Mr. Anderson to the Secretary of State.
The undersigned, agent of the United States in the North Atlantic coast fisheries arbitration recently held at The Hague, has the honor to submit his report as follows:
The general arbitration treaty of April 4, 1908, between the United States and Great Britain requires that in each case submitted to arbitration thereunder the parties shall conclude a special agreement defining clearly the matter in dispute, the scope and power of the arbitrators, and the periods to be fixed for the formation of the arbitration tribunal and the several stages of procedure.
In this case, such a special agreement was signed on the 27th day of January, 1909, confirmed by the Senate on the 18th of February following, and formally ratified by both Governments on the 4th of March, 1909. In compliance with the requirements of the general treaty of arbitration, the special agreement sets out, first, a series of seven questions to be answered by the tribunal relating to the interpretation of the true intent and meaning of Article I of the treaty of October 20, 1818, between the United States and Great Britain; and it provides that the tribunal of arbitration shall be chosen in accordance with the provisions of Article XLV of The Hague convention of October 18, 1907, for the pacific settlement of international disputes; and provides further that when not inconsistent with any particular [Page 579] provision of the special agreement, the provisions of that convention shall govern the proceedings in the case. The special agreement also contains a series of provisions covering the presentation of the case and the procedure before the tribunal.
The article of The Hague convention, in accordance with which the members of the tribunal were required to be chosen, provides that the tribunal shall be composed of five members selected from the list of the members of the permanent court at The Hague, and that their selection shall be made by direct agreement of the parties if possible, and in case of failure to agree other methods of selection are provided for. In this case a direct agreement was reached, and the members of the tribunal selected were as follows:
- Dr. H. Lammasch, doctor of law, professor of the University of Vienna, aulic councilor, 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 Hon. George Gray, judge of the United States circuit court of appeals.
- The Right Hon. Sir Charles Fitzpatrick, doctor of law, chief justice of Canada.
- Mr. Luis Maria Drago, doctor of law, former minister of foreign affairs of the Argentine Republic.
The names of the agents and of the counsel appearing before the tribunal on each side are set forth in the protocol of its first meeting, a copy of which is hereto annexed.
Pursuant to the provisions of the special agreement, the printed case of each Government, together with copies of the evidence upon which it relied, was served upon the other within the period of seven months after the exchange of ratifications confirming the agreement, such service being made on the 4th day of October, 1909, the last day of such period; and on each side a countercase in answer to the case was served upon the other side on the 21st day of February last, to which date the period for the service of such countercase was extended by mutual consent. So, also, a printed argument on each side was delivered to the other on the 16th day of May last, in accordance with an arrangement agreed upon for the mutual convenience of both parties, which slightly modified the terms of the special agreement in that respect. Copies of these cases, counter-cases, and arguments were also delivered to the members of the tribunal in accordance with the requirements of the special agreement.
The determination of the true intent and meaning of Article I of the treaty of 1818 with reference to the questions submitted for the decision of the tribunal required an examination not only of the language of the treaty but also of the events leading up to its negotiation and signature and of the actions taken by either Government since the date of the treaty having a bearing upon its interpretation. The evidence presented in support of the contentions of the United States upon these questions, therefore, covered the entire period from the date of the special agreement submitting these questions to arbitration back to the treaty of peace of 1783, at the close of the Revolution, and some features of the controversy necessitated, the introduction of a considerable amount of evidence even prior to that date.
The case of the United States, which was prepared by the agent, presented the contentions of the United States in the form of a brief on the facts, reviewing chronologically the course of events leading up to the treaty of 1818 and the subsequent governmental actions [Page 580] on each side having a bearing upon its interpretation, and was based upon documentary evidence presented in the appendix to the case of the United States, which comprised upwards of 1,300 printed pages, and included all the pertinent and material diplomatic correspondence between the United States and Great Britain and the correspondence between Great Britain and her colonies and her diplomatic representatives, in so far as it was available to the United States; also all legislative and executive acts on the part of the United States and of Great Britain and the British colonies bearing upon the questions submitted, together with the available records of the negotiations leading up to the treaties of 1783, 1814, 1818, 1854, 1871, and the unratified treaty of 1888, and the modus vivendi entered into in 1885, in 1888, in 1906, in 1907, and in 1908 between Great Britain and the United States.
