WAS THE AWARD IN THE NORTH ATLANTIC FISHERIES CASE A COM

PROMISE?

In the July, 1911, number of the JOURNAL (Vol. 5, p. 725), an editorial was printed under the heading "Statement by the President of the Tribunal that the North Atlantic Fisheries Award was a Compromise," the subject of which was a statement, made by the president of the tribunal, Dr. Lammasch, in an article published in Das Recht, that the award in the fisheries arbitration" contained elements of a compromise for which, however, the tribunal had received special and exceptional authorization." The editorial briefly reviewed the treaties relating to and providing for the arbitration and concluded that compromise seemed to have been excluded and that we were unable to discover the special and exceptional authorization mentioned by the president as justifying a compromise.

We are now in receipt of a communication from Dr. Lammasch in which he explains what was meant by his statement referred to and gives the reasons upon which it was based. At the request of Dr. Lammasch, and in order that our readers may have the benefit of the distinguished arbitrator's views, his communication is printed in full:

The AMERICAN JOURNAL OF INTERNATIONAL LAW did me the honour to quote some part of a little article I had published in a German law review concerning the award of the arbitral tribunal instituted at The Hague to decide the controversies between the United States of America and Great Britain concerning the North Atlantic fisheries, of which tribunal I had been the president. I had said in that article that the sentence of this tribunal "contained elements of a compromise, for which, however, the tribunal had received special and exceptional authorization." In saying so, I alluded of course to the recommendations which the tribunal had proposed to both governments in virtue of Article IV of the special agreement concluded between the litigating Powers.

One of the questions to be decided by the arbitral tribunal was: 5th. From where must be measured the "three marine miles of any of the coasts, bays, creeks or harbours" referred to in the said article of the treaty of 1818? In regard to this question the difference was that Great Britain claimed that the renunciation of the United States applied to all bays generally, whereas the United States contended that it applied only to bays of a certain class or condition. The majority of the tribunal, including the two national arbitrators, Mr. Justice Gray and Sir Charles Fitzpatrick, were of opinion that the treaty used the general term bays "without qualification" and that therefore

These words of the treaty must be interpreted in a general sense as applying to every bay on the coast in question that might be reasonably supposed to have been considered as a bay by the negotiators of the treaty under the general conditions then prevailing.

The negotiators of the treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of "bays," they most probably thought that everybody would know what was a bay. In this popular sense the term must be interpreted in the treaty. The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the state in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general.

For these reasons the tribunal decided that in case of bays the three 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. The majority of the tribunal developed the reasons for this award in a very detailed statement containing not less than 21 items. Only one of the arbitrators, Mr. Drago, dissented from this part of the sentence, without nevertheless exactly stating in his opinion filed at the International Bureau of the Permanent Court of Arbitration what sense he attributed to the word "bay" in the treaty of 1818. The tribunal could not overlook that the answer given to Question V" although correct in principle and the only one possible in view of the want of sufficient basis for a more concrete answer," was "not entirely satisfactory as to its practical applicability and that it leaves room for doubts and differences in practice." The tribunal foresaw that there would arise in future questions regarding the exercise of the liberty of American citizens to fish outside the limits indicated by the treaty and the award. For the purpose of determining these questions in accordance with the principles laid down in the award, the tribunal made use of the special and exceptional authorization which had been given to it by Article IV of the agreement of April 4, 1908. Article IV reads as follows:

The Tribunal shall recommend for the consideration of the high contracting parties rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award.

Pursuant to this article, the tribunal recommended for the consideration and acceptance of the high contracting parties some rules and a method of procedure for determining the limits of the bays enumerated.

The starting point of these recommendations were the considerations that in subsequent treaties with France, with the North German Confederation and the German Empire, and likewise in the North Sea Convention, Great Britain had adopted for similar cases the rule that only bays of ten miles width should be considered as those wherein the fishing is reserved to nationals, and that in the course of the negotiations between Great Britain and the United States a similar rule had been on various occasions proposed and adopted by Great Britain in instructions to the naval officers stationed on these coasts.

Though these considerations, in the opinion of the majority of the tribunal, were not sufficient, as they seemed to Dr. Drago, to constitute this a principle of international law, it nevertheless seemed reasonable to them to recommend this rule with certain exceptions, especially since this rule with such exceptions had already formed the basis of an agreement between the two Powers. These recommendations were the result of a compromise and to that compromise I recall to have alluded with the words which the editor of this JOURNAL did me the honour to quote from my article in the Recht.

