NORTH ATLANTIC FISHERIES DISPUTE 61 



observe that there does not appear to be any convincing reason to prefer 

 the ten mile line in such a case to that of double three miles, I may say 

 that there have been supposed to exist reasons both of convenience and 

 of safety. The ten mile line has been adopted in the cases referred to as a 

 practical rule. The transgression of an encroachment upon territorial 

 waters by fishing vessels is generally a grave offence, involving in many 

 instances the forfeiture of the offending vessel, and it is obvious that 

 the narrower the space in which it is permissible to fish the more likely 

 the offence is to be committed. In order, therefore, that fishing may be 

 practicable and safe and not constantly attended with the risk of violat- 

 ing territorial waters, it has been thought to be expedient not to allow it 

 where the extent of free waters between the three miles drawn on each 

 side of the bay is less than four miles. This is the reason of the ten mile 

 line. Its intention is not to hamper or restrict the right to fish, but to 

 render its exercise practicable and safe. When fishermen fall in with a 

 shoal of fish, the impulse to follow it is so strong as to make the possibili- 

 ties of transgression very serious within narrow limits of free waters. 

 Hence it has been deemed wiser to exclude them from space less than 

 four miles each way from the forbidden lines. In spaces less than this 

 operations are not only hazardous, but so circumscribed as to render 

 them of little practical value." (Annuaire de I'lnstitut de Droit Inter- 

 national, 1894, p. 146.) 



So tlie use of the ten mile bays so constantly put into practice by 

 Great Britain in its fishery Treaties has its root and connection with the 

 marginal belt of three miles for the territorial waters. So much so that 

 the Tribunal having decided not to adjudicate in this case the ten mile 

 entrance to the bays of the Treaty of 1818, this will be the only one 

 exception in which the ten miles of the bays do not follow as a conse- 

 quence the strip of three miles of territorial waters, the historical bays 

 and estuaries always excepted. 



And it is for that reason that a usage so firmly and for so long a time 

 established ought, in my opinion, to be applied to the construction of the 

 Treaty under consideration, much more so, when custom, one of the re- 

 cognized sources of law, international as well as municipal, is supported 

 in this case by reason and by the acquiescence and the practice of many 

 nations. 



The Tribunal has decided that : "In case of bays the three miles (of 

 the Treaty) are to be measured from a straight line drawn across the 

 body of water at the place where it ceases to have the configuration char- 

 acteristic of a bay. At all other places the three miles are to be measured 

 following the sinuosities of the coast." But no rule is laid out or general 

 principle evolved for the parties to know what the nature of such con- 



