Ixxxii INTRODUCTION 



Controversies arose, to put an end to which the Treaty of 1878 was 

 concluded, which granted to Italian subjects inhabiting the shores 

 of the Adriatic the right to fish within Austro-Hungarian waters for 

 a period of ten years, subjecting them,' however, in the exercise of 

 their fishery, to local regulation, ^s appears from the provisions of 

 the treaty: 



"maintaining expressly in principle for the subjects of the country the exclusive 

 right of fishing along the coasts, there shall be reciprocally accorded as -an exception 

 thereto and for the duration of this Treaty ... to Austro-Hungarian inhabitants 

 and the Italians of the shores of the Adriatic the right to fish along the coasts of the 

 other State, reserving therefrom, however, the coral and sponge fishery as well as the 

 fishery within a marine mile of the coast, which is reserved exclusively to the inhab- 

 itants of the coast. 



"It is understood that the Regulations for maritime fishery in force in the respec- 

 tive States must be strictly observed, and especially those which forbid the fishery 

 carried on in a manner injurious to the propagation of the species." ' 



Austria-Hungary recognized, as did Great Britain, that the coast 

 fishery may belong as of right to the adjoining country; that a right may 

 be given to foreigners — in this case inhabitants — as in the Anglo- 

 American Treaty, to participate in the fisheries and the terms and 

 conditions of participation defined. Desiring Italian fishermen to be 

 amenable to local regulation, the subjection of Italian fishermen to local 

 regulation was specifically stated. Whether the Tribunal was or was not 

 impressed by the analogy and the express reservation of the right to 

 regulate does not appear, as there is ito mention of the Austro-Hungarian 

 Treaty in the award.^ 



To repeat, as, however, the Treaty of 1783 and the Convention of 

 1818 granted a liberty without specifying terms of enjoyment or reserv- 

 ing the right of regulation, it is necessary to examine whether any prin- 

 ciples of law exist which would, by implication, interpret the British 

 grant as a restriction upon British sovereignty to the extent of the grant, 

 and exempt, as contended by the United States, the exercise of fishing 

 rights from British regulation. Counsel for the United States believed 

 that such a principle of law exists, that it is deeply imbedded in the 

 practice of nations, that it is recognized by an overwhelming majority 

 of writers on international law, that the Convention of 1818 was drawn 



' Final protocol annexed to the Treaty of Commerce and Navigation concluded De- 

 cember 27, 1878, between Austria-Hungary and Italy, to be found in De Martens, Nouveau 

 Recueil G€n6ta.i, 23 Series, Vol. 4, p. 414; Latour. Mer Territoriale, pp. 1S9-167 (1889). 



* Mr. Root also called particular attention to the recent Russo-Japanese Convention, con- 

 cerning fisheries, dated July 15 (28), 1907, in which Russia and Japan expressly agreed that 

 Japanese subjects fishing within Russian jurisdiction were to be subject to local regulations. 

 For the text of the Convention, see Oral Argument, Vol. II, pp. 1403-1408; American Journal 

 of International Law, 1908, Supplement, pp. 274-285. 



