May 8, signed the treaty of Washington respecting
the fisheries, Alabama claims, etc. The treaty provided that, in addition
to the "liberties" secured under the convention of 1818, the fishermen of
the United States should have the liberty "to take fish of every kind
except shell-fish, on the coasts of the Maritime Provinces and to land to
8 COMMISSION OF CONSERVATION
dry and cure the same.". Art. XVIII provided that these liberties were
to be in operation for ten years after the necessary laws were passed and,
further, until the expiration of two years after notice of termination by
either party.
Art. XXI provided for the reciprocal free admission of fish and fish
oil and Art. XXII for a commission to determine the indemnity to be
paid to Canada for the fishing privileges in her territorial waters. This
commission — commonly known as the Halifax Commission — awarded
Great Britain $5,500,000. Of this amount, Canada received $4,490,882
and Newfoundland $1,009,118.
Following the denunciation of the treaty, the Canadian Government
seized United States vessels and, in 1886, passed an Act removing any
question of liability of forfeiture of vessels for infractions of the
statutes respecting purchase of bait, etc. Numerous protests were made
by the United States and, after the discussion of these differences, a
Commission was appointed by the two Governments to "treat and
discuss the mode of settling all questions which have arisen out of the
fisheries on the coasts of British North America."
Chamberlain- ^^ ^ result of their deliberations the, so-called, Cham-
Bayard Treaty, berlain-Bayard treaty was signed Feb. 15, 1888. It pro-
1888 vided for a commission to delimit the 'bays', etc., from
which United States fishermen were excluded bj' Art. I of the Treaty of
1818. With the exception of Chaleur, Miramichi and other specified
bays, the line of exclusion was drawn across the bays in the part nearest
the entrance where the width does not exceed ten miles.
The Treaty was rejected by the United States Senate.
In 1890, the Parliament of Canada passed an act authorizing the
issue of annuiil licenses at a fee of one dollar and a half per ton to fish-
ing vessels for the purchase of supplies.
Newfoundland Fisheries
Having briefiy reviewed the difi'erenees respecting the fisheries of
Canada, it is necessary to notice the conflict between the claims of the
United States and Great Britain respecting the rights and privileges of
the former in Newfoundland territorial waters, as eml>odied in the Con-
vention of 1818.
Bait Act, Following the denunciation by the United States of the
1887 Treaty of Washington, and the consequent re-imposition of
the duties on fish-products, the Newfoundland Government, in 1887,
passed a Bait Act (50 Vict. Cap. 1) forbidding the sale or export of "any
Herring, (^aplin. Squid or other bait fishes." Prior to the passage of this
Act, United States vessels resorting to the 'banks' purchased their bait in
NORTH ATLANTIC FISHERIES DISPUTE 9
Newfoundland but, under this regulation, they were confined to the
'Treaty Shore' and forced to catch it themselves. This involved three
handicaps — 'they do not carry the proper gear nor enough men for such
work, bait is not obtainable there till late in the season and this area is
too remote from the cod-fishing grounds. The Act could also seriously
cripple their winter herring fishery at bay of Islands. '
In 1888, as already mentioned, Mr. Joseph Chamberlain and Mr.
Bayard negotiated the, so-called, Chamberlain-Bayard Treaty which was
rejected by the United States Senate. Pending the completion of the
negotiations, a modus vivendi was arranged, Newfoundland granting in-
shore fishing privileges to United States fishing vessels on payment of an
annual license fee of $1.50 per ship ton. This was extended during the
negotiations that resulted in the Bond-Blaine Convention.
Bond-Blaine In 1891, a draft Convention between Great Britain and
Convention the United States for the "Improvement of Commercial
Relations between the United States and Newfoundland" was negotiated.
It provided for : purchase of bait by United States vessels ; the admission
to the United States, free of duty, of Newfoundland fish — except 'green'
cod ; the reduction by Newfoundland of the duty on flour, pork and other
articles of food and on coal oil and the admission free of duty of agri-
cultural implements, raw cotton, etc., imported from the United States.
This Convention, commonly known as the Bond-Blaine Treaty, was
protested by Canada on the ground tliat. as the Newfoundland fisheries
were the common property of all British subjects, that colony could not
dispose of them in return for concessions to herself only. The Govern-
ment of Great Britain, accordingly, declined to ratify it pending the
negotiation by Canada of a reciprocity treaty with the United States.
The Newfoundland Statutes of 1892, provided for:
(a) Compulsory pilotage for the port of St. John.
(b) Close season for herring, salmon and bait fishes.
(c) Size of mesh of net.
(d) Forbade the unlicensed exportation or sale of bait fishes.
In 1893, an Act was passed forbidding unlicensed foreign fishing
vessels to purchase bait-fish or to engage Newfoundlanders. The ' ' Cust-
oms Act," 1898, provided for the entering and clearing of all foreign
vessels arriving at, or departing from, the coasts of the colony. An Act
of 1899, levied light dues on all vessels "other than coasting, sealing or
fishing vessels owned and registered" in Newfoundland.
Bond-Hay November 8, 1902, another treaty was negotiated. The
Convention terms of the new Convention were similar to those of the
1891 treaty except that the free list of United States imports into
10 COMMISSION OF CONSERVATION
Newfoundland was increased to include a number of articles, principally
manufactured articles, not included in the earlier convention.
This treaty was also abortive as the United States Senate inserted
amendments that made it unacceptable to Newfoundland.
Following the failure to secure free entry of their fish-products into
the United States, the Government of Newfoundland discontinued the
modus vivendi and enacted additional legislation. ' ' The Foreign Fishing
Vessels Act, 1905" (5 Edward VII, Cap. 4) provided for the forfeiture
of any foreign vessels having on board any bait-fish, ice or other supplies
for the fishery, purchased in Newfoundland waters or if the master had
"engaged or attempted to engage any person to form part of the crew of
the said vessel in any port or any part of the coasts" of Newfoundland.
The presence on board any foreign vessel in Newfoundland waters, of
bait-fish or other fishery supplies was declared to be prima facie evidence
of their purchase within such ports or waters.
In October of the same year, the United States Government made
strong protests against the enforcement of these laws by the Newfound-
land authorities. They contended that United States fishing vessels
were not bound to enter at a Newfoundland custom house unless they
purposed to trade as well as fish. Exception was also taken to the above
mentioned clauses of "The Foreign Fishing Vessels Act, 1905."
The Government of Great Britain, in reply, pointed out that, by the
Convention of 1818 :
(a) The privileges of fishing were conceded to inhabitants of the
United States, not to United States' vessels.
(b) The inhabitants of the United States only enjoyed it "in com-
mon with" British subjects. Therefore, it was not a free but a regulated
fishery and that United States fishermen were bound to comply with all
Colonial Laws and Regulations including and touching the fishery so long
MS these were not in their nature unreasonable and were applicable to all
feheries alike.
(e) That the law respecting fishing vessels entering and clearing at
Newfoundland custom houses did not impose obligations inconsistent with
the Convention of 1818. They held that "the only ground on which the
application of any provisions of the Colonial Law to American vessels
can be objected to is that it unreasonably interferes with the exercise
of the American right of fishery."
It was "admitted that the majority of the American vessels lately
engaged in the fishery on the western coast of the Colony were registered
vessels, as opposed to licensed fishing vessels, and as such were at liberty
both to trade and to fish. The production of evidence of the ITnited
States' registration is therefore not sufficient to establish that a vessel
NORTH ATLANTIC FISHERIES DISPUTE r,
does not purpose to trade as well as fish, and something more
would seem clearly to be necessary. ' ' Without supervision of this nature
it would be impossible to prevent illicit trade.
(d) That Section 7 of "The Foreign Fishing Vessels Act, 1905"
preserved "the rights and privileges granted by Treaty to the subjects
of any State in amity with His Majesty."
In 1906, a modus vivendi was arranged. The British Government
suspended the Newfoundland "Foreign Fishing Vessels Act, 1906,"
which imposed on United States vessels certain restrictions in addition to
those imposed by the Act of 1905 ; the provisions of the first part of Sec-
tion 1 of the Act of 1905 as to boarding and bringing into port and the
whole of Sec. 3 of the same Act were not regarded as applying to United
States fishing vessels and the use of purse seines was permitted for that
season. The United States Government agreed that its fishermen would
comply with the Colonial Fishery Regulations respecting the payment
of light dues and fishing on Sunday ; that the shipment of Newfound-
landers would be made far enough from the three-mile limit to avoid
any reasonable doubt and that they would enter and clear at Newfound-
land custom houses when physically possible to do so.
This modus vivendi continued in force till arbitration before the
Hague Tribunal was arranged for, and since.
Agreement to On Jan. 27, 1909, Mr. James Bryce and Mr. Elihu Root
Arbitrate signed a "Special Agreement for the submission of ques-
tions relating to Fisheries on the North Atlantic Coast under the Gen-
eral Convention of Arbitration concluded between Great Britain and
the United States on April 4, 1908."
It recited that "whereas, differences have arisen as to the scope and
meaning of the said article, [Art. I, Convention of London, 1818,] and
of the liberties therein referred to, and otherwise in respect the rights
and liberties which the inhabitants of the United States have or claim
to have in the waters or on the shores therein referred to :
It is agreed that the following questions shall be submitted for de-
cision to a tribunal of arbitration constituted as hereinafter provided:
Question 1. To what extent are the following contentions or either
of them justified?
It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said article, which the inhabitants of
the United States have for ever in common with the subjects of His Brit-
annic Majesty, is subject, without the consent of the United States, to
reasonable regulation by Great Britain, Canada, or Newfoundland in the
form of municipal laws, ordinances, or rules, as, for example, to regula-
12 COMMISSION OF CONSERVATION
tions in respect of (1) the hours, days, or seasons when fish may be taken
on the treaty coasts; (2) the method, means, and implements to be used
in the taking of fish or in the carrying on of fishing operations on such
coasts; (3) any other matters of a similar character relating to fishing;
such regulations being reasonable, as being, for instance —
(a) Appropriate or necessary for the protection and preservation of
such fisheries and the exercise of the rights of British subjects therein
and of the liberty which by the said Article I the inhabitants of the
United States have therein in common with British subjects;
(b) Desirable on grounds of public order and morals;
(c) Equitable and fair as between local fishermen and the inhabit-
ants of the United States exercising the said treaty liberty and not so
framed as to give unfairly an advantage to the former over the latter
class.
It is contended on the part of the United States that the exercise
of such liberty is not subject to limitations or restraints by CTreat Britain,
Canada, or Newfoundland in the form of municipal laws, ordinances, or
regulations in respect of (1) the hours, da.ys, or seasons when the inhabit-
ants of the United States may take lish on the treaty coasts, or (2) the
method, means, and implements used b.v them in taking fish or in carry-
ing on fishing operations on such coasts, or (3) any other limitations or
restraints of similar character —
(a) Unless they are appropriate and necessary for the protection
and preservation of the common rights in such fisheries and the exercise
thereof; and
(b) Unless they are reasonable in themselves and fair as between
local fishermen and fishermen coming from the United States, and not
so framed as to give an advantage to the former over the latter class;
and
(c) Unless their appropriateness, necessity, reasonableness, and fair-
ness be determined by the United States and Great Britain by common
accord and the United States concurs in their enforcement.
Question 2. Have the inhabitants of the United States, while exer-
cising the liberties referred to in said article, a right to employ as mem-
bers of the fishing crews of their vessels persons not inhabitants of the
United States?
Question 3. Can the exercise by the inhabitants of the United
States of the liberties referred to in the said article be subjected, with-
out the consent of the United States, to the requirements of entry or
report at custom-houses or the payment of light or harbour or other
dues, or to any other similar requirement or condition or exaction?
Question 4. Under the provision of the said article that the Am
erican fishermen shall be admitted to enter certain bays or harbours
NORTH ATLANTIC FISHERIES DISPUTE 13
for shelter, repairs, wood, or water, and for no other purpose what-
ever, but that they shall be under such restrictions as may be necessary
to prevent their taking, drying, or curing fish therein or in any other
manner whatever abusing the privileges thereby resei-ved to them, is it
permissible to impose restrictions making the exercise of such privil-
eges conditional upon the payment of light or harbour or other dues,
or entering or reporting at custom-houses or any similar conditions?
Question 5. From where must be measured the '3 marine miles
of any of the coasts, bays, creeks, or harbours' referred to in the said
article?
Question 6. Have the inhabitants of the United States the liberty
under the said article or otherwise to take fish in the bays, harbours,
and creeks on that part of the southern coast of Newfoundland which
extends from Cape Ray to Rameau Islands, or on the western and
northern coasts of Newfoundland from Cape Ray to Quirpon Islands,
or on the Magdalen Islands?
Question 7. Are the inhabitants of the United States whose vessels
resort to the treaty coasts for the purpose of exercising the liberties re-
ferred to in Article I of the treaty of 1818 entitled to have for those
vessels, when duly authorized by the United States in that behalf, the
commercial privileges on the treaty coasts accorded by agreement or
otherwise to United States trading vessels generally?
ARTICLE 2
Either party may call the attention of the tribunal to any legislative
or executive act of the other party, specified within three months of
the exchange of notes enforcing this agreement, and which is claimed to
be inconsistent with the true interpretation of the treaty of 1818 ; and
may call upon the tribunal to express in its award its opinion upon such
acts, and to point out in what respects, if any, they are inconsistent
with the principles laid down in the award in reply to the preceding
questions; and each party agrees to conform to such opinion.
ARTICLE 3
If any question arises in the arbitration i-egarding the reasonable-
ness of any regrulation or otherwise which requires an examination or
the practical effect of any provisions in relation to the conditions sur-
rounding the exercise of the liberty of fishery enjoyed by the inhabitants
of the United States, or which requires expert information about the
fisheries themselves, the tribunal may, in that case, refer such question to
a commission of three expert specialists in such matters, one to be de-
signated by each of the parties hereto and the third, who shall not be a
14 COMMISSION OF CONSERVATION
national of either party, to be designated by the tribunal. This commis-
sion shall examine into and report their conclusions on any question or
questions so referred to it by the tribunal, and such report shall be con-
sidered by the tribunal and shall, if incorporated by them in the award,
be accepted as a part thereof.
Pending the report of the commission upon the question or questions
80 referred, and without awaiting such report, the tribunal may make
a separate award upon all or any other questions before it, and such
separate award, if made, shall become immediately effective, provided
that the report aforesaid shall not be incorporated in the award until it
has been considered by the tribunal. The expenses of such commission
shall be borne in equal moieties by the parties hereto.
