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:

[Here are quoted pertinent parts of: (1) Articles 9 and 10 of the Treaty of August 2, 1839, between Great Britain and France (ante, p. 524); (2) Articles 2 and 3 of the Regulations of May 24, 1843, between Great Britain and France (ante, p. 524); (3) Article 1 of the Treaty of November 11, 1867, between Great Britain and France (ante, p. 525); (4) The British notice to fishermen fishing off the coasts of North Germany, dated November, 1868 (ante, p. 555); (5) The British notice to fishermen fishing off the coasts of the German Empire, dated December, 1874 (ante, p. 558); (6) Article 2 of the Treaty of May 6, 1882, between Great Britain, Belgium, Denmark, France, Germany, and the Netherlands for regulating the police of the North Sea fisheries (ante, p. 486); (7) The British Order in Council of October 23, 1877 (ante, p. 568).]

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 20th, 1818, sub judice: “The three marine miles mentioned in Article 1 of the Convention of October 20th, 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 three 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 ten 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 three marine miles of coastal jurisdiction. And it really would appear unjustified to explain such historic document by referring it to international agreements of a hundred and two hundred years. before when the doctrine of Selden's Mare Clausum was at its height and when the coastal waters were fixed at such distances as sixty miles, or a hundred miles, or two days' journey from the shore, and the like. It seems very appropriate, on the contrary, to explain the meaning of the treaty of 1818 by comparing it with those which 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 three 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 Klüber, for instance, quotes in the same sentence the treaties of October 20th, 1818, and August 2, 1839, as fixing a distance of three miles from low-water mark for coastal jurisdiction. And Fiori, the well-known Italian jurist, referring to the same marine miles of coastal jurisdiction, says: "This rule, recognized as early as the treaty of 1818 between the United States and Great Britain, and that between Great Britain and France in 1839, has again been admitted in the treaty of 1867." (Nouveau Droit International Public, Paris, 1885, section 803.)

This is only a recognition of the permanency and the continuity of States. The treaty of 1818 is not a separate fact unconnected with the later policy of Great Britain. Its negotiators were not parties to such international convention and their powers disappeared as soon as they signed the document on behalf of their countries. The parties to the treaty of 1818 were the United States and Great Britain, and what Great Britain meant in 1818 about bays and fisheries,

when they, for the first time, fixed a marginal jurisdiction of three miles, can be very well 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 ten-mile entrance rule or the six 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 ten miles entrance bays are recognized, is the clear sign of a policy. This policy has but very lately found a most public, solemn, and unequivocal expression. "On a question asked in Parliament on the 21st of February, 1907," says Pitt 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 three miles from the low-water mark of such coast line and the waters of all bays the entrance to which is not more than six 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 six miles and the ten miles of the treaties just referred to? Not at all. The six miles are the consequence of the three miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the ten miles, far from being an arbitrary measure, are simply an extension, a margin given for convenience to the strict six miles with fishery purposes. Where the miles represent sixty to a degree in latitude the ten miles are, besides, the sixth part of the same degree. The American Government, in reply to the observations made to Secretary Bayard's memorandum of 1888, said very precisely: "The width of ten miles was proposed not only because it had been followed in conventions between many other Powers, but also 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, page 416.) And Professor 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 ten-mile line in such a case to that of double three miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The ten-mile line has been adopted in the cases referred to as a practical rule. The transgression of an encroachment upon territorial waters by fishing vessels is generally a grave 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 three miles drawn on each side of the bay is less than four miles. This is the reason of the ten-mile line. Its intention is not to hamper or restrict the right to fish, but to render its exercise practicable and safe. When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to make the possibilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than four miles each way from the forbidden lines. In spaces less than this operations are not only hazardous, but so circumscribed as to render them of little practical value." (Annuaire de l'Institut de Droit International, 1894, p. 146.)

So the use of the ten mile bays so constantly put into practice by Great Britain in its fishery treaties has its root and connection with the marginal belt of three miles for the territorial waters. So much so that the tribunal having decided not to adjudicate in this case the ten miles entrance to the bays or the treaty of 1818, this will be the only one exception in which the ten miles of the bays do not follow as a consequence the strip of three 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 acquiesence 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 three miles are to be measured following the sinuosities of the coast." But no rule is laid out or general principle evolved for the parties to know what the nature of such 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 4 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 5.

Done at The Hague, September 7th, 1910.

LUIS M. DRAGO.

1912, July 20.-Agreement with Great Britain adopting, with certain modifications, the rules and method of procedure recommended in the award of September 7, 1910, of the North Atlantic Coast Fisheries Arbitration.1

ARTICLE 2.

And whereas the Tribunal of Arbitration in its award decided that

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.

And whereas the Tribunal made certain recommendations for the determination of the limits of the bays enumerated in the award; Now, therefore, it is agreed that the recommendations, in so far as the same relate to bays contiguous to the territory of the Dominion of Canada, to which Question V of the Special Agreement is applicable, are hereby adopted, to wit:

"In every bay not hereinafter specifically provided for, the limits. of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles."

[The lines for special bays are here defined.]

1 Treaties, etc., between the United States and Other Powers (Charles), vol. 3, p. 69.