xlviii INTRODUCTION 



of arbitration, so that the fisheries question might arise under it and be 

 incidental to it. And Mr. Root was desirous that the special agreement 

 submitting the fisheries arbitration, although in the form of a compromis, 

 under the general treaty, should not merely secure an interpretation of 

 the Convention of 1818, but should provide means for the determination 

 of any future controversy in the matter of the fisheries which might 

 arise between two nations. Hence the general treaty of arbitration 

 and hence the peculiar form of submission of the fisheries dispute. The 

 first article of the general Arbitration Treaty, signed April 4, 1908, 

 reserved, as is customary in such agreements, questions concerning the 

 interest of third parties and provided that "differences which may arise 

 of a legal nature or relating to the interpretation of treaties existing 

 between the two Contracting Parties, and which it may not have been 

 possible to settle by diplomacy, shall be referred to the Perrnanent 

 Court of Arbitration established at The Hague by the Convention of 

 the 29th of July, 1899." The fisheries question was of a legal nature 

 and related to the interpretation of treaties; namely, to the Convention 

 of 1818. It had not been and could not, it would seem, be settled by 

 diplomacy. It was, therefore, peculiarly qualified to be submitted to 

 arbitration. Article two provided that in each individual case the high 

 contracting parties "shall conclude a special Agreement defining clearly 

 the matter in dispute, the scope of the powers of the Arbitrators, and 

 the periods to be fixed for the formation of the Arbitral Tribunal and the 

 several stages of the procedure." The next step was to frame the special 

 agreement, referred to in the second article of the Treaty of Arbitration, 

 and in doing this the negotiators did not have a wholly free hand, because 

 it is provided by the treaty that the special agreement, as far as the 

 United States is concerned, is to be made by and with the advice and 

 consent of the Senate, and Great Britain expressly reserved the right 

 "before concluding a special agreement in any matter affecting the inter- 

 ests of a self-governing Dominion of the British Empire to obtain the con- 

 currence therein of the Government of that Dominion." The statement 

 that the special agreement was to be subjected to the approval of the 

 Senate was self-evident, if it be regarded as an international agreement, 

 and the present policy of the Senate is to regard the special agreement 

 as in the nature of a treaty. Great Britain undoubtedly had the right, 

 without reserving it, "to obtain the concurrence" of the self-governing 

 dominions affected by the negotiation, but the expression of the right 

 suggests not merely the importance which the dominions have assumed 

 in international matters concerning them, but serves to explain in advance 

 any delay which might be occasioned in consulting such dominions. 