ARTICLE 4
The tribunal shall recommend for the consideration of the high con-
tracting parties rules and a method of procedure under which all ques-
tions which may arise in the future regarding the exercise of the liber-
ties above referred to may be determined in accordance with the prin-
ciples laid down in the award. If the high contracting parties shall not
adopt the rules and method of procedure so recommended, or, if they
shall not, subsequently to the delivery of the award, agree upon such
rules and methods, then any differences which may arise in the future
between the high contracting parties relating to the interpretation of the
treaty of 1818 or to the effect and application of the award of the tri-
bunal, shall be referred informally to the Permanent Court at The Hague
for decision by the summary procedure provided in Chapter IV of the
Hague Convention of the 18th October, 1907.
ARTICLE 5
The Tribunal of Arbitration provided for herein shall be chosen
from the general list of members of the Permanent Court at The Hague,
in accordance with the provisions of article 45 of the Convention for the
Settlement of International Disputes, concluded at the Second Peace
Conference at The Hague on the 18th October, 1907. The provisions of
said convention, so far as applicable and not inconsistent herewith, and
excepting articles 53 and 54, shall govern the proceedings under the sub-
mission herein provided for.
The time allowed for the direct agreement of His Britannic Majesty
and the President of the United States on the composition of such tri-
bunal shall be three months.
NORTH ATLANTIC FISHERIES DISPUTE 15
ARTICLE 6
The pleadings shall be communicated in the order and within the
time following :
As soon as may be, and within a period not exceeding seven months
from the date of the exchange of notes making this agreement binding,
the printed Case of each of the parties hereto, accompanied by printed
copies of the documents, the official correspondence, and all other evid-
ence on which each party relies, shall be delivered in duplicate (with
such additional copies as may be agreed upon) to the agent of the other
party. It shall be sufficient for this purpose if such Case is delivered at
the British Embassy at Washington or at the American Embassy at Lon-
don, as the case may be, for transmission to the agent for its Government.
Within fifteen days thereafter such printed Case and accompanying
evidence of each of the parties shall be delivered in duplicate to each
member of the tribunal, and such delivery may be made by depositing
within the stated period the necessary number of copies with the Inter-
national Bureau at The Hague for transmission to the arbitrators.
After the delivery on both sides of such printed Case, either party
may, in like manner, and within four months after the expiration of the
period above fixed for the delivery to the agents of the Case, deliver to
the agent of the other party (with such additional copies as may be
agreed upon), a printed Counter-Case accompanied by printed copies of
additional documents, correspondence, and other evidence in reply to
the case, documents, correspondence, and other evidence so presented by
the other party, and within fifteen days thereafter such party shall, in
like manner as above provided, deliver in duplicate such Counter-Case
and accompanying evidence to each of the arbitrators.
The foregoing provisions shall not prevent the tribunal from per-
mitting either party to rely at the hearing upon documentary or other
evidence which is shown to have become open to its investigation or ex-
amination or available for use too late to be submitted within the period
hereinabove fixed for the delivery of copies of evidence, but in ease any
such evidence is to be presented, printed copies of it, as soon aa possible
after it is secured, must be delivered, in like manner as provided for the
delivery of copies of other evidence, to each of the arbitrators and to the
agent of the other party. The admission of any such additional evidence,
however, shall be subject to such conditions as the tribunal may impose,
and the other party shall have a reasonable opportunity to offer addit-
ional evidence in rebuttal.
The tribunal shall take into consideration aU evidence which is offer-
ed by either party.
16 COMMISSION OF CONSERVATION
ARTICLE 7
If in the Case or Counter-Case (exclusive of the accompanying evi-
dence) either party shall have specified or referred to any documents,
correspondence, or other evidence in its own exclusive possession without
annexing a copy, such party shall be bound, if the other party shall de-
mand it within thirty days after the delivery of the Case or Counter-Case
respectively, to furnish to the party applying for it a copy thereof ; and
either party may, within the like time, demand that the other shall fur-
nish certified copies or produce for inspection the originals of any docu-
mentary evidence adduced by the party upon whom the demand is made.
It shall be the duty of the party upon whom any such demand is made to
comply with it as soon as may be, and within a period not exceeding
fifteen days after the demand has been received. The production for
inspection or the furnishing to the other party of official governmental
publications, publishing, as authentic, copies of the documentary evid-
ence referred to, shall be a sufficient compliance with such demand, if
such governmental publications shall have been published prior to the
1st day of January, 1908. If the demand is not complied with, the rea-
sons for the failure to comply must be stated to the tribunal.
ARTICLE 8
The tribunal shall meet within six months after the expiration of
the period above fixed for the delivery to the agents of the Case, and upon
the assembling of the tribunal at its first session each party, through its
agent or counsel, shall deliver in duplicate to each of the arbitrators
and to the agent and counsel of the other party (with such additional
copies as may be agreed upon) a printed Argument showing the points
and referring to the evidence upon which it relies.
The time fixed by this agreement for the delivery of the Case,
Counter-Case, or Argument, and for the meeting of the tribunal, may be
extended by mutual consent of the parties.
ARTICLE 9
The decision of the tribunal shall, if possible, be made within two
months from the close of the arguments on both sides, unless on the
request of the tribunal the parties shall agree to extend the period.
It shall be made in wi'itiiig, and dated and signed by each member
of the tribunal, and shall be accompanied by a statement of reasons.
A member who may dissent from the decision may record his dissent
when signing.
The language to be used throughout the pi-oceedings shall be English.
NORTH ATLANTIC FISHERIES DISPUTE 17
ARTICLE 10
Each party reserves to itself the right to demand a revision of the
award. Such demand shall contain a statement of the grounds on which
it is made and shall be made within five days of the promulgation of tlie
award, and shall be heard by the tribunal within ten days thereafter.
The party making the demand shall serve a copy of the same on the
opposite party, and both parties shall be heard in argument by the tri-
bunal on said demand. The demand can only be made on the discovery
of some new fact or circumstance calculated to exercise a decisive influ-
ence upon the award, and which was unknown to the tribunal and to the
party demanding the revision at the time the discussion was closed, or
upon the ground that the said award does not fully and sufficiently, with-
in the meaning of this agreement, determine any question or questions
submitted. If the tribunal shall allow the demand for a revision, it shall
afford such opportunity for further hearings and arguments ajs it shall
deem necessary.
ARTICLE 11
The present agreement shall be deemed to be binding only when
confirmed by the two governments by an exchange of notes.
In witness whereof this Agreement has been signed and sealed by
His Britannic ^lajesty's Ambassador at Washington, the Right Honour-
able James Bryce, O.IM., on behalf of Great Britain, and by the Secre-
tary of State of the United States, Elthu Root, on behalf of the United
States.
Done at Washington on the 27th day of January, one thousand nine
hundred and nine.
JAMES BRYCE. (Seal.)
ELIHU ROOT. (Seal.)
Under the provisions of Art. 2 of the Special Agreement, the United
States claimed that the following legislative and executive Acts of Can-
ada and Newfoundland were inconsistent with the true interpretation of
the Treaty of 1818 :
Revised Statutes of Canada, 1906:
Chapter 4.5 — The Fisheries Act ;
Chapter 47 — The Customs and Fisheries Protection Act;
Chapter 48— The Customs Act ;
Chapter 1 13— The Canadian Shipping Act, Part VI, so far as
relates to the compulsory employment of Pilots and Pay-
ments of dues.
18 COMMISSION OF CONSERVATION
and Part XII relating to Public Harbours and Harbour Mast-
ers, and rules and regulations established thereunder.
Canadian Order in Council of September 12, 1907, promulgating
Fishery Regulations, (including Regulations).
Canadian Order in Council of September 9, 1908, amending Fish-
ery Regulations.
Consolidated Statutes of Newfoundland, 1892:
Chapter 119— Of Pilots and Pilotage for the Port of Saint
Johns ;
Chapter 120 — Of Harbour Master and Harbour Regulations
for the Port of Saint Johns ;
Chapter 124^0f the Coast Fisheries;
Chapter 129 — Of the exportation, sale, etc., of Bait Fishes.
Newfoundland Act of March 3, 1896 (61 Vict. Cap. 3)— An Act re-
specting the Department of Fisheries.
Newfoundland Act of March 30, 1898 (61 Vict. Cap. 19)— An Act
respecting the Customs.
Newfoundland Act of July 19, 1899 (62 and 63 Viet. Cap. 19)— An
Act relating to Light Dues.
Newfoundland Act of June 15, 1905 (5 Edw. VII, Cap. 4)— An Act
respecting Foreign Fishing Vessels.
Newfoundland Fishing Regulations, 1908.
The British Government called upon the Tribunal to express in its
award, its opinion upon "certain acts of the United States Government
directed towards or amounting to an attempt at the policing by the
national vessels of the United States of the so-called Treaty coast, that
is to say, those parts of the coast of Newfoundland, Labrador, and the
Magdalen Islands, on which the inhabitants of the United States have
under the said Treaty, a liberty to take fish in common with the subjects
of His Britannic Majesty."
NORTH ATLANTIC FISHERIES DISPUTE 19
THE HAGUE TRIBUNAL.
The Tribunal of Arbitration was convened at The Hague, June 1,
1910, and was constituted as follows:
Personnel of Mr. H. Lammascii, Doctor of Law, Professor of the
the Tribunal University of Vienna, Aulic Councillor, Member of the
Upper House of the Austrian Parliament ; His Excellency Jonkheer A.
F. De Savornin Lohman, Doctor of Law, Minister of State, former
Minister of the Interior, Member of the Second Chamber of the Nether-
lands; the Honourable George Gray, Doctor of Laws, Judge of the
United States Circuit of Appeals, former United States Senator; the
Right Honourable Sir Charles Fitzpatrick, Member of the Privy
Council, Doctor of Laws, Chief Justice of Canada; the Honourable Luis
Maria Drago, Doctor of Law, former Minister of Foreign Affairs of the
Argentine Republic, Member of the Law Academy of Buenos Aires;
For Great Britain :
Mr, (now Sir) Allen B. Aylesworth, K,C,, agent; Sir William Snow-
den Robson, K.C, M,P., Sir Robert Finlay, K.C., M.P., Sir Edward P.
Morris, K.C, Mr. Donald Morrison, K.C, Sir James S. Winter, K.C, Mr.
John S. Ewart, K.C, Mr. George F. Shepley, K.C, Sir H. Erie Richards,
K.C, Mr. A, F, Peterson, K,C, Mr, W, N. Tilley, Mr. Raymond Asquith,
Mr. Geoffrey Lawrence, Mr. Hamar Greenwood ; Messrs. Blake and Red-
den, solicitors; Mr. H. E. Dale, of the Colonial Office; Mr. John D.
Clarke, Secretary of the Agency.
For the United States :
Mr. Chandler P. Anderson, agent; Senator Elihia Root, Senator
George Turner, Mr. Samuel J. Elder, Mr. Charles B. Warren, Dr. James
Brown Scott, Mr. Robert Lansing, and Mr. Otis Thomas Cartwright,
Secretary of the Agency.
Secretaries of the Tribunal :
Baron Michiels van Verduynen, Secretary-General ; Jonkheer Roell,
Mr. Charles D. White, and Mr. George Young.
At the first sitting of the tribunal, Prof. Lammasch delivered the
inaugural speech. He said: "Perhaps no question of such gravity and
involving sxich complications had ever been submitted to arbitration.
.... By submitting this century-old conflict to the Court, America and
Great Britairi have expressed their complete confidence in this pacific
method of settling international conflicts, have given an example to the
whole community of nations, and have won for themselves fresh credit
in the cause of international justice and peace, for which those Powers
have, perhaps, done more than the other nations, especially during the
reign of the great monarch whose premature and sudden death has so
20 COMMISSION OF CONSERVATION
recently been lamented by his vast empire, and under the presidency of
the illustrious statesman who inaugurated procedure by the Arbitration
Tribunal in the 'Pious Fund' case."
Th A d ^'^ September 7, 1910, the award of the Arbitrators was
rendered. The text is as follows:
QUESTION I
To what extent are the following contentions or either of them
justified?
It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said Article, which the inhabitants
of the United States have forever in common with the subjects of His
Britannic Majesty, is subject, without the consent of the United States,
to reasonable regulation by Great Britain, Canada, or Newfoundland in
the form of municipal laws, ordinances, or rules, as, for example, to
regulations in respect of (1) the hours, days, or seasons when fish may
be taken on the treaty coasts; (2) the method, means, and implements
to be used in the taking of fish or in carrying on of fishing operations
on such coasts; (3) any other matters of a similar character relating to
fishing; such regulations being reasonable, as being, for instance —
(a) Appropriate or necessary for the protection and preservation of
such fisheries and the exercise of the rights of British subjects therein
and of the libertj' which by the said Article I the inhabitants of the
United States have therein in common with British subjects.
(6) Desirable on grounds of public order and morals;
(c) Equitable and fair as between local fishermen and the inhabit-
ants of the Uiuted States exercising the said treaty liberty, and not so
framed as to give unfairly an advantage to the former over the latter
class.
It is contended on the part of the Ujaited States that the exercise
of such liberty is not subject to limitations or restraints by Great Britain,
Canada, or Newfoundland in the form of municipal laws, ordinances, or
regulations in respect of (1) the hours, days, or seasons when the inhabit-
ants of the United States may take fish on the treaty coasts, or (2) the
methods, means and implements used by them in taking fish or in carry-
ing on fishing operations on such coasts, or (3) any other limitations or
restraints of similar character —
(a) Unless they are appropriate and necessary for the protection
and preservation of the common rights in such fisheries and the exercise
thereof; and
NORTH ATLANTIC FISHERIES DISPUTE 21
(b) Unless they are reasonable in themselves and fair as between
local fishermen and fishermen coming from the United States, and not
so framed as to give an advantage to the former over the latter class;
and
(c) Unless their appropriateness, necessity, reasonableness, and fair-
ness be determined by the United States and Great Britain by common
accord and the United States concurs in their enforcement.
Question I, thus submitted to the Tribunal, resolves itself into two
main contentions:
1st. Wliether the right of regulating reasonably the liberties con-
ferred b}' the Treaty of 1818 resides in Great Britain;
2nd. And, if such right does so exist, whether such reasonable exer-
cise of the right is permitted to Great Britain without the accord and
concurrence of the United States.
The Treaty of 1818 contains no explicit disposition in regard to the
right of regulation, reasonable or otherwise ; it neither reserves that right
in express terms, noi- refers to it in any way. It is therefore incumbent
on this Tribunal to answer the two questions above indicated by inter-
preting the general terms of Article I of the Treaty, and more especially
the words 'the inhabitants of the United States shall have, for ever, in
common with the subjects of His Britannic Majesty, the liberty to take
fish of every kind.' This interpretation must be conformable to the
general import of the instrument, the general intention of the parties to
it, the subject matter of the contract, the expressions actually used and
the evidence submitted.
