The Behring Sea Question
WHEN Secretary Seward purchased Alaska from Russia in 1867, it was thought that one of the standing problems of the Department of State had been solved. But judging from recent events, we have not only retained our own difficulties, but have also fallen heir to the antiquated claims of Russia.
It appears that by acquiring Russian territory we have become obligated to support Russian international law as proclaimed in the early part of the century, instead of adhering to the principles asserted by our more enlightened statesmen, and now universally adopted by civilized powers. The theory of our revenue service appears to be that all Russian “claims ” to the sea run with the land, and obligate the United States, as the present owner of the land, to reverse its liberal policy and support their validity, regardless of consistency or justice. It is indeed strange to find Great Britain, that puissant power which once by naval supremacy enforced its claim to ownership of all waters winch washed the shores of the British Isles, contending for the freedom of the seas, and the United States pursuing a policy of restriction. The history of the freedom of the seas is the record of their rescue from the grasp of that nation.
The United States acquired Alaska “ and the waters adjacent thereto ” by the Russo - American Treaty of 1867. The value of the acquisition was soon recognized, and Congress took immediate steps for the protection of the extensive fur seal fisheries.
In 1870, the government leased to the Alaska Commercial Company, a corporation created in California, the exclusive right for twenty years to take fur seals on the islands of St. Paul and St. George and in the adjacent waters. For this privilege the leasee agreed to pay to the United States annually the sum of fifty-five thousand dollars, two dollars sixty-two and one half cents for each seal skin taken, fifty-five cents for each gallon of seal oil sold, and in addition to supply the natives with certain quantities of fuel and provisions. Under this lease the company has enjoyed a virtual monopoly and control of the trade, and the enterprise has proven very profitable to both leasor and leasee.
Various statutes and Treasury regulations relating to “ Alaska and the waters thereof ” have been and are now in force. They do not attempt to define the limits of the waters over which exclusive sovereignty is claimed, although the laws of the United States, as far as applicable, have been “ extended to and over all the mainland, islands, and waters of the territory ceded to the United States by the Emperor of Russia.” On the last day of President Cleveland’s term, he signed an act providing that, “ No person shall kill any otter, mink, marten, or fur seal, or other fur-bearing animal within the limits of Alaska, or in the waters thereof,” except under certain restrictions and on certain conditions.
The government of the United States is not definitely committed to any interpretation of the phrase “ adjacent to the waters of Alaska.” It is true that the revenue officers, evidently acting under instructions from the Treasury Department, assume that the limits named in the treaty of 1867 with Russia bound the waters over which the United States is entitled to exercise exclusive jurisdiction. The question, however, is not one to be determined by Treasury regulations, but by the general principles and rules of international law. It appears from the published correspondence that the Department of State has confined its action to acknowledging the receipt of the urgent protests of the British representatives, and apologizing for not, at the time, entering into the merits of the question. In fact, its course in the past has been wavering and undignified. The vessels seized by the revenue officers are ordered released, and within a few days the order is revoked. The only attempt made to justify the seizures is the necessity of protecting the seal fisheries from destruction by irresponsible parties. They have been neither formally-approved nor disapproved. The ultimate course to be adopted is still open for selection, and it is to be hoped that the government will not be led to approve unlawful proceedings by a pretended necessity for maintaining the national dignity.
That United States vessels have been wrongfully seized and annoyed on the northeastern coast is no excuse for the adoption of an equally unjustifiable course by the United States on the northwestern coast.
To what extent from the coast can the United States claim jurisdiction ? During the past year, Canadian fishingvessels have been captured at a distance of from sixty to one hundred miles from the shore. Can these acts be justified ? I think not. The United States has no special or exceptional privileges or powers in the waters of Behring Sea not, in the absence of treaty, enjoyed on other coasts. We are apparently claiming extraordinary jurisdictional power in these waters for the reason that it agrees with our present interests, that we purchased the “ claims ” from Russia, and that it is necessary to protect the seals in order to prevent their reckless slaughter and ultimate extinction. It is certainly to the interest of the United States to control these waters if the seal fisheries cannot be otherwise protected. But this is by no means demonstrated. Great Britain and Russia, practically the only nations interested, have expressed a willingness to join with the United States in any reasonable plan having this object in view.
