ARGUMENT OF ELIHU ROOT. 2023 



regions specified in Article I of the said convention, Japanese sub- 

 jects shall be treated on the same footing as Kussian subjects who 

 have acquired fishing tracts in the aforementioned regions." 



That is an example of rights of fishing in common, and a recog- 

 nition of both sides of the common right. They are to be expressly 

 subject to the laws and regulations, and they are to be expressly 

 entitled to all the privileges and opportunities of Russian subjects. 



If the Tribunal should be of the opinion that the British contention 

 is correct, I submit that the logical and necessary consequence of 

 their contention as to the legal effect of making this fishing in com- 

 mon is that it carries common opportunity as well as common lia- 

 bility ; and the restrictions and exclusions and differentiations between 

 the exercise of a common right by Newfoundlanders and inhabitants 

 of the United States must be wiped out. You cannot have one 

 without having the other. 



I now pass to the alleged implication of a right to restrict or 

 modify the exercise of this grant by analogy to the grants of trade 

 and travel rights in treaties generally; and shall seek to fulfil my 

 promise upon the question asked by the President of the Tribunal 

 this morning upon that subject. 



From what does the idea arise that trade and travel rights granted 

 by treaty to a foreign country for the benefit of its citizens are to 

 be exercised subject to the laws and regulations of the country in 

 which they are to be exercised? Counsel for Great Britain have 

 placed great stress upon this, and Sir Robert Finlay put it as being 

 a matter of common understanding that such rights are subject to 

 regulation. The Attorney- General went farther, and said [p. KX)1] : 



" The United States would not suggest that the captain of the 

 ship would be entitled to say: Oh, my right to come here is terri- 

 torial, you have not given me a mere ordinary trading obliga- 

 1225 tion, you have given me a right to enter your gates, to stop 

 on your soil, or in the water that covers your soil, and because 

 it is territorial I am a specially privileged person. 



" Such a contention as that would never be dreamed of, nor would 

 it be dreamed of on the part of the commercial traveller who comes 

 also under treaty. He comas there to compete with our own trades- 

 men and manufacturers in the sale of goods. He has a right to enter 

 the gates of our territory, a right to remain there, a right to claim 

 the protection of our laws, and he also would be entitled to say, 

 You have put no restriction upon my right, look at your treaty. 

 There are hundreds of these treaties passing continually under the 

 observation of the lawyers who have to advise Governments in trad- 

 ing countries hundreds of such treaties. We do not find any re- 

 striction saying, for instance, that a trader is only to trade on six 

 days a week. The commercial traveller might say, I am not a 

 Sabbatarian, I do not want a day's rest, your population may want a 

 day's rest, I do not, and my treaty says I am to trade. Everybody 

 knows that the commercial traveller, putting up such a claim, would 