The countercase of the United States, which also was prepared by the agent, presented in the form of a brief on the facts the evidence on the part of the United States in support of its contentions in reply to the evidence presented in the British case, dealing separately with each of the seven questions submitted for decision, the documentary evidence relied upon being printed in an accompanying appendix covering about 700 printed pages.
The documentary evidence presented in the British case and countercase was similar in character to that presented on the part of the United States, and to a considerable extent identical with it, and about equally voluminous. The method of dealing with such evidence, however, in the British case and countercase was somewhat different from that followed in the case and countercase of the United States, a large part of the British pleadings being devoted to argument on the law and citations of authorities and precedents, in distinction from the mere argumentative presentation of the facts and evidence relied upon, which was the course adopted in the case and countercase of the United States.
The Hon. Robert Lansing acted as solicitor for the agency, and rendered valuable assistance to the agent throughout the period devoted to the preparation of the case and countercase in connection with the preparation of the appendices of the case and counter-case containing the documentary evidence relied on by the United States. Upon the completion of that work Mr. Lansing was designated as one of the associate counsel for the United States in the arbitration proceedings.
The Hon. James Brown Scott, then Solicitor for the Department of State and one of the associate counsel for the United States in this case, compiled for the use of the agent and counsel a very complete and useful collection of extracts from the writings of all the leading authorities on international law dealing with the doctrine of international servitudes. A similar compilation of extracts from the leading international law publicists dealing with the subject of coastal waters was prepared by Edwin M. Borchardt, Esq., of the Library of Congress, who was attached to the staff of the agency as international law expert. These compilations proved of great service in connection with the preparation both of the printed and of the oral arguments on the part of the United States.
The date originally fixed by the special agreement for the meeting of the tribunal having been found inconvenient on account of the extension of time agreed upon for the service of the countercases, it [Page 581] was subsequently agreed by the two Governments that it should be postponed until the 1st day of June, 1910, and on that date the first meeting of the tribunal was held at The Hague for the oral arguments of counsel.
The protocols of the proceedings of the tribunal are hereto annexed as a part of this report, and from them it will appear that an adjournment was taken by the tribunal from June 1 to June 6, when the oral argument was commenced.
By agreement between the agents and senior counsel on both sides, it was arranged that Great Britain should have the opening argument and the United States the closing argument, and that counsel on each side should speak alternately. Accordingly, Sir Robert Finlay opened for Great Britain, and the Hon. George Turner opened for the United States, followed by Sir James Winter for Great Britain, Charles B. Warren, Esq., for the United States, Hon. John S. Ewart for Great Britain, Hon. Samuel J. Elder for the United States, Sir William Robson closing for Great Britain, and the Hon. Elihu Root making the closing argument for the United States.
Forty sessions in all were consumed in the oral argument, which ended on August 12, 1910, four days in each week having been devoted to such sessions, the daily sittings of the tribunal continuing for about four or four and one-half hours, the intervening time being required for the preparation of the arguments and for the other business involved in carrying through proceedings of such an extensive and voluminous character. By agreement of the parties the meetings of the tribunal were open to the public.
On the close of the oral argument the case was taken under consideration by the tribunal, and on Wednesday, September 7, 1910, the award of the tribunal was announced.
Before proceeding to a consideration of the provisions and effect of the award, it is desirable that the situaton existing before resort was had to arbitration should be briefly reviewed.