Let us see what rights we purchased from Russia. For many years prior to 1821 we were engaged in a diplomatic wrangle with Russia over the territory to the northwest. At that time there was in Russia, as at present in the United States, a great commercial company, to which special and exclusive privileges had been granted. Through the powerful influence of this company, the Emperor Alexander, in September, 1821, issued an ukase to the effect that:—
“ The pursuits of commerce, whaling, and fishing, and of all other industries in all islands, ports, and gulfs, including the whole of the northwestern coast of America, beginning from Behring’s Straits to the fifty-first degree of north latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring’s Straits to the south cape of the island of Urup, namely, to 45° 50' north latitude, are exclusively granted to Russian subjects. It is therefore prohibited to all foreign vessels, not only to land on the coasts and islands belonging to Russia, as above stated, but also to approach within less than one hundred Italian miles. The transgressor’s vessel is subject to confiscation along with the whole cargo.”
The original intention was to claim the Behring Sea as a mare clausum, but this was abandoned, and the limit of one hundred Italian miles was adopted from the thirty leagues in the Treaty of Utrecht.
When the ukase was communicated to John Quincy Adams, then Secretary of State, he blandly inquired whether the Russian minister was authorized to give explanation of the grounds of right, upon principles generally recognized by the laws and usage of nations, which could warrant this claim and regulation.
Mr. Politico was of the opinion that not only could the regulation be defended, but that it might have been extended over the entire sea. In his reply he said : “ I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend, on the northwest coast of America, from Behring Strait to the fiftyfirst degree of north latitude ; and on the opposite side of Asia and the islands adjacent, from the same strait to the forty-fifth degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut seas (mers fennes), and the Russian government might consequently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of interdicting the entrance of foreigners. But it preferred only asserting its essential rights, without taking any advantage of localities.”
To this Mr. Adams replied on March 30, 1822: " With regard to the suggestion that the Russian government might have justified the exercise of sovereignty over the Pacific Ocean as a close sea, because it claims territory both on its American and Asiatic shores, it may suffice to say that the distance from shore to shore on this sea, in latitude. 51° north, is not less than 90° of longitude, or 4000 miles.”
“ A volume on the subject,” said a contemporary writer, “ could not have placed the absurdity of the claim in a more glaring light.”
Russia was aware that she had taken a position which could not be maintained, and was anxious to recede with as much credit as was possible through negotiations. Her leading publicist, Professor F. Von Martens, has cited the incident as an instance of “ greatly exaggerated claims.” A voluminous correspondence ensued, during the course of which the negotiations were removed to St. Petersburg, and passed into the hands of Nesselrode and our minister, Henry Middleton. A treaty was signed on April 17, 1824, whereby it was agreed “ that in any part of the great ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting powers should be neither disturbed nor restrained either in navigation or in fishing, or in the power of resorting to the coasts upon points which may not already be occupied for the purpose of trading with the natives.” Then follow certain regulations, with which we are not here concerned.
The claim of Russia attracted much attention at the time. Madison wrote to President Monroe : The connection with Russia is a propitious event, as substituting amicable adjustment for the risk of hostile collision. But I give the Emperor little credit, however, for his assent to the principle of ‘ mare liberum’ in the North Pacific. His pretensions were so absurd and so disgusting to the maritime world that he could not do better than retreat from them through the form of negotiation. It is well that the cautious, if not courteous, policy of England towards Russia has had the effect of making us, in the public eye, the leading power in arresting her expansive ambition.”
Great Britain was even more deeply interested in contesting such a claim than the United States. The leading English papers united in a bitter attack on the ministry, severely censuring it for leaving the defense of so vital a principle to the United States. “ Luckily for the world,” said the London Times, “ the United States of America have not submitted with equal patience to the decrees of the autocrat.” The ministry was pressed with questions, until, in 1823, Canning, in reply to a question of Sir James Mackintosh, said that a protest on the part of England had been made on the first announcement of the principle, which had been renewed and discussed at the Congress of Verona, and again pressed in negotiations then pending at St. Petersburg.
A strong impression was made on the minds of the general public as well as on that of the statesmen and jurists, and the newspapers of the day were filled with paragraphs and squibs.1
By this treaty Russia abandoned the claim to a marine belt of one hundred miles, and recognized the freedom of the Pacific. Recent writers have lost sight of this fact, but the standard international jurists have always considered that the United States pressed the point for which they were contending to an issue, and that Russia abandoned her claims to exclusive jurisdiction except over the occupied shores.2 By the fourth article of the treaty, which was terminate at the end of ten years, reciprocal rights were given to frequent the interior seas, gulfs, harbors, and creeks upon the coasts. The United States never admitted that Behring Sea was an “ interior sea.” Nor did Russia assert it except, as we have seen, in the letter of Mr. Politico to Mr. Adams.
