Abbildungen der Seite
PDF
EPUB

croachment upon territorial waters by firshing 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, therefore, 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 hazardous, but so circumscribed as to render them of little practical value." (Annuaire de l'Institut 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 adjudicate 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 configuration 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.

BOOK REVIEWS.

Cases and Opinions on International Law. By Pitt Cobbett, M. A., D. C. L. (Oxon). Part I, Peace. 3d ed. London: Stevens and Haynes. 1909. pp. xxiv, 385.

The original edition of Mr. Cobbett's Cases and Opinions on International Law appeared in 1885 in a volume of 263 pages. The present, that is the third, edition of the work is composed of two volumes. The first part, dealing with peace, appeared in 1909.

The original work was highly regarded and has been extensively used as a text-book. It is believed that the third edition will prove even more useful to the student of international law, although perhaps it is too detailed for class-room purposes.

Mr. Cobbett's purpose, as explained in the preface to the original edition, was two-fold: First, to show that "a very large portion of international law rests on authority as trustworthy as that which commands the homage of the English lawyer," and "to bring out how much of the law of nations exists in this shape;" second, "to publish a selection of illustrative cases which may serve as a useful companion volume to existing text-books." In both of these purposes he was eminently successful. No one can read Mr. Cobbett's collection, either in its original or its present form, without recognizing as unjust the "tendency on the part of English lawyers to regard that body of custom and convention. which is known as international law, as fanciful and unreal; as a collection of amiable opinions rather than as a body of legal rules." And few students of international law would now-a-days deny that "the great body of the rules comprising the maritime law of nations, together with many fundamental rules in other departments, may be found in the judgments and decisions of international tribunals, such as boards of arbitration and courts of prize, some of them presided over by judges fully as eminent as those of the common law. Even where such authority fails, it is still possible to draw on such sources as official documents and records, and opinions given by official jurists to their own governments on matters of international concern."

It is comparatively easy to insist that international law should be considered as an existing legal system and treated as such. It was a

genuine service to examine the reported decisions of English and American courts and show beyond the possibility of contradiction that international law has been recognized by tribunals of the highest repute as a branch of law" administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for determination." (Paquette Habana, 175 U. S. 677.)

In the preface to the present edition, the editor and author, for he appears in both qualities, maintains "that the law of nations is ascertained (inter alia) by judicial decisions recognizing and enforcing that law,' and such decisions, therefore, in so far as they purport to be founded on the law of nations, may be regarded, not only as authoritative within the limits of their respective systems, but as having a persuasive or evidentiary value in the courts of other states, or before internationl tribunals. Such decisions, moreover, serve to show how the law of nations is understood and applied in particular cases."

Admitting the correctness of Mr. Cobbett's contention and the service he has rendered to the study of international law by the publication of his Cases and Opinions, the question arises as to the method of selection and the manner of presentation.

The cases drawn on are largely of English and American origin, which gives to the collection a peculiar value to English-speaking students. Mr. Cobbett, however, has appreciated the value of decisions of courts of arbitration and commissions of inquiry in the statement and development of principles of international law, and in the third edition of his work has selected the most important of recent arbitrations, such as the Pious Fund arbitration of 1902 (pp. 23-27), the report of the international commission of inquiry in the North Sea incident of 1904 (pp. 27– 30), the Alaska boundary commission of 1903 (pp. 96-104), the Bering Sea arbitration of 1893 (pp. 124-130), the Costa Rica Packet of 1897 (pp. 268-270), the arbitration between Chile and Peru of 1875 concerning the treaty of 1865 (pp. 314-317), and the arbitration between Great Britain, Germany and Italy and Venezuela of 1903 (pp. 339342). In addition to these sources, he has drawn freely upon the state papers and inserted in the text important cases involving questions of law which were, however, settled by diplomatic negotiation without the interposition of courts of justice. The material at his disposal and brought into contribution is, therefore, extensive and well calculated to expose and develop the principles of law applied by nations in their intercourse and in the settlement of questions susceptible of judicial

determination. Mr. Cobbett has added to the selected cases extensive and very valuable notes of an historical and critical nature. As an example of the care and industry, learning and skill with which he has annotated a particular case and developed and applied the principles appertaining to the subject, may be cited the note to the case of the Paquette Habana, in which the nature and source of international law are discussed (pp. 4-15).

The manner of presenting the cases, which Mr. Cobbett has selected with great care and discrimination, is, in the opinion of the reviewer, subject to criticism, although it may be, after all, a question of individual taste or judgment. Mr. Cobbett has digested the statements taken from the original reports and in so doing has rendered the facts involved in the cases clear and understandable. He has, however, pursued the same method with the judgments, and instead of presenting them in the language of the judges delivering the opinions, he has summarized them, digested them, and presented them, with few exceptions, in his own language. Much space is no doubt saved by so doing, but a digest of the judgment rather than the judgment itself is given, and a paraphrase is presented rather than the language of the judge whose decision is at once the law and its source. Experience shows that the case itself is more valuable and illuminating than the syllabus, and sooner or later resort must be had to the text of the judgment. It is submitted that it would be better in the first instance to refer to the judgment and to present it in the language of the judge to the student, even although large portions must necessarily be omitted as irrelevant. to the particular question at issue. The same criticism is applicable to the cases selected from the decisions of arbitral tribunals and to the statements of cases settled through the channels of diplomacy. The language of the adjudged case and of the minister of state is, it is submitted, infinitely more valuable than a digest, however accurate or carefully made.

The guiding purpose of the first edition was to furnish " a useful companion volume to existing text-books." The purpose of the third edition is the same, and Mr. Cobbett has repeatedly referred to the opinions of writers of authority and has annotated his work with references to the leading text-books on international law, thus rendering the volume very valuable to the student.

Mr. Cobbett is a firm believer in arbitration and looks forward to the day when a permanent international court of justice may be estab

« ZurückWeiter »