Throughout the entire history of this controversy, which extends back almost to the time when the treaty of 1818 was entered into, there has been a wide divergence of view between the United States and Great Britain as to the meaning and effect of Article I of that treaty. With the exception of the first 20 years after the treaty was entered into there has hardly been a time throughout the entire existence of this treaty when the United States and Great Britain have not had under consideration some question arising out of their different views as to the meaning of its provisions, and these questions have involved not only the extent of the rights and obligations of American fishermen in the Canadian and Newfoundland waters affected by the treaty, but also the extent of the treaty waters themselves.
In all of these discussions the interpretation insisted upon by the colonial authorities has been such as to exclude the American fishermen from the enjoyment of the treaty liberties claimed for them by the United States, or to so limit and restrict such liberties as to render them worthless; and the admitted purpose of the colonial authorities throughout the controversy has been to compel the United States to grant trade concessions as the price of the uninterrupted enjoyment of privileges claimed by the United States as a matter of right under the treaty.
[Page 582]The reciprocal agreements entered into by the two Governments in 1854 and 1871, in which the fishery privileges of the treaty of 1818 were merged and more extensive fishery privileges were secured in exchange for trade concessions, proved unsatisfactory to the United States and were short-lived.
The experience afforded by these treaties and by other unsuccessful attempts to dispose of this controversy by similar means long since demonstrated to the satisfaction of both Governments that a permanent settlement of this dispute by such means was a practical impossibility.
The proposed Blaine-Bond treaty of 1892, adjusting the differences between the United States and Newfoundland, failed of ratification on account of opposition on the part of Canada, and the Hay-Bond treaty, negotiated in 1902, by which an adjustment with Newfoundland was again attempted, also failed of ratification.
During the period between the Blaine-Bond treaty and the rejection of the Hay-Bond treaty Newfoundland refrained from any attempts to enforce any objectionable local regulations against American fishermen exercising their treaty rights in Newfoundland waters. The friendly attitude of the Newfoundland Government during that period was publicly admitted by governmental authorities to be due to the fact that the United States having demonstrated its willingness to adjust the matters in dispute with Newfoundland by entering into the Blaine-Bond treaty, the American fishermen were entitled to the treatment which they would have received under that treaty if its ratification had not been defeated by the opposition of Canada.
In 1905, however, upon the failure of the United States to ratify the Hay-Bond treaty, the Newfoundland Government completely reversed its former attitude toward the American fishing interests and proceeded, as shown by the case of the United States in this arbitration, by legislative and executive action to terminate all commercial privileges which for many years prior to that time had been extended to American fishing vessels both on the treaty coasts and on the other coasts of Newfoundland. This new policy of the Newfoundland Government, as was frankly admitted by leading officials of that Government, was intended to force the Government of the United States to open the American markets to Newfoundland fish and fishery products free of duty in exchange for more extensive fishing and commercial privileges on the Newfoundland coasts.
Such, briefly, was the situation when Mr. Root became Secretary of State in 1905, and, as it soon became evident that the Newfoundland Government in carrying out its new policy would undertake to impose upon American fishermen in the exercise of their treaty liberties certain limitations and restraints which were regarded by the United States as in conflict with such liberties, the Secretary of State at once proceeded to take up with Great Britain the question of defining the rights of American fishermen under the treaty of 1818 and restraining the colonial governments from interfering with such rights.
In the diplomatic correspondence which ensued the views of both Governments on these questions were fully and ably presented. It appeared, however, as stated by the British secretary of state for foreign affairs in his note of August 14, 1906, “that the wide divergence [Page 583] of view between the two Governments, which is disclosed by the correspondence, makes it hopeless to expect an immediate settlement of the various questions at issue.” A modus vivendi for that year accordingly was entered into, but upon a renewal of the discussion the following year it became evident, on account of the conflict of views between the two Governments, that it would be impossible to find a basis for an agreement for the permanent adjustment of the question in dispute. It was accordingly recognized on both sides that recourse must be had to arbitration, and after the general arbitration treaty of April 4, 1908, was entered into, negotiations were undertaken for the arbitration of the questions at issue in this controversy, with the result that the special agreement of January 27, 1909, was concluded, submitting seven questions to arbitration.