Now in regard to the preliminary question as to whether the right
of reasonable regulation resides in Great Britain:
Considering that the right to regulate the liberties conferred by the
Treaty of 1818 is an attribute of sovereignty, and as such must be held
to reside in the territorial sovereign, unless the contrary be provided;
and considering that one of the essential elements of sovereignty is that
it is to be exercised within territorial limits, and that, failing proof to the
contrary, the territory is coterminous with the sovereignty, it follows
that the burden of the assertion involved in the contention of the United
States (viz., that the right to regulate does not reside independently in
Great Britain, the territorial sovereign) must fall on the United States.
And for the purpose of sustaining this burden, the United Btat<;s have
put forward the following series of propositions, each one of which must
be singly considered.
It is contended by the United States :
(1) That the French right of fishery under the Treaty of 1713,
designated also as a liberty, was never subjected to regulation
22 COMMISSION OF CONSERVATION
by Great Britain, and therefore the inference is warranted that
the American liberties of fishery are similarly exempted.
The Tribunal is unable to agree with this contention :
(a) Because although the French right designated in 1713 merely
'an allowance,' (a term of even less force than that used in regard to the
American fishery) was nevertheless converted, in practice, into an exclu-
sive right ; this concession on the part of Great Britain was presumably
made because France, before 1713, claimed to be the sovereign of New-
foundland, and, in ceding tlie Island, had, as the American argument
says, 'reserved for the benefit of its subjects the right to fish and to use
the strand';
(6) Because the distinction betvi^een the French and American right
is indicated by the different wording of the Statutes for the observance
of Treaty obligations towards France and the United States, and by the
British Declaration of 1783 ;
(c) And, also, because this distinction is maintained in the Treaty
with France of 1904, concluded at a date when the American claim was
approaching its present stage, and by which certain common rights of
regulation are recognized to France.
For the further purpose of such proof it is contended by the
United States:
(2) That the liberties of fishery, being accorded to the inhabitants of
the United States "forever," acquire, by being in perpetuity
and unilateral, a character exempting them from local legisla-
tion.
The Ti'ibiuial is unable to agree with this contention :
(a) Because there is no necessary connection between the duration
of a grant and its essential status in its relation to local regulation ; a
right granted in perpetuity may yet be subject to regulation, or, granted
temporarily, may yet be exempted therefrom; or being reciprocal may
yet be unregulated, or being unilateral may yet be regulated: as is
evidenced by the claim of the United States that the liberties of fishery
accorded by the Recij)roeity Treaty of 1854 and the Treaty of 1871 were
exempt from regulation, though they were neither permanent nor
unilateral ;
(b) Because no peculiar character need be claimed for these liberties
in order to secure their enjoyment in perpetuity, as is evidenced by the
American negotiators in 1818 asking for the insertion of the word "for-
ever." International law in its modern development recognizes that a
great number of Treaty obligations are not annulled by war, but at most
suspended by it ;
(c) Because the liberty to dry and cure is, pursuant to the terras of
the Treaty, provisional and not permanent, and is nevertheless, in re-
NORTH ATLANTIC FISHERIES DISPUTE 23
spect of the liability to regulation, identical in its nature with, and never
distinguished from, the liberty to fish.
For the further purpose of such proof, the United States allege :
(3) That the liberties of fishery granted to the United States con-
stitute an International servitude in their favour over the ter-
ritory of Great Britain, thereby involving a derogation from
the sovereignty of Great Britain, the servient State, and that
therefore Great Britain is deprived, by reason of the grant, of
its independent right to regulate the fishery.
The Tribunal is unable to agree with this contention :
(a) Because there is no evidence that the doctrine of International
servitudes was one with which either American or British statesmen
were conversant in 1818, no English publicists employing the term before
1818, and the mention of it in Mr. Gallatin's report being insufficient;
(b) Because a servitude in the French Law, referred to by Mr. Gal-
latin, can, since the Code, be only real and cannot be personal (Code
Civil, art. 686) ;
(c) Because a servitude in International law predicates an express
grant of a sovereign right and involves an analogy to the relation of a
praedium dominans and a praedium serviens; whereas by the Treaty of
1818 one State grants a liberty to fish, which is not a sovereign right, but
a purely economic right, to the inhabitants of another State ;
(d) Because the doctrine of international servitude in the sense
which is now sought to be attributed to it originated in the peculiar and
now obsolete conditions prevailing in the Holy Roman Empire of which
the domini terrae were not fully sovereigns ; they holding territory under
the Roman Empire, subject at least theoretically, and in some respects
also practically, to the Courts of that Empire ; their right being, more-
over, rather of a civil than of a public nature, partaking more of the
character of dominium than of imperium, and therefore certainly not
a complete sovereignty. And because in contradistinction to this quasi-
sovereignty with its incoherent attributes acquired at various times,
by various means, and not impaired in its character by being incomplete
in any one respect or by being limited in favour of another territory
and its possessor, the modern State, and particularly Great Britain, has
never admitted partition of sovereignty, owing to the constitution of
a modern State requiring essential sovereignty and independence ;
(e) Because this doctrine being but little suited to the principle of
sovereignty which prevails in States under a system of constitutional
government such as Great Britain and the United States, and to the
present International relations of Sovereign States, has found little, if
any, support from modem publicists. It could, therefore, in the general
interest of the Community of Nations, and of the Parties to this Treaty,
24 COMMISSION OF CONSERVATION
be affirmed by this Tribunal onl^' on the express evidence of an Inter-
national contract ;
(/) Because even if these liberties of fishery constituted an Inter-
national servitude, the servitude would derogate from the sovereignty of
the servient State only iu so far as the exercise of the rights of sover-
eignty by the servient State would be contrary to the exercise of the
servitude right by the dominant State. Whereas it is evident that,
though every regulation of the fishery is to some extent a limitation, as
it puts limits to the exercise of the fishery at will, yet such regulations as
are reasonable and made for the purpose of securing and preserving the
fishery and its exercise for the common benefit are clearly to be distin-
guished from those restrictions and "molestations," the annulment of
which was the purpose of the American demands formulated by Jlr.
Adams in 1782, and such regulations consequently cannot be held to be
inconsistent with a servitude ;
{g) Because the fishery to which the inhabitants of the United
States were admitted in 1783, and again in 1818, was a regulated fishery,
as is evidenced by the following regulations :
Act 16 Charles II, Cap. IG, s. 7 (1663) forbidding "to lay any seine
or other net in or near any harbour in Newfoundland, whereby to take
the spawn or young fry of the Poor-John, or for any other use or uses,
except for the taking of bait only," which had not been superseded
either by the order iu council of March 10, 1670, or by the Statute X
and XI Wm. Ill, Cap. 25 (1699.) The order in council provides express-
ly for the obligation "to submit unto and to observe all rules and orders
as are now, or hereafter shall be established," an obligation which can-
not be read as referring only to the rules established. In a similar way,
the Statute of 1699 preserves in force prior legislation, conferring the
freedom of fishery only ' ' as fully and freely as at any time heretofore. ' '
The order in council, 1670, provides that the Admirals, who always were
fishermen, arriving from an English or Welsh port, "see that His Maj-
esty's rules and orders concerning the regulation of the fisheries are
duly put in execution" (see. 13). Likewise the Act X and XI, Wm. Ill,
Cap. 25 (1699) provides that the Admirals do settle differences between
the fishermen arising in respect of tlie places to be assigned to the differ-
ent vessels. As to Nova Scotia, the proclamation of 1665 ordains that no
one shall fish without license: that the licensed fishermen are obliged "to
observe all laws and orders which now are made and published, or shall
hereafter be made and published in this jurisdiction," and that they
shall not fish on the Lord's day and shall not take fish at the time they
come to spawn. The judgment of the Chief Justice of Newfoundland,
October 26, 1820, is not held by the Tribunal sufficient to set aside the
proclamations referred to. After 1783, the statute 26 Geo. Ill, Cap. 26
NORTH ATLANTIC FISHERIES DISPUTE 25
(1786), forbids "the use, on the shores of Newfoundland, of seines or
nets for catching cod by hauling on shore or taking into boat, with mesh-
es less than 4 inches;" a prohibition which cannot be considered as
limited to the bank fishery. The act for regulating the fisheries of New
Brunswick, 1793, which forbids "the placing of nets or seines across any
cove or creek in the Province so as to obstruct the natural course of fish,"
and which makes specific provision for fishing in the Harbour of St.
John, as to the manner and time of fishing, cannot be read as being
limited to fishing from the shore. The act for regulating the fishing on
the coast of Northumberland (1797) contains very elaborate dispositions
concerning the fisheries iu tlie Bay of Miramichi which were continued
in 1823, 1829 and 1834. The Statutes of Lower Canada, 1788 and 1807,
forbid the throwing overboard of offal. The fact that these acts extend
the prohibition over a greater distance than the first marine league from
the shore may make them non-operative against foreigners without the
territorial limits of Great Britain, but is certainly no reason to deny
their obligatory character for foreigners within the limits;
(/i) Because the fact that Great Britain rarely exercised the right of
regulation in the period immediately succeeding 1818 is to be explained
by various circumstances and is not evidence of the non-existence of the
right;
(t) Because the words "in common with British subjects" tend to
confirm the opinion that the inhabitants of the United States were ad-
mitted to a regulated fishery ;
(i) Because the Statute of Great Britain, 1819, which gives legis-
lative sanction to the Treaty of 1818, provides for the making of "regula-
tions with relation to the taking, drying and curing of fish by inhabitants
of the United States in ' common. ' ' '
For the purpose of such proof, it is further contended by the United
States, in this latter connection :
(4) That the words "in common with British subjects" used in the
Treaty should not be held as importing a common subjection
to regulation, but as intending to negative a possible pretension
on the part of the inhabitants of the United States to liberties
of fishery exclusive of the right of British subjects to fish.
The Tribunal is unable to agree with this contention :
(a) Because such an interpretation is inconsistent with the histori-
cal basis of the American fishing liberty. The ground on which Mr.
Adams founded the American right in 1782 was that the people then
constituting the United States had always, when still under British rule,
a part in these fisheries and that they must continue to enjoy their past
right in the future. He proposed "that the subjects of His Britannic
Majesty and the people of the United States shall continue to enjoy
26 COMMISSION OF CONSERVATION
unmolested the right to take fish where the inhabitants of both
countries used, at any time heretofore, to fish. ' ' The theory of the par-
tition of the fisheries, which by the American negotiators had been
advanced with so much force, negatives the assumption that the United
States could ever pretend to an exclusive right to fish on the British
shores; and to insert a special disposition to that end would have been
wholly superfluous;
{h) Because the words "in common" occur in the same connection
in the Treaty of 1818 as in the Treaties of 1854 and 1871. It will cer-
tainly not be suggested that in these Treaties of 1854 and 1871 the Am-
erican negotiators meant by inserting the words "in common" to imply
that without these words American citizens would be precluded from the
right to fish on their own coasts and that, on American shores, British
subjects should have an exclusive privilege. It would have been the very
opposite of the concept of territorial waters to suppose that, without a
special treaty-provision, British subjects could be excluded from fishing
in British waters. Therefore that cannot have been the scope and the
sense of the words "in common";
(c) Because the words "in common" exclude the supposition that
American inhabitants were at liberty to act at will for the purpose of tak-
ing fish, without any regard to the co-existing rights of other persons
entitled to do the same thing ; and because these words admit them only
as members of a social community, subject to the ordinary duties binding
upon the citizens of that community, as to the regulations made for the
common benefit; thus avoiding the "helium omnium contra omnes"
which would otherwise arise in the exercise of this industry ;
(d) Because these words are such as would naturally suggest them-
selves to the negotiators of 1818 if their intention had been to express
a common subjection to regulations as well as a common right.
In the course of the Argument it has also been alleged l)y the United
States :
(5) That tlie Treaty of 1818 should be held to have entailed a trans-
fer or partition of sovereignty, in that it must in respect to the
liberties of fishery be interpreted in its relation to the Treaty
of 1783; and that this latter Treaty was an act of partition of
sovereignty and of separation, and as such was not annulled by
the war of 1812.
Although the Tribunal is not called upon to decide the issue whether
the Treaty of 1783 was a treaty of partition or not, the questions involved
therein having been set at rest by the subsequent Treat.v of 1818, never-
theless the Tribunal could not forbear to consider the contention on ac-
count of the important bearing the controversy has upon the true inter-
NORTH ATLANTIC FISHERIES DISPUTE 27
pretation of the Treaty of 1818. In that respect the Tribunal is of
opinion :
(a) That the right to take fish was accorded as a condition of peace
to a foreign people; wherefore the British negotiators refused to place
the right of British subjects on the same footing with those of American
inhabitants; and further, refused to insert the words also proposed by
Mr. Adams — "continue to enjoy" — in the second branch of Art. Ill of
the Treaty of 1783;
(6) That the Treaty of 1818 was in different terms, and very diff-
erent in extent, from that of 1783, and was made for different considera-
tions. It was, in otlier words, a new grant
For the purpose of such proof it is further contended by the United
States :
(6) That as contemporary Commercial Treaties contain express
provisions for submitting foreigners to local legislation, and the
Treaty of 1818 contain.s no such provision, it should be held,
a conlrano, that inhabitants of the United States exercising
these liberties are exempt from regulation.
The Tribunal is unable to agree with this contention :
(a) Because the Commercial Treaties contemplated did not admit
foreigners to all and equal rights, seeing that local legislation excluded
them from many rights of importance, e.g., that of holding land; and the
purport of the provisions in question consequently was to preserve these
discriminations. But no such discriminations existing in the common en-
joyment of the fishery by American and British fishermen, no such pro-
vision was required;
(b) Because no proof is furnislied of similar exemptions of foreign-
ers from local legislation in default of Treaty stipulations subjecting
them thereto ;
(c) Because no such express provision for subjection of the nationals
of either Party to local law was made either in this Treaty, in respect
to their reciprocal admission to certain territories as agreed in Art. Ill,
or in Art. Ill of the Treaty of 1794; although such subjection was clearly
contemplated by the Parties.
For the purpose of such proof it is further contended by the United
States :
(7) That as the liberty to dry and cure on the treaty coasts and to
enter bays and harbours on the non-treaty coasts are both sub-
jected to conditions, and the latter to specific restrictions, it
should therefore be held that the liberty to fish shoiild be sub-
jected to no restrictions, as none are provided for in the Treaty.
