Atlantic Cod.
The International Court of Justice resolved the North Atlantic Fisheries Dispute, which had existed for more than 25 years between the United States on one side, and the United Kingdom, Canada and Newfoundland on the other.
The dispute arouse over varying interpretations of the 1818 Convention, which granted U.S. fishermen certain fishing rights while renouncing others. The tribunal's 1910 award settled some of the long smouldering dispute and affirmed Great Britain's right to impose reasonable regulations on the fisheries, provided they did not infringe upon the treaty rights of the U.S. The roots of the dispute dated all the way back to the American Revolution.
Whereas a special agreement between the United States of America and Great Britain, signed at Washington the 27th January, 1909, and confirmed by interchange of notes dated the 4th March, 1909, was concluded in conformity with the provisions of the general arbitration treaty between the United States of America and Great Britain, signed the 4th April, 1908, and ratified the 4th June, 1908;
And whereas the said special agreement for the submission of questions relating to fisheries on the North Atlantic coast under the general treaty of arbitration concluded between the United States and Great Britain on the 4th day of April, 1908, is as follows:1
And whereas the parties to the said agreement have by common accord, in accordance with Article V, constituted as a tribunal of arbitration the following members of the permanent court at The Hague: Mr. H. Lammasch, doctor of law, professor of the 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 Netherlands; the honorable George Gray, doctor of laws, judge of the United States circuit court of appeals, former United States Senator; the right honorable Sir Charles Fitzpatrick, member of the Privy Council, doctor of laws, chief justice of Canada; the honorable Luis Maria Drago, doctor of law, former minister of foreign affairs of the Argentine Republic, member of the Law Academy of Buenos Aires;
And whereas the agents of the parties to the said agreement have duly and in accordance with the terms of the agreement communicated to this tribunal their cases, countercases, printed arguments, and other documents;
And whereas counsel for the parties have fully presented to this tribunal their oral arguments in the sittings held between the first assembling of the tribunal on 1st June, 1910, to the close of the hearings on 12th August, 1910;
Now, therefore, this tribunal having carefully considered the said agreement, oases, countercases, printed and oral arguments, and the documents presented by either side, after due deliberation makes the following decisions and awards:
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, [Page 545]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 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 inhabitants 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 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 inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying 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 fairness 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:
First. Whether the right of regulating reasonably the liberties conferred by the treaty of 1818 resides in Great Britain.
Second. And, if such right does so exist, whether such reasonable exercise 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, nor refers to it in any way. It is therefore incumbent on this tribunal to answer the two questions above indicated by interpreting the general terms of Article I of the treaty, and more especially the words “the inhabitants of the United States shall have, forever, 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 States 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 by Great Britain, and therefore the inference is warranted that the American liberites 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 exclusive right, this concession on the part of Great Britain was presumably made because France, before 1713, claimed to be the sovereign of Newfoundland, and, in ceding the Island, had, as the American argument says, “reserved for the benefit of its subjects the right to fish and to use the strand.”
(b) Because the distinction between 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 claims 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 legislation.
The tribunal 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 reciprocity 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 words “forever.” International law in its modern development [Page 547]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 terms of the treaty, pro visional, and not permanent, and is nevertheless, in respect 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 constitute an international servitude in their favor over the territory 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. Gallatin, can, since the code, be only real and can not 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 terræ 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, moreover, 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 favor 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 modern publicists. It could therefore in the general interest of the community of nations, and of the parties to this treaty, be affirmed by this tribunal only on the express evidence of an international contract.
(f) Because even if these liberties of fishery constituted an international servitude the servitude would derogate from the sovereignty [Page 548]of the servient State only in so far as the exercise of the rights of sovereignty 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 distinguished from those restrictions and “molestations,” the annulment of which was the purpose of the American demands formulated by Mr. Adams in 1782, and such regulations consequently can not 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 15, Charles II, cap. 16, s. 7 (1663) forbidding “to lay any seine or other net in or near any harbor 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 in council of March 10, 1670, or by the statute 10 and XI, William III, cap. 25, 1699. The order in council provides expressly 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 by this very act, and having no reference to anteceding rules “as are now 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 Majesty’s rules and orders concerning the regulation of the fisheries are duly put in execution” (sec. 13). Likewise the act 10 and XI, William III, cap. 25 (1699) provides that the admirals do settle differences between the fishermen arising in respect of the places to be assigned to the different 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 or ers 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, George III, cap. 26, 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 meshes less than 4 inches,” a prohibition which can not 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 harbor of St. John, as to the manner and time of fishing, can not be read as being limited to fishing from the shore. The act for regulating the fishing on the coast of Northumberland (1799) contains very elaborate dispositions concerning the fisheries in the bay [Page 549]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 nonoperative against foreigners without the territorial limits of Great Britain, but is certainly no reason to deny their obligatory character for foreigners within these limits.