These questions covered all the unsettled matter of difference growing out of the fisheries provisions of the treaty of 1818, many of which had been under discussion almost continuously for more than half a century.
On one of the issues under discussion, which was ultimately presented as the first question submitted for decision, several points of agreement had been reached by the parties in the negotiations which led up to the special agreement under which the arbitration was held. This question related to the enforcement by Great Britain or her colonies of fisheries regulations against American fishermen exercising their treaty rights of fishing in British territorial waters. Great Britain had originally contended that under the language of the treaty, which secured to American fishermen a “liberty in common with British fishermen to take fish,” American fishermen were subject, when fishing under the treaty in British waters, to all fishing regulations and restrictions imposed by British law upon British fishermen. In formulating this question for submission to arbitration, however, the United States succeeded in securing from Great Britain a modification of this position, and it was admitted by Great Britain in presenting its contention in this question that no fishing regulations could be enforced against American fishermen in British waters under the treaty unless they were appropriate and necessary for the protection and preservation of the fisheries, and reasonable in themselves, and not so framed as to give the local fishermen an unfair advantage over the American fishermen. To this extent the contentions of the two parties coincided. Great Britain further contended, however, that the United States was not entitled to be consulted with regard to the enforcement of any such regulations, and that Great Britain alone must be the sole judge as to their appropriateness, necessity, reasonableness, and fairness; and this was the issue between the two Governments presented in the first question.
As a result of this arbitration, therefore, British regulations limiting the time, manner, and implements of fishing can no longer be enforced against American fishermen exercising their fishing liberties on the treaty coasts unless such regulations are reasonable, appropriate, necessary, and fair, as defined in question 1. In the award on this question it was further decided that in case the United States raises the question of the reasonableness, etc., of any regulation hereafter adopted, Great Britain can not be the judge of that question, which now must be decided by a special commission of experts constituting an impartial tribunal according to a mode of procedure [Page 584] established by the award, the enforcement of any such regulations being suspended pending the decision of such special commission. Furthermore, a series of legislative provisions of Newfoundland and Canada which the United States had objected to as unreasonable and under Article II of the special agreement had called to the attention of the tribunal on the ground that they were inconsistent with the true interpretation of the treaty of 1818, were referred, at the request of the United States, in accordance with Article III of the special agreement, to a commission of experts for examination and report as to their reasonableness, appropriateness, necessity, and fairness. This commission has not yet reported on the questions so referred to it.
It is evident, therefore, that as a result of the award no regulations limiting the time, manner, and implements of fishing can hereafter be imposed upon American fishermen exercising their treaty liberties in Newfoundland and Canadian waters if any objection has been raised to them by the United States unless their reasonableness, necessity, and fairness has been approved by an impartial commission or tribunal.
The result thus obtained is one which the United States Government would have been willing to agree to at any time during the history of this controversy. Secretaries of State Marcy, Fish, Evarts, and Root have each in turn specifically stated that the United States was willing that the American fishermen on the treaty coasts should be subjected to just and reasonable regulations, but they all insisted that Great Britain and her colonies could not be permitted to be the sole judge of the justness and reasonableness of such regulations.
The only feature of the contention of the United States on question 1 which was not sustained by the tribunal was the extreme position taken in the argument of counsel that the treaty established an international servitude in favor of the United States, exempting American fishermen absolutely from obedience to British fishing regulations. This contention was based upon a principle of international law, supported by the great majority of international publicists, but which was regarded by the tribunal as antiquated and not suited to modern conditions although the treaty under consideration was equally antiquated, having been entered into in the early part of the last century. Nevertheless, the decision in practical effect secures the same measure of protection against unfair and arbitrary regulation of the fisheries wnich this contention of the United States was designed to secure, and the strength of the contention of the United States on this point unquestionably had a very effective influence in obtaining for the United States the large measure of advantage which is secured to its fishermen by the award.
