So8 ^ APPENDIX 



American fishermen entering such bays for any of the four purposes aforesaid and 

 remaining more than 48 hours therein, should be required, if thought necessary by 

 Great Britain or the Colonial Government, to report, either in person or by telegraph, 

 at a custom-house or to a customs ofi&cial, if reasonably convenient opportunity there- 

 for is afforded. 



And it is so decided and awarded. 



Qdesi"ion V 



From where must be measured the "three marine miles of any of the coasts, bays 

 creeks, or harbours" referred to in the said Article ? 



In regard to this question. Great Britain claims that the renunciation applies to all 

 bays generally and 



The United States contend that it applies to bays of a certain class or condition. 



Now, considering that the Treaty used the general term "bays" without qualifica- 

 tion, the Tribunal is of opinion that these words of the Treaty must be interpreted 

 in a general sense as applying to every bay on the coast in question that might be 

 reasonably supposed to have been considered as a bay by the negotiators of the Treaty 

 under the general conditions then prevailing, unless the United States can adduce 

 satisfactory proof that any restrictions or qualifications of the general use of the term 

 were or should have been present to their minds. 



And for the purpose of such proof the United States contend: 



1°. That while a State may renounce the treaty right to fish in foreign territorial 

 waters, it cannot renounce the natural right to fish on the High Seas. 



But the Tribunal is unable to agree with this contention. Because though a State 

 cannot grant rights on the High Seas it certainly can abandon the exercise of its right 

 to fish on the High Seas within certain' definite limits. Such an abandonment was 

 made with respect to their fishing rights in the waters in question by France and Spain 

 in 1763. By a convention between the United Kingdom and the United States in 

 1846, the two countries assumed ownership over waters in Fuca Straits at distances 

 from the shore as great as 17 miles. 



The United States contend moreover: 



2°. That by the use of the term "liberty to fish" the United States manifested the 

 intention to renounce the liberty in the waters referred to only in so far as that liberty 

 was dependent upon or derived from a concession on the part of Great Britain, and 

 not to renounce the right to fish in those waters where it was enjoyed by virtue of their 

 natural right as an independent State. 



But the Tribunal is unable to agree with this contention: 



(a) Because the term "liberty to fish" was used in the renunciatory clause of the 

 Treaty of 1818 because the same term had been previously used in the Treaty of 1783 

 which gave the liberty; and it was proper to use in the renunciation clause the same 

 term that was used in the grant with respect to the object of the grant; and,_in view 

 of the terms of the.grant, it would have been improper to use the term "right" in the 

 renunciation. Therefore the conclusion drawn from the use of the term "liberty" 

 instead of the term "right" is not justified; 



(b) Because the term "liberty" was a term properly applicable to the renunciation 

 which referred not only to fishing in the territorial waters but also to drying and curing 

 on the shore. This latter right was undoubtedly held under the provisions of the 

 Treaty and was not a right accruing to the United States by virtue of any principle 

 of International law. 



