QUESTION 035TE. 5 



But the right to resort to British shores for the purpose of drying 

 and curing is given by the same provision, and must be governed by 

 the same considerations. If American fishermen are in any respect 

 exempt from British jurisdiction on the treaty waters they are 

 equally exempt from that jurisdiction on the shores. 



LANGUAGE OF THE TREATY. 



His Majesty's Government has already presented to the Tribunal 

 in the British Case the Argument which demonstrates (as is sub- 

 mitted) that the language of the treaty must be construed as con- 

 tended for by Great Britain, and the Tribunal is respectfully 

 referred to pp. 40-48 of that Case. 



In substance the Argument is 



1. It is a general principle that in the absence of any ex- 

 6 press provision limiting the fundamental sovereign rights of 

 a State a treaty must be so construed as to give effect to those 

 rights." 



This principle is well illustrated by the argument of Mr. Rush in 

 the dispute which arose as to the nature and extent of the French 

 fishery on the Newfoundland coast. In a memorandum handed to 

 the representatives of the British Government on the 29th March, 

 1824, Mr Rush contended, on behalf of the United States, that there 

 could be no grant of an exclusive right of fishery in the French 

 treaty of 1783, because the sovereignty of Great Britain over New- 

 foundland could not be diminished except by express words. He 

 said : 



" The United States insist, on the other hand, that Great Britain 

 never could have intended by her treaty of 1783 with France to 

 grant a right of fishing, and of drying and curing fish, on the western 

 coast of the island to French fishermen exclusively, but that the right 

 of British subjects to resort there in common must necessarily be im- 

 plied. That a contrary construction of the instrument cannot be re- 

 ceived, the sovereignty of the whole island, without any exception, 

 having been fully vested in Great Britain, and even confirmed by 

 this very treaty. That it can never be presumed that she intended 

 so far to renounce or in anywise diminish this sovereignty as to ex- 

 clude her own subjects from any part of the coast. That no positive 

 grant to this effect is to be found in the treaty, any more than in the 

 treaty of Utrecht, and that the claim of France to an exclusive right, 

 a claim so totally repugnant to the sovereign rights of Great Britain, 

 can rest on nothing less strong than a positive grant." (United 

 States Counter-Case, App., p. 125.) 



2. A canon of construction of treaty grants, such as that in ques- 

 tion, is that the grant of a right or liberty to subjects of one State, 

 to do certain acts in the territory of another State, does not of itself 



Hall's International Law, 5th edition, pp. 889, 840. 