The Tribunal is unable to apply the principle of " expressio unius
exclvsio alterius" to this case:
28 COMMISSION OF CONSERVATION
(a) Because the conditions and restrictions as to the liberty to dry
and cure ou the shore and to enter the harbours are limitations of the
rights themselves, and not restrictions of their exercise. Thus, the rigiil
to dry and cure is limited in duration, and the right to enter bays and
harbours is limited to particular purposes.
(b) Because these restrictions of the right to enter bays and harbours
applying solely to American fishermen must have been expressed in the
Treaty, whereas regulations of the fishery, applying equally to American
and British, are made by right of territorial sovereignty.
P''or the purpose of such proof it has beeen contended by the United
States :
(8) That LoKD Bathurst in 1815 mentioned the American right
under the Treaty of 1783 as a right to be exercised "at the
discretion of the United States"; and that this should be held
as to be derogatory to the claim of exclusive regulation by
Great Britain.
But the Tribunal is unable to agree with this contention :
(a) Because these words implied only the necessity of an express
stipulation for any liberty to use foreign territory at the pleasure of the
grantee, without touching any question as to regulation ;
(6) Because in this same letter Lord Bathurst characterized this
right as a policy "temporary and experimental, depending on the use
that might be made of it, on the condition of the islands and places where
it was to be exercised, and the more general conveniences or inconveni-
ences from a militarj', naval and commercial point of view"; so that it
cannot have been his intention to acknowledge the exclusion of British
interference with this right;
(c) Because Lord Bathurst in his note to Governor Sir C. Hamil-
ton in 1819 orders the Governor to take care that the American fishery
on the coast of Labrador be carried on in the same manner as previous
to the late war ; showing that he did not interpret the Treaty just signed
as a grant conveying absolute immunity from interference with the Am-
erican fishery riglit.
For the purpose of such proof it is further contended by the United
States :
(9) That on various other occasions following the conclusion of the
Treaty, as evidenced by official correspondence. Great Britain
made use of expressions inconsistent with the claim to a right
of regulation.
The Tribunal, unwilling to invest such expressions with an import-
ance entitling them to affect the general question, considers that such
NORTH ATLANTIC FISHERIES DISPUTE 29
conflicting or inconsistent expressions as have been exposed on either side
are suttieientlj' explained by their relations to ephemeral phases of a con-
troversy of almost secular duration, and should be held to be without
direct effect on the principal and present issues.
Now with regard to the second contention involved in Question I,
as to whether tlie right of regulation can be reasonably exercised by
Great Britain without the consent of the United States:
Considering that the recognition of a concurrent right of consent in
the United States would affect the independence of Great Britain, which
would become dependent on the Government of the United States for the
exercise of its sovereign right of regulation, and considering that such a
codominium would be contrary to the constitution of both sovereign
States ; the burden of proof is imposed on the United States to show that
the independence of Great Britain was thus impaired by international
contract in 1818 and that a co-dominiura was created.
For the purpose of such proof it is contended by the United States :
(10) That a concurrent right to co-operate in the making and en-
forcement of regulations is the only possible and proper security
to their inhabitants for the enjoyment of their liberties of fish-
ery, and that such a right must be held to be implied in the
grant of those liberties by the Treaty under interpretation.
The Tribunal is unable to accede to this claim on the groiuid of a
right so implied :
(a) Because every State has to execute the obligations incurred by
Treaty bona fide, and is urged thereto by the ordinary sanctions of Inter-
national law in regard to observance of Treaty obligations. Such sanc-
tions are, for instance, appeal to public opinion, publication of corres-
pondence, censure by Parliamentary vote, demand for arbitration with
the odium attendant on a refusal to arbitrate, rupture of relations, re-
prisal, etc. But no reason has been shown why this Treaty, in this
respect, should lie considered as different from every other Treaty under
which the right ol' a State to regulate the action of foreigners admitted
by it on its territory is recognized ;
(b) Because the exercise of such a right of consent by the United
States would predicate an abandonment of its independence in this re-
spect by Great Britain, and the recognition by the latter of a concurrent
right of regulation in the United States. But the Treaty conveys only a
liberty to take fish in common, and neither directly nor indirectly con-
veys a joint right of regulation ;
(c) Because the Treaty does not convey a common right of fishery,
but a liberty to fish in common. This is evidenced by the attitude of the
30 COMMISSION OF CONSERVATION
United States Governmeut in 1823, with respect to the relations of Great
Britain and France in regard to the fishery;
(d) Because if the consent of the United States were requisite for
the fishery a general veto would be accorded them, the full exercise of
which would be socially subversive and would lead to the consequence of
an unregulatable fishery ;
(e) Because the United States cannot by assent give legal force and
validity to British legislation;
(/) Because the liberties to take fish in British territorial waters atid
to dry and cure fish on land in British territory are in principle on the
same footing; but in practice a right of co-operation in the elaboration
and enforcement of regulations in regard to the latter liberty (drying
and curing fish on land ) is unrealizable.
In any event, Great Britain, as the local sovereign, has the duty of
preserving and protecting the fisheries. In so far as it is necessary for
that purpose, Great Britain is not only entitled, but obliged, to provide
for the protection and preservation of the fishei-ies, always remembering
that the exercise of this right of legislation is limited by the obligation to
execute the Treaty in good faith. This has been admitted by counsel
and recognized by Great Britain in limiting the right of regulation to
that of reasonable regulation. The inherent defect of this limitation of
reasonableness, without any sanction except in diplomatic remonstrance,
has been supplied by the submission to arbitral award as to existing
regulations in accordance with Arts. II and III of the Special Agree-
ment, and as to further regulation by the obligation to submit their
reasonableness to an arbitral test in accordance with Art. IV of the
Agreement.
It is finally contended by the United States :
That the United States did not expressly agree that the liberty
granted to them could be subjected to any restriction that the grantor
might choose to impose on the ground that in her judgment such restric-
tion was reasonable. And that while admitting that all laws of a gen-
eral character, controlling the conduct of men within the territory of
Great Britain, are efl'ective, binding and beyond objection by the United
States, and competent to be made upon the sole determination of Great
Britain or her colony, without accountability to anyone whomsoever;
yet there is somewhere a line, beyond which it is not competent for Great
Britain to go, or beyond which she cannot rightfully go, because to go
beyond it would be an invasion of the right granted to the United States
in 1818. That the legal effect of the grant of 1818 was not to leave the
determination as to where that line is to be drawn to the uncontrolled
judgment of the grantor, either upon the grantor's consideration as to
what would be a reasonable exercise of its sovereignty over the British
NORTH ATLANTIC FISHERIES DISPUTE 31
Empire, or upon the grantor's consideration of what would be a reason-
able exercise thereof towards the grantee.
But this contention is founded on assumptions, which this Tribunal
cannot accept for the following reasons in addition to those already set
forth :
(6) Because a line which would limit the exercise of sovereignty of a
accruing out of the Treaty are to be circumscribed, can refer only to the
right granted by the Treaty ; that is to say to the liberty of taking, drying
and curing- fish by American inhabitants in certain British waters in
common with British subjects, and not to the exercise of rights of legisla-
tion by Great Britain not referred to in the Treaty ;
(b) Because a line which would limit the exercise of sovereignty of a
State within the limits of its own territory can be drawn only on the
ground of express stipulation, and not by implication from stipulations
concerning a different subject-matter ;
(c) Because the line in question is drawn according to the principle
of international law that treaty obligations are to be executed in perfect
good faith, therefore excluding the right to legislate at will concerning
the subject-matter of the Treaty, and limiting the exercise of sovereignty
of the States bound by a treaty with respect to that subject-matter to
such acts as are consistent with the Treaty ;
(d) Because on a true construction of tlie Treaty the question does
not arise whether the United States agreed that Great Britain should
retain the right to legislate with regard to the fisheries in her own terri-
tory; but whether the Treaty contains an abdication by Great Britain of
the right which Great Britain, as the sovereign power, undoubtedly
possesses, when the Treaty was made, to regulate those fisheries;
(e) Because the right to make reasonable regulations, not inconsis-
tent with the obligations of the Treaty, which is all that is claimed by
Great Britain, for a fishery which both Parties admit requires regulation
for its preservation, is not a restriction of or an invasion of the liberty
granted to the inhabitants of the United States. This grant does not
contain words to justify the assumption that the .sovereignty of Great
Britain upon its own territory was in any way affected ; nor can words
be found in the Treaty transferring any part of that sovereignty to the
United States. Great Britain assumed only duties with regard to the
exercise of its sovereignty. The sovereignty of Great Britain over the
coastal waters and territory of Newfoundland remains after the Treaty
as unimpaired as it was before. But from the Treaty results an obligat^
ory relation whereby the right of Great Britain to exercise its right of
sovereignty by making regulations is limited to such regulations as are
made in good faith, and are not in violation of the Treaty;
32 COMMISSION OF CONSERVATION
(/) Finally to hold that the United States, the grantee of the fishing
right, has a voice in the preparation of fishery legislation involves the
recognition of a right in that country to participate in the internal legis-
lation of Great Britain and her colonies, and to that extent would reduce
these countries to a state of dependence.
Wliile therefore unable to concede the claim of the United States as
based on the Treaty, this Tribunal considers that such claim has been
and is, to some extent, conceded in the relations now existing between
the two Parties. Whatever may have been the situation under the Treaty
of 1818 standing alone, the exercise of the right of regulation inherent in
Great Britain has been, and is, limited by the repeated recognition of
the obligations already referred to, by the limitations and liabilities
accepted in the Special Agreement, by the unequivocal position assumed
by Great Britain in the presentation of its case before this Tribunal, and
by the consequent view of this Tribunal that it would be consistent with
all the circumstances, as revealed by this record, as to the duty of Great
Britain, that she should submit the reasonableness of any future regula-
tion to such an impartial arbitral test, affording full opportunity there-
for, as is hereafter recommended under the authority of Article IV of
the Special Agreement, whenever the reasonableness of any regulation is
objected to or challenged by the United States in the manner, and within
the time hereinafter specified in the said recommendation.
Now therefore this Tribunal decides and awards as follows :
The right of Great Britain to make regulations without the consent
of the United States, as to the exercise of the liberty to take fish refer-
red to in Article I of the Treaty of October 20, 1818, in the form of
municipal laws, ordinances or rules of Great Britain, Canada or New-
foundland is inherent to the sovereignty of Great Britain.
The exercise of that right by Great Britain is, however, limited by
the said Treaty in respect of the said liberties therein granted to the in-
habitants of the United States in that such regulations must be made
bona fide and must not be in violation of the said Treaty.
Regulations which are (1) appropriate or necessary for the pro-
tection and preservation of such fisheries, or (2) desirable or necessary
on grounds of public order and morals without unnecessarily interfer-
ing with the fishery itself, and in both cases equitable and fair as be-
tween local and American fishermen, and not so framed as to give
unfairly an advantage to the former over the latter class, are not in-
consistent with the obligation to execute the Treaty in good faith, and
are therefore reasonable and not in violation of the Treaty.
For the decision of the question whether a regulation is or is not
reasonable, as being or not in accordance with the dispositions of the
NORTH ATLANTIC FISHERIES DISPUTE 33
Treaty and not in violation thereof, the Treaty of 1818 contains no
special provision. The settlement of differences in this respect that
might arise thereafter v/as left to the ordinary means of diplomatic
intercourse. By reason, hov/ever, of the form in which Question I is
put, and by further reason of the admission of Great Britain by her
counsel before this Tribunal that it is not now for either of the parties
to the Treaty to determine the reasonableness of any regulation made
by Great Britain, Canada or Newfoundland, the reasonableness of any
such regulation, if contested, must be decided not by either of the
parties, but by an impartial authority in accordance with the principles
hereinabove laid down, and in the manner proposed in the recom-
mendations made by the Tribunal in virtue of Article IV of the Agree-
ment.
The Tribunal further decides that Article IV of the Agreement is,
as stated by the counsel of the respective Parties at the argument, per-
manent in its effect, and not terminable by the expiration of the Gen-
eral Arbitration Treaty of 1908, between Great Britain and the United
States.
In execution, therefore, of the responsibilities imposed upon this
Tribunal in regard to Articles II, III and IV of the Special Agreement,
we hereby pronounce in their regard as follows :
AS TO ARTICLE II
Pursuant to the provisions of this Article, hereinbefore cited,
either Party has called the attention of this Tribunal to acts of the
other claimed to be inconsistent with the true interpretation of the
Treaty of 1818.
But in response to a request from the Tribunal, recorded in Pro-
tocol No. XXVI of 19th July, for an exposition of the grounds of such
objections, the Parties replied as reported in Protocol No. XXX of 28th
July to the following effect :
His Majesty's Government considered that it would be unneces-
sary to call upon the Tribunal for an opinion under the second clause
of Article II. in regard to the executive act of the United States of
America in sending warships to the territorial waters in question, in
view of the recognized motives of the United States of America in tak-
ing this action and of the relations maintained by their representatives
with the local authorities. And this being the sole act to which the
attention of this Tribunal has been called by His Majesty's Govern-
mnet, no further action in their behalf is required from this Tribunal
under Article II.
The United States of America presented a statement in which
their claim that specific provisions of certain legislative and executive
34 COMMISSION OF CONSERVATION
acts of the Governments of Canada and Newfoundland were incon-
sistent with the true interpretation of the Treaty of 1818 was based on
the contention that these provisions were not "reasonable" within the
meaning of Question I.
After calling upon this Tribunal to express an opinion on these
acts, pursuant to the second clause of Article II, the United States of
America pointed out in that statement that under Article III any
question regarding the reasonableness of any regulation might be refer-
red by the Tribunal to a Commission of expert specialists, and expres-
sed an intention of asking for such reference under certain circum-
stances.
The Tribunal having carefully considered the counter-statement
presented on behalf of Great Britain at the session of August 2nd, is of
opinion that the decision on the reasonableness of these regulations re-
quires expert information about the fisheries themselves and an exam-
ination of the practical eff'ect of a great number of these provisions in
relation to the conditions surrounding the exercise of the liberty of
fishery enjoyed by the inhabitants of the United States, as contemplat-
ed by Article III. No further action on behalf of the United States is
therefore required from this Tribunal under Article II.
AS TO ARTICLE III
As provided in Article III, hereinbefore cited and above referred
to, "any question regarding the reasonableness of any regulation, or
otherwise, which requires an examination of the practical efi'ect of any
provisions surrounding the exercise of the liberty of fishery enjoyed
by the inhabitants of the United States, or which requires expert in-
formation about the fisheries themselves, may be referred by this Tri-
bunal to a Commission of expert specialists; one to be designated by
each of the Parties hereto and the third, who shall not be a national of
either Party, to be designated by the Tribunal. ' '
The Tribunal now therefore calls upon the Parties to designate
within one month their national Commissioners for the expert examina-
tion of the questions submitted.