(h)
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 nonexistence of the right.
(i) Because the words “in common with British subjects” tend to confirm the opinion that the inhabitants of the United States were admitted to a regulated fishery.
(j) Because the statute of Great Britain, 1819, which gives legislative sanction to the treaty of 1818, provides for the making of “regulations 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 pretention 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 historical 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 unmolested the right to take fish * * * where the inhabitants of both countries used, at any time heretofore, to fish.” The theory of the partition 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.
(b)
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 certainly not be suggested that in these treaties of 1854 and 1871 the American 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 can not 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 [Page 550]taking fish, without any regard to the coexisting 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 “bellum omnium contra omnes,” which would otherwise arise in the exercise of this industry.
(d) Because these words are such as would naturally suggest themselves 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 by the United States—
5. That the treaty of 1818 should be held to have entailed a transfer 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 treaty of 1818, nevertheless the tribunal could not forbear to consider the contention on account of the important bearing the controversy has upon the true interpretation 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 article III of the treaty of 1783.
(b) That the treaty of 1818 was in different terms, and very different in extent from that of 1783, and was made for different considerations. It was, in other 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 contains no such provision, it should be held a contrario; 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 enjoyment of the fishery by American and British fishermen, no such provision was required.
(b) Because no proof is furnished of similar exemptions of foreigners 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 article III [Page 551]or in article III 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 harbors on the nontreaty coasts are both subjected to conditions, and the latter to specific restrictions, it should therefore be held that the liberty to fish should be subjected to no restrictions, as none are provided for in the treaty.
The tribunal is unable to apply the principle of “expressio unius exclusio alterius” to this case—
(a) Because the conditions and restrictions as to the liberty to dry and cure on the shore and to enter the harbors are limitations of the rights themselves, and not restrictions of their exercise. Thus the right to dry and cure is limited in duration, and the right to enter bays and harbors is limited to particular purposes;
(b) Because these restrictions of the right to enter bays and harbors 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.
For the purpose of such proof it has been contended by the United States—
8. That Lord 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;
(b) 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 inconveniences from a military, naval, and commercial point of view;” so that it can not have been his intention to acknowledge the exclusion of British interference with this right;
(c) Because Lord Bathurst in his note to Gov. Sir C. Hamilton in 1819 orders the governor to take care that the American fishery oh 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 American fishery right.
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 or expressions inconsistent with the claim to a right of regulation.
The tribunal, unwilling to invest such expressions with an importance entitling them to affect the general question, considers that such conflicting or inconsistent expressions as nave been exposed on either side are sufficiently explained by their relations to ephemeral phases of a controversy 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 the 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 codominium was created.
For the purpose of such proof it is contended by the United States—
10. That a concurrent right to cooperate in the making and enforcement of regulations is the only possible and proper security to their inhabitants for the enjoyment of their liberties of fishery, 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 ground 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 international law in regard to observance of treaty obligations. Such sanctions are, for instance, appeal to public opinion, publication of correspondence, censure by parliamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, rupture of relations, reprisal, etc. But no reason has been shown why this treaty, in this respect, should be considered as different from every other treaty under which the right of 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 respect 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 conveys 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 United States Government 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 can not by assent give legal force and validity to British legislation.
(f) Because the liberties to take fish in British territorial waters and to dry and cure fish on land in British territory are in principle on the same footing, but in practice a right of cooperation 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 [Page 553]provide for the protection and preservation of the fisheries, 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 Articles II and III of the special agreement, and as to further regulation by the obligation to submit their reasonableness to an arbitral test in accordance with Article 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 restriction was reasonable. And that while admitting that all laws of a general character controlling the conduct of men within the territory of Great Britain are effective, 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 can not 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 Empire, or upon the grantor’s consideration of what would be a reasonable exercise thereof toward the grantee.
But this contention is founded on assumptions, which this tribunal can not accept for the following reasons, in addition to those already set forth:
(a) Because the line by which the respective rights of both parties 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 legislation 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 the 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 territory, but whether the treaty contains an abdication by Great Britain of the right which Great Britain, as the sovereign power, [Page 554]undoubtedly possessed when the treaty was made, to regulate those fisheries.
