ARGUMENT OP ELTHU ROOT. 2021 



they are not permitted to use the shore as British subjects can use 

 it; they are not permitted to exercise the liberty of fishing in common 

 with British subjects in so far as the exercise of the right of fishing 

 involves the use of the shore for the drawing of nets or the setting 

 out of traps, the drawing of seines; they are not permitted to use 

 the shores for the purpose which was mentioned by one of the coun- 

 sel for Great Britain here the other day as being important and 

 serious, the disposal of the offal resulting from the dressing of the 

 fish; they are not permitted to use the shore for the drying of their 

 nets as British fishermen may for the purpose that we can see illus- 

 trated any day here as we go towards the coast, by the great stretches 

 covered with nets laid out to dry. They must confine themselves to 

 their ships and their boats, and their seines or nets may rot through 

 not being dried, or they must find some way to dry them as best they 

 can on shipboard. They are excluded from the opportunity to em- 

 ploy labour as British fishermen may. They are excluded from the 

 opportunity of obtaining supplies as British fishermen may, ex- 

 cluded from the opportunity to procure bait as British fishermen 

 may. And in this great variety of ways they are prohibited from 

 the real common exercise of the right of fishing. The inference from 

 the fact that the right is in common is, in the view of Great Britain, 

 an inference that it is to be common for purposes of restriction, and 

 not common for the purposes of opportunity. 



If the Tribunal should be of the opinion that the British view is 

 correct, that the fact that this liberty is a liberty held in common 

 with subjects of Great Britain means or requires the inference that 

 its exercise is to be in common with the exercise of the liberty by 

 British fishermen, so that the laws or regulations or rules imposed 

 upon British fishermen may also be imposed upon American fisher- 

 men in respect of their right, then I submit that the Tribunal must 

 find also that that common quality extends to the opportunities of 

 British fishermen as well as to the limitations upon British fishermen. 



There is a very good illustration, which I will ask permission to 

 hand to the Court, and copies will be given to the counsel for Great 

 Britain, of the way to make a real common exercise of the right of 

 fishing, in the Russo-Japanese Convention concerning fisheries, of 

 the loth July. 1907. a I submit it to the Tribunal as an illustration 

 of the view which I am now presenting. In that treaty it is pro- 

 vided : 



1224 "Article I. The Imperial Government of Russia grants to 

 Japanese subjects, in accordance with the provisions of the 

 present convention, the right to fish, catch, and prepare all kinds of 

 fish and aquatic products, except fur seals and sea otters, along the 

 Russian coasts of the seas of Japan, Okhotsk, and Behring, with the 

 exception of the rivers and inlets 



Appendix (I), infra, p. 1404. 



