AWARD OF THE TRIBUNAL 495 



The Tribunal is unable to agree with this contention: 



(a) Because although the French right designated in 1713 merely "an allowance," 

 (a term of even less force than that used in regard to the American fishery) was never- 

 theless converted, in practice, into an exclusive right, this concession on the part of 

 Great Britain was presumably made because France, before 1713, claimed to be the 

 sovereign of Newfoundland, and, in ceding the Island, had, as the American argument 

 says, "reserved for the benefit of its subjects the right to fish and to use the strand"; 



(6) Because the distinction between the French and American right is indicated 

 by the different wording of the Statutes for the observance of Treaty obligations 

 towards France and the United States, and by the British Declaration of 1783; 



(c) And, also, because this distinction is maintained in the Treaty with France of 

 1904, concluded at a date when the American claim was approaching its present stage, 

 and by which certain common rights of regulation are recognized to France. 



For the further purpose of such proof it is contended by the United States: 



(2) That the liberties of fishery, being accorded to the inhabitants of the United 

 States "forever," acquire, by being in perpetuity and unilateral, a character exempt- 

 ing them from local legislation. 



The Tribunal is unable to agree with this contention: 



(o) Because there is no necessary connection between the duration of a grant and 

 its essential status in its relation to local regulation; a, right granted in perpetuity 

 may yet be subject to regulation, or, granted temporarily, may yet be exempted there- 

 from; or, being reciprocal may yet be unregulated, or being unilateral may yet be 

 regulated: as is evidenced by the claim of the United States that the liberties of fishery 

 accorded by the Reciprocity Treaty of 1854 and the Treaty of 1871 were exempt from 

 regulation, though they were neither permanent nor unilateral; 



(6) Because no peculiar character need be claimed for these liberties in order to 

 secure their enjoyment in perpetuity, as is evidenced by the American negotiators in 

 1818 asking for the insertion of the words "forever." International law in its 

 modem development recognizes that a great number of Treaty obligations are not 

 annulled by war, but at most suspended by it; 



(c) Because the liberty to dry and cure is, pursuant to the terms of the Treaty, 

 provisional and not permanent, and is nevertheless, in respfict of the liability to regu- 

 lation, identical in its nature with, and never distinguished from, the liberty to fish. 



For the further purpose of such proof, the United States allege: 



(3) That the liberties of fishery granted to the United States constitute an Inter- 

 national servitude in their favour over the territory of Great Britain, thereby involving 

 a derogation from the sovereignty of Great Britain, the servient State, and that there- 

 fore Great Britain is deprived, by reason of the grant, of its independent right to 

 regulate the fishery. 



The Tribunal is unable to agree with this contention: 



(a) Because there is no evidence that the doctrine of International servitudes 

 was one with which either American or British Statesmen were conversant in 1818, 

 no English publicists employing the term before 1818, and the mention of it in Mr. 

 Gallatin's report being insufficient; 



(b) Because a servitude in the French law, referred to by Mr. Gallatin, can, since 

 the Code, be only real and cannot be personal (Code Civil, Art. 686); 



(c) Because a servitude in International law predicates an express grant of a sover- 

 eign right and involves an analogy to the relation of a praedium dominans and a 

 praedium semens; whereas by the Treaty of 1818 one State grants a liberty to fish. 



