DISSENTING OPINION OF DR. LUIS M. DRAGO 519 



the Privy Council about Conception Bay in Newfoundland, adhered to the same doc- 

 trine when he asserted the territoriality of that branch of the sea, giving as a reason for 

 such finding "that the British Government for a long period had exercised dominion 

 over this bay and its claim had been acquiesced in by other nations, so as to show that 

 the bay had been for a long time occupied exclusively by Great Britain, a circumstance 

 which, in the tribunals 01 any country, would be very important." "And moreover," 

 he added, "the British Legislature has, by Acts of Parliament, declared it to be part 

 of the British territory, and part of the country made subject to the legislation of 

 Newfoundland. " (Direct U. S. Cable Co. v. The Anglo-American Telegraph Co., 

 Law Reports, 2 Appeal Cases, 374.) 



So it may be safely asserted that a certain class of bays, which might be properly 

 called the historical bays such as Chesapeake Bay and Delaware Bay in North America 

 and the great estuary of the River Plate in South America, form a class distinct and 

 apart and undoubtedly belong to the littoral country, whatever be their depth of pene- 

 tration and the width of their mouths, when such country has asserted its sovereignty 

 over them, and particular circumstances such as geographical configuration, immemo- 

 rial usage and above all, the requirements of self-defense, justify such a pretension. 

 The right of Great Britain over the bays of Conception, Chaleur and Miramichi are 

 of this description. In what refers to the other bays, as might be termed the common, 

 ordinary bays, indenting the coasts, over which no special claim or assertion of sover- 

 eignty has been made, there does not seem to be any other general principle to be 

 applied than the one resulting from the custom and usage of each individual nation 

 as shown by their Treaties and their general and time honored practice. 



The well known words of Bynkeeshoek might be very appropriately recalled in 

 this connection when so many and divergent opinions and authorities have been recited : 

 " The common law of nations, " he says, " can only be learnt from reason and custom. 

 I do not deny that authority may add weight to reason, but I prefer to seek it in a 

 constant custom of concluding treaties in one sense or another and in examples 

 that have occurred in one countrj' or another." (Questiones Jure Publid, Vol. i, 

 Cap. 3.) 



It is to be borne in mind in this respect that the Tribunal has been called upon to 

 decide as the subject matter of this controversy, the construction to be given to the 

 fishery Treaty of r8i8 between Great Britain and the United States. And so it is 

 that from the usage and the practice of Great Britain in this and other hke fisheries 

 and from Treaties entered into by them with other nations as to fisheries, may be 

 evolved the right interpretation to be given to the particular convention which has 

 been submitted. In this connection the following Treaties may be recited : 



Treaty between Great Britain and France. 2nd August, 1839. It reads as follows: 



Aet. IX. The subjects of Her Britannic Majesty shall enjoy the exclusive right 

 of fishery within the distance of 3 miles from low water mark along the whole extent 

 of the coasts of the British Islands. 



It is agreed that the distance of three miles fixed as the general limit for the exclusive 

 right of fishery upon the coasts of the two countries, shall, with respect to bays, the 

 mouths of which do not exceed ten miles in width, be measured from a straight line 

 drawn from headland to headland. 



Art. X. It is agreed and understood, that the miles mentioned in the present 

 Convention are geographical miles, whereof 60 make a degree of latitude. 



(Heetslett's Treaties and Conventions, Vol. V, p. 89.) 



Regulations between Great Britain and France. 24th May, 1843. 



