GROUNDS FOR THE DISSENT TO THE AWARD ON QUESTION 5 BY 

 DR. LUIS M. DRAGO. 



Counsel for Great Britain have very clearly stated that, according 

 to their contention, the territoriality of the bays referred to in the 

 treaty of 1818 is immaterial, because, whether they are or are not 

 territorial, the United States should be excluded from fishing in them 

 by the terms of the renunciatory clause, which simply refers to " bays, 

 creeks or harbours of His Britannic Majesty's dominions," without 

 any other qualification or description. If that were so, the necessity 

 might arise of discussing whether or not a nation has the right to 

 exclude another by contract or otherwise froni any portion or por- 

 tions of the high seas. But in my opinion the Tribunal need not 

 concern itself with such general question, the wording of the treaty 

 being clear enough to decide the point at issue. 



Article 1 begins with the statement that differences have arisen 

 respecting the liberty claimed by the United States for the in- 

 habitants thereof to take, dry and cure fish on " certain coasts, bays, 

 harbours and creeks of His Britannic Majesty's dominions in 

 America," and then proceeds to locate the specific portions of the 

 coast with its corresponding indentations, in which the liberty of 

 taking, drying and curing fish should be exercised. The renuncia- 

 tory clause, which the Tribunal is called upon to construe, runs thus : 

 "And the United States hereby renounce, forever, any liberty here- 

 tofore enjoyed or claimed by the inhabitants thereof, to take, dry or 

 cure fish on, or within three marine miles of any of the coasts, bays, 

 creeks or harbours of His Britannic Majesty's dominions in America 

 not included within the above-mentioned limits." This language 

 does not lend itself to different constructions. If the bays in which 

 the liberty has been renounced are those " of His Britannic Majesty's 

 dominions in America," they must necessarily be territorial bays, 

 because, in so far as they are not so considered, they should belong 

 to the high seas, and consequently form no part of His Britannic 

 Majesty's dominions, which, by definition, do not extend to the 

 high seas. It cannot be said, as has been suggested, that the use 

 of the word " dominions," in the plural, implies a different mean- 

 ing than would be conveyed by the same term as used in the singular, 

 so that, in the present case, " the British dominions in America " 

 ought to be considered as a mere geographical expression, without 

 reference to any right of sovereignty or " dominion.'''' It seems to 

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