cxlii INTRODUCTION 



such bodies of water and that their knowledge of international law was 

 based upon general statements contained in the works of authority most 

 widely known. 



It is not asserted that the rules of international law concerning such 

 bodies of water were universally accepted, that the various writers on the 

 subject are in exact accord, or that the practice of nations at the time of 

 the convention was so clear and unmistakable as to free the subject from 

 doubt; for "of practice," as Hall says, "there is a curious deficiency." 

 A safer guide would seem to be the understanding of the parties to the 

 convention, as evidenced by the correspondence between the two coun- 

 tries, the instructions to the negotiators of the Treaty of Ghent and the 

 Convention of 1818, the report of the American negotiators and the sub- 

 sequent positive statements of Mr. Rush. If these various documents 

 established an understanding between the two countries that the bays 

 renounced by the Convention of 1818 were territorial, then it would 

 seem that, irrespective of international law and the practice of states 

 generally, the contention of the United States should have prevailed in 

 the arbitration; whereas, if the various documents, to which reference 

 has been made, failed to establish such an understanding between the 

 contracting parties, then the British contention that the bays of the 

 treaty coast were geographical — that is to say, bays in general — 

 might properly have been accepted. The Tribunal rejected the American 

 and accepted the British contention. The question was not free from 

 doubt, for the expressions used in the renunciatory clause were clearly 

 susceptible of the British interpretation, but an examination of the clause 

 in the light of its history and the attending circumstances would im- 

 doubtedly have justified the Tribunal in holding that the bays renounced 

 by the Convention of 1818 were small territorial bays, not greater than 

 six miles in width at their entrance, and that the United States only 

 renounced the right to approach within three miles of such bays except 

 for the four specified purposes; namely, for shelter, repairing damages, 

 purchase of wood, and obtaining water therein. 



The Tribunal was not unanimous on this point and Dr. Drago filed 

 an elaborate dissenting opinion in which he held that the bays on the 

 non-treaty coast renounced by the Convention of 1818 were territorial 

 bays properly so-called, not geographical bays, as held by the majority,' 

 and that the Tribunal would be justified in regarding as territorial bays 

 all bays whose entrances did not exceed ten miles in width. Had the 

 Tribunal concurred in Dr. Drago's opinion. Question V would have 

 been decided. As it is, the Tribunal held that a bay was a bay, and 



t Appendix, p. 516; Oral Argument, p. 1457. 



