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COMMON PROPERTY AND
INTERNATIONAL LAW:

Elihu Root and the 1910 North
Atlantic Fisheries Arbitration
at The Hague
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BRIAN J. PAYNE
 

     It is hard to imagine that baitfish generated much trouble in the geopolitics of the nineteenth and early twentieth centuries, but, in fact, the immense schools of herring and mackerel that spawned off the coast of Canada and Newfoundland proved to be one of the most vexing issues in Anglo-American relations between 1818 and 1910. The essential question was: what right did American fishermen have to actively catch and / or buy baitfish while in Canadian or British waters, which they would later use to catch marketable codfish in the international waters of the North Atlantic? This question was the core of the debate at the 1910 North Atlantic Fisheries Arbitration Tribunal at The Hague. The lawyers who gathered for this hearing believed that words and legal phraseology could solve an issue that had, for nearly a hundred years, routinely erupted in violence among fishermen, economic warfare among merchants, and had twice generated so much political rancor that navies and police forces were sent to protect or defend assumed rights. The legal debate at this tribunal, led most notably by New Yorker Elihu Root, represents a high point in the faith of international arbitration to solve world issues, which if left to the whim of other forces, could easily lead to war.