DISSENTING OPINION OF DR. LUIS M. DRAGO 523 



would be confined to areas so narrow as to render it practically valueless and almost 

 necessarily expose the fishermen to constant danger of carrying their operations into 

 forbidden waters." (British Case Appendix, page 416.) And Professor John Basset 

 Moore, a recognized authority on International law, in a communication addressed to 

 the Institute of International law, said very forcibly: "Since you observe that there 

 does not appear to be any convincing reason to prefer the ten mile line in such a case 

 to that of double three miles, I may say that there have been supposed to exist reasons 

 both of convenience and of safety. The ten mile line has been adopted in the cases 

 referred to as a practical rule. The transgression of an encroachment upon territorial 

 waters by fishing vessels is generally a grave offense, involving in many instances the 

 forfeiture of the offending vessel, and it is obvious that the narrower the space in which 

 it is permissible to fish the more likely the offense is to be committed. In order, there- 

 fore, that fishing may be practicable and safe and not constantly attended with the 

 risk of violating territorial waters, it has been thought to be expedient not to allow it 

 where the extent of free waters between the three miles drawn on each side of the bay 

 is less than four miles. This is the reason of the ten mile line. Its intention is not 

 to hamper or restrict the right to fish, but to render its exercise practicable and safe. 

 When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to 

 make the possibilities of transgression very serious within narrow limits of free waters. 

 Hence it has been deemed wiser to exclude them from space less than four miles each 

 way from the forbidden lines. In spaces less than this operations are not only hazard- 

 ous, but so circumscribed as to render them of little practical value." (Annuaire de 

 rinstitut de Droit International, 1894, p. 146.) 



So the use of the ten mile bays so constantly put into practice by Great Britain in 

 its fishery Treaties has its root and connection with the marginal belt of three miles 

 for the territorial waters. So much so that the Tribunal having decided not to adjudi- 

 cate in this case the ten miles entrance to the bays of the treaty of 1818, this will be 

 the only one exception in which the ten miles of the bays do not follow as a consequence 

 the strip of three miles of territorial waters, the historical bays and estuaries always 

 excepted. 



And it is for that reason that an usage so firmly and for so long a time established 

 ought, in my opinion, be applied to the construction of the Treaty under consideration, 

 much more so, when custom, one of the recognized sources of law, international as 

 well as municipal, is supported in this case by reason and by the acquiescence and the 

 practice of many nations. 



The Tribunal has decided that: "In case of bays the 3 miles (of the Treaty) are to 

 be measured from a straight line drawn across the body of water at the place where it 

 ceases to have the configuration characteristic of a bay. At all other places the three 

 miles are to be measured following the sinuosities of the coast." But no rule is laid 

 out or general principle evolved for the parties to know what the nature of such con- 

 figuration is or by what methods the points should be ascertained from which the bay 

 should lose the characteristics of such. There lies the whole contention and the whole 

 difficulty, not satisfactorily solved, to my mind, by simply recommending, without the 

 scope of the award and as a system of procedure for resolving future contestations under 

 Article IV of the Treaty of Arbitration, a series of lines, which practical as they may be 

 supposed to be, cannot be adopted by the Parties without concluding a new Treaty. 



These are the reasons for my dissent, which I much regret, on Question Five. 



Done at the Hague, September 7th, 1910. 



Luis M. Drago. 



