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regarded as free and open sea. If that had been the intention, it ought and most probably would have been explicitly stated in the Treaty, as the contracting parties could scarcely have failed to realise that in such a case they were acting in disregard of an international right. The line of demarcation as drawn by the arbitration tribunal under the Convention of 1903 is referred to in the Convention and in the Canadian report as a "boundary line," and an inference is thereupon sought to be drawn that whatever lies to the north or south of that line, whether land or water, would be within the territory of one or other of the contracting parties. This, however, is to construe the expression boundary line in rather too literal a sense. If it were treated literally as a "boundary line," it would have the effect of allocating to Canada part of the territorial water at the extreme points of the line where it rests upon the coasts of Alaska, and at all intermediate points where it is drawn within three miles of such coasts. This cannot have been intended. The Canadian report urges with great force, an argument to which a clear and positive answer is by no means easy, namely: that the claim of territoriality, say, over Clarence Strait on the north or the Straits of Georgia or San Juan de Fuca on the south, where each of the contracting parties admits the claim of the other, would apply with equal cogency to Hecate Strait or Dixon Entrance. We think, however, that there is a difference which, although it may be described as being one of degree, nevertheless puts Hecate Strait and Dixon Entrance in a substantially different category from any of the other named straits. The other straits are much more of the nature of enclosed waters than of open sea, although they are connected with the open sea at both ends. It must be admitted, however, that the Award of the German Emperor under the Treaties of Washington of 1846 and 1871, which has been construed practically as treating the Strait of San Juan de Fuca as divided between the territories of Great Britain and the United States, would have some weight before an international tribunal in favour of the contention of the British Government with regard to Hecate Strait.
Next as to the admissions on the part of the United States in favour of the British contention. We attach no importance to the statement of Mr. Alexander, the United States fishery expert, in 1897. He had no sort of authority or position which could give any weight to the statements made by him in a matter of diplomacy. Mr. Whitelaw Reid's application of July, 1908, for permission to lay a cable through Hecate Strait and Dixon Entrance, together with his express recognition that those waters are British, is undoubtedly an important point in favour of Canada, but it is to be remembered that on previous occasions, in 1897 and 1905, when the present claim had been put forward on behalf of His Majesty's Govern- ment, the United States had vigorously protested, and we had taken no action even by way of reply to their protest. This circumstance gives an aspect of inad- vertence to Mr. Whitelaw Reid's admission, unless, indeed, his admission was intended only to apply to waters within the three-mile limit which might be touched by the cable in Hecate Strait. In any event, we think that such an admission does not estop the United States from raising the point now.
The Right Honourable
The Earl of Crewe, K.G.,
&c..
&c.. &c.
W. S. ROBSON. S. T. EVANS.
We have, &c.,
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Reference
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