(e) Because the right to make reasonable regulations not inconsistent 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 assumes 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 obligatory 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.
(f) 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 legislation of Great Britain and her colonies, and to that extent would reduce these countries to a state of dependence.
While 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 regulation to such an impartial arbitral test, affording full opportunity therefor, 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 referred 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 Newfoundland 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 inhabitants 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 protection and preservation of such fisheries, or (2) desirable or necessary on grounds of public order and morals without unnecessarily [Page 555]interfering with the fishery itself, and in both cases equitable and fair as between local and American fishermen, and not so framed as to give unfairly an advantage to the former over the latter class, are not inconsistent 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 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 was left to the ordinary means of diplomatic intercourse. By reason, however, 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 recommendations made by the tribunal in virtue of Article IV of the agreement.
The tribunal further decides that Article IV of the agreeement is, as stated, by counsel of the respective parties at the argument, permanent in its effect, and not terminable by the expiration of the general 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 protocol 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 unnecessary 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 taking 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 Government, 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 acts of the Governments of Canada and Newfoundland were inconsistent 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 referred by the tribunal to a commission of expert specialists, and expressed an intention of asking for such reference under certain circumstances.
The tribunal having carefully considered the counter-statement presented on behalf of Great Britain at the session of August 2, is of opinion that the decision on the reasonableness of these regulations requires expert information about the fisheries themselves and an examination of the practical effect 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 contemplated 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 effect of any provisions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert information about the fisheries themselves, may be referred by this tribunal 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 or 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 examination of the questions submitted.
As the third nonnational commissioner this tribunal designates Dr. P. P. C. Hoek, scientific adviser for the fisheries of the Netherlands and if any necessity arises therefor a substitute may be appointed 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 necessary, by local inspection, the tribunal shall, if convoked by the President at the request of either party, thereupon at the earliest convenient date, reconvene to consider the report of the commission, and if it be on the whole unanimous shall incorporate it in the award. 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 conclusions of the expert 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 reconvention of this tribunal, that the parties should accept the unanimous opinion of the commission or the opinion of the nonnational commissioner 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 award:
1. All future municipal laws, 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 fishing operations; (3) any other regulation of a similar character shall be published in the London Gazette two months before going into operation.
Similar regulations by Canada or Newfoundland shall be similarly published in the Canada Gazette and the Newfoundland Gazette, respectively.
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.
4. Permanent mixed fishery commissions for Canada and Newfoundland, respectively, shall be established for the decision of such questions as to the reasonableness of future regulations, as contemplated by Article IV of-the special agreement; these commissions shall consist of an expert national 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 failing 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.
5. The two national members having failed to agree within one month, within another month the full commission, under the presidency 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 otherwise 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 Government of Great Britain by the Government of the United States, under date of ———, as provided by the award of The Hague Tribunal of September 7, 1910.
Pursuant to the provisions of that award the Government of Great Britain hereby convokes the permanent mixed fishery commission for (Canada) / (Newfoundland) ———, (composed of ——— commissioner for the United States of America, and of ——— commissioner for (Canada) / (Newfoundland) ———, which shall meet at ——— and render a decision (Newfoundland) 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 of September 7, 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 order 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 inhaitants 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 question 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 the boats.
2. That no right to control or limit the means which these inhabitants shall use in fishing can be admitted unless it is provided in the terms of the treaty and no right to question the nationality 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; (5) 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.
But considering that the treaty does not intend to grant to individual 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 evidence and notably from the correspondence between [Page 559]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 party 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 interest 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 designated therein, except in so far as by treaty thereto entitled, and that this exception will, in virtue of the treaty of 1818, as hereinabove interpreted by this award, exempt from these statutes American fishermen fishing by the agency of noninhabitant aliens employed in their service; (6) that the treaty does not affect the sovereign right of Great Britain as to aliens, noninhabitants of the United States, nor the right of Great Britain to regulate the engagement of British subjects while these aliens or British subjects are on British territory.
Now, therefore, in view of the preceding considerations, this tribunal 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 prevent any misunderstanding as to the effect of its award, expresses the opinion that noninhabitants 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 customhouses or the payment of light or harbor 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 authority 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 fishing 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 customhouses that are only appropriate to the exereise of commercial privileges. The exercise of [Page 560]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 commercial 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, unless reasonably convenient opportunity therefor be afforded in person or by telegraph, at a customhouse or to a customs official.
