366 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



tishevmen were required to take out patents from the Governrueut, for which a con- 

 siderable sum had to be paid; and by the recent act of 1888, foreign fishermen are 

 precluded entirely from tishing within 3 miles from shore, apparently leaving the 

 former regulations in force with respect to such portions of the coral banks as lie 

 outside of those limits. 



Now we have dealt with the whole of the French legislation which 

 they mentioned in their original case, but when my learned friend comes 

 to his Argument the only point which is made relates to the case of 

 Algeria and Tunis, and I think I must trouble the Tribunal with a short 

 reference to what we say about this subject at page 94 of the British 

 Counter Case. 



The United States Case says that the Decree of the 10th May 1862. — 

 " went so far as to provide in terms that under certain circumstances fishing might 

 be prohibited over areas of the sea beyond 3 miles from shore". 



This Decree, of which Article 2 only is set forth in the Appendix to the United 

 States Case, is given at length in the Apjieudix to this Counter-Case. Article I has 

 the following paragrajih : 



Les ppcheurs sont tenus d'observer, dans les mers situ^es entre les cotes de France 

 et celle du Royaume-Uui de la Grande-Bretagne et d'Irlande, les prescriptions de la 

 Convention du 2 aoilt 1839, et du Reglement International du 23 juin 1843. 



This shows that French subjects only are atfected; for the Govefnment did, and 

 could bind its subjects only by the Convention of 1839. 



Article 2 is as follows: 



Sur la demande des prud'hommes — 



The President. — A prud'homme is a sort of Alderman. 

 1159 Sir Charles Eussell.— 



Sur la demande des prud'hommes des ppcheurs, de leurs d^Mgu^s et, a d6faut, des 

 syndics des gens de mer, certaiues peches peuvent etre temporairement interdites sur 

 une ctendue de mer an dela de 3 milles du littoral, si cette mesure est command6e par 

 I'intdret de la conservation des fonds on de la peche de poissons de j)assage. 



That is "free swimming fish." 

 The President. — Yes. 

 Sir Charles Eussell. — 



L'Arret6 d'interdiction est pris par le Pr^fet Maritime. 



Then our Counter Case continues : 



It is not alleged in the United States Case that the power thus given has been acted 

 on as against foreigners, and it is submitted that Article 2 was not intended to 

 authorize bye-laws affecting foreigners beyond territorial limits. 



The construction which siipposes the Decree to apply to foreigners assumes it to 

 assert an authority to prohibit iishing to all nations, unlimited in the selection of 

 the kinds of fish to which the. prohibition may apply, either as to their being 

 "located" near French coasts, or as to their being those in Avhich France has "an 

 interest, an industry and a commerce" and assumes that the prohibition may extend 

 to mere "fishes of passage" in which the interest of France is only that which it has 

 in common with other nations, and may apply to every part of the high seas. 



I omit the intervening passage: it then x)roceeds: 



The extent to which France claims to legislate for foreign fishermen is now regu- 

 lated by tlie Law of the Ist March 1888. 



Article 1 sajs: 



"La peche est interdite aux bateaux 6trangers dans les eaux territoriales de la 

 France etde I'Algerie, en dega d'une limite qui est fix^e a 3 milles marins au large do 

 la basse mer." 



The United States Case proceeds: 



" Numerous laws have also been enacted by France to protect and regulate the 

 coral fislieries of Algeria, both as to natives and foreigners, and the coral beds so 

 regulated extend at some points as far as 7 miles into the sea." 



This is not verified by particulars or evidence. 



If that answer is in any way incomplete, I would ask you to be good 

 enough, Sir, to inform your colleagues what it may be necessary to know 

 further about it. 



