DISSENTING OPINION OF DR. LUIS M. DRAGO 521 



Prescribes the obligation of not concealing or effacing numbers or marks on boats, 

 employed in fishing or dredging for purposes of sale on the coasts of England, Wales, 

 Scotland and the Islands of Guernsey, Jersey, Alderney, Sark and Man, and not going 

 outside; 



(o) The distance of 3 miles from low water mark along the whole extent of the said 

 masts; 



(ft) In cases of bays less thaniomileswide the line joining the headlands of said bays. 



(Hertslett's, Vol. XIV, p. 1032.) 



To this list may be added the unratified Treaty of 1888 between Great Britain and 

 the United States which is so familiar to the Tribunal. Such unratified Treaty con- 

 tains an authoritative interpretation of the Convention of October 20th, 1818, sub 

 judice: "The three marine miles mentioned in Article I of the Convention of October 

 20th, 1818, shall be measured seaward from low-water mark; but at every bay, creek 

 or harbour, not otherwise specifically provided for in this Treaty, such three marine 

 miles shall be measured seaward from a straight line drawn across the bay, creek or 

 harbor, in the part nearest the entrance at the first point where the width does not 

 exceed ten marine miles, " which is recognizing the exceptional bays as aforesaid and 

 laying the rule for the general and common bays. 



It has been suggested that the Treaty of 1818 ought not to be studied as hereabove 

 in the light of any Treaties of a later date, but rather be referred to such British inter- 

 national Conventions as preceded it and clearly illustrate, according to this view, what 

 were, at the time, the principles maintained by Great Britain as to their sovereignty 

 over the sea and over the coast and the adjacent territorial waters. In this connection 

 the Treaties of i685 and 1713 with France and of 1763 with France and Spain have 

 been recited and offered as examples also of exclusion of nations by agreement from 

 fishery rights on the high seas. I cannot partake of such a view. The treaties of 

 1686, 1713 and 1763 can hardly be understood with respect to this, otherwise than as 

 examples of the wild, obsolete claims over the common ocean which all nations have 

 of old abandoned with the progress of an enlightened civilization. And if certain 

 nations accepted long ago to be excluded by convention from fishing on what is to-day 

 considered a common sea, it is precisely because it was then understood that such 

 tracts of water, now free and open to all, were the exclusive property of a particular 

 power, who, being the owners, admitted or excluded others from their use. The 

 Treaty of 1818 is in the meantime one of the few which mark an era in the diplomacy 

 of the world. As a matter of fact it is the very first which commuted the rule of the 

 cannon-shot into the three marine miles of coastal jurisdiction. And it really would 

 appear unjustified to explain such historic document, by referring it to international 

 Agreements of a hundred and two hundred years before when the doctrine of Selden's 

 Mare Clausum was at its height and when the coastal waters were fixed at such dis- 

 tances as sixty miles, or a hundred miles, or two days' journey from the shore and the 

 like. It seems very appropriate, on the contrary, to explain the meaning of the Treaty 

 of 1818 by comparing it with those which immediately followed and established the 

 same limit of coastal jurisdiction. As a general rule a Treaty of a former date may be 

 very safely construed by referring it to the provisions of like Treaties made by the 

 same nation on the same matter at a later time. Much more so when, as occurs in the 

 present case, the later Conventions, with no exception, starting from the same premise 

 of the three miles coastal jurisdiction arrive always to an uniform policy and line 

 of action in what refers to bays. As a matter of fact all authorities approach and 

 connect the modem fishery Treaties of Great Britain and refer them to the Treaty of 