The tribunal is also of opinion that light and harbor 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 discrimination between them and Newfoundland fishermen and one inconsistent with the liberty granted to American fishermen to take fish, etc., “in common with the subjects of His Britannic Majesty.”
Further, the tribunal considers that the fulfillment of the requirement 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, inclusive, 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 opportunity afforded to report in person or by telegraph, either at a customhouse or to a customs official.
But the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of report, entry, and clearance at a customhouse, nor to light, harbor, 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 harbors 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 them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor or other dues, or entering or reporting at customhouses, 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 harbors 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 themselves 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. The proviso which appears in the first article of the said treaty immediately after the so-called renunciation clause, was doubtless due to a recognition by Great Britain of what was expected from the humanity and civilization of the then leading commercial nation of the world. To impose restrictions making the exercise of such privileges conditional upon the payment of fight, harbor, or other dues, or entering and reporting at customhouses, or any similar conditions, would be inconsistent with the grounds upon which such privileges rest, and therefore is not permissible.
And it is decided and awarded that such restrictions are not permissible.
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 therein should be required, if thought necessary by Great Britain or the Colonial Government, to report, either in person or by telegraph, at a customhouse or to a customs official, if reasonably convenient opportunity therefor is afforded.
And it is so decided and awarded.
question v.
From where must be measured the “three marine miles of any of the coasts, bays, creeks, or harbors” referred to in the said article?
In regard to this question, Great Britain claims that the renunciation 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 satisfactory 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 can not renounce the natural right to fish on the high seas.
But the tribunal is unable to agree with this contention. Because though a State can not grant rights on the high seas, it certainly can abandon the exercise of its right to fish on the high seas within certain definite limits. Such an abandonment was made with respect to their fishing rights in the waters in question by France and Spain in [Page 562]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:
2. 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 derived 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 to 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 renunciation. 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 undoubtly held under the provisions of the treaty and was not a right accruing to the United States by virtue of any principle of international 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.
(b) Because to express the political concept of dominion as equivalent 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 Majesty—e. g., “His Britannic Majesty’s Dominions beyond the Seas.”
4. It has been further contended by the United States that the renunciation applies only to bays 6 miles or less in width “inter fauces terræ,” those bays only being territorial bays, because the 3-mile rule is, as shown by this treaty, a principle of international law applicable to coasts and should be strictly and systematically 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 [Page 563]integrity, of defense, of commerce, and of industry are all vitally concerned with the control of the bays penetrating the national coast line. This interest varies, speaking generally, in proportion to the penetration inland of the bay; but as no principle of international law recognizes any specified relation between the concavity of the bay and the requirements for control 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 application of the 3-mile rule; nor can this tribunal take cognizance in this connection of other principles concerning the territorial sovereignty over bays such as 10-mile or 12-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.
(b) Because the opinion of jurists and publicists quoted in the proceedings conduce to the opinion that speaking generally the 3-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, article 25, distinguished bays from the space “within cannon shot of the coast” in regard to the right of seizure in times of war. If the proposed treaty of 1806 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 5 miles, and also in the circumstance that the American proposition of 1818 in that respect was not limited to “bays,” but extended to “chambers formed by headlands” and to “5 marine miles from a right line from one headland to another,” a proposition which in the times of the Napoleonic wars would have affected to a very large extent the operations of the British Navy.
(d) Because it has not been shown by the documents and correspondence in evidence here that the application of the 3-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 Article III of the treaty under interpretation “country * * * together with its bays, harbors, and creeks” otherwise than that all bays without distinction as to their width were, in the opinion of the negotiators, part of the territory.
(f) Because from the information before this tribunal it is evident that the 3-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 exercised 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 November 8, 1793, declares the bays of the United States generally to be, “as being landlocked, within 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 application of the [Page 564]3-mile rule to bays as are sanctioned by conventions and established usage; that all exceptions for which the United States of America were responsible 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 exceptions 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 3-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 Chaleurs, Conception, and Miramichi.
(b) Because neither should such relaxations of this claim, as are in evidence, be construed as renunciations of it; nor should omissions to enforce 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 intrinsically inequitable but internationally injurious; in 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 France, for instance, in 1823, when they applied to Great Britain for the protection of their fishery in the bays on the western coast of Newfoundland, 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 3-mile zone, only alleging that the disturbance 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 harbors” are here used only to express different parts of the coast and are intended to express and be equivalent to the word “coast,” whereby the 3 marine miles would be measured from the sinuosities of the coast and the renunciation would apply only to the waters of bays within 3 miles.