Upon the termination of the ten years Russia declined to renew the fourth article, and it then appeared that the negotiators had different ideas as to its meaning and effect. This article was suggested and insisted upon by the American negotiator, on the theory that it was a distinct gain. The first article is a declaration of our existing rights, under the law of nations, to exercise general and permanent rights of navigation and fishery in the ocean, and of trading with the natives upon the unoccupied coast. The article was not a grant by Russia, but an admission or recognition. Mr. Middleton understood that for a period of ten years the citizens of both nations should also enjoy the right to frequent the occupied shore of either nation, a privilege to which they were not entitled independent of treaty.
It was a mutual grant, temporary in its duration, extending to the specific and particular privileges, which the traders of neither nation would enjoy as general rights.
But Russia now interpreted it as a limitation upon the general power recognized in the first article; and as the section was not renewed, vessels of the United States were henceforth excluded from the ports and harbors of Russian America. Adams wrote in his diary: “ I find proof enough to put down the Russian government, but how would we answer the Russian cannon ? ”
This necessarily incomplete sketch will, I think, make clear what we acquired from Russia in the way of “ claims.”
We acquired nothing but what Martens cites as “ a greatly exaggerated claim ” (or, as rendered by Madison, “ an absurd claim ”) to a marine belt of one hundred Italian miles, and an incidental claim that Behring Sea might be considered a mare clausum. On the latter point the United States can only pretend to have succeeded to the status created by the dictum of the Russian minister, to the effect that Russia had considered whether she might not make the claim, and had decided not to do so. Russia’s illegal claims added to our legal rights do not strengthen the latter.
Clearly we have no extraordinary jurisdictional rights in Behring Sea inherited from Russia which Great Britain is estopped by acquiescence from denying.
The United States cannot afford to advocate or support the violation of a well-established rule of international law for the sake of a temporary selfish advantage. In the hundred years of her national life she has held an unique and enviable position. The history of international law records not the least important of her triumphs. She has planted her standard far in advance, and waited impatiently until the growth of the sentiments of justice and humanity brought other nations into line with her. From the earliest period of her history, when, under the firm guidance of Washington and Hamilton, her course as a neutral won the high encomium of Canning, to the present time, she has been the champion of the sanctity of the established rules of the law of nations. Not forgetful of her duties as a member of the family of nations, she has at all times insisted that “the state which disclaims the authority of international law places herself outside the circle of civilized nations.”
This advanced position has been recognized by the leading international jurists. Speaking of the doctrine of neutrality, Hall says: " The United States has the merit of fixing it firmly; . . . it represented by far the most advanced existing opinions as to what these obligations were; and in some points it even went further than authoritative international custom has, up to the present time, advanced. In the main, however, it is identical with the standards of conduct now adopted by the community of nations.”
Sir Robert Phillimore, another very eminent English jurist, says: “ The United States of America began their course as an independent country under wise and great auspices ; and it was the firm determination of those who guided their nascent energies to fulfill the obligations of international law as recognized and established in the Christian commonwealth, of which they had become a member.”
This earnest advocacy of the binding force of the rules of international law is, I think, due in a great measure to the theory adopted as to the foundation of its authority. There are two general theories : that of Great Britain and the most of the European nations, which refuse to admit themselves bound by any principle of international law unless they have expressly assented to it and agreed to he bound by it. The nations holding this doctrine recognize themselves as bound by positive international law only. Great Britain appears, through the decision in the Franconia case and the subsequent Territorial Waters Act, to be committed to this doctrine. On the other hand, the United States, followed by Italy and some of the South American republics, understands by international law what was expressed by the old phrase jus gentium; that is, a law common to and morally binding upon all nations. This view, with all its attendant consequences, was deliberately adopted by the United States, when, of its own accord, it became a member of the family of nations. It is briefly expressed as follows: “ Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of the national character, but that she binds herself also to the strict and faithful performance of all those principles, laws, and usages which have obtained currency among civilized states, and which have for their object the mitigation of the miseries of war. International law is founded upon reason and justice, the opinions of the writers of known wisdom, and the practice of the civilized nations.” The latest English writer on international law, Sir Henry Sumner Maine, recognizes and does full justice to the position of the United States. He says : " The principle upon which the American doctrine of international law reposes is, I think, tolerably plain. The statesmen and jurists of the United States do not regard international law as having become binding on their country through the intervention of any legislature; they do not believe it to be of the nature of immemorial usage, ‘ of which the memory of man runneth not to the contrary.’ They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations.”
