AWARD OF THE TRIBUNAL. 75 



110 recffird to the American fishery) was nevertheless converted, 

 in practice, into an exclusive right, this concession on the part 

 of Great Britain was presumably made because France, before 

 1713, claimed to be the sovereign of Newfoundland, and, in ceding 

 the island, had, as the American argument says, " reserved for the 

 benefit of its subjects the right to fish and to use the strand;" 



(h.) Because the distinction between the French and American 

 right is indicated by the different wording of the statutes for the 

 observance of treaty obligations towards France and the United 

 States, and by the British Declaration of 1783; 



(c.) And, also, because this distinction is maintained in the treaty 

 with France of 1904, concluded at a date when the American claim 

 was approaching its present stage, and by which certain common 

 rights of regulation are recognised to France. 



For the further purpose of such proof it is contended by the United 



States : 



(2.) That the liberties of fishery, being accorded to the inhabit- 

 ants of the United States " for ever," acquire, by being in perpetuity 

 and unilateral, a character exempting them from local legislation. 



The Tribunal is unable to agree with this contention : 



(a.) Because there is no necessary connection between the duration 

 of a grant and its essential status in its relation to local regulation; a 

 right granted in perpetuity may yet be subject to regiilation, or, 

 granted temporarily^, may yet be exempted therefrom ; or being recip- 

 rocal may yet be unregulated, or being unilateral may yet be regu- 

 lated : as is evidenced by the claim of the United States that the 

 liberties of fishery accorded by the Reciprocity Treaty of 1854: and 

 the treaty of 1871 were exempt from regulation, though they were 

 neither permanent nor unilateral; 



(b) Because no peculiar character need be claimed for these liber- 

 ties in order to secure their enjoyment in perpetuity, as is evidenced 

 by the American negotiators in 1818 asking for the insertion of the 

 words " for ever." International law in its mo"dern development 

 recognises that a great number of treaty obligations are not annulled 

 by war, but at most suspended by it ; 



(c.) Because the liberty to dry and cure is, pursuant to the terms 

 of the treaty, provisional and not permanent, and is nevertheless, in 

 respect of the liability to regulation, identical in its nature with, and 

 never distinguished from, the liberty to fish. 



For the further purpose of such proof, the United States allege : 



(3.) That the liberties of fishery granted to the United States 

 constitute an international servitude in their favour over the terri- 

 tory of Great Britain, thereby involving a derogation from the 

 sovereignty of Great Britain, the servient vState. and that therefore 

 Great Britain is deprived, by reason of the grant, of its independent 

 right to regulate the fishery. 



