BERING SEA ARBITRATION. The important seal fish ery dispute between Great Britain and the United States, which was closed by this arbitration, arose in the following circumstances. In 1867 the U.S. Government had purchased from Russia all her territorial rights in Alaska and the adjacent islands. The boundary between the two powers, as laid down by the treaty for purchase, was a line drawn from the middle of Bering strait south west to a point midway between the Aleutian and Komandorski islands dividing Bering sea into two parts, of which the larger was on the American side of this line. This portion included the Pri biloff islands, which are the principal breeding-grounds of the seals frequenting those seas. By certain acts of Congress, passed be tween 1868 and 1873, the killing of seals was prohibited upon the islands of the Pribiloff group and in "the waters adjacent thereto" except upon certain specified conditions. No definition of the meaning of the words "adjacent waters" was given in the act. As early as 1872 the operations of foreign sealers attracted the at tention of the U.S. Government, but any precautions then taken seem to have been directed against the capture of seals on their way through the passages between the Aleutian islands, and no claim to jurisdiction beyond the three-mile limit appears to have been put forward. On March 12, 1881, however, the acting sec retary of the United States treasury, in answer to a letter asking for an interpretation of the words "waters adjacent thereto" in the acts of 1868 and 1873, stated that all the waters east of the boundary line were considered to be within the waters of Alaska territory. In March 1886 this letter was communicated to the San Francisco customs by the secretary of the treasury, for publica tion. In the same summer three British sealers, the "Carolena," "Onward" and "Thornton," were captured by an American reve nue cutter 6o m. from land. They were condemned by the district judge on the express ground that they had been sealing within the limits of Alaska territory. Diplomatic representations fol lowed, and an order for release was issued, but in 1887 further captures were made and were judicially supported upon the same grounds.
The Conflicting Claims.—The respective positions taken up by the two Governments in the controversy which ensued may be thus indicated. The United States claimed as a matter of right an exclusive jurisdiction over the sealing industry in Bering sea; they also contended that the protection of the fur seal was, upon grounds both of morality and interest, an international duty, and should be secured by international arrangement. The British Government repudiated the claim of right, but were willing to negotiate upon the question of international regulation. Between 1887 and 1890 negotiations were carried on between Russia, Great Britain and the United States with a view to a joint convention. Unfortunately the parties were unable to agree as to the prin ciples upon which regulation should be based. The negotiations were wrecked upon the question of pelagic sealing. Inasmuch as the seal nurseries were upon islands belonging either to the United States or Russia, the prohibition of pelagic sealing would have excluded Canada from the industry. The United States, never theless, insisted that such prohibition was indispensable on the grounds—(I) that pelagic sealing involved the destruction of fe males necessary for breeding stock; (2) that it was unnecessarily wasteful, inasmuch as a large proportion of the seals so killed were lost. On the other hand, it was contended by Great Britain that in all known cases the extermination of seals had been the result of operations upon land, and had never been caused by sealing exclusively pelagic. The negotiations came to nothing, and the United States fell back upon their claim of right. In June 1890 it was reported that certain American revenue cutters had been ordered to proceed to Bering sea. Sir Julian Pauncefote, the British ambassador at Washington, having failed to obtain an as surance that British vessels would not be interfered with, laid a formal protest before the U.S. Government.
Thereupon followed a diplomatic controversy, in the course of which the United States developed the contentions which were afterwards laid before the tribunal of arbitration. The claim that Bering sea was mare clausum was abandoned, but it was asserted that Russia had formerly exercised therein rights of exclusive jurisdiction which had passed to the United States, and they relied inter alia upon the ukase of 1821, by which foreign vessels had been forbidden to approach within Ioo Italian miles of the coasts of Russian America. It was pointed out by Great Britain that this ukase had been the subject of protest both by Great Britain and the United States, and that by treaties similar in their terms, made between Russia and each of the protesting powers, Russia had agreed that their subjects should not be troubled or molested in navigating or fishing in any part of the Pacific ocean. The American answer was that the Pacific ocean did not include Bering sea.
The Arbitration Tribunal.—The sittings of the tribunal be gan in February and ended in August 1893. The interest of the proceedings lies in the second of the two claims put forward on behalf of the United States. This claim cannot easily be stated in language of precision; it is indicated rather than formulated in the last of the five points specially submitted by the treaty. But its general character may be gathered from the arguments ad dressed to the tribunal. It was suggested that the seals had some of the characteristics of the domestic animals, and could there fore be the subject of something in the nature of a right of prop erty. They were so far amenable to human control that it was possible to take their increase without destroying the stock. Sealing upon land was legitimate sealing; the United States being the owners of the land, the industry was a trust vested in them for the benefit of mankind. On the other hand, pelagic sealing, being a method of promiscuous slaughter, was illegitimate; it was contra bonos mores and analogous to piracy. Consequently the United States claimed a right to restrain such practices, both as proprie tors of the seals and as proprietors and trustees of the legitimate industry. It is obvious that such a right was a novelty hitherto unrecognized by any system of law. The American counsel argued that the determination of the tribunal must be grounded upon "the principles of right," that "by the rule or principle of right was meant a moral rule dictated by the general standard of justice upon which civilized nations are agreed, that this international standard of justice is but another name for international law, that the particular recognized rules were but cases of the application of a more general rule, and that where the particular rules were silent the general rule applied." The practical result of giving effect to this contention would be that an international tribunal could make new law and apply it retrospectively. The American contention was successfully combated by Sir Charles Russell, the leading counsel for Great Britain.
Decision of the Tribunal.—The award, which was signed and published on Aug. 15, 1893, was in favour of Great Britain on all points. The question of damages, which had been reserved, was ultimately settled by a mixed commission appointed by the two powers in Feb. 1896, the total amount awarded to the British sealers being $473,151.26. Pelagic sealing continued until 1911, when the practice was abolished by a treaty signed by the United States, Great Britain, Russia and Japan.