If this is true, the established rules of international law are as binding upon nations as are the Ten Commandments upon individuals.
I have at some length developed this idea in order to strengthen my assertions that the United States cannot afford to become a law-breaker or a dishonest litigant. No more can it afford to become the champion of an exploded claim to sovereignty over the deep sea.
If there is one principle of the law of nations better settled than all others, it is that the jurisdiction and sovereignty of a nation extends to the distance of one league, or three marine miles, from the shore. “ The greatest distance,” says Jefferson, “to which any respectable assent among nations has at any time been given has been the extent of the human sight, estimated at upwards of twenty miles; and the smallest distance, I believe, claimed by any nation whatever is the utmost range of a cannon-ball, usually stated as one sea-league.”
In 1872, Secretary Seward, in a letter to Mr. Tassara, stated the rule in the following language : “A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation, thus abridging the liberties of the seas, extends no further than the power of the nation to maintain it by force, stationed on the coasts, extends. This principle is tersely expressed in the maxim, ‘ Terræ dominium finitur ubi finitur armorum vis.’ ”
Chancellor Kent, who was inclined to admit a more extensive jurisdiction than modern practice has approved, says, “ As far as a state can protect itself, so far does its jurisdiction extend.”
Lawrence thus states the rule : “ The waters adjacent to the coasts of a country are deemed within its jurisdictional limits only because they can be commanded from the shore.”
There are, however, a few special cases where a limited authority extends beyond this limit. Halleck says : “The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other state. The general usage of nations superadds to this extent of territory an exclusive territorial jurisdiction over the seas for one marine league. . . . And even beyond this limit, states may exercise a qualified jurisdiction for fiscal and defensive purposes ; that is, for the execution of their revenue laws, and to prevent hovering on their coasts.”
Neither of these exceptions covers the case of the seizures of the sealing vessels complained of by Great Britain.
The deep sea beyond this limit is not subject to the sovereignty of any nation, but is free to all. It is incapable of being held as property. There was a time when the maritime nations assumed and exercised the rights of ownership over the waters, but these have been gradually relinquished, until the sovereignty now admitted over portions of the sea is but a decayed and contracted remnant of the authority once exercised. The Roman lawyers called the seas common property by nature, and they were so considered in the earliest times of which history keeps the record. They were free in that they were universally open to depredation. The early Grecian seas were the roving-places of pirates. Navigation was free in waters over which nobody claimed control. But in time the protection of commerce required the control and possession of the seas, and by the middle of the sixteenth century they were generally parceled out among the maritime nations. Thus, modern international law commenced with a system of mare clausum. The Portuguese assumed to interdict navigation in the seas of Guinea and the East Indies. The Dutch, as usual, in the language of Canning, “ giving too little and asking too much,” wished to close the passage around the Cape of Good Hope. The Spanish claimed exclusive jurisdiction over the Pacific Ocean. Great Britain modestly claimed property in all seas which washed her coasts up to the shores of the neighboring states and north to the Arctic Ocean. Queen Elizabeth seized some Hanseatic vessels lying at anchor off Lisbon harbor, because they had sailed through the North Sea without her permission. A ship that did not “ strike or veil its bonnet at the commandment of the lieutenant of the king ” received a cannon-shot. Philip II. of Spain, when coming to England to wed Queen Mary, was fired upon by an English ship for flying his flag in the narrow seas. Later, the claim was restricted to an exclusive right of fishing and requiring the homage of a salute from all foreign vessels.
The enlightened founders of modern international law gave their adherence to a system of freedom. In 1609, Grotius published his immortal work on the Mare Liberum, devoted to proving the freedom of the seas in general. Charles I. of England was so incensed at this work that he instructed his ambassador to complain to the States-General of the Dutch Provinces of the audacity of the jurist, and to demand that he he punished.
In 1635, the great English lawyer and statesman, Seldon, attempted to answer Grotius. In his Mare Clausum, Seldon attempted to maintain two positions : (1) that the sea might be property; (2) that the seas which washed the shores of Great Britain were her property. But the spirit of the age was opposed to him, and the doctrine of the freedom of the seas was finally established.