As the third non-national Commissioner this Tribunal designates
Doctor P. P. C. Hoek, Scientific Adviser for the fisheries of the Nether-
lands, and if any necessity arises therefor a substitute may be appoint-
ed by the President of this Tribunal.
After a reasonable time, to be agreed on by the Parties, for the
expert Commission to arrive at a conclusion, by conference, or, if neces-
sary, by local inspection, the Tribunal shall, if convoked by the Pre-
sident at the request of either Party, thereunon at the earliest con-
venient date, reconvene to consider the report of the Commission, and
NORTH ATLANTIC FISHERIES DISPUTE 35
if it be on the whole unanimous, shall incorporate it in the av/ard. If
not on the whole unanimous, i.e., on all points which in the opinion of
the Tribunal are of essential importance, the Tribunal shall make its
award as to the regulations concerned after consideration of the con-
clusions of the expei't Commissioners and after hearing argument by
Counsel.
But while recognizing its responsibilities to meet the obligations
imposed on it under Article III of the Special Agreement, the Tribunal
hereby recommends as an alternative to having recourse to a recon-
vention of this Tribunal, that the Parties should accept the unanimous
opinion of the Commission or the opinion of the non-national Commis
sioner on any points in dispute as an arbitral award rendered under
the provisions of Chapter IV of the Hague Convention of 1907.
AS -TO ARTICLE IV
Pursuant to the provisions of this Article, hereinbefore cited, this
Tribunal recommends for the consideration of the Parties the following
rules and method of procedure under which all questions which may
arise in the future regarding the exercise of the liberties above referred
to may be determined in accordance with the principles laid down in
this a,ward.
1
All future municipal lav/s, ordinances or rules for the regulation
of the fishery by Great Britain in respect of (1) the hours, days or\
seasons when fish may be taken on the Treaty coasts ; (2) the method,
means and implements used in the taking of fish or in carrying on fish-
ing operations; (3) any other regulation of a similar character shall be
published in the London Gazette two months before going into opera-
tion.
Similar regulations by Canada or Newfoundland shall be similarly
published in the Canada Gazette and the Newfoundland Gazette re-
spectively.
2
If the Government of the United States considers any such laws
or regulations inconsistent with the Treaty of 1818, it is entitled to so
notify the Government of Great Britain within the two months referred
to in Rule No. 1.
3
Any law or regulation so notified shall not come into effect with
respect to inhabitants of the United States until the Permanent Mixed
Fishery Commission has decided that the regulation is reasonable
within the meaning of this award.
3o COMMISSION OF CONSERVATION
4
Permanent Mixed Fishery Commissioners for Canada and New-
foundland respectively shall be established for the decision of such
questions as to the reasonableness of future regulations, as contem-
plated by Article IV of the Special Agreement; these Commissions
shall consist of a national expert appointed by either Party for five
years. The third member shall not be a national of either party; he
shall be nominated for five years by agreement of the Parties, or fail-
ing such agreement within two months he shall be nominated by Her
Majesty the Queen of the Netherlands. The two national members
shall be convoked by the Government of Great Britain within one
month from the date of notification by the Government of the United
States.
The two national members having failed to agree within one
month, within another month the full Commission, under the pre-
sidency of the umpire, is to be convoked by Great Britain. It must
deliver its decision, if the two Governments do not agree otherwise, at
the latest in three months. The Umpire shall conduct the procedure in
accordance with that provided in Chapter IV of the Convention for
the Pacific Settlement of International Disputes, except in so far as
herein othei^wise provided.
6
The form of convocation of the Commission, including the terms
of reference of the question at issue, shall be as follows : ' ' The provision
hereinafter fully set forth of an Act dated , published
in the has been notified to the Govern-
ment of Great Britain by the Government of the United States, under
date of , as provided by the award of the
Hague Tribunal of September 7th, 1910.
"Pursuant to the provisions of that award the Government of
Great Britain hereby convokes the Permanent Mixed Fishery Commis-
sion for
I „ C3°ada I jjo^j 3e^ Qf Commissioner
I Newfoundland, |
for the United States of America, and of
Commissioner for
f Newfoundland, )
I Canada, |
which shall meet at and render a decision within one month as
to whether the provision so notified is reasonable and consistent with
the Treaty of 1818, as interpreted by the award of the Hague Tribunal
NORTH ATLANTIC FISHERIES DISPUTE 37
of September 7th, 1910, and if not, in what respect it is unreasonable
and inconsistent therewith.
"Failing an agreement on this question within one month the
Commission shall so notify the Government of Great Britain in or
that the further action required by that award may be taken for the
decision of the above question.
"The provision is as follows:
7
The unanimous decision of the two national Commissioners, or the
majority decision of the Umpire and one Commissioner, shall be final
and binding."
QUESTION II.
Have the inhabitants of the United States, while exercising the
liberties referred to in said Article, a right to employ as members of the
fishing crews of their vessels persons not inhabitants of the United
States?
In regard to this que.stion the United States claim in substance :
1. That the liberty assured to their inhabitants by the Treaty plainly
includes the right to use all the means customary or appropriate
for fishing upon the sea, not only ships and nets and boats, but
crews to handle the ships and the nets and boats ;
2. That 110 right to control or limit the means which these inhabit-
ants shall use in fishing can be admitted unless it is provided
in the terms of the Treaty and no right to question the nation-
ality or inhabitancy of the crews employed is contained in the
terms of the Treaty.
And Great Britain claims:
1. That the Treaty confers the liberty to inhabitants of the United
States exclusively ;
2. That the Governments of Great Britain, Canada or Newfoundland
may, without infraction of the Treaty, prohibit persons from
engaging as fishermen in American vessels.
Now considering (1) that the liberty to take fish is an economic right
attributed by the Treaty; (2) that it is attributed to inhabitants of the
United States, without any mention of their nationality; (3) that the
exercise of an economic right includes the right to employ servants; (4)
that the right of employing servants has not been limited by the Treaty
to the employment of persons of a distinct nationality or inhabitancy;
f5) that the liberty to take fish as an economic liberty refers not only to
the individuals doing the manual act of fishing, but also to those for
whose profit the fish are taken.
38 COMMISSION OF CONSERVATION
But, eousideriiig that the Treaty does not intend to grant to in-
dividual persons or to a class of persons the liberty to take fish in certain
waters "in common," that is to say, in company, with individual British
subjects, in the sense that no law could forbid British subjects to take
service on American fishing ships; (2) that the Treaty intends to secure
to the United States a share of the fisheries designated therein, not only
in the interest of a certain class of individuals, but also in the interest
of both the United States and Great Britain, as appears from the evid-
ence and notably from the correspondence between Mr. Adams and Lord
Bathurst in 1815; (3) that the inhabitants of the United States do not
derive the liberty to take fish directly from the Treaty, but from the
United States Government as part.\' to the Treaty with Great Britain
and moreover exercising the right to regulate the conditions under which
its inhabitants may enjoy the granted liberty; (4) that it is in the in-
terest of the inhabitants of the United States that the fishing liberty
granted to them be restricted to exercise by them and removed from the
enjoyment of other aliens not entitled by this Treaty to participate in
the fisheries; (5) that such restrictions have been throughout enacted in
the British Statute of June 15, 1819, and that of June 3, 1824, to this
effect, that no alien or stranger whatsoever shall fish in the waters de-
signated therein, except in so far as by treaty thereto entitled, and that
this exception will, in virtue of the Treaty of 1818, as hereinabove inter-
preted by this award, exempt from these statutes American fisliennen
fishing by the agency of non-inhabitant aliens employed in their service ;
(6) *hat the Treaty does not affect the sovereign right of Great Britain
as to aliens, non-inhabitants of the United States, nor the right of Great
Britain to regulate the engagement of British subjects, while these aliens
or British sulijects are on British territory.
Now therefore, in view of the preceding considerations this Tri-
bunal is of opinion that the inhabitants of the United States while
exercising the liberties referred to in the said article have a right to
employ, as members of the fishing crews of their vessels, persons not
inhabitants of the United States.
But in view of the preceding considerations the Tribunal, to pre-
vent any misunderstanding as to the effect of its award, expresses the
opinion that non-inhabitants employed as members of the fishing crews
of United States vessels derive no benefit or immunity from the Treaty
and it is so decided and awarded.
QUESTION III
Can the exercise by the inhabitants of the United States of the
liberties referred to in the said Article be subjected, without the consent
of the United States, to the requirements of entry or report at custom
NORTH ATLANTIC FISHERIES DISPUTE 39
houses or the payment of light or harbour or other dues, or to any other
similar requirement or condition or exaction ?
The Tribunal is of opinion as follows:
It is obvious that the liberties referred to in this question are those
that relate to taking fish and to drying and curing fish on certain coasts
as prescribed in the Treaty of October 20, 1818. The exercise of these
liberties by the inhabitants of the United States in the prescribed waters
to which they relate, has no reference to any commercial privileges which
may or may not attach to such vessels by reason of any supposed author-
ity outside the Treaty, which itself confers no commercial privileges
whatever upon the inhabitants of the United States or the vessels in
which they may exercise the fisliiug liberty. It follows, therefore, that
when the inhabitants of the United States are not seeking to exercise the
commercial privileges accorded to trading vessels for the vessels in
which they are exercising the granted liberty of fishing, they ought not
to be subjected to requirements as to report and entry at custom houses
that are only appropriate to the exercise of commercial privileges. The
exercise of the fishing liberty is distinct from the exercise of commercial
or trading privileges and it is not competent for Great Britain or her
colonies to impose upon the former exactions only appropriate to the
latter. The reasons for the requirements enumerated in the case of com-
mercial vessels, have no relation to the case of fishing vessels.
We think, however, that the requirement that American fishing
vessels should report, if proper conveniences and an opportunity for
doing so are provided, is not unreasonable or inappropriate. Such a
report, while serving the purpose of a notification of the presence of a
fishing vessel in the treaty waters for the purpose of exercising the treaty
liberty, while it gives an opportunity for a proper surveillance of such
vessel by revenue officers, may also serve to afford to such fishing vessel
protection from interference in the exercise of the fishing liberty. There
should be no such requirement, however, iiuless reasonably convenient
opportunity therefor be afforded in person or by telegraph, at a custom
house or to a customs official.
The Tribunal is also of opinion that light and harbour dues, if not
imposed on Newfoundland fishermen, should not be imposed on American
fishermen while exercising the liberty granted by the Treaty. To impose
such dues on American fishermen only would constitute an unfair dis-
crimination between them and Newfoundland fishermen and one incon-
sistent with the liberty granted to American fishermen to take fish, etc.,
"in common with the subjects of His Britannic Majesty."
40 COMMISSION OF CONSERVATION
Further, the Tribunal considers that the fulfilment of the require-
ment as to report by fishing vessels on arrival at the fishery would be
greatly facilitated in the interests of both parties by the adoption of a
system of registration, and distinctive marking of the fishing boats of
both parties, analogous to that established by Articles V to XIII, in-
clusive, of the International Convention signed at the Hague, 8 May,
1882, for the regulation of the North Sea Fisheries.
The Tribunal therefore decides and awards as follows :
The requirement that an American fishing vessel should report, if
proper conveniences for doing- so are at hand, is not unreasonable, for
the reasons stated in the foregoing opinion. There should be no such
requirement, however, unless there be reasonably convenient oppor-
tunity afforded to report in person or by telegraph, either at a custom
house or to a customs oflBcial.
But the exercise of the fishing liberty by the inhabitants of the
United States should not be subjected to the purely commercial form-
alities of report, entry and clearance at a custom house, nor to light,
harbour or other dues not imposed upon Newfoundland fishermen.
QUESTION IV
Under the provision of the said Article that the American fishermen
shall be admitted to enter certain bays or harbours for shelter, repairs,
wood, or water, and for no other purpose whatever, but that they shall
be under such restrictions as may be necessary to prevent their taking,
drying or curing fish therein or in any other manner whatever abusing
the privileges thereby reserved to thetn, is it permissible to impose
restrictions making the exercise of such privileges conditional upon the
payment of light or harbour or other dues, or entering or reporting at
custom houses or any similar conditions ?
The Tribunal is of opinion that the provision in the first Article of
the Treaty of October 20, 1818, admitting American fishermen to enter
certain bays or harbours for shelter, repairs, wood and water, and for no
other purpose whatever, is an exercise in large measure of those duties of
hospitality and humanity which all civilized nations impose upon them-
selves and expect the performance of from others. The enumerated
purposes for which entry is permitted all relate to the exigencies in
which those who pursue their perilous calling on the sea may be involved.
Tlie proviso which appears in the first article of the said Treaty nn-
mediately after the so-called renunciation clause, was doubtless due to a
recognition by Great Britain of what was expected from the humanity
NORTH ATLANTIC FISHERIES DISPUTE 41
and civilization of the then leading eoinmereial nation of the world. To
impose restrictions making the exercise of such privileges conditional
upon the payment of light, harbour or other dues, or entering and re-
porting at custom houses, or any similar conditions would be inconsistent
with the grounds upon which such privileges rest and therefore it is not
pei'missible.
And it is decided and awarded that such restrictions are not per-
missible.
It seems reasonable, however, in order that these privileges accorded
by Great Britain on these grounds of hospitality and humanity should
not be abused, that the American fishermen entering such bays for any
of the four purposes aforesaid and remaining more than 48 hours there-
in, should be required, if thought necessary by Great Britain or the
Colonial Government, to report, either in person or by telegraph, at a
custom house or to a customs otlicial, if reasonably convenient oppor-
tunity therefor is afforded.
And it is so decided and awarded.
QUESTION V
Prom where must be measured the "three marine miles of any of
the coasts, bays, creeks, or harbours" referred to in the said Article?
In regard to this question, Great Britain claims that the renun-
ciation applies to all bays generally and
The United States contend that it applies to bays of a certain
class or condition.
Now, considering that the Treaty used the general term "bays"
without qualification, the Tribunal is of opinion that these words of the
Treaty must be interpreted in a general sense as applying to every bay on
the coast in question that might be reasonably supposed to have been
considered as a bay by the negotiators of the Treaty under the general
conditions then prevailing, unless the United States can adduce satis-
factory proof that any restrictions or qualifications of the general use of
the term were or should have been present to their minds.
And for the purpose of such proof the United States contend :
1°. That while a State may renounce the treaty right to fish in
foreign territorial waters, it cannot renounce the natural right to
fish on the High Seas.
