is secured, must be delivered, in like manner, as provided for the delivery of copies of other evidence, to each of the Arbitrators and to the agent of the other Party. The admission of any such additional evidence, however, shall be subject to such conditions as the Tribunal may impose, and the other Party shall have a reasonable opportunity to offer additional evidence in rebuttal. "The Tribunal shall take into consideration all evidence which is offered by either Party. "VII. If in the case or counter-case (exclusive of the accompanying evidence) either Party shall have specified or referred to any documents, correspondence, or other evidence in its own exclusive possession without annexing a copy, such Party shall be bound, if the other Party shall demand it within thirty days after the delivery of the case or counter-case respectively, to furnish to the Party applying for it a copy thereof; and either Party may within the like time, demand that the other shall furnish certified copies or produce for inspection the originals of any documentary evidence adduced by the Party upon whom the demand is made. It shall be the duty of the Party upon whom any such demand is made to comply with it as soon as may be, and within a period not exceeding fifteen days after the demand has been received. The production for inspection or the furnishing to the other Party of official governmental publications, publishing, as authentic, copies of the documentary evidence referred to, shall be a sufficient compliance with such demand, if such governmental publications shall have been published prior to the 1st day of January, 1908. If the demand is not complied with, the reasons for the failure to comply must be stated to the Tribunal. "VIII. The Tribunal shall meet within six months after the expiration of the period above fixed for the delivery to the agents of the case, and upon the assembling of the Tribunal at its first session each Party, through its agent or counsel, shall deliver in duplicate to each of the Arbitrators and to the agent and counsel of the other Party (with such additional copies as may be agreed upon) a printed argument showing the points and referring to the evidence upon which it relies. "The time fixed by this Agreement for the delivery of the case, counter-case, or argument, and for the meeting of the Tribunal, may be extended by mutual consent of the Parties. "IX. The decision of the Tribunal shall, if possible, be made within two months from the close of the arguments on both sides, unless on the request of the Tribunal the Parties shall agree to extend the period. "It shall be made in writing, and dated and signed by each member of the Tribunal, and shall be accompanied by a statement of reasons. "A member who may dissent from the decision may record his dissent when signing. "The language to be used throughout the proceedings shall be English. "X. Each Party reserves to itself the right to demand a revision of the Award. Such demand shall contain a statement of the grounds on which it is made and shall be made within five days of the promulgation of the Award, and shall be heard by the Tribunal within ten days thereafter. The Party making the demand shall serve a copy of the same on the opposite Party, and both Parties shall be heard in argument by the Tribunal on said demand. The demand can only be made on the discovery of some new fact or circumstance calculated to exercise a decisive influence upon the Award and which was unknown to the Tribunal and to the Party demanding the revision at the time the discussion was closed, or upon the ground that the said Award does not fully and sufficiently, within the meaning of this Agreement, determine any question or questions submitted. If the Tribunal shall allow the demand for a revision, it shall afford such opportunity for further hearings and arguments as it shall deem necessary. "XI. The present Agreement shall be deemed to be binding only when confirmed by the two Governments by an exchange of notes. "In witness whereof this Agreement has been signed and sealed by His Britannic Majesty's Ambassador at Washington. the Right Honourable James Bryce, O.M., on behalf of Great Britain, and by the Secretary of State of the United States Elihu Root, on behalf of the United States. "Done at Washington, on the 27th day of January, 1909. (L.S.) "JAMES BRYCE (L.S.) "ELIHU ROOT." And whereas the parties to the said Agreement have by common accord, in accordance with Article V, constituted a a Tribunal of Arbitration, the following members of the Per manent Court at The Hague: M. H. Lammasch, Doctor of Law Professor of the University of Vienna, Aulic Councillor, Member of the Upper House of the Austrian Parliament; His Excel lency 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 Honourable Georg Grey, Doctor of Law, Judge of the United States Circuit Cour of Appeals, former United States Senator; the Right Honourabl Sir Charles Fitzpatrick, Member of the Privy Council, Doctor o Law, Chief Justice of Canada; the Honourable Luis Mari Drago, Doctor of Law, former Minister of Foreign Affairs of th Argentine Republic, Member of the Law Academy of Bueno Ayres; And whereas the Agents of the Parties to the said Agreemen have duly, and in accordance with the terms of the Agreemen communicated to this Tribunal, their cases, counter-cases printed arguments, and other documents; And whereas counsel for the Parties have fully presente to this Tribunal their oral arguments in the sittings held betwee the first assembling of the Tribunal on the 1st June, 1910, to the close of the hearings on the 12th August, 1910; Now, therefore, this Tribunal having carefully considered the said Agreement, cases, counter-cases, printed and oral arguments, and the documents presented by either side, after due deliberation makes the following decisions and awards : Question 1. To what extent are the following contentions, or either of them justified? It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said Article, which the inhabitants of the United States have for ever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the Treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance (a.) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein, and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects; (b.) Desirable on grounds of public order and morals; (c.) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said Treaty liberty, and not so framed as to give unfairly an advantage to the former over the latter class. It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the Treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character (a.) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and (b.) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and (c.) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement. Question 1, thus submitted to the Tribunal, resolves into two main contentions: 1st. Whether the right of regulating reasonably the liberties conferred by the Treaty of 1818 resides in Great Britain; 2nd. And, if such right does so exist, whether such reasonable exercise of the right is permitted to Great Britain without the accord and concurrence of the United States. The Treaty of 1818 contains no explicit disposition in regard to the right of regulation, reasonable or otherwise; it neither reserves that right in express terms, nor refers to it in any way. It is therefore incumbent on this Tribunal to answer the two questions above indicated by interpreting the general terms of Article I of the Treaty, and more especially the words, "the inhabitants of the United States shall have for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind." This interpretation must be conformable to the general import of the instrument, the general intention of the parties to it, the subject-matter of the contract, the expressions actually used, and the evidence submitted. Now in regard to the preliminary question as to whether the right of reasonable regulation resides in Great Britain : Considering that the right to regulate the liberties conferred by the Treaty of 1818 is an attribute of sovereignty, and as such must be held to reside in the territorial Sovereign, unless the contrary be provided; and considering that one of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is coterminous with the sovereignty, it follows that the burden of the assertion involved in the contention of the United States (viz., that the right to regulate does not reside independently in Great Britain, the territorial Sovereign) must fall on the United States. And for the purpose of sustaining this burden, the United States have put forward the following series of propositions, each one of which must be singly considered. It is contended by the United States: 1. That the French right of fishery under the Treaty of 1713,* designated also as a liberty, was never subjected to regulation by Great Britain, and therefore the inference is warranted that the American liberties of fishery are similarly exempted. The Tribunal is unable to agree with this contention: (a.) Because although the French right, designated in 1713 merely "an allowance" (a term of even less force than that used in regard to the American fishery), was, nevertheless, converted, in practice, into an exclusive right, this concession on the part of Great Britain was presumably made because France, before 1713, claimed to be the Sovereign of Newfoundland, and, in ceding the * Vol. I, page 420. island, had, as the American argument says, "reserved for the benefit of its subjects the right to fish and to use the strand." (b.) Because the distinction between the French and American right is indicated by the different wording of the Statutes for the observance of Treaty obligations towards France and the United States, and by the British Declaration of 1783;* (c.) And, also, because this distinction is maintained in the Treaty with France of 1904,† concluded at a date when the American claim was approaching its present stage, and by which certain common rights of regulation are recognized to France. For the further purpose of such proof it is contended by the Tited States: 2. That the liberties of fishery, being accorded to the chabitants of the United States "for ever," acquire, by being in perpetuity and unilateral, a character exempting them from local islation. The Tribunal is unable to agree with this contention: (2) Because there is no necessary connection between the dation of a grant and its essential status in its relation to local ulation; a right granted in perpetuity may yet be subject to perulation, or, granted temporarily, may yet be exempted there; or, being reciprocal, may yet be unregulated; or, being lateral, may yet be regulated; as is evidenced by the claim of United States that the liberties of fishery accorded by the Reciprocity Treaty of 1854 and the Treaty of 1871|| were empt from regulation, though they were neither permanent nor ilateral; (5.) Because no peculiar character need be claimed for these berties in order to secure their enjoyment in perpetuity, as is idenced by the American negotiators in 1818 asking for the ertion of the words "for ever." International law in its Sudern development recognizes that a great number of Treaty ligations are not annulied by war, but at most suspended (c) Because the liberty to dry and cure is, pursuant to the ers of the Treaty, provisional and not permanent, and is, vertheless, in respect of the liability to regulation, identical in ature with, and never distinguished from, the liberty to fish. For the further purpose of such proof the United States allege: 3. That the liberties of fishery granted to the United States Constitute an international servitude in their favour over the erritory of Great Britain, thereby involving a derogation from the sovereignty of Great Britain, the servient State, and that Derefore Great Britain is deprived, by reason of the grant, of dependent right to regulate the fishery. The Tribunal is unable to agree with this contention : (2) Because there is no evidence that the doctrine of intertional servitudes was one with which either American or Vol. I, page 424. 1 Vol. XLIV, page 25. + Vol. XCVII, page 31. |