Great Britain gradually abandoned her extravagant pretensions, until now little remains but the marine belt and a claim to the “ King’s Chamber.”
“ At this day,” says Ortolan, “ the discussions upon the domain and empire of the seas are relegated to the province of pure history. There is no writer, there is no government, which dares, at our day, to revive these pretensions of another epoch.”
Certain large bodies of water entirely within the territory of a country, with a moderate width of entrance, are still admitted to be controlled by the country they indent; but these are well defined, and title to them has been acquired and perfected by long occupation and universal acquiescence. In all such cases, the necessity and reasonableness are admitted. But a mere desire to benefit by the products of the waters creates no such case of necessity or reasonableness.
If the sea is incapable of dominion, it matters not that Russia was the first civilized power to hold the shores of Behring Sea. Rights incapable of being acquired cannot be transferred. If Behring Sea had been, what it was not, a gulf entirely inclosed by Russian territory, with an entrance which could have been defended from the shores, its status as a closed sea could possibly have been transferred to the United States, although its shores, after such transfer, would be held by different nations. But, on the north, Behring Sea is connected with the Arctic Ocean by Behring Strait, which is thirty-six miles wide, and through which commerce has been carried on by the United States for half a century. On the south, there are innumerable passes through the Aleutian Islands almost equal in width to Behring Strait. Between these Islands and the Commander group, on the shores of Asia, there is a gap of water where half the navies of the world might ride abreast, and be out of sight of land and of each other.
That the seal fisheries are in danger of destruction by pirates and marauders, reckless of the future, is no justification for the revival of the claim of mare clausum. That it is the duty of the government to do all in its power to prevent the indiscriminate destruction of the fur seals is admitted; but this should be done by international arrangement, as proposed by Mr. Bayard. The proposition seems, to have met with the general approval of the nations most interested, and it is to be hoped that it will be persisted in until Behring Sea is patrolled by a police of the nations.
In order to justify the seizure of the Black Diamond, the United States government must advocate rules of international law inconsistent with those urged in connection with the northeastern fishery dispute, and opposed to the position assumed by it in every case which has arisen in the last hundred years. On the east shore it is justly and honestly urging a liberal and enlightened policy in consonance with the spirit of the age. It cannot afford to support an illiberal policy of restriction on the northwest shore.
Our difficulties with Canada should be treated as a whole, and in a liberal and enlightened spirit. The commercial and personal relations between the two countries are too intimate, their present and future interests are too closely entwined, to admit of a narrow and intolerant policy. Questions of commercial policy and interest should not be permitted to blind a people to those principles of universal right and justice which are acquiesced in by all civilized nations, simply because they are right. Commercial relations, tariffs, and reciprocity treaties are for statesmen, to be disposed of as the present interests of the whole country dictate. Questions of international law should be for jurists and courts, and selfish interests should not enter into their decision. The failure to appreciate this distinction is one of the causes of these dangerous contentions growing out of the conflicting views of fishery rights. If the questions of law were once solved, negotiations could proceed with some prospect of a reasonably satisfactory issue. But so long as the negotiators start with directly contrary views of the law of the case, there is no chance of an issue which one party will not consider an absolute surrender. It would be an easy matter for the United States and Great Britain to agree upon a case in which the issues of law involved in the northeastern and northwestern fishery disputes could be stated. It is reasonable to suppose that the nations which could submit to arbitration such burning questions as the Alabama claims and the fishery trouble in 1871 could agree to submit these purely legal questions to an international tribunal, composed of three or five of the great judges of the world ; for instance, the Chief Justice of the United States, the Lord Chief Justice of England, and a third, equally eminent and learned. The decision of such a tribunal, pronounced after a full hearing, would be received with respect and acquiescence. With these questions settled, there would be something tangible, some point of departure for negotiation. It is not to the credit of the two great English-speaking nations of the world that these irritating disputes have extended over almost the entire history of the United States. Many questions of greater and less importance have been disposed of, but these fishery disputes still remain as fruitful sources of irritation and bitterness.
Charles B. Elliott.
Shedding tears by the pailful and tearing his locks ;
He cried, A Land Lubber has stole, on this day,
Full four thousand miles of my ocean away;
He swallows the earth (he exclaims with emotion),
And then, to quench appetite, slap goes the ocean.
Brother Jove must look out for his skies, let me tell ye,
Or the Russian will bury them all in his belly.”