500 APPENDIX 



The Tribunal, unwilling to invest such expressions with an importance entitling 

 them to affect the general question, considers that such conflicting or inconsistent 

 expressions as have been exposed on either side are sufficiently explained by their 

 relations to ephemeral phases of a controversy of almost secular duration, and should 

 be held to be without direct effect on the principal and present issues. 



Now with regard to the second contention involved in Question I, as to whether 

 the right of regulation can be reasonably exercised by Great Britain without the con- 

 sent of the United States : 



Consideririg that the recognition of a concurrent right of consent in the United 

 States would affect the independence of Great Britain, which would become dependent 

 on the Government of the United States for the exercise of its sovereign right of regu- 

 lation, and considering that such a co-dominium would be contrary to the constitution 

 of both sovereign States; the burden of proof is imposed on the United States to show 

 that the independence of Great Britain was thus impaired by international contract 

 in 1818 and that a co-dominium was created. 



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



(10) That a concurrent right to cooperate in the making and enforcement of regu- 

 lations is the only possible and proper security to their inhabitants for the enjoyment 

 of their liberties of fishery, and that such a right must be held to be implied in the 

 grant of those liberties by the Treaty under interpretation. 



The Tribunal is unable to accede to this claim on the ground of a right so implied: 



(o) Because every State has to execute the obligations incurred by Treaty bona 

 fide, and is urged thereto by the ordinary sanctions of International Law in regard 

 to observance of Treaty obligations. Such sanctions are, for instance, appeal to public 

 opinion, publication of correspondence, censure by Parliamentary vote, demand for 

 arbitration with the odium attendant on a refusal to arbitrate, rupture of relations, 

 reprisal, etc. But no reason has been shown why this Treaty, in this respect, should 

 be considered as different from every other Treaty under which the right of a State 

 to regulate the action of foreigners admitted by it on its territory is recognized; 



(J) Because the exercise of such a right of consent by the United States would predi- 

 cate an abandonment of its independence in this respect by Great Britain, and the 

 recognition by the latter of a concurrent right of regulation in the United States. 

 But the Treaty conveys .only a liberty to take fish in common, and neither directly 

 nor indirectly conveys a joint right of regulation; 



(c) Because the Treaty does not convey a common right of fishery, but a liberty 

 to fish in common. This is evidenced by the attitude of the United States Govern- 

 ment in 1823, with respect to the relations of Great Britain and France in regard to 

 the fishery; 



{d) Because if the consent of the United States were requisite for the fishery a gen- 

 eral veto would be accorded them, the full exercise of which would be socially subver- 

 sive and would lead to the consequence of an unregulatable fishery; 



(e) Because the United States cannot by assent give legal force and validity to 

 British legislation; 



(/) Because the liberties to take fish in British territorial waters and to dry and 

 cure fish on land in British territory are in principle on the same footing; but in 

 practice a right of cooperation in the elaboration and enforcement of regulations in 

 regard to the latter liberty (drying and curing fish on land) is unrealizable. 



In any event. Great Britain, as the local sovereign, has the duty of preserving and 

 protecting the fisheries. In so far as it is necessary for that purpose, Great Britain 