An alternative line of argument which was relied on by the United States, and which finally prevailed, was that under the obligations imposed by the treaty and by the interpretation of it adopted by both parties in their subsequent governmental actions and particularly by the limitations accepted under the special agreement submitting the question to arbitration, the exercise of British sovereignty had been limited with respect to the matters under consideration even if British sovereignty itself was not limited; and the award has sustained this contention of the United States.
Although British sovereign rights over the fisheries in British waters are affirmed in the decision, nevertheless the exercise of such rights is effectively limited by the award to the extent above indicated.
[Page 585]On question 2 the tribunal has decided in favor of the contention of the United States that the inhabitants of the United States while exercising their treaty liberties of fishing have a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States, thus overruling the British contention that the liberty of fishing, which the treaty secures “to inhabitants of the United States,” gave them only the right to exercise themselves the manual act of taking fish and did not permit them to employ persons who were not inhabitants of the United States to assist them in exercising that right. It is pointed out in the award, however, that the persons so employed derive no benefit or immunity from the treaty in their own right.
The third and fourth questions deal with the contentions always maintained by Great Britain that American fishermen exercising their fishing liberties on the treaty coasts and the special privileges reserved to them on the nontreaty coasts, might be subjected to the same customhouse regulations which were imposed upon vessels enjoying trading privileges on those coasts, and also to the payment of light and harbor dues and other exactions of a similar character, although the local fishermen were exempt from such requirements.
The United States, on the other hand, although admitting that American fishing vessels exercising their treaty liberties or privileges in British waters might properly be called upon to notify the local authorities of their presence there and exhibit their credentials if convenient opportunity was afforded, has always contended that American fishing vessels could not be subjected to the customs regulations imposed upon other vessels, or required to pay light, harbor, or other dues not imposed upon local fishing vessels. The contentions of the United States on these questions have been fully sustained by the award. It holds, under question 3, with reference to the treaty coasts that “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” and that American fishing vessels should not be required even to report their presence on the coast “unless there be reasonably convenient opportunity afforded to report in person or by telegraph, either at a customhouse or to a customs official.”
So, also, under question 4, with reference to the exercise of the treaty privilege of entering bays or harbors on the nontreaty coast for the four purposes specified in the treaty, the award decides that “to impose restrictions making the exercise of such privileges conditional upon the payment of light, 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.” It declares, however, in the case of fishermen who remain more than 48 hours in such bays and harbors in the exercise of their treaty privileges, that it would not be unreasonable to require them, “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.”
[Page 586]Question 5, which was introduced into the arbitration by Great Britain, deals with the historic contention of the British Government that the renunciation by the United States in the treaty of 1818 of the liberty of fishing on or within 3 miles of any bays on the nontreaty coasts must be interpreted as excluding American fishermen from fishing in any of the indentations of the coast which might properly be defined as bays, regardless of their size. The position of the United States on this question has always been that inasmuch as the language of the treaty is “bays of His Britannic Majesty’s dominions” the bays referred to were only such bays as were included within the usual 3-mile limit of territorial jurisdiction bordering the coast, and that the right to fish in the larger bays was, therefore, not renounced by the treaty.
As appears from the opinion, the tribunal determined that the renunciation of the right to fish “on or within 3 marine miles of any bays,” etc., must be interpreted as applying only to geographical bays, the tribunal declaring that it is “unable to understand the term bays in the renunciatory clause in other than its geographical sense.” The award on this question is as follows:
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. At all other places the 3 marine miles are to be measured following the sinuosities of the coast.
Great Britain’s contention did not rest upon the assertion of territorial jurisdiction over such bays, and the award does not go to the extent of holding that Great Britain has territorial jurisdiction over the large bays, although the United States has renounced for its fishermen the right to fish therein.
The award, therefore, still leaves American fishermen in such bays subject to American and not British law, and confers upon Great Britain or the British colonies no right to seize or interfere with American fishing vessels beyond the 3-mile limit from shore in such bays, such vessels being in a similar situation to British vessels violating their obligation under the fur-seal award, which excludes them from fishing in certain portions of the high seas.
The award of the tribunal on this question does not define what is a bay, holding merely that the 3-mile limit of exclusion must be measured from a “line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay.” This answer leaves open the question of where such line is to be drawn in each particular case and also the question of whether any particular body of water has the “configuration and characteristics of a bay.” The tribunal recognized this difficulty, and in order to “render the decision more practicable and to remove the danger of future differences” the award contains a further provision recommending the adoption of the rule approved and accepted by Great Britain in many treaties that “only bays of 10-mile width should be considered as those where the fishing is reserved to nationals,” extending this rule, however, to include certain larger bays as exceptions to it. These recommendations are substantially in accordance with the agreement adopted by the unratified Bayard-Chamberlain treaty of 1888, with certain considerable modifications in favor of the United States.
[Page 587]The Bay of Fundy, which is the only large bay where the American fishermen now fish or have fished to any extent within recent years, is expressly excepted from the application of the award on this question.
The strength of the position of the United States on this question is shown by the very able argument presented in the dissenting opinion by Dr. Drago and by the fact that the British contention was not fully sustained, and that this was the only question of the seven submitted upon which the decision of the tribunal was not unanimous.
The sixth question deals with the contention of Great Britain, advanced for the first time in recent years, that the treaty did not secure to American fishermen the liberty of fishing in the bays on the southern and western coasts of Newfoundland and on the Magdalen Islands. This contention rested on the argument that the liberties secured by the treaty to fish on the southern and western coasts of Newfoundland and on the shores of the Magdalen Islands did not extend to the bays on those coasts, inasmuch as the treaty does not mention bays in connection with those coasts, and does expressly mention them in connection with the coast of Labrador, which forms part of the treaty coast. The United States, on the other hand, contended that the liberty secured by the treaty to fish on those coasts necessarily extended to the bays of such coasts, and that this interpretation must be adopted, not only because it was supported by the language of the treaty read in the light of the evident intention of the parties in entering into it, but also because usage and custom and the action of both Governments subsequent to the treaty had combined to give the treaty that interpretation in actual practice for the entire period since the treaty was entered into.
The award of the tribunal sustained fully and without qualification the contention of the United States on this question.
In many respects this was the most important question submitted for decision. The bait fish, which are procured in immense quantities in the bays of Newfoundland and of the Magdalen Islands, are a very important factor in the successful prosecution of the exceedingly valuable cod fishery on the Grand Bank and on the other banks in the North Atlantic; and this situation discloses the real importance of this question. If the contention of the Newfoundland Government had been sustained, and American fishermen deprived of the opportunity of taking bait for themselves in these bays, it was the admitted intention of the Newfoundland Government to threaten the entire cod-fishing industry on the banks by prohibiting the Newfoundland fishermen from selling bait to the American fishermen, in order to compel the United States to yield to Newfoundland’s demand for the free entry of Newfoundland fish and fish products and for other commercial concessions in exchange for the privilege of procuring bait. Furthermore, the very important and profitable winter herring fishing was also dependent upon the decision of this question, inasmuch as it is carried on by the American fishermen wholly in the bays on the west cost of Newfoundland.
The decision of this question in favor of the United States also disposes of a claim for a very large amount of damages which the Newfoundland Government was preparing to present against the United States for the value of all the fish taken by American vessels in [Page 588] these bays during the 90 years since the treaty was entered into, on the ground that American fishermen under the treaty had no right to fish in such bays.
The seventh question called upon the tribunal to determine whether or not the inhabitants of the United States, whose vessels resorted to the treaty coasts for the purpose of exercising their treaty liberties of fishing, were entitled to use the same vessels, when duly authorized by the United States, in the exercise of such commercial privileges on the treaty coasts as were accorded by agreement or otherwise to American trading vessels generally. The position of the United States on this question was that fishing vessels exercising commercial privileges necessarily subjected themselves to all the requirements and conditions imposed upon commercial vessels generally, but that the use of a vessel by inhabitants of the United States in the exercise of their fishing rights did not disqualify such vessel from being used for commercial purposes after it had completed its fishing operations, and, conversely, that a commercial vessel might be used for fishing purposes as soon as its use for commercial purposes ceased.
The award of the tribunal fully sustains the contentions of the United States on this question, holding that—
The inhabitants of the United States are so entitled, in so far as concerns this treaty, there being nothing in its provisions to disentitle them, provided the treaty liberty of fishing and the commercial privileges are not exercised concurrently.
The provisions of Articles II and III of the spec al agreement and the proceedings already taken and to be taken pursuant thereto form an important part of the award on question 1, and require brief examination.
Pursuant to the provisions of Article II of the special agreement, the United States called the attention of the tribunal upon the oral argument to certain acts of Newfoundland and Canada which had already been specified by the United States to Great Britain within the period required for such specification, and called upon the tribunal “to express in its award its opinio upon such acts, and to point out in what respects, if any, they were inconsistent with the principles laid down in the award.” The objection of the United States to such acts was based on the grounds that in their application to American fishermen on the treaty coasts they were not appropriate, and necessary, and reasonable, and fair as defined in question 1.
The United States further requested that, in case the character of the award should require the determination of the reasonableness, etc., of the acts specified, the tribunal should refer to a commission of expert specialists for action thereon, in accordance with Article III of the special agreement, such of the acts specified as required an examination of the practical effect thereof in relation to the conditions surrounding the exercise of the liberty of fishing, or required expert information about the fisheries themselves. In reply to this application on the part of the United States, Great Britain filed an answer submitting that the acts referred to were reasonable in themselves and that the United States had not sufficiently stated the grounds of objection to the various acts referred to, and had laid no ground for the request that certain of these acts should be referred to a commission of expert specialists. The proceedings thus taken were set forth in a printed statement on behalf of the United States, [Page 589] and a printed answer on behalf of Great Britain, both of which were filed with the tribunal, and copies of which are included in the appendix to the printed record of the proceedings of the tribunal, which forms part of this report. The issues thus raised were discussed in written communications exchanged between the agents of both parties and the tribunal, copies of which also are included in the appendix to the printed record of the proceedings of the tribunal.
The position taken by the United States was sustained by the award of the tribunal under question 1, whereby it was held that—
The decision of 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 in Article III.
The tribunal accordingly referred the regulations objected to by the United States to a commission of experts, as provided for in Article III of the special agreement, for action in accordance therewith, and called upon the parties to designate, within one month from the date of the award, their respective representatives on such commission. Dr. P. P. C. Hoek, scientific adviser for the fisheries of the Netherlands, was designated in the award as the nonnational member of this commission. Dr. Hugh M. Smith, Deputy Fish Commissioner of the United States, was designated within the period fixed by the award as the commissioner on the part of the United States. Hon. Donald Morison, minister of justice of Newfoundland, has been designated as the commissioner on the part of Great Britain.
In the course of the oral argument before the tribunal, the position was taken by counsel on both sides that in determining the rights of the parties under question 1, the tribunal should take into consideration the provisions of Article IV of the special agreement submitting this case to arbitration. By this article it was agreed that unless the parties should adopt some alternative method of procedure, any differences arising in the future relating to the interpretation of the treaty of 1818, or to the effect or application of the award of the tribunal, should be referred inform ally to the Permanent Court at The Hague “for decision by the summary procedure provided for in chapter 4 of The Hague convention of the 18th of October, 1907.” In view, however, of the fact that this special agreement was entered into under the general treaty of arbitration concluded between the United States and Great Britain on the 4th day of April, 1908, the duration of which, by its own terms, was limited to a period of five years, it seemed desirable to the agent and counsel on the part of the United States that the view which was entertained by both court and counsel and formed part of the basis upon which the case was considered should be declared beyond the possibility of future question to the effect that the provisions of Article IV of the special agreement continued with the fisheries provisions of the treaty of 1818, and did not terminate with the general arbitration treaty of 1908. This subject was, therefore, brought up for consideration at the session of the tribunal on Friday, August 5, 1910, and it was then stated by counsel on behalf of the United States and of Great Britain, respectively, that the provisions of Article IV were regarded as constituting, in effect, a new treaty which would survive the termination of the general treaty of arbitration, and that Article IV of the special agreement [Page 590] was not limited by any term, but related to the future generally, and therefore was not a determinable article so far as affects its subject matter. The same view was expressed on the part of the tribunal; and in the award on question 1, the tribunal held that—
Article IV of the agreement is, as stated by counsel of the respective parties at the argument, permanent in its effect and not determinable by the expiration of the general arbitration treaty of 1908 between Great Britain and the United States.
The foregoing examination of the award and of Articles II, III, and IV of the special agreement makes it evident that the wise and farsighted provisions of that agreement entered very largely into the satisfactory outcome of this arbitration, and both countries are to be congratulated that a permanent and expeditious method is now provided for settling future differences, if any should arise, in regard to the fisheries under the treaty of 1818.
The duplicate original of the award, signed by the members of the tribunal, and also of the dissenting opinion of Dr. Drago on question 5, which were delivered to the agent of the United States when the award was announced, are transmitted herewith, and a copy of the award and of Dr. Drago’s opinion are hereto annexed as part of this report.
The very important services rendered by counsel in the presentation of the oral arguments on behalf of the United States and otherwise in the course of the proceedings are too well understood and appreciated to require special mention in this report further than to say that Mr. Turner’s opening of the case was a very strong and able argument and exhibited the results of great industry and research, and the same is true of the arguments of Mr. Elder and Mr. Warren on the particular questions dealt with by them, and that Mr. Root’s argument in closing was a masterly presentation of the entire case of the United States. It is appropriate that the agent should express his obligation to the counsel of the United States for the very cordial and loyal support which they have given him throughout the entire course of these proceedings; also that mention should be made of the fact that the distinguished services rendered by Senator Root in this case as senior counsel have been rendered by him without compensation. Such services, in addition to the responsibilities attendant upon the duties of chief counsel in a case of such magnitude and importance, involved also the necessity of spending, at the expense of his summer vacation, more than three months away from home and, from June 1 to August 12, in almost daily attendance at the sessions of the tribunal, and the preparation and delivery of the closing argument, which consumed six sessions of the tribunal, summing up the entire case for the United States. The acceptance of the position of chief counsel was urged upon Mr. Root by the President and the Secretary 6f State and the agent and the other counsel for the United States in this case, and he gave his services freely to the Government without the expectation of receiving compensation, and to him, as chief counsel, the United States is indebted in large measure for the successful outcome of the arbitration.
It is also appropriate that acknowledgment should be made of the obligation of the agent and counsel to the Department of State for the hearty and effective cooperation and assistance rendered to them by the department throughout the entire period covered by the arbitration proceedings. Valuable assistance was also rendered in these [Page 591] proceedings by Dr. Hugh M. Smith, Deputy Fish Commissioner of the United States, who acted as expert adviser on practical and technical questions relating to the regulations of the fisheries, and has now been designated as the member on the part of the United States of the special commission of experts; and by Messrs. Alvin B. Alexander, Carl C. Young, and Arthur L. Millet, attached to the agency as fisheries experts; and by Mr. Otis T. Cartwright, secretary of the agency and special disbursing officer, Department of State; Mr. Edwin M. Borchardt, expert on international law; and Messrs. Wallace J. Young, James B. Davies, Charles Jenkinson, and John D. Johnson, who were attached to the agency as members of the clerical staff.
I am, sir, very respectfully, your obedient servant,
Agent of the United States in the North Atlantic Coast Fisheries Arbitration.