North Atlantic Coast Fisheries Arbitration at the Hague

It was reported in October, 1905, that the Newfoundland Ministry of Marine and Fishery had "forbidden all vessels of American register to fish on the Treaty coast where they now are, and where they have fished unmolested since 1818." The charge contained in the quotation seems to have been without justification. Several American vessels had been ordered by the Newfoundland authorities not to fish in Bonne Bay, situated within that portion of the Newfoundland coast in which the right of American fishermen to ply their calling was recognized by the convention of 1818, and Mr. Root felt it advisable to take up the question of American rights in what may be called the treaty waters of British North America, as defined by the convention of 1818, and to reach an agreement, if possible, upon this subject. He believed that the time was propitious, because at that time a very friendly feeling existed between Great Britain and the United States, and Mr. Root's experience in the settlement of the Alaskan boundary question showed how desirable it was to settle even a small question between the two countries when they were well disposed, without allowing the question, through delay and mismanagement, to assume an importance which it did not and which it should not possess.

The views of the two Governments upon the fishing question proved to be divergent, as will be seen from two paragraphs, one from Mr. Root's note of June 30, 1906, and one from Sir Edward Grey, His Majesty's principal secretary of state for foreign affairs, dated June 20, 1907, stating the views of their respective Governments.

Thus, Mr. Root said that the United States:

is willing and ready now, as it has always been, to join with the Government of Great Britain in agreeing upon all reasonable and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government cannot permit the exercise of these rights to be subject to the will of the Colony of Newfoundland. The Government of the United States cannot recognize the authority of Great Britain or of its Colony to determine whether American citizens shall fish on Sunday. The Government of Newfoundland cannot be permitted to make entry and clearance at a Newfoundland custom-house, and the payment of a tax for the support of Newfoundland lighthouses conditions to the exercise of the American right of fishing. If it be shown that these things are reasonable the Government of the United States will agree to them, but it cannot submit to have them imposed upon it without its consent.1

1 North Atlantic Coast Fisheries. Proceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent Court of Arbitration at The Hague under the provisions of the General Treaty of Arbitration of April 4, 1908, and the Special Agreement of January 27, 1909, between the United States of America and Great Britain, vol. III, part II, p. 984. (Washington, 1912.)

Sir Edward Grey said:

The main question at issue is, however, that of the application of the Newfoundland regulations to American fishermen. In this connection the United States Government admit the justice of the view that all regulations and limitations upon the exercise of the right of fishing upon the Newfoundland Coast, which were in existence at the time of the Convention of 1818, would now be binding upon American fishermen. Although Mr. Root considers that to be the extreme view which His Majesty's Government could logically assert, and states that it is the utmost to which the United States Government could agree, His Majesty's Government feel that they cannot admit any such contention, as it would involve a complete departure from the position which they have always been advised to adopt as to the real intention and scope of the treaties upon which the American fishing rights depend. On this vital point of principle there does not seem to be any immediate prospect of agreement with United States views, and it would, therefore, seem better to endeavour to find some temporary solution of the difficulty as to the regulations under which the Americans are to fish.1

The result was the negotiation of a temporary agreement, called a modus vivendi, and the negotiation of an agreement between Great Britain and the United States to submit the fisheries question to arbitration, in order that the rights of both countries under the convention of 1818 might be impartially determined.

As a result of negotiations between Mr. Root, on the one hand, representing the United States, and Mr. Bryce, on the other, then British ambassador and representing the British Government, an agreement was reached on January 27, 1909, not only to submit certain specified questions to arbitration, but to settle any future disputes concerning fisheries that might arise between the United States and Great Britain by a method devised by Mr. Root and acceptable to both countries without a resort to arms, and without embittering the friendly relations of the two countries. It was natural, indeed it was inevitable, that the present dispute should be submitted to arbitration, because there was an existing treaty of arbitration of April 4, 1908, concluded by Messrs. Root and Bryce on behalf of their respective countries, and ratified by each, providing that "differences

which may arise of a legal nature or relating to the interpretation of treaties existing between the two Contracting Parties and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th of July, 1899."

The questions involved in the fisheries dispute were legal; they also related to the interpretation of an existing treaty between the two contracting parties, namely, the convention of October 20, 1818, and both countries had declared it to be impossible to settle them by diplomacy. There were two questions, however, that the countries did not submit, the question of the liberty to dry the catch upon specified portions of British territory, which has already been mentioned, and a further question concerning the Bay of Fundy “considered as a whole apart from its bays and creeks," and also the question of " innocent passage through the Gut of Canso." While excluding these questions from arbitration, the contracting parties stated, in respect to them, that "their respective views or contentions ... shall be in no wise prejudiced by anything in the present arbitration.” 1 The questions actually submitted were seven in number, and they went to the root of the controversy:

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 forever 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; (3) 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 1 the inhabitants of the United States have therein in common with British subjects; (b) Desirable on grounds of public order and morals;

1 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776-1909, vol. I, p. 841.

(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 2. Have the inhabitants of the United States, while exercising the liberties referred to in said Article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States ?

Question 3. Can the exercise by the inhabitants of the United States of the liberties referred to in the said Article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbor or other dues, or to any other similar requirement or condition or exaction ?

Question 4. Under the provision of the said Article that the American fishermen shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor or other dues, or entering or reporting at custom-houses or any similar conditions ? Question 5. From where must be measured the three marine miles of any of the coasts, bays, creeks, or harbors " referred to in the said Article ?

Question 6. Have the inhabitants of the United States the liberty under the said Article or otherwise, to take fish in the bays, harbors, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands ?

Question 7. Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article 1 of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally ? 1

These questions are contained in the first article of the Special Agreement, and were the principal questions submitted to the tribunal. The other articles contain some matters which should be considered before the award of the tribunal upon the seven questions be taken up seriatim.

The purpose of Mr. Root and of Mr. Bryce was not to enrich the literature of arbitrations by an award on the fisheries question, but to get out of the way those questions which had perplexed the foreign offices of the two countries. It was felt that there might be legislative or executive acts of the two Governments which were claimed to be inconsistent with the true interpretation of the treaty of 1818. Therefore, Article 2 of the Special Agreement provided that acts might be submitted to the tribunal for its examination in order that the arbiters should point out wherein they were inconsistent with the treaty, as interpreted by the tribunal, and each party bound itself in advance to conform to the opinion on this point which might be rendered by the tribunal. The purpose of this was, of course, to have the tribunal determine that legislative or executive acts either were or were not in accord with the treaty, so that, if inconsistent, they would not be issued in the future.

It was foreseen, however, that questions might arise in the argument concerning the reasonableness of regulations which would require an examination of the effect of fishing provisions, or that questions might arise about the fisheries themselves, which could only be passed upon by fishing experts. Therefore, Article 3 of the Special Agreement provided that in such cases a commission, composed of three experts, should be appointed, one by each of the contracting parties and the third, who should not be a national of either country, to be selected by the tribunal itself.

These two articles dealt with past acts, which the contracting parties had already decided to submit to the tribunal, and questions which might

1 U. S. Statutes at Large, vol. XXXVI, part 2, p. 2141; Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776-1909, vol. I, pp. 836–837.

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North Atlantic Coast Fisheries Arbitration at the Hague: Argument on Behalf ...