70 COUNTER CASE OF THE UNITED STATES. 



settle limits of the right to exclusive Fishery on the Coast of British 

 North America " : 



The right of Great Britain to exclude American fishermen from 

 waters within three miles of the coast is unambiguous, and it is be- 

 lieved, uncontested. But there appears to be some doubt what are 

 the waters described as within three miles of bays, creeks, and har- 

 bors. When a bay is less than six miles broad, its waters are within 

 the three miles limit, and therefore clearly within the meaning of 

 the Treaty; but when it is more than that breadth, the question 

 arises whether it is a bay of Her Britannic Majesty's Dominions. 



This is a question which has to be considered in each particular 

 case with regard to International Law and usage. When such a 

 bay, etc., is not a bay of Her Majesty's Dominions, the American 

 fishermen will be entitled to fish in it, except within three miles of 

 the " coast "; " when it is a bay of Her Majesty's Dominions " they 

 will not be entitled to fish within three miles of it, that is to say, 

 (it is presumed), within three miles of a line drawn from headland 

 to headland." 1 



In support of its present contentions the British Case states that 

 " the circumstances existing at the time of the negotiations of 1818 

 themselves negative the contention that the term ' bays of His Britan- 

 nic Majesty's Dominions ', as used in the treaty, was not intended 

 to include the whole of the bays on the British coast ;" & and it is 

 asserted that " at the beginning of the last century, Great Britain 

 and the United States were putting forward wide claims to jurisdic- 

 tion over territorial waters." B 



An examination of the evidence presented in the British Case, upon 

 which these assertions are based, will show that it fails to justify the 

 conclusions reached. No reference is made in the British Case to the 

 positions taken on this subject by the two Governments in the negotia- 

 tions which resulted in the treaty of 1818, or in the discussion which 

 followed the War of 1812. In fact the British Case avoids any ref- 

 erence to the position of either Government on this question during 

 the period between the War of 1812 and the conclusion of the treaty 

 of 1818. Evidence relating to the negotiations resulting in the un- 

 ratified treaty of 1806 is the nearest approach in the British Case to 

 the situation in 1818, and in discussing those negotiations the British 

 Case makes no mention of the position then taken by Great Britain 

 which was altogether inconsistent with the present British contention 

 that Great Britain was " putting forward wide claims to jurisdiction 

 over territorial waters." 



U. S. Case, p. 148. 6 British Case, p. 121. 