But the Tribunal is unable to agree with this contention. Because,
though a State cannot grant rights on the High Seas, it certainly can
abandon the exercise of its right to fish on the High Seas within certain
42 COMMISSION OF CONSERVATION
definite limits. Such an abandoniuent was made with respect to their
fishing rights in the waters in question by France and Spain in 1763. By
a convention between the United Kingdom and the United States in 1846,
the two countries assumed ownership over waters in Fuca straits at
distances from the shore as great as 17 miles.
The United States contend moreover:
20. That by the use of the term "liberty to fish" the United
States manifested the intention to renounce the liberty in the waters
referred to only in so far as that liberty was dependent upon or de-
rived from a concession on the part of Great Britain, and not to
renounce the right to fish in those waters where it was enjoyed by
virtue of their natural right as an independent State.
But the Tribunal is unable ot agree with this contention :
(a) Because the term "liberty to fish" was used in the renunciatory
clause of the Treaty of 1818 because the same term had been previously
used in the Treaty of 1783 which gave the liberty ; and it was proper to
use in the renunciation clause the same term that was used in the grant
with respect to the object of the grant ; and, in view of the terms of the
grant, it would have been improper to use the term "right" in the re-
nunciation. Therefore the conclusion drawn from the use of the term
"'liberty" instead of the term "right" is not justified;
(b) Because the term "liberty" was a term properly applicable to
the renunciation which referred not only to fishing in the territorial
waters but also to drying and curing on the shore. This latter right was
undoubtedly held under the provisions of the Treaty and was not a right
accruing to the United States by virtue of any principle of the inter-
national law.
3^. The United States also contend that the term "bays of His
Britannic Majesty's Dominions" in the renunciatory clause must be
read as including only those bays which were under the territorial
sovereignty of Great Britain.
But the Tribunal is unable to accept this contention :
(a) Because the description of the coast on which the fishery is to be
exercised by the inhabitants of the United States is expressed throughout
the Treaty of 1818 in geographical terms and not by reference to political
control; the Treaty describes the coast as contained between capes;
(6) Because to express the political concept of dominion as equival-
ent to sovereignty, the word "dominion" in the singular would have
been an adequate term and not "dominions" in the plural: this latter
term having a recognized and well settled meaning as descriptive of those
portions of the Earth which owe political allegiance to His IMajesty ; e.g..
"His Britannic Majesty's Dominions beyond the Seas."
NORTH ATLANTIC FISHERIES DISPUTE 43
4'^. It has been further contended by the United States that the
renunciation applies only to bays six miles or less in width inter
fauces terrac, those bays only being territorial bays, because the
three mile rule is, as shown by this Treaty, a principle of internat-
ional law applicable to coasts atid should be strictly and systemati-
cally applied to bays.
But the Tribunal is unable to agree with this contention :
(a) Because admittedly the geographical character of a bay contains
conditions which concern the interests of the territorial sovereign to a
more intimate and important extent than do those connected with the
open coast. Thus conditions of national and territorial integrity, of
defence, of commerce and of industry are all vitally concerned with the
control of the bays penetrating the national coast line. This iiiterest
varies, speakiuEr generally in propoi-tion to the penetration inland of the
bay ; but as no principle of international law recognizes any specified re-
lation between the concavity of the bay and the requirements for con-
trol by the territorial sovereignty, this Tribunal is unable to qualify by
the application of any new principle its interpretation of the Treaty of
1818 as excluding bays in general from the strict and systematic applica-
tion of the three mile rule ; nor can this Tribunal take cognizance in this
connection of other principles concerning the territorial sovereignty
over bays such as ten mile or twelve mile limits of exclusion based on
international acts subsequent to the Treaty of 1818 and relating to
coasts of a different configuration and conditions of a different character ;
(6) Because the opinion of .jurists and publicists quoted in the pro-
ceedings conduce to the opinion that speaking generally the three mile
rule should not be strictly and systematically applied to bays ;
(c) Because the treaties referring to these coasts, antedating the
Treaty of 1818, made special provisions as to bays, such as the Treaties
of 1686 and 1713 between Great Britain and France, and especially the
Treaty of 1778 between the United States and France. Likewise Jay's
Treaty of 1794, Art. 25, distinguished bays from the space "witliin can-
non-shot of the coast" in regard to the right of seizure in times of war.
If the projxised Tnaty of 180G and the Treaty of 1818 contained no
disposition to that effect, the explanation may be found in the fact that
the first extended the marginal belt to five miles, and also in the cir-
cumstance that the American proposition of 1818 in that respect was not
limited to "bays," liut extended to "chambers formed by headlands"
and to "five marine miles from a right line from one headland to an-
other." a proposition which in the times of the Napoleonic wars would
have affected to a very large extent the operations of the British navy ;
(r/'i Because it has not been shown by the documents and corres-
44 COMMISSION OF CONSERVATION
pondence in evidence here that the application of the three mile rule to
bays was present to the minds of the negotiators in 1818 and they could
not reasonably have been expected either to presume it or to provide
against its presumption ;
(e) Because it is difficult to explain the words in Art. Ill of the
Treaty under interpretation "country together with its bays, har-
bours and creeks" otherwise than that all bays without distinction as to
their width were, in the opinion of the negotiators, part of the territory ;
(/) Because from the information before this Tribunal it is evident
that the three mile rule is not applied to bays strictly or systematically
either by the United States or by any other Power ;
{g) It has been recognized by the United States that bays stand
apart, and that in respect of them territorial jurisdiction may be exer-
cised farther than the marginal belt in the case of Delaware bay by the
report of the United States Attorney General of May 19, 1793; and the
letter of Mr. Jefferson to Mr. Genet of Nov. 8, 1793, declares the bays
of the United States generally to be, "as being landlocked, witliin the
body of the United States."
5". In this latter regard it is further contended by the United
States, that such exceptions only should be made from the applica-
• tion of the three mile rule to bays as are sanctioned by conventions
and established usage ; that all exceptions for which the United
States of America were respofisible are so sanctioned ; and that His
Majesty's Government are unable to provide evidence to show that
the bays concerned by the Treaty of 1818 could be claimed as ex-
ceptions on these grounds either generally, or except possibly in one
or two cases, specifically.
But the Tribunal while recognizing that conventions and established
usage might be considered as the basis for claiming as territorial those
bays which on this ground might be called historic bays, and that such
claim should be held valid in the absence of any principle of international
law on the subject; nevertheless is unable to apply this, a contrario, so as
to subject the bays in question to the three mile rule, as desired by the
United States :
(a) Because Great Britain has during this controversy asserted a
claim to these bays generally, and has enforced such claim specifically in
statutes or otherwise, in regard to the more important bays such as
Chaleur, Conception and Miramichi ;
(h) Because neither should such relaxations of this claim, as are in
evidence, be construed as renunciations of it ; nor should omissions to en-
force the claim in regard to bays as to which no controversy arose, be so
construed. Such a construction by this Tribunal would not only be
NORTH ATLANTIC FISHERIES DISPUTE 45
intrinsically inequitable but internationally injurious; iu that it would
discourage conciliatory diplomatic transactions and encourage the
assertion of extreme claims in their fullest extent ;
(c) Because any such relaxations in the extreme claim of Great
Britain in its international relations are compensated by recognitions of
it in the same sphere by the United States; notably in relations with
Prance for instance in 1823, when they applied to Great Britain for the
protection of their fishery in the bays on the western coast of Newfound-
land, whence they had been driven by French war vessels on the ground
of the pretended exclusive right of the French. Though they never
asserted that their fishermen had been disturbed within the three mile
zone, only alleging that the distiirbanee had taken place in the bays, they
claimed to be protected by Great Britain for having been molested in
waters which were, as Mr. Rush stated "clearly within the jurisdiction
and sovereignty of Great Britain."
6°. It has been contended by the United States that the words
"coasts, bays, creeks or harbours," are here used only to express
different parts of the coast and are intended to express and be equi-
valent to the word ' ' coast, ' ' whereby the three marine miles would be
measured from the sinuosities of the coast and the renunciation
would apply only to the waters of bays within three miles.
But the Tribunal is unable to agree with this contention :
(a) Because it is a principle of interpretation that words in a docu-
ment ought not to be considered as being without any meaning if there
is not specific evidence to that purpose and the interpretation referred to
would lead to the consequence, practically, of reading the words "bays,
creeks and harbours" out of the Treaty; so that it would read "within
three miles of any of the coasts" including therein the coasts of the bays
and harbours;
(ft) Because the word "therein" in the proviso — "restrictions ne-
cessary to prevent their taking, drying or curing fish therein" can refer
only to "bays," and not to the belt of three miles along the coast; and
can be explained only on the supposition that the words "bays, creeks
and harbours" are to be understood in their usual ordinary sense and
not in an artificially restricted sense of bays within the three mile belt ;
(c) Because the practical distinction for the purpose of this fishery
between coasts and bays and the exceptional conditions pertaining to the
latter has been shown from the correspondence and the documents in
evidence, especially the Treaty of 1783. to have been in all probability
present to the minds of the negotiators of the Treaty of 1818 ;
(d) Because the existence of this distinction is confirmed in the same
article of the Treaty by the proviso permitting the United States fisher-
men to enter bays for certain purposes;
46 COMMISSION OF CONSERVATION
(e) Because the word "coasts" is used in the plural form whereas
the contention would require its use in the singular;
(/) Because the Tribunal is unable to understand the term "l)ays"
in the renunciatory clause in other than its geographical sense, by which
a bay is to be considered as an indentation of the coast, 1)earing a con-
figuration of a particular character easy to determine specifically, but
difficult to describe generally.
The negotiators of the Treaty of 1818 did not probably trouble
themselves with subtle theories concerning the notion of ' ' bays ' ' ; they
most probably thought that everybody would know what was a bay.
In this popular sense the term must be interpreted in the Treaty. The
interpretation must take into account all the individiial circumstances
which for any one of the different bays are to be appreciated, the relation
of its width to the length of penetration inland, the possibility and the
necessity of its being defended by the State in whose territory it is in-
dented ; the special value which it has for the industry of the inhabitants
of its shores ; the distance which it is secluded from the highways of
nations on the open sea and other circumstances not possible to enumer-
ate in general.
For these reasons the Tribunal decides and awards :
In case of bays the three marine miles are to be measured from a
straight line drawn across the body of water at the place where it
ceases to have the configuration and characteristics of a bay. At all
other places the three marine miles are to be measured following the
sinuosities of the coast.
I5ut considering the Tribunal cannot overlook that this answer to
Question V, although correct in principle and the only one possible in
view of the want of a sufficient basis for a more concrete answer, is not
entirely satisfactory as to its practical applicability, and that it leaves
room for doubts and differences in practice. Therefore the Triliunal
considers it its duty to render the decision more practicable and to re-
move the danger of future difi'erences b.y adjoining to it. a recommenda-
tion in virtue of the responsibilities imposed by Art. IV of the Special
Agreement.
Considering, moreover, that in treaties with France, with the North
German Confederation and the German Empire and likewise in the North
Sea Convention, Great Britain has adopted for similar cases the rule that
only bays of ten miles width should be considered as those wherein the
fishing is reserved to nationals. And that in the course of the negotia-
tions between Great Britain and the United States a similar rule has
been on various occasions proposed and adopted by Great Britain in in-
NORTH ATLANTIC FISHERIES DISPUTE 47
structions to the naval officers stationed on these coasts. And that
though these circumstances are not sufficient to constitute this a principle
of international law, it seems reasonable to propose this rule with cer-
tain exceptions, all the more that this rule with such exceptions has
already formed the basis of an agreement between the two powers.
Now therefore this Tribunal in pursuance of the provisions of Art.
IV hereby recommends for the consideration and acceptance of the
High Contracting Parties the following rules and method of procedure
for determining the limits of the bays hereinbefore enumerated.
In every bay not hereinafter specifically provided for the limits
of exclusion shall be drawn three miles seaward from a straight line
across the bay in the part nearest the entrance at the first point where
the width does not exceed ten miles.
In the following bays where the configuration of the coast and the
local climatic conditions are such that foreign fishermen when within
the geographic headlands might reasonably and bona fide believe them-
selves on the high seas^ the limits of exclusion shall be drawn in each
case between the headlands hereinafter specified as being those at and
within which such fishermen might be reasonably expected to recognize
the bay under average conditions.
For the Bale des Chaleurs the line from the Light at Birch Point on
Miscou Island to Macquereau Point Light: for the Bay of Miramichi,
the line from the Light at Point Escuminac to the Light on the Eastern
Point of Tabusintac Gully ; for Egmont Bay, in Prince Edward Island,
the line from the light at Cape Egmont to the light at West Point ; and
off St. Ann's Bay, in the Province of Nova Scotia, the line from the
Light at Point Aconi to the nearest point on the opposite shore of the
mainland.
For Fortune Bay, in Newfoundland, the line from Connaigre Head
to the Light on the Southeasterly end of Brunet Island, thence to
Fortune Head.
For or near the following bays the limits of exclusion shall be three
marine miles seawards from the following lines, namely:
For or near Barrington Bay, in Nova Scotia, the line from the
Light on Stoddart Island to the Light on the south point of Cape Sable,
thence to the light at Baccaro Point; at Chedabucto and St. Peter's
Bays, the line from Cranberry Island Light to Green Island Light,
thence to Point Rouge; for Mira Bay, the line from the Light on the
48 COMMISSION OF CONSERVATION
East Point of Scatari Island to the Northeasterly Point of Cape Mor-
ten ; and at Placentia Bay, in Newfoundland, the line from Latine Point,
on the Eastern mainland shore, to the most Southerly Point of Red
Island, thence by the most Southerly Point of Merasheen Island to the
mainland.
Long Island and Bryer Island, on St. Mary's Bay, in Nova Scotia,
shall, for the purpose of delimitation, be taken as the coasts of such
bays.
It is understood that nothing in these rules refers either to the Bay
of Fundy considered as a whole apart from its bays and creeks or as
to the innocent passage through the Gut of Canso, which were excluded
by the agreement made by exchange of notes between Mr. Bacon and
Mr. Bryce dated February 21, 1909, and March 4, 1909 ; or to Concep-
tion Bay, which was provided for by the decision of the Privy Council
in the case of the Direct United States Cable Company v. The Anglo
American Telegraph Company, in which decision the United States
have acquiesced.
QUESTION VI
Have the inhabitants of the United States the liberty under the said
Article or otherwise, to take fish in the bays, harbours, and creeks on
that part of the southern coast of Newfoundland which extends from
Cape Ray to Rameau Islands, or on the western and northern coasts of
Newfoundland from Cape Ray to Qairpon Islands or on the Magdalen
Islands ?
In regard to this question, it is contended by the United States
that the inhabitants of the United States have the liberty under Art.
