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THE FINAL OUTCOME OF THE FISHERIES ARBITRATION

On the 15th of November, 1912, the United States and Great Britain formally ratified and put into effect an agreement 1 which, in consequence of diplomatic negotiations covering nearly two years, had been signed by their plenipotentiaries on the 20th of July, 1912, adopting with certain modifications the rules and method of procedure embodied in the award of the North Atlantic Coast Fisheries Arbitration Tribunal, rendered at The Hague on September 7, 1910, under which all questions hereafter arising in regard to the exercise of American fishing liberties under the treaty of 1818 may be determined in accordance with the principles laid down in the award. This agreement constitutes the final step which was necessary to complete and perfect the arbitration award and give it practical application; and the award and this agreement together establish for all time the extent of the rights and obligations of the inhabitants of the United States in the exercise of their fishing liberties under the treaty of 1818.

The time has come, therefore, when it is possible to review this arbitration as a completed transaction and measure the value of the results. secured in the light of its ultimate outcome as finally settled by this agreement.

This arbitration was in some respects the most notable of the many international arbitrations in which the United States has participated. The fisheries dispute, the settlement of which was its purpose, had been a constant source of irritation and friction between the United States and Great Britain for nearly a century, and on several occasions had seriously strained the friendly relations between the two countries. Throughout the course of this dispute both countries exhausted every resource of diplomacy, short of arbitration, in attempting to bring about a satisfactory adjustment of the questions at issue, but without success. It was, therefore, a surprising and encouraging triumph for the cause

This agreement is printed in the Supplement to this JOURNAL, page 41.

of arbitration in the settlement of international disputes, that, when at last arbitration was resorted to in this case, a result was secured which has been accepted on both sides as an eminently fair and satisfactory settlement of the controversy.

It is true that neither side secured all that it contended for, and perhaps hoped for, but that probably is inevitable in such an arbitration, and in considering the case now, after two years have elapsed since the award, it may fairly be said that if we have any cause for regret on our side of the line, it is only because it was found necessary to call in foreign arbitrators to settle our differences with Canada and Newfoundland.

For a clear understanding of the questions involved in this controversy, a brief examination of its origin and historical development is necessary.

At the close of the Revolution, the United States and Great Britain entered into their treaty of peace of 1783, by the third article of which the rights of the United States, as an independent nation, in the fisheries in the waters of the North Atlantic outside of the territorial waters of Great Britain were recognized, and special liberties of taking, drying, and curing fish on the shores and coastal waters within the jurisdiction. of Great Britain were secured to the inhabitants of the United States.

No question arose as to the meaning and effect of the provisions of this treaty until the close of the War of 1812 when, in the negotiations for the treaty of peace at Ghent in 1814, the British Commissioners informed the Commissioners of the United States that in so far as the fisheries provisions of the treaty of 1783 related to the inshore or coast fisheries, Great Britain regarded them as abrogated by that war. No question was then, or thereafter, raised as to the rights of the United States in the fisheries outside of British territorial waters, but formal notice was given "that the British Government did not intend to grant to the United States gratuitously the privileges granted by the former treaty of fishing within the limits of the British Sovereignty and of using the shores of the British territories for purposes connected with the fisheries." The Commissioners of the United States, on the other hand, contended that inasmuch as these fisheries provisions of the treaty of 1783 merely secured to the United States the continued enjoyment of

preëxisting rights upon the partition of the British North American empire at the close of the Revolution, such provisions were not subject to abrogation by war, and that no declaration or provision in the new treaty was required to continue in force these provisions of the old treaty.

The positions thus taken were maintained by each side without change throughout the negotiations, with the result that no mention of the fisheries was made in the Treaty of Ghent as finally signed in 1814; and the question of whether or not the United States was entitled to the continued enjoyment of these fishing liberties was left open for future discussion between the two governments. This question almost immediately became the subject of diplomatic correspondence which led to negotiations in 1816 between the two governments for the purpose of reaching, if possible, a mutually advantageous basis of settlement. These negotiations, after many interruptions and delays, were finally brought to a successful conclusion on October 20, 1818, when a new treaty was signed dealing with the fisheries and several other matters of difference between the two governments. By this treaty the United States secured for its inhabitants the liberty "in common with British subjects" of taking, drying and curing fish on certain defined portions of the coasts of Canada and Newfoundland, including the coast of Labrador; and the United States renounced for its inhabitants the liberty theretofore enjoyed of taking, drying and curing fish "on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's Dominions in America" not included within the defined limits. It was provided, however, that American fishermen should be admitted to enter such bays or harbors for the purposes of shelter, repairing damages, purchasing wood and obtaining water, but for no other purpose whatever, and that they should be under such. restrictions as were necessary to prevent their taking, drying or curing fish therein, or in any manner whatever abusing the privileges thus reserved.

This new treaty superseded the fisheries provisions of the earlier treaty which Great Britain had asserted were abrogated by the War of 1812, and thus set at rest that discussion. Unfortunately, however, although thus disposing of the existing causes of dispute between the

two countries, the fisheries provisions of this treaty contained new and unexpected causes of difference which, as the event has proved, were destined to vex the friendly relations between Great Britain and the United States for nearly a century.

Several of the less important questions which arose during the course of the controversy were disposed of by diplomatic discussion, and all the other differences which remained unsettled are covered by the several questions submitted for decision in this arbitration, and can more conveniently be considered in connection with the effect and meaning of the award, which is examined below. For the present it is sufficient to state that the differences as to the meaning of this treaty have brought into question not only the rights and duties of the American fishermen in the territorial waters of Great Britain affected by the treaty, but also the limitations of British sovereignty in such waters and the extent of the treaty waters themselves; and there has hardly been a time since this controversy began when some of these questions have not been the subject of diplomatic discussion between the two governments.

Attempts were made to compose these differences by arranging in the Reciprocity Treaty of 1854 and the Treaty of Washington of 1871 for new and more extensive fisheries privileges for American fishermen in the territorial waters of Canada and Newfoundland in exchange for trade and other concessions granted by the United States to those Colonies. Both of these arrangements, however, served only a temporary purpose, and neither of them proved satisfactory to the United States. Another attempt to end this controversy was made in 1888 when the so-called Bayard-Chamberlain Treaty was negotiated defining the rights and obligations of American fishermen in British territorial waters, but this treaty failed to secure the approval of the United States Senate and never became effective. Again in 1892 the so-called BlaineBond Treaty was negotiated adjusting the differences between the United States and Newfoundland, but this treaty was not ratified on account of opposition on the part of Canada, and a similar treaty negotiated in 1902, known as the Hay-Bond Treaty, was finally rejected by the United States in 1905.

With the rejection of this treaty the fisheries controversy, which

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