[Enclosure]
The Canadian Acting
Secretary of State for External Affairs to the
American Minister (Armour)
No. 120
Ottawa, September 21,
1936.
Sir: I have the honour to acknowledge
your note of July 28th, 1936, No. 250, relative to the proposed
draft for a revision of the Convention of 1930 for the
preservation of the halibut fishery of the Northern Pacific
Ocean and Bering Sea.
It is now apparent that both our Governments are agreed upon the
draft at all points, excepting only the wording of Article II
suggested in paragraph (2) of my note of June 15th, No. 68, and
dealt with in paragraph (2) of your note under reply. As to
that, there appears to be no difference of intention; it seems
simply a question of finding the most suitable text.
The Canadian Government have had no intention of questioning the
necessity to provide for the regulation of the halibut fishery
in territorial waters as well as on the high seas. They believe
the first sentence of Article I to be entirely clear upon that
point.
From the drafting point of view it would seem that Article I
should be regarded as the substantive definition of the offence
or object aimed at. Article II, on the other hand, provides for
the means and procedure of enforcement, and here two aspects
arise: procedure for territorial waters and procedure for the
high seas.
[Page 833]
As regards territorial waters, once the offence has occurred, the
authority to seize the offender or the offending vessel,
whatever its nationality, would seem to rest not on treaty but
on territorial law. The seizure could be made only by the
officers of the country in whose waters the offence occurred,
and the prosecution would have to be conducted in the courts of
that country.
As regards the high seas, agreement would seem necessary to
authorise the officers of the one country to seize and turn over
an offender having the nationality of the other country.
It is suggested that a possible confusion and awkwardness might
be removed if Article II were so drafted as to recognise more
explicitly and directly the distinction between the two cases.
Though doubtless not intended, the text as proposed in your
notes of March 11, 1936, No. 158, and May 11, 1936, No. 196,
seems to admit the possibility that, for example, a Canadian
offender seized by United States officers for an offence in
United States territorial waters might be turned over to
Canadian authorities for prosecution, and yet the latter would
of course have no jurisdiction to deal with such an offence.
The draft of Article II, as proposed in my note of June 15th, No.
68, was submitted in the belief that it would obviate such a
textual awkwardness. It is believed, also, that this draft
corresponds to the method of drafting adopted in the similar
case of Article IX of the Sockeye Salmon Fisheries Convention of
May 26th, 1930.
In order to clarify the matter further in the sense of the
foregoing observations, it is suggested that there might be
added, either as a new Article or as an extension of Article II
(as proposed in my note above referred to), a provision to the
following effect:
“Each High Contracting Party shall be responsible for the
proper observance of this Convention, or of any
regulation adopted under the provisions thereof, in the
portion of its waters covered thereby.”
Accept [etc.]
Laurent Beaudry
for Acting Secretary of State for External
Affairs