I of the Treaty of taking fish in the bays, harbours and creeks on
that part of the Southern Coast of Newfoundland which extends
from cape Ray to Rameau islands or on the western and northern
coasts of Newfoundland from cape Ray to Quirpon islands and on
the Maj^dalen islands. It is contended by Great Britain that they
have no such liberty.
Now considering that the evidence seems to show that the intention
of the Parties to the Treaty of 1818, as indicated by the records of the
negotiations and by the subsequent attitude of the Governments was to
admit the United States to such fishery, this Tribunal is of opinion that
it is incumbent on Great Britain to produce satisfactory proof that the
United States are not so entitled under the Treaty.
For this purpose Great Britain points to the fact that whereas the
Treaty grants to American Fishermen liberty to take fish ' ' on the coasts,
bay, harbours, and creeks from Mount Joly on the Southern coast of
NORTH ATLANTIC FISHERIES DISPUTE 49
Labrador" the liberty is granted to the "coast" only of Newfoundland
and to the "shore" only of the Magdalen islands; and argues that evid-
ence can be found in the correspondence submitted indicating an inten-
tion to exclude Americans from Newfoundland bays on the Treaty Coast,
and that no value would have been attached at that time by the United
States Government to the liberty of fishing in such bays because there
was no cod fishery there as there was in the bays of Labrador.
But the Tribunal is unable to agree with this contention :
(a) Because the words "part of the southern coast . . . from . . to"
and the words ' ' Western and Northern Coast . . from .... to, " clearly
indicate one uninterrupted coast-line ; and there is no reason to read into
the words "coast" a contradistinction to bays, in order to exclude bays.
On the contrary, as already held in the answer to Question V, the words
' ' liberty, for ever, to dry and cure fish in any of the unsettled bays, har-
bours and creeks of the Southern part of the Coast of Newfoundland
hereabove described," indicate that in the meaning of the Treaty, as in
all the preceding treaties relating to the same territories, the words,
coasts, harbours, bays, etc., are used, without attaching to the word
"coast" the specific meaning of excluding bays. Thus in the provision
of the Treaty of 1783 giving liberty "to take fish on such part of the
coast of Newfoundland as British fishermen shall use; the word "coast"
necessarily includes bays, because if the intention had been to prohibit
the entering of the bays for fishing the following words "but not to dry
or cure the same on that island," would have no meaning. The conten-
tion that in the Treaty of 1783 the word "bays" is inserted lest otherwise
■ Great Britain would have had the right to exclude the Americans to the
three mile line, is inadmissible, because in that Treaty that line is not
mentioned ;
(b) Because the correspondence between Mr. Adams and Lokd
Bathurst also shows that during the negotiations for the Treaty the
United States demand the former rights enjoyed under the Treaty of
1783, and that Lord Bathurst in the letter of 30th October, 1815, made
no objection to granting those "former rights" "placed under some
modifications," which latter did not relate to the right of fishing in bays,
but only to the " pre-occupation of British harbours and creeks by the
fishing vessels of the United States and the forcible exclusion of British
subjects where the fishery might be most advantageously conducted,"
and "to the clandestine introduction of prohibited goods into the British
colonies." It may be therefore assumed that the word "coast" is used
in both Treaties in the same sense, including bays ;
(c) Because the Treaty expressly allows the liberty to dry and cure
in the unsettled bays, etc., of the southern part of the coast of Newfound-
so COMMISSION OF CONSERVATION
land, and this shows that, o fortiori the taking of fish in those bays is also
allowed ; because the fishing liberty was a lesser burden than the grant to
cure and dry, and restrictive clauses never refer to fishing in contra-
distinction to drying, but always to drying in contradistinction to fishing.
Pishing is granted without drying, never drying without fishing.
{d) Because there is not sufiicient evidence to show that the enumer-
ation of the component parts of the coast of Labrador was made in order
to discriminate between the coast of Labrador and coast of Newfound-
land;
(e) Because the statement that there is no codfish in the bays of
Newfoundland and that the Americans only took interest in the cod-
fishery is not approved ; and evidence to the contrary is to be found in Mr.
John Adam's Journal of Peace Negotiations of November 25, 1782;
(/) Because the Treaty grants the right to take fish of every kind,
and not only codfish ;
(fif) Because the evidence shows that, in 1823, the Americans were
fishing in Newfoundland bays and that Great Britain when summoned to
protect them against expulsion therefrom by the French did not deny
their right to enter such bays.
Therefore this Tribunal is of opinion that American inhabitants are
entitled to fish in the bays, creeks and harbours of the Treaty coasts of
Newfoundland and the Magdalen islands, and it is so decided and
awarded.
QUESTION VII
Are the inhabitants of the United States whose vessels resort to the
Treaty Coasts for the purpose of exercising the liberties referred to in
Article I of the Treaty of 1818 entitled to have for those vessels, when
duly authorized by the United States in that behalf, the commercial
privileges on the Treaty Coasts accorded by agreement or otherwise to
United States trading vessels generally?
Now assuming that commercial privileges on the Treaty Coasts are
accorded by agreement or otherwise to United States trading vessels
generally, without any exception, the inhabitants of the United States,
whose vessels resort to the same coasts for the purpose of exercising the
liberties referred to in Article I of the Treaty of 1818, are entitled to have
for those vessels when duly authorized by the United States in that be-
half, the above mentioned commercial privileges, the Treaty containing
nothing to the contrary. But they cannot at the same time and during
the same voyage exercise their Treaty rights and enjoy their commercial
privileges, because Treaty rights and commercial privileges are submitted
to different rules, regulations and restraints.
NORTH ATLANTIC FISHERIES DISPUTE 51
For these reasons this Tribunal is of opinion that the inhabitants
of the United States are so entitled in so far as concerns this Treaty,
there being nothing in its provisions to disentitle them provided the
Treaty liberty of fishing and the commercial privileges are not exer-
cised concurrently and it is so decided and awarded.
Done at the Hague, in the Permanent Court of Arbitration, in trip-
licate original, September 7, 1910.
H. LAMMASCH
A. F. DE SAVORNIN LOHMAN
GEORGE GRAY
C. FITZPATRICK
LUIS M. DRAGO
Signing the Award, I state pursuant to Article IX clause 2 of the
Special Agreement ray dissent from the majority of the Tribunal in
respect to the considerations and enacting part of the Award as to Ques-
tion V.
Grounds for this dissent have been filed at the International Bureau
of the Permanent Court of Arbitration.
LUIS M. DRAGO
GROUNDS FOR THE DISSENT TO THE AWARD ON QUESTION V
BY DR. LUIS M. DRAGO
Counsel for Great Britain have very clearly stated that according to
their contention the territoriality of the bays referred to in the Treaty of
1818 is immaterial because whether they are or are not territorial, the
United States should be excluded from fishing in them by the terms of
the renunciatory clause, which simply refers to ' ' bays, creeks or harbours
or His Britannic Majesty's Dominions" without any other qualification
or description. If that were so, the necessity might arise of discussing
whether or not a nation has the right to exclude another by contract or
otherwise from any portion or portions of the high seas. But in my
opinion the Tribunal need not concern itself with such general question,
the wording of the Treaty being clear enough to decide the point at
issue.
Article I begins with the statement that differences have arisen
respecting the liberty claimed by the United States for the inhabitants
thereof to take, dry and cure fish on ' ' certain coasts, bays, harbours and
creeks, of His Britannic Majesty's Dominions in America," and then
proceeds to locate the specific portions of the coast with its corresponding
indentations, in which the liberty of taking, drying and curing fish should
52 COMMISSION OF CONSERVATION
be exercised. The renuuciatory clause, which the Tribunal is called upon
to construe, runs thus: "And the United States hereby renounce, forever,
any liberty heretofore enjoyed or claimed by the inhabitants thereof, to
take, dry or cure fish on, or within three marine miles of any of the coasts,
bays, creeks or harbours of His Britannic Majesty's Dominions in
America not included within the above mentioned limits." This language
does not lend itself to different construction. If the bays in which the
liberty has been renounced are those "of His Britannic Majesty's Dom-
inions in America," they must necessarily be territorial bays, because in
so far as they are not so considered they should belong to the high seas
and consequently form no part of His Britannic Majesty's Dominions,
which, by definition, do not extend to the high seas. It cannot be said, as
has been suggested, that the use of the word "dominions," in the plural,
implies a different meaning than would be conveyed by the same term as
used in the singular, so that in the present case, "the British dominions
in America" ought to be considered as a mere geographical expression,
without reference to any right of sovereignty or dominion. It seems to
me, on the contrary, that "dominions," or "possessions," or "estates,"
or such other equivalent terms, simply designate the places over which
the "dominion" or property rights are exercised. Where there is no
possil)ility of appropriation or dominion, as on the high seas, we cannot
speak of dominions. The ' ' dominions ' ' extend exactly to the point which
the "dominion" reaches; they are simply the actual or physical thing
over which the abstract power or authority, the right, as given to the
proprietor or tlie ruler, applies. The interpretation as to the territorial-
ity of the bays as mentioned in the renunciatory clause of the Treaty
appears stronger when considering that the United States specifically
renounced the "liberty," not the "right" to fish or to cure and dry fish.
"The United States renounced forever, any liberty heretofore enjoyed
or claimed, to take, cure or dry fish on, or within three marine miles of
any of the coasts, bays, creeks or harbours of His Britannic Majesty's
Dominions in America." It is well known that the negotiators of the
Treaty of 1783 gave a very different meaning to the terms liberty and
riqht, as distinguished from each other. In this connection Mr. Adams'
Journal may be recited. To this Journal the British Counter Case refers
Iti the following terms: "From an entry in Mr. Adams' Journal it
appears he drafted an article by which he distinguished the right to take
fish (both on the high seas and on the shores) and the liberty to take and
cure fish on the land. But on the following day he presented to the
British negotiators a draft in which he distinguishes between the riqht
to take fish on the high seas and the liberty to take fish on the coasts, and
to dry and cure fish on the land****. The British Commissioner called
attention to the distinction thus sufgested by Mr. Adams and proposed
that the word liberty should be applied to the privileges both on the
NORTH ATLANTIC FISHERIES DISPUTE 53
water and on the land. Mr. Adams thereupon rose up and made a vehe-
ment protest, as is recorded in his diary, against the suggestion that the
United States enjoyed the fisliing on the banks of Newfoundland by any
other title than that of ?•/(//(<.**** The application of the word liber ly
to the coast fishery was left as Mr. Adams proposed." "The incident,
proceeds the British Case, is of importance, since it shows that the differ-
ence between the two phrases was intentional." (British Counter Case,
page 17). And the British Argument emphasizes again the difference.
"More cogent still is the distinction between the words right and liberty.
The word right is applied to the sea fisheries, and the word liberty to the
shore fisheries. The history of the negotiations shows that this distinction
was advisedly adopted." If then a liberty is a grant and not the recogni-
tion of a right; if, as the British Case, Counter Case and Argument
recognize, the United States had the right to fish in the open sea in con-
tradistinction with the liberty to fish near the shores or portions of the
shores, and if what has been renounced in the words of the treaty is the
liberty to fish on, or within three miles of the bays, creeks and harbours
of His Britannic Majesty's Dominions, it clearly follows that such liberty
and the corresponding renunciation refers only to such portions of the
bays whicli were under the sovereignty of Great Britain and not to such
other portions, if any, as form part of the high seas.
And thus it appears that far from being immaterial the territoriality
of bays is of the utmost importance. The Treaty not containing any rule
or indication upon the subject, the Tribunal cannot help a decision as to
this point, which involves the second branch of the British contention
that all so-called bays are not only geographical but wholly territorial as
well, and subject to the jurisdiction of Great Britain. The situation was
very accurately described on almost the same lines as above stated by the
British Memorandum sent in 1870 by the Earl op Kimberley to Gover-
nor Sir John Young : ' ' The right of Great Britain to exclude American
fishermen from waters within three miles of the coasts is unambiguous,
and, it is believed, uncontested. But there appears to be some doubt
what are the waters described as within three miles of bays, creeks or
harlwurs. When a bay is less than six miles broad its waters are within
the three mile limit, and therefore clearly within the meaning of the
Treaty; but when it is more than that breadth, the question arises
whether it is a bay of Her Britannic Majesty's Dominions. This is a
question which has to be considered in each particular case with regard
to international law and usage. When such a bay is not a bay of Her
Majesty's dominions, the American fishermen shall be entitled to fish in
it, except within three marine miles of the 'coast'; when it is a bay of
Her Majesty's dominions they will not be entitled to fish within three
miles of it, that is to say (it is presumed) within three miles of a line
54 COMMISSION OF CONSERVATION
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 marginal 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 inas-
much 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 some-
thing in the nature of an insulating zone, which very reasonably 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 West-
lake, the eminent English writer on International Law, has summed
up in a very few words : " As to bays, ' ' he says, ' ' if the entrance 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 mat-
ter 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 con-
tracts 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 proceeds to quote as examples of this kind the
Bay of Conception in Newfoundland, which he considers as wholly
NORTH ATLANTIC FISHERIES DISPUTE S5
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
for 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 sliould be so considered and measured
unless a coHtiniious and established usage has sanctioned a greater
breadth." ]\Iany 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 juris-
diction upon reasons which go always back to the doctrine of protection.
Lord Blackburn, one of the most eminent of English judges, in deliver-
ing the opinion of the Privy Council about Conception Bay in Newfound-
land, adhered to the same doctrine when he asserted the territoriality of
that branch of the sea, giving as a reason for such finding "that the
British Government for a long period had exercised dominion over this
bay and its claim had been acquiesced in by other nations, so as to show
that the bay had been for a long time occupied exclusively by Great
Britain, a circumstance which, in the tribunals of any country, would be
very important." "And moreover," he added, "the British Legislature
has, by Acts of Parliament, declared it to be part of the British territory,
and parts of the country made subject to the legislation of Newfound-
land." (Direct U. S. Cable Co. v. The Anglo-American Telegraph Co.,
Law Reports, 2 Appeal Cases, 374.)
So it may be safely asserted that a certain class of bays, which might
be properly called the historical bays such as Chesapeake Bay and Dela-
ware Bay in North America and the great estuary of the River Plate in
South America, form a class distinct and apart and undoubtedly belong
to the littoral country, whatever be their depth of penetration and the
width of their mouths, when such country has asserted its sovereignty
over them, and particiilar circumstances such as geographical configura-
tion, immemorial usage and above all, the requirements of self-defense,
justify such a pretension. The rights of Great Britain over the bays of
Conception, Chaleur and Miramichi are of this description. In what
refers to the other bays, as might be termed the common, ordinary bays,
indenting the coasts, over which no special claim or assertion of sov-
ereignty has been made, there does not seem to be any other general
principle to be applied than the one resulting from the custom and
usage of each individual nation as shown by their Treaties and their
general and time honoured practice.