But the tribunal is unable to agree with this contention:
(a) Because it is a principle of interpretation that words in a document 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, coasts, and harbors” out of the treaty; so that it would read “within 3 miles of any of the coasts,” including therein the coasts of the bays and harbors.
(b) Because the word “therein” in the proviso—“restrictions necessary to prevent their taking, drying, or curing fish therein”—can refer only to “bays,” and not to the belt of 3 miles along the coast, and can be explained only on the supposition that the words “bays [Page 565]creeks, and harbors” are to be understood in their usual ordinary sense and not in an artificially restricted sense of bays within the 3-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 fishermen to enter bays for certain purposes.
(e) Because the word “coasts” is used in the plural form whereas the contention would require its use in the singular.
(f) Because the tribunal is unable to understand the term “bays” in the renunciatory clause in other than its geographical sense, by which a bay is to be considered as an indentation of the coast, bearing a configuration of a particular character easy to determine specifically, but difficult to describe generally.
The negotiators of the treaty of 1818 did probably not 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 individual 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 indented; 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 enumerate in general.
For these reasons the tribunal decides and awards:
In case of bays the 3 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. All at other places the 3 marine miles are to be measured following the sinuosities of the coast.
But considering the tribunal can not 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 tribunal considers it its duty to render the decision more practicable and to remove the danger of future differences by adjoining to it a recommendation in virtue of the responsibilities imposed by Article 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 10 miles width should be considered as those wherein the fishing is reserved to nationals. And that in the course of the negotiations between Great Britain and the United States a similar rule has been on various occasions proposed and adopted by Great Britain in instructions to the naval officers stationed [Page 566]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 certain 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 Article 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.
1. In every bay not hereinafter specifically provided for the limits of exclusion shall be drawn 3 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 10 miles.
2. 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 themselves 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 Baie des Chaleurs the fine 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 Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the fine from the light at Cape Egmont to the light at West Point; and off St. Anns Bay, in the Province of Nova Scotia, the line from the light at Point Anconi 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 3 marine miles seaward 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. Peters 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 east point of Scatari Island to the northeasterly point of Cape Morien; 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. Marys 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 Conception Bay, which was provided for by the decision of the [Page 567]privy council in the case of the Direct United States Cable Co. v. The Anglo-American Telegraph Co., 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, harbors, 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?
In regard to this question, it is contended by the United States that the inhabitants of the United States have the liberty, under Article I of the treaty, of taking fish in the bays, harbors, 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 Magdalen 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, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador” the liberty is granted to the “coast” only of Newfoundland and to the “shore” only of the Magdalen Islands; and argues that evidence can be found in the correspondence submitted indicating an intention 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 “coasts” a contradistinction to bays, in order to exclude bays. On the contrary, as already held in the answer to Question V, the words “liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, 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 “coast, coasts, harbors, 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 [Page 568]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 contention 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 3-mile line is inadmissible, because in that treaty that line is not mentioned.
(b) Because the correspondence between Mr. Adams and Lord Bathurst also shows that during the negotiations for the treaty the United States demanded 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 “preoccupation of British harbors 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 Newfoundland, and this shows that, a 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 the restrictive clauses never refer to fishing in contradistinction to drying, but always to drying in contradistinction to fishing. Fishing is granted without drying, never drying without fishing.
(d) Because there is not sufficient evidence to show that the enumeration of the component parts of the coast of Labrador was made in order to discriminate between the coast of Labrador and the coast of Newfoundland.
(e) Because the statement that there is no codfish in the bays of Newfoundland and that the Americans only took interest in the cod-fisheries is not proved; and evidence to the contrary is to be found in Mr. John Adams Journal of Peace Negotiations of November 25, 1782.
(f) Because the treaty grants the right to take fish of every kind, and not only codfish.
(g) 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 harbors 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 behalf, the above-mentioned commercial privileges, the treaty containing nothing to the contrary. But they can not 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.
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 I treaty liberty of fishing, and the commercial privileges are not exercised concurrently, and it is so decided and awarded.
Done at The Hague, in the permanent court of arbitration, in triplicate 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, my dissent from the majority of the tribunal in respect to the considerations and enacting part of the award as to Question V.
Grounds for this dissent have been filed at the international bureau of the permanent court of arbitration.
Luis M. Drago
