[Untitled]
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 harbors of 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, harbors, and creeks of His Britannic Majesty’s dominions in America,” and then proceeds to locate the specific, portions of the coast with its [Page 570] corresponding indentations, in which the liberty of taking, drying, and curing fish should be exercised. The renunciatory 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 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America not included within the above-mentioned limits.” This language does not lend itself to different constructions. If the bays in which the liberty has been renounced are those “of His Britannic Majesty’s dominions 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 can not 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 possibility of appropriation or dominion, as on the high seas, we can not 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 the ruler, applies. The interpretation as to the territoriality 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 renounce, forever, any liberty heretofore enjoyed or claimed, to take, cure, or dry fish on, or within 3 marine miles of any of the coasts, bays, creeks, or harbors 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 “right,” as distinguished from each other. In this connection Mr. Adams’s journal may be recited. To this journal the British counter case refers in the following terms: “From an entry in Mr. Adams’s journal it appears that 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 ‘right’ 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 suggested by Mr. Adams and proposed that the word ‘liberty’ should be applied to the privileges both on the water and on the land. Mr. Adams thereupon rose up and made a vehement protest, as is recorded in his diary, against the suggestion that the United States enjoyed the fishing on the banks of Newfoundland by any other title than that of right.” * * * The application of the word “liberty” to the coast fishery was left as Mr. Adams proposed. “The incident, proceeds the British case, [Page 571] is of importance, since it shows that the difference between the two phrases was intentional.” (British counter case, p. 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 recognition 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 contradistinction 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 3 miles of the bays, creeks, and harbors of His Britannic Majesty’s dominions, it clearly follows that such liberty and the corresponding renunciation refers only to such portions of the bays which 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 can not 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 of Kimberley to Gov. Sir. John Young: “The right of Great Britain to exclude American fishermen from waters within 3 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 3 miles of bays, creeks, or harbors. When a bay is less than 6 miles broad its waters are within the 3-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 fisherman shall be entitled to fish in it, except within 3 marine miles of the ‘coast’; when it is a bay of Her Majesty’s dominions they will not be entitled to fish within 3 miles of it—that is to say (it is presumed), within 3 miles of a fine drawn from headland to headland.” (American Case Appendix, p. 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 3 marine miles measured from low-water mark, may be modified at a later period, inasmuch 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 something 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 [Page 572] 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 3 miles, as in the treaty under consideration, only such bays should be held as territorial as have an entrance not wider than 6 miles. (See Sir Thomas Barclay’s report to Institute of International Law, 1894, p. 129, in which he also strongly recommends these limits.) This is the doctrine which Westlake, the eminent English writer on international law, has summed up in 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 6 sea miles in the ordinary case, 8 in that of Norway, etc.—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 matter 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 contracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the State will be measured outward from that line to the distance of 3 miles or more, proper to the State.” (Westlake, vol. 1, p. 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 British, Chesapeake and Delaware Bays, which belong to the United States, and others. (Ibid., p. 188.) The Institute of International Law, in its annual meeting of 1894, recommended a marginal belt of 6 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 12 miles. But the learned association very wisely added a proviso to the effect, “that bays should be so considered and measured unless a continuous and established usage has sanctioned a greater breadth.” Many 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 jurisdiction upon reasons which go always back to the doctrine of protection. Lord Blackburn, one of the most eminent of English judges, in delivering the opinion of the Privy Council about Conception Bay in Newfoundland, 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, [Page 573] “the British Legislature has, by acts of Parliament, declared it to be part of the British territory and part of the country made subject to the legislation of Newfoundland.” (Direct United States 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 Delaware 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 particular circumstances such as geographical configuration, immemorial usage, and above all, the requirements of self-defense, justify such a pretension. The right 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 sovereignty 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-honored practice.
The well-known words of Bynkershoek 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 learned from reason and custom. I do not deny that authority 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.” (Questiones Jure Publici, vol. 1, cap. 3.)
It is to be borne in mind in this respect that the tribunal has been called upon to decide as the subject matter of this controversy the construction 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 France. 2d 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 3 miles from low-water mark along the whole extent of the coasts of the British Islands.
It is agreed that the distance of 3 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 10 miles in width be measured from a straight line drawn from headland to headland.
Art. 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.)
[Page 574]Regulations between Great Britain and France. 24th May, 1843.
Article 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 3 miles distance from low-water mark.
With respect to bays the mouths of which do not exceed 10 miles in width, the 3-mile distance is measured from a straight line drawn from headland to headland.
Art. III. The miles mentioned in the present regulations are geographical miles, of which 60 make a degree of latitude. (Hertslett, vol. VI, p. 416.)
Treaty between Great Britain and France. November 11, 1867.
Article I. British fishermen shall enjoy the exclusive right of fishery within the distance of 3 miles from low-water mark along the whole extent of the coasts of the British Islands.
The distance of 3 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 10 miles in width, be measured from a straight line drawn from headland to headland.
