TOPICS OF THE DAY.
THE NEWFOUNDLAND ARBITRATION.
THE award in the Atlantic fisheries dispute which 1 was delivered on Wednesday at the Hague ends, or ought to end, a distressing and sometimes dangerous con- troversy between Great Britain and the United States which has lasted for nearly a hundred years. Almost everything at issue turned on the interpretation of the Treaty of 1818, and of course many of the modern con- ditions were quite unforeseen when that Treaty was drafted. We have always thought that the pretensions of the 'United States were in most respects unjustifiable, but we had no fear that the interests of Newfoundland would suffer before any impartially constituted Court of Arbitration. There are matters which can fairly be referred to arbitration even by men who are the most scrupulous in preserving their national rights, and there are a few matters—matters of conscience— which cannot be so referred. A man cannot accept arbitration on simple questions of religion and morality in his own life, and the same principle is true of nations. But the interpretation of a Treaty, even though the sense of the Treaty must be extended and read in the light of international custom where its text fails to meet the exist- ing conditions, is one of those things which can very rightly be submitted to arbitration. No worse blow could possibly have been struck at the whole system of international arbitration than the failure of the Hague Court to convince the world that it had arrived at a just and impartial decision in such a legitimate subject for arbitration as the fisheries dispute. We are glad indeed to think that there has been no failure. Neither side has gained all it contended for—in the bargain- ing of Law Courts each commonly asks for more than it expects to get—but Great Britain has gained all the essential points in her case, yet we hope and believe that American statesmen will not consider that their countrymen will suffer any material loss under the arrangement. In discussing a judgment by arbitrators we prefer, however, not to speak of " victory " or " defeat." The words are provocative and contrary to the spirit of arbitration. What we should speak of and demand is justice, and we believe that substantial justice is done by the award.
The Court had to find answers to seven questions. Of these the first and the fifth were by far the most important, and on both of these the award is in favour of Great Britain. The first question was whether Great Britain has the power to make laws regulating the Newfoundland fisheries without consulting the United States. The answer to that question is that Great Britain has the power. We do not ourselves see how any other answer was possible, unless the extra- ordinary principle was to be established that a country has not full sovereignty in its own waters. We can hardly imagine what the assertion of such a principle would lead to, but fortunately we need not now trouble our minds with it. British sovereignty is vindicated. But it would still be open to the United States to say that the interests of their fishermen, which are supposed to be safeguarded by Treaty, could be wrecked by the local laws of New- foundland. Such a possibility is provided against by the plan of referring points of equity, which may be alleged by the United States to come within the scope of the Treaty, to a Permanent Mixed Fishery Commission. The fifth question was whether United States vessels had the right to fish in bays according to the American interpreta- tion of that word. The British reading of the word " bays " was that all concavities in the coast having the definite configuration of bays, however large, were really bays, and that the " three-mile limit " within which local jurisdiction was supreme was to be measured from an imaginary straight line drawn from headland to headland of those bays. The American contention was that no indentation of the coast which measured more than six miles from one headland to another was a bay, and that except in the case of bays strictly so called the three-mile limit should be considered as extending from low-water mark. Here again the British argu- ment has been upheld. The " " theory of a bay was rejected, but it is " recommended that Great Britain should consent to the fixing of the three• mile limit according to the rule observed elsewhere,—viz., that when a bay is wider than ten miles across from head- land to headland, the three-mile limit should follow the sinuosities of the coast. The tribunal did not think that they were justified in laying this down as an axiom of international law, but they strove to make their recom- mendations as easily applicable as possible by naming certain geographical points where disputes might arise. There are bays so large, for example, that foreign fisher- men could not know how their vessels lay in relation to the headlands. In such cases headlands within the outer- most headlands are mentioned as the points from which the three-mile limit might be measured. The " ten- miles " theory of a bay was proposed in the Chamberlain- Bayard Treaty of 1888, which was rejected by the American Senate. Englishmen are not at all likely to repine at a ruling to which they have long been prepared to consent.
As for the other points in dispute, the tribunal decided that United States fishermen may employ non: Americans in the waters governed by the Treaty of 1818 ; that United States vessels need not pay light dues, as there were no lighthouses existing or contemplated in 1818 ; that United States vessels need. not enter the Custom-houses at Labrador and Newfoundland ; that the words " bays," " harbours," and " creeks " in the Treaty apply both to Labrador and Newfoundland. ; and that vessels engaged in fishing may take part in other trade. There were many vicissitudes in the old controversy between the Newfoundlandmen and Americans as to whether the latter should be forced to confine their crews to American-born citizens in order to enjoy the privilege of fishing in Newfoundland waters. When the modus vivendi was latterly introduced to control the fishing till the dis- pute over the Treaty of 1818 could be settled, some of our British stalwarts were furious at the setting aside of the prohibition by the Newfoundland Government of the employment of non-Americans in American ships. But it should not be forgotten that Newfoundlanders con,. tinually engaged themselves to American employers, and even made a practice of going outside the three- mile limit in order to escape the local laws when they wished to " sign on." In many respects, however, one can sympathise heartily with the annoyance of Newfoundland when the Americans withdrew the concession by which Newfoundlanders were allowed to land their fish free on the American mainland, yet insisted on retaining for them- selves the privileges—privileges which were distinctly a quid pro quo—granted to them in Newfoundland. Yet a sense of the obligation each part of the Empire owes to the interests of the whole should have been enough to restrain the Newfoundland Government from a defiance which was bound to be ineffectual. The modus vivendi was only a temporary sacrifice. That, however, is all past history ; Sir Robert Bond eventually yielded to the necessity of continuing the hated expedient till the submission of the whole question to arbitration could be arranged. We imagine that very few Newfoundlanders will pretend now that the prolonged continuance of the modus vivendi has not been justified by the result. Even if they hold that they are being compelled to give way on points on which they think their legal rights are clear, they will perhaps find consolation in the reflection that there is an end to the bickering and disturbing excursions and alarms between themselves and the " foreigners." There will be no more boycotting, no more refusal to sell bait, no more free-fights; and so on. Nor is the whole controversy one which con- cerns the Atlantic seaboard alone. It is a most important political fact that the tribunal has disposed of the American argument, often advanced by Mr. Root, that after the War of Independence Great Britain shared. her rights of sovereignty with the United States.
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