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(Inclosure 2.)—List of Maps, with Designation of Waters now known as Behring Sea, with Date and Place of Publication.

(Inclosure 3.)-Section 4 of "An Act for regulating the Intercourse with the Island of St. Helena during the time Napoleon Bonaparte shall be detained there, and for indemnifying Persons in the cases therein mentioned (11th April, 1816)."

[See Vol. III, page 364.]

SIR,

The Marquess of Salisbury to Sir J. Pauncefote.

Foreign Office, February 21, 1891. THE despatch of Mr. Blaine, under date of the 17th December, has been carefully considered by Her Majesty's Government. The effect of the discussion which has been carried on between the two Governments has been materially to narrow the area of controversy. It is now quite clear that the advisers of the President do not claim Behring Sea as a mare clausum, and indeed that they repudiate that contention in express terms. Nor do they rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States' Government any right for that purpose which, according to international law, it would not otherwise possess. Whatever importance they attach to the preservation of the fur-seal species-and they justly look on it as an object deserving the most serious solicitudethey do not conceive that it confers upon any Maritime Power rights over the open ocean which that Power could not assert on other grounds.

The claim of the United States to prevent the exercise of the scal fishery by other nations in Behring Sea rests now exclusively upon the interest which by purchase they possess in a Ukase issued by the Emperor Alