APPENDICES TO DEAL AEGUMENTS. 2305 



The opinion that, according to the Treaty of Washington, the 

 Fishery Commission was incapable of pronouncing any decision 

 unless its members were unanimous, is one in which Her Majesty's 

 Government are unable to concur. 



It is not difficult to produce from text-books, even of very recent 

 date, authority for the doctrine that in international arbitrations the 

 majority of the arbitrators binds the minority unless the contrary is 

 expressed. 



"Halleck's International Law," edited by Sir Sherstone Baker, 1878, says 

 (chapter xiv, section 6) : 



" The following rules, mostly derived from the Civil Law, have been applied 

 to international arbitrations where not otherwise provided in the articles of ref- 

 erence. If there be an uneven number the decision of a majority is conclusive." 



Bluntschli (section 493) says: 



" La decision est prise a la majorite" des voix." 



Calvo (i, p. 791), lays down: 



"A dfrfaut d'obligations nettement tracers dans 1'acte de compromts, les 

 arbitres, pour s'acquitter de leur mandat, se guident d'aprfcs les r&gles tracers 

 par le droit civil : ainsi ils doivent procSder conjointement, discuter et de'libe'rer 

 en commun, decider a la majoriteV' ' 



I am not aware of any authorities who, in respect to international 

 arbitrations, could be quoted in the contrary sense; and it would 

 not be difficult to show, by a reference to cases in the American as 

 well as in the English Courts, that the same rule has always been 

 judicially applied in the case of arbitrations of a public nature. 



The language and stipulations of the treaty itself, so far as they 

 are explicit upon the subject, point to a similar conclusion. Mr. 

 Evarts, indeed, argues that the requirement of unanimity was in- 

 tended, because, while it is not disclaimed in the case of the fishery 

 rights, it is disclaimed in the case of three other arbitrating Tribunals 

 set up by the treaty. It is evident that, at most, this omission would 

 have left the matter in uncertainty. The suggestion that the framers 

 of the treaty meant by their silence to prescribe a mode of proceeding 

 which, before a Tribunal thus constituted, is unexampled, can only 

 be accepted on the hypothesis that they were deliberately preparing 

 an insoluble controversy for those by whom the treaty was to be 

 executed. 



It appears to me that if the language employed in the case of the 

 other Tribunals set up by the treaty be examined carefully a more 

 probable solution of the difficulty may be found. The words used in 

 each case are somewhat peculiar, and lend themselves to the suppo- 

 sition that what the draftsman was thinking of when he employed 

 them was not the question whether unanimity should or should not 

 be required, but under what circumstances the Tribunal should be 

 held to be fully constituted for the purpose of giving a decision. It 

 was obvious that in the course of a protracted and manifold enquiry, 

 in which questions would constantly come up for decision, it was 

 a matter of great practical importance to lay down whether for each 

 decision the presence of the whole Tribunal was required, or whether 

 any condition might be prescribed under which, in spite of the ab- 

 sence of any one member from illness or other cause, a valid decision 

 might yet be given. 



