DISSENTING OPINION OF DR. LUIS M. DRAGO^ 



The North Atlantic Coast Fisheries Arbitration. Grounds for the Dissent 

 to the Award on Question V by Dr. Luis M. Drago 



Counsel for Great Britain have very clearly stated that according to their contention 

 the territoriality of the bays referred to in the Treaty of 1818 is immaterial because 

 whether they are or are not territorial, the United States should be excluded from 

 fishing in them by the terms of the renunciatory clause, which simply refers to "bays, 

 creeks or harbours of His Britannic Majesty's Dominions" without any other qualifica- 

 tion or description. If that were so, the necessity might arise of discussing whether 

 or not a nation has the right to exclude another by contract or otherwise from any 

 portion or portions of the high seas. But in my opinion the Tribunal need not concern 

 itself with such general question, the wording of the treaty being clear enough to decide 

 the point at issue. 



Article I begins with the statement that differences have arisen respecting the 

 liberty claimed by the United States for the inhabitants thereof to take, dry and cure 

 fish on "certain coasts, bays, harbours and creeks of His Britannic Majesty's Domin- 

 ions in America," and then proceeds to locate the specific portions of the coast with 

 its corresponding indentations, in which the hberty of taking, drying and curing fish 

 should be exercised. The renunciatory clause, which the Tribunal is called upon to 

 construe, runs thus: "And the United States hereby renounce, forever, any liberty 

 heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish on, 

 or within three marine miles of any of the Coasts, Bays, Creeks or Harbours of His 

 Britannic Majesty's Dominions in America not included within the above mentioned 

 limits." This language does not lend itself to different constructions. If the bays 

 in which the liberty has been renounced are those "of His Britannic Majesty's Do- 

 minions in America," they must necessarily be territorial bays, because in so far as 

 they are not so considered they should belong to the high seas and consequently form 

 no part of His Britannic Majesty's Dominions, which, by definition, do not extend to 

 the high seas. It cannot be said, as has been suggested, that the use of the word 

 "dominions," in the plural, implies a different meaning than would be conveyed by 

 the same term as used in the singular, so that in the present case, "the British dominions 

 in America" ought to be considered as a mere geographical expression, without refer- 

 ence to any right of sovereignty or "dominion." It seems to me, on the contrary, 

 that "dominions," or "possessions," or "estates," or such other equivalent terms, 

 simply designate the places over which the "dominion " or property rights are exercised 

 Where there is no possibility of appropriation or dominion, as on the high seas, we 

 cannot speak of dominions. The "dominions" extend exactly to the point which the 

 "dominion" reaches; they are simply the actual or physical thing over which the 

 abstract power or authority, the right, as given to the proprietor or the ruler, applies. 

 The interpretation as to the territoriality of the bays as mentioned in the renunciatory 

 clause of the treaty appears stronger when considering that the United States specifi- 

 cally renounced the "liberty," not the "right" to fish or to cure and dry fish. "The 

 ' "Oral Argument," Vol. II, p. 14S7. 

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