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THE CASE OF GREAT BRITAIN.
THE CASE PRESENTED ON THE PART OF THE GOVERNMENT OF HIS BRITANNIC MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER AN AGREEMENT SIGNED AT WASHINGTON ON THE 27th Day of January, 1909, BETWEEN HIS BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA.
On the 27th day of January, 1909, an agreement was concluded between Great Britain and the United States in order to provide for a decision of certain differences which have arisen between them as to the scope and meaning of article one of the treaty signed at London on the 20th day of October, 1818, relating to the British North American fisheries, and of the liberties referred to in the said article, and otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores therein referred to.
The first article of the agreement provides that the following questions shall be submitted for decision to a Tribunal of Arbitration constituted as thereinafter specified (App., p. 1.).
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, 2 or rules, as, for example, to regulations in respect of (1) the
hours, days, or seasons which 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; (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 customhouses, or the payment of light, or harbour, 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 harbours 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 harbour 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 harbours" 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, harbours, 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 authorised 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?
Article 2. Either party may call the attention of the tribunal to any legislative or executive act of the other party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true interpretation of the treaty of 1818, and may call upon the Tribunal to express in its award its opinion upon such acts, and to point out in what respects, if any, they are inconsistent with the principles laid down in the award in reply to the preceding questions; and each party agrees to conform to such opinion.
Article five of the agreement provides for the constitution of a Tribunal of Arbitration chosen from the general list of members of the Permanent Court at The Hague in accordance with the provisions of article forty-five of the convention for the settlement of international disputes concluded at the second peace conference at The Hague on the 18th October, 1907.
Article eleven provides that the agreement shall be deemed to be binding only when confirmed by the two Governments by an exchange of notes.
The agreement was duly confirmed on the 4th March, 1909, and the present Tribunal has been constituted in accordance with the provisions of article five. The full text of the agreement is set out in the appendix to this case.
In accordance with the provisions of article two (App., p. 2) notices were served by both parties, and these will be found in the appendix.
The accompanying Case, together with the documents, official correspondence, maps, and other evidence on which the Government of Great Britain relies contained in the appendices, is delivered pursuant to article six of the agreement.