56 COMMISSION OF CONSERVATION
The well known words of Bynkershock might be very appropriately
recalled in this connection when so many and divergent opinions and
authorities have been recited: "The common law of nations," he says,
' ' can only be learnt from reason and custom. I do not deny that autliority
may add weight to reason, but I prefer to seek it in a constant custom of
concluding treaties in one sense or another and in examples that have
occurred in one country or another." (Questions Jure Publici, Vol. 1,
Cap. 3.)
It is to be borne in mind in this respect that tlie Tribunal has been
called upon to decide as the subject matter of this controversy, the con-
struction to be given to the fishery Treaty of 1818 between Great Britain
and the United States. And so it is that from the usage and the practice
of Great Britain in this and other like fisheries and from Treaties entered
into by them with other nations as to fisheries, may be evolved the right
interpretation to be given to the particular convention which has been
submitted. In this connection the following Treaties may be recited :
Treaty between Great Britain and Prance. 2iid August, 1839. It
reads as follows :
Article IX. The subjects of Her Britannic Majesty shall enjoy the
exclusive right of fishery within the distance of three miles from low
water mark along the whole extent of the coasts of the British Islands.
It is agreed that the distance of three miles fixed as the general limit
for the exclusive right of fishery upon the coasts of the two countries
shall, with respect to bays, the mouths of which do not exceed ten miles
in width, be measured from a straight line drawn from headland to
headland.
Article X. It is agreed and understood, that the miles mentioned in
the present Convention are geographical miles, whereof 60 make a degree
of latitude.
(Hertslett's Treaties and Conventions, Vol. V, p. 89.)
Regulations between Great Britain and France. 24th May, 1843.
Art. II. The limits, within which the general right of fishery is
exclusively reserved to the subjects of the two kingdoms respectively, are
fixed (with the exception of those in Granville Bay) at three miles dis-
tance from low water mark.
With respect to bays, the mouths of which do not exceed ten miles in
width, the three mile distance is measured from a straight line drawn
from headland to headland.
Art. III. The miles mentioned in the present regulations are geo-
graphical miles, of which 60 make a degree of latitude.
(Hertslett's, Vol. VI, p. 416.)
NORTH ATLANTIC FISHERIES DISPUTE 57
Treaty between Great Britain and France. November 11, 1867.
Art. I. British fishermen shall enjoy the exclusive right of fishery
within the distance of three miles from low water mark, along the whole
extent of the coasts of the British Islands.
The distance of three miles fixed as the general limit for the exclus-
ive right of fishery upon the coasts of the two countries shall, with
respect to bays, the mouths of which do not exceed ten miles in width, be
measured from a straight line drawn from headland to headland.
The miles mentioned in the present convention are geographical
miles where of 60 make a degree of latitude.
(Hertslett's Treaties, Vol. XII, p. 1126, British Case App. p. 38.)
Great Britain and North German Confederation. British notice to
fishermen by the Board of Trade. Board of Trade, November, 1868.
Her Majesty's Government and the North German Confederation
having come to an agreement respecting the regulations to be observed by
British fishermen fishing off the coasts of the North German Confedera-
tion, the following notice is issued for the guidance and warning of
British fishermen :
I. The exclusive fishery limits of the German Empire are designated
by the Imperial Government as follows: that tract of the sea which
extends to a distance of three sea miles from the extremest limits which
the ebb leaves dry of the German North Sea Coast of the German Islands
or flats lying before it, as well as those bays and incurvations of the coast
which are ten sea miles or less in breadth reckoned from the extremest
points of the land and the flats, must be considered as under the terri-
torial sovereignty of North Germany.
(Hertslett's Treaties, Vol. XIV, p. 1055.)
Great Britain and German Empire. British Board of Trade, De-
cember, 1874.
(Same recital referring to an arrangement entered into between Her
Britannic Majesty and the German Government.)
Then the same articles follow with the alteration of the words
"German Empire" for "North Germany."
(Herstlett's, Vol. XIV, p. 1058.)
Treaty between Great Britain, Belgium, Denmark, France, Germany
and The Netherlands for regulating the police of the North Sea Fisheries,
May 6, 1882.
II. Les pecheurs nationaux jouiront du droit exclusif de peche
dans le rayon de 3 milles, a partir de la laissc de basse mer, le long de
toute r^tendue des cotes de leurs pays respectifs, ainsi que des iles et
des bancs qui en dependent.
58 COMMISSION OF CONSERVATION
Pour les baies le rayon de 3 milles sera mesur^ k partir d'une ligne
droite, tir^e, en travers de la bale, dans la partie la plus rapproch6e de
I'entr^e, au premier point ou I'ouverture n'exc6dera pas 10 milles,
(Herstlett's, Vol. XV, p. 794.)
British Order in Council, October 23, 1877.
Prescribes the obligation of not concealing or effacing numbers or
marks on boats, employed in fishing or dredging for purposes of sale on
the coasts of England, Wales, Scotland and the Islands of Guernsey,
Jersey, Alderney, Sark and Man, and not going outside :
(a) The distance of three miles from low water mark along the whole
extent of the said coasts :
(6) In ease of bays less than 10 miles wide the line joining the head-
lands of said bays.
(Hertslett's, Vol. XIV, p. 1032.)
To this list may be added the unratified Treaty of 1888 between
Great Britain and the United States which is so familiar to the Tribunal.
Such unratified Treaty contains an authoritative interpretation of the
Convention of October 20, 1818, sub-judice: "The three marine miles
mentioned in Article I of the Convention of October 20, 1818, shall be
measured seaward from low-water mark; but at every bay, creek or
harbour, not otherwise specifically provided for in this Treaty, such three
marine miles shall be measured seaward from a straight line drawn across
the bay, creek or harbour, in the part nearest the entrance at the first
point where the width does not exceed ten marine miles, ' ' which is recog-
nizing the exceptional bays as aforesaid and laying the rule for the gen-
eral and common bays.
It has been suggested that the Treaty of 1818 ought not to be studied
as hereabove in the light of any Treaties of a later date, but rather to be
referred to such British International Conventions as preceded it and
clearly illustrate, according to this view, what were, at the time, the
principles maintained by Great Britain as to their sovereignty over the
sea and over the coast and the adjacent territorial waters. In this con-
nection the Treaties of 1686 and 1713 with France, and of 1763 with
France and Spain have been recited and offered as examples also of ex-
clusion of nations by agreement from fishery rights on the high seas.
I cannot partake of such a view. The treaties of 1686, 1713 and 1763
can hardly be understood with respect to this, otherwise than as examples
of the wild, obsolete claims over the common ocean which all nations
have of old abandoned with the progress of an enlightened civilization.
And if certain nations accepted long ago to be excluded by convention
from fishing on what is to-day considered a common sea, it is precisely
NORTH ATLANTIC FISHERIES DISPUTE S9
because it was then understood that such tracts of water, now free and
open to all, were the exclusive property of a particular power, who, being
the owners, admitted or excluded others from their use. The treaty of
1818 is in the meantime one of the few which mark an era in the diplomacy
of the world. As a matter of fact it is the very first which commuted
the rule of the cannon-shot into the three marine miles of coastal juris-
diction. And it really would appear unjustified to explain such historic
document, by referring it to international agreements of a hundred and
two hundred years before when the doctrine of Selden's Mare Clausum
was at its height and when the coastal waters were fixed at such distances
as sixty miles, or a hundred miles, or two days' journey from the shore
and the like. It seems very appropriate, on the contrary, to explain the
meaning of the Treaty of 1818 by comparing it with those which imme-
diately followed and established the same limit of coastal jurisdiction.
As a general rule a treaty of a former date may be very safely construed
by referring it to the provisions of like Treaties made by the same nation
on the same matter at a later time. Much more so when, as occurs in
the present case, the later Conventions, with no exception, starting from
the same premise of the three miles coastal jurisdiction arrive always to
a uniform policy and line of action in what refers to bays. As a matter
of fact all authorities approach and connect the modern fishery Treaties
of Great Britain and refer them to the Treaty of 1818. The second
edition of Kluber, for instance, quotes in the same sentence the Treaties
of October 20, 1818, and August 2, 1839, as fixing a distance of three
miles from low water mark for coastal jurisdiction. And Fiori, the
well-known Italian jurist, referring to the same marine miles of coastal
jurisdiction, says: "This rule recognized as early as the Treaty of 1818
between the United States and Great Britain, and that between Great
Britain and France in 1839, has again been admitted in the Treaty of
1867." (Nouveau droit International Public, Paris, 1885, Section 803.)
This is only a recognition of the permanency and the continuity of
States. The Treaty of 1818 is not a separate fact unconnected with the
later policy of Great Britain. Its negotiators were not parties to such
International Convention and their powers disappeared as soon as they
signed the document on behalf of their countries. The parties to the
Treaty of 1818 were the United States and Great Britain, and what Great
Britain meant in 1818 about bays and fisheries, when they for the first
time fixed a marginal jurisdiction of three miles, can be very well ex-
plained by what Great Britain, the same permanent political entity,
understood in 1839, 1843, 1867, 1874, 1878 and 1882, when fixing the very
same zone of territorial waters. That a bay in Europe should be con-
sidered as different from a bay in America and subject to other principles
of international law cannot be admitted in the face of it. What the
60 COMMISSION OF CONSERVATION
practice of Great Britain has been outside the Treaties is very well known
to the Tribunal, and the examples might be multiplied of the eases in
which that nation has ordered its subordinates to apply to the bays on
these fisheries the ten mile entrance rule or the six miles according to the
occasion. It has been repeatedly said that such have been only relax-
ations of the strict right, assented to by Great Britain in order to avoid
friction on certain special occasions. That may be. But it may also be
asserted that such relaxations have been very many and that the constant,
uniform, never contradicted, practice of concluding fishery Treaties from
1839 down to the present day, in all of which the ten miles entrance
bays are recognized, is the clear sign of a policy. This policy has but
very lately found a most public, solemn and unequivocal expression.
"On a question asked in Parliament on the 21st of February, 1907," says
Pitt Corbett, a distinguished English writer, "with respect to the Moray
Frith Case, it was stated that, according to the view of the Foreign Office,
the Admiralty, the Colonial Office, the Board of Trade and the Board of
Agriculture and Fisheries, the term 'territorial waters' was deemed to
include waters extending from the coast line of any part of the territory
of a State to three miles from the low water mark of such coast line and
the waters of all bays, the entrance to which is not more than dx miles,
and of which the entire land boundary forms part of the territory of the
same state." (Pitt Corbett, Cases and Opinions on International Law,
Vol. I, p. 143.)
Is there a contradiction between these six miles and the ten miles of
the treaties just referred to? Not at all. The six miles are the conse-
quence of the three miles marginal belt of territorial waters in their coin-
cidence from both sides at the inlets of the coast and the ten miles far
from being an arbitrary measure are simply an extension, a margin given
for convenience to the strict six miles with fishery purposes. Where the
miles represent sixty to a degree in latitude the ten miles are besides the
sixth part of the same degree. The American Government in reply to the
observations made to Secretary Bay.vrd's Memorandum of 1888, said very
precisely : ' ' The width of ten miles was proposed not only because it had
been followed in Conventions between many other powers, but also be-
cause it was deemed reasonable and just in the present case; this Govern-
ment recognizing the fact that while it might have claimed a width of six
miles as a basis of settlement, fishing within bays and harbours only
slightly wider would be confined to areas so narrow as to render it prac-
tically valueless and almost necessarily expose the fishermen to constant
danger of carrying their operations into forbidden waters." (British
Case Appendix, page 416). And Professor John Basset Moore, a
recognized authority on International law, in a communication addressed
to the Institute of International Law, said very forcibly: "Since you
NORTH ATLANTIC FISHERIES DISPUTE 61
observe that there does not appear to be any convincing reason to prefer
the ten mile line in such a case to that of double three miles, I may say
that there have been supposed to exist reasons both of convenience and
of safety. The ten mile line has been adopted in the cases referred to as a
practical rule. The transgression of an encroachment upon territorial
waters by fishing vessels is generally a grave offence, involving in many
instances the forfeiture of the offending vessel, and it is obvious that
the narrower the space in which it is permissible to fish the more likely
the offence is to be committed. In order, therefore, that fishing may be
practicable and safe and not constantly attended with the risk of violat-
ing territorial waters, it has been thought to be expedient not to allow it
where the extent of free waters between the three miles drawn on each
side of the bay is less than four miles. This is the reason of the ten mile
line. Its intention is not to hamper or restrict the right to fish, but to
render its exercise practicable and safe. When fishermen fall in with a
shoal of fish, the impulse to follow it is so strong as to make the possibili-
ties of transgression very serious within narrow limits of free waters.
Hence it has been deemed wiser to exclude them from space less than
four miles each way from the forbidden lines. In spaces less than this
operations are not only hazardous, but so circumscribed as to render
them of little practical value." (Annuaire de I'lnstitut de Droit Inter-
national, 1894, p. 146.)
So tlie use of the ten mile bays so constantly put into practice by
Great Britain in its fishery Treaties has its root and connection with the
marginal belt of three miles for the territorial waters. So much so that
the Tribunal having decided not to adjudicate in this case the ten mile
entrance to the bays of the Treaty of 1818, this will be the only one
exception in which the ten miles of the bays do not follow as a conse-
quence the strip of three miles of territorial waters, the historical bays
and estuaries always excepted.
And it is for that reason that a usage so firmly and for so long a time
established ought, in my opinion, to be applied to the construction of the
Treaty under consideration, much more so, when custom, one of the re-
cognized sources of law, international as well as municipal, is supported
in this case by reason and by the acquiescence and the practice of many
nations.
The Tribunal has decided that : "In case of bays the three miles (of
the Treaty) are to be measured from a straight line drawn across the
body of water at the place where it ceases to have the configuration char-
acteristic of a bay. At all other places the three miles are to be measured
following the sinuosities of the coast." But no rule is laid out or general
principle evolved for the parties to know what the nature of such con-
62 COMMISSION OF CONSERVATION
figuration is or by what methods the points should be ascertained from
which the bay should lose the characteristics of such. There lies the
whole contention and the whole difBculty, not satisfactorily solved, to my
mind, by simply recommending, without the scope of the award and as a
system of procedure for resolving future contestations under Article IV
of the Treat.v of Arbitration, a series of lines, which practical as they
may be supposed to be, cannot be adopted by the Parties without con-
cluding a new Treaty.
These are the i-easons for my dissent, which I much regret, on
Question V.
Done at the Hague, September 7, 1910
LUIS M. DRAGO
i
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