The miles mentioned in the present convention are geographical miles, whereof 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 Confederation, the following notice is issued for the guidance and warning of British fishermen:
1. 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 3 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 10 sea miles or less in breadth reckoned from the extremest points of the land and the flats, must be considered as under the territorial sovereignty of North Germany. (Hertslett’s Treaties, vol. XIV, p. 1055.)
Great Britain and German Empire. British board of trade, December, 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.” (Hertslett’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 pêcheurs nationaux jouiront du droit exclusif de pêche dans le rayon de 3 milles, à partir de la laisse de basse mer, le long de toute l’étendue des côtes de leurs pays respectifs, ainsi que des îies et des bancs qui en dépendent.
[Page 575]Pour les baies le rayon de 3 milles sera mesuré à partir d’une ligne droit e, tiree, en travers de la baie, dans la partie la plus rapprochée de I’entrée, au premier point où l’ouverture n’excédera pas 10 milles. (Hertslett, 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 3 miles from low-water mark along the whole extent of the said coasts.
- (b)
- In cases of bays less than 10 miles wide the line joining the headlands 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 3 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 harbor not otherwise specifically provided for in this treaty such 3 marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbor in the part nearest the entrance at the first point where the width does not exceed 10 marine miles,” which is recognizing the exceptional bays as aforesaid and laying the rule for the general 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 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 connection the treaties of 1686 and 1713 with France and of 1763 with France and Spain have been recited and offered as examples also of exclusion of nations by agreement from fishery rights on the high seas. I can not 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 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 3 marine miles of coastal jurisdiction. And it really would appear unjustified to explain such historic document by referring it to international agreements of 100 and 200 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 60 miles, or 100 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 [Page 576] with those which immediately 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 3 miles coastal jurisdiction, arrive always to an 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 3 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, sec. 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 3 miles, can be very well explained 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 considered as different from a bay in America and subject to other principles of international law can not be admitted in the face of it. What the practice of Great Britain has been outside the treaties is very well known to the tribunal, and the examples might be multiplied of the cases in which that nation has ordered its subordinates to apply to the bays on these fisheries the 10-mile entrance rule or the 6 miles according to the occasion. It has been repeatedly said that such have been only relaxations 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 10 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 Cobbett, a distinguished English writer, with respect to the Moray Firth 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 3 miles from the low-water mark of such coast line, and the waters of all bays, the [Page 577] entrance to which is not more than 6 miles, and of which the entire land boundary forms part of the territory of the same State. (Pitt Cobbett Cases and Opinions on International Law, vol. 1, p. 143.)
Is there a contradiction between these 6 miles and the 10 miles of the treaties just referred to? Not at all. The 6 miles are the consequence of the 3 miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the 10 miles far from being an arbitrary measure are simply an extension, a margin given for convenience to the strict 6 miles with fishery purposes. Where the miles represent 60 to a degree in latitude the 10 miles are besides the sixth part of the same degree. The American Government, in reply to the observations made to Secretary Bayard’s memorandum of 1888, said very precisely: “The width of 10 miles was proposed not only because it had been followed in conventions between many other powers, but also because it was deemed reasonable and just in the present case; this Government, recognizing the fact that while it might have claimed a width of six miles as a basis of settlement, fishing within bays and harbors only slightly wider would be confined to areas so narrow as to render it practically valueless and almost necessarily expose the fishermen to constant danger of carrying their operations into forbidden waters.” (British Case Appendix, p. 416.) And Prof. John Bassett Moore, a recognized authority on international law, in a communication addressed to the Institute of International Law, said very forcibly: “Since you observe that there does not appear to be any convincing reason to prefer the 10-mile line in such a case to that of double 3 miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The 10-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 offense, 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 offense is to be committed. In order, therefore, that fishing may be practicable and safe and not constantly attended with the risk of violating territorial waters, it has been thought to be expedient not to allow it where the extent of free waters between the 3 miles drawn on each side of the bay is less than 4 miles. This is the reason of the 10-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 possibilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than 4 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 l’Institut de Droit International, 1894, p. 146.)
So the use of the 10-mile bays so constantly put into practice by Great Britain in its fishery treaties has its root and connection with the marginal belt of 3 miles for the territorial waters. So much so that the tribunal having decided not to adjudicate in this case the 10-miles entrance to the bays of the treaty of 1818, this will be the only one exception in which the 10 miles of the bays do not follow as [Page 578] a consequence the strip of 3 miles of territorial waters, the historical bays and estuaries always excepted.
And it is for that reason that an usage so firmly and for so long a time established ought, in my opinion, be applied to the construction of the treaty under consideration, much more so, when custom, one of the recognized 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 3 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 characteristic of a bay. At all other places the 3 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 configuration 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 difficulty, 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 treaty of arbitration, a series of lines, which practical as they may be supposed to be, can not be adopted by the parties without concluding a new treaty.
These are the reasons for my dissent, which I much regret, on Question V.