INTRODUCTION xci 



in their respective possessions upon the Island of Sakhaline and the 

 adjacent islands any fortifications or military works, thus burdening 

 the territories in question with a servitude.^ Finally, in the course of 

 the same year, on October 26, 1905, Norway and Sweden signed the 

 Convention of Stockholm, by the terms of which they agreed to main- 

 tain neutrality within their frontiers, to dismantle existing fortifications, 

 and not to construct fortifications, forts, or military depots.^ 



But the question referred to the Tribunal was not whether the doc- 

 trine of servitudes is unsuited to modern theories of sovereignty and 

 constitutional government or whether states should or should not grant 

 servitudes in the future, but solely whether Great Britain and the 

 United States actually did create an international servitude by the 

 Convention of 1818. 



In regard to the next point made by the Tribunal, it is a fact that 

 "modern publicists" overwhelmingly support the doctrine and that 

 there is very little opposition to it, as a cursory, not to say a careful, 

 examination of the authorities, cited on a previous page, will show. 



A further reason advanced by the Tribunal for the rejection of the 

 American claim to a voice in the regulation of the fishery was that the 

 fishery of 1783, in which Americans were admitted to participate, was a 

 regulated fishery, which is only true so far as British subjects were con- 

 cerned. The French fishery secured by treaty with Great Britain in 

 terms identical with the American right never was a regulated fishery 

 from the date of its acquisition in 17 13 until the right to regulate was 

 created by the Convention of 1904, between France and Great Britain. 

 The finding of the Tribunal that the French and American rights, 

 identical in terms, were not identical in fact, deprives the augument of 

 analogy of the weight which it would otherwise have. The state- 

 ment of the Tribimal that the fisheries granted by the Convention of 

 18 1 8 were regulated by Great Britain without protest from the United 

 States appears to be unsupported by the facts.' The Tribunal seemed 

 to be aware of the weakness of this part of its award, for it says that 

 "the fact that Great Britain rarely exercised the right of regulation 

 in the period immediately succeeding 1818 is to be explained by various 

 circumstances, and is not evidence of the non-existence of the right." * 



The Tribunal rejected in form the principle of law upon which Ameri- 



' British and Foreign State Papers, 1904-1905, Vol. 98, p. 735. 



'British and Foreign State Papers, 1904-1905, Vol. 98, pp. 821, 824. 



' For this much disputed question, see for British contention Sir Robert Finlay's 

 Argument, Oral Arguments, Vol. I, pp. 192-200; Mr. William Robson's Argument, ib. II, 

 pp. 876-982 ; and for the American contention, Mr. Turner's Argument, ib. Vol. II, pp. 449- 

 454; Senator Root's Argument, ib. Vol. II, pp. 1190-1201, infra, pp. 48-72. 



* Appendix, p. 497 ; Oral Argument, p. 1441. 