I think it necessary to make this statement with reference to what I meant by the words in question, because not only the distinguished editor of the JOURNAL but also two other prominent American lawyers, with whom I had the pleasure to collaborate at The Hague, Mr. Robert Lansing, in the University of Pennsylvania Law Review (1910, p. 143), and Mr. Wm. Cullen Dennis in the Columbia Law Review (1911, p. 499), seem to have interpreted my article in the Recht in a sense which I must most respectfully decline. I did not state that the sentence in the fisheries cases was a compromise, but that it did contain elements of a compromise.

DR. LAMMASCH.

NAVAL PRIZE BILL AND THE DECLARATION OF LONDON.

The rejection by the House of Lords on December 15th of the Naval Prize Bill carries with it the repudiation of the International Prize. Court, created by the Second Hague Conference. The bill amends the English law relating to naval prizes of war in such a way as to enable the Hague Convention to be carried into effect, while Article 28 of the bill provides that British courts shall enforce the decrees of the International Prize Court. It is evident from the attacks upon the bill, both in the press and in the House of Commons, that the real reason for the opposition to the International Prize Court was the fact that the Declaration

1 1 and 2. George V.

of London lay behind it the latter.

that the fate of the former decided the fate of

On February 27, 1908, the chief naval Powers were invited by the British Government to meet in conference in order to reach an agreement as to just what were the "generally recognized rules" of international law, which by Article VII of the convention establishing the International Prize Court, were to be applied by that tribunal in the decision of cases coming before it. The conference met on December 4, 1908, and on February 26, 1909, published the results of its deliberations, which became known as the Declaration of London.2 The Declaration met from the start with the most violent opposition in England: the greater part of the press denounced it, and a petition to the King, issued by the Imperial Maritime League, asking that ratifications be delayed, was signed by an extended list of commercial associations, mayors, members of the House of Lords, general officers, and other public officials. As many as 138 officers of flag rank addressed to the Prime Minister a public letter of protest against the Declaration.

What is at the bottom of this repudiation of an agreement which was formulated at a conference at which Great Britain was represented by chosen delegates under instruction from their governments? It is safe to say that the undercurrent of uneasiness existing in the public mind over the possibility of war with Germany made it almost certain in advance that the Declaration would not be subjected to calm and dispassionate public criticism before being ratified or rejected. The constant reference. on the part of critics to a future war in which the island might be reduced to starvaton in consequence of food-stuffs being placed on the list of conditional contraband, indicates clearly that the Declaration was being tested with reference to a war in which the existence of England would be at stake. Now it is evident that when judged from such a point of view a definite statement of rights is much less satisfactory to the public mind than a vague conception, however unfounded, of what those rights should be; the imagination prefers to enlarge upon the latter rather than face the facts contained in the former.

The Declaration may be considered in this connection under two separate headings: what change does it make in the position of Great Britain as a belligerent, and what change does it make in her position as a neutral? It is important to consider the two points separately, since

2 Printed in SUPPLEMENT, 3:179.

it is evident that if a given rule adds to the rights of a nation when belligerent it will take away from the rights of a nation when neutral. An exception, however, must be noted with respect to conditional contraband, in which case, owing to the peculiar situation of England as an island, she has more to gain as a belligerent in leaving neutral trade in food-stuffs unhampered than in restricting it. Now, while it is chiefly from the point of view of England as a belligerent that the Declaration has been discussed, many of the critics of the Declaration seem to think that England should not suffer as a neutral where she gained as a belligerent. Strangely enough, the fact that Great Britain's earliest interest in the International Court of Prize was the desire to protect her commerce as a neutral was overlooked in the discussion of the bill.

As a belligerent Great Britain gains in having what were practically her own views as to blockade adopted. The Continental doctrine was that blockade must be limited within a line drawn around the blockaded port, and that until a vessel attempted to break through that line it could not be captured. France and Italy even held that a ship could not be captured until it had been visited and formally notified of the existence of the blockade, thus making possible a first attempt to break through the blockade with impunity. The Declaration allows the blockading fleet. to enforce the blockade throughout the area of operations a rule which, though theoretically narrower than the English claim, is practically the law applied by her admiralty courts. On the question of contraband the chief point of opposition to the Declaration was that food-stuffs were classed as conditional contraband, that is, as subject to capture when destined for the use of the armed forces or government departments of the enemy state. It was on this point that the cry arose that the Declaration endangered the food supplies of the country in time of war, the assertion being made that any port of the Island Kingdom might be regarded as "serving as a base for the armed forces of the enemy." In answer to this it may be said that if Englnad is to depend upon neutral vessels for her food supplies her position will already have become hopeless. But apart from that, it is no loss to England to have food-stuffs declared conditional contraband (however liberally that term may be construed) when they might in fact be declared absolute contraband, as they were by France in 1885 (a position of which Germany approved), and by Russia in 1904. As Sir Edward Grey said in his speech of December 8 in the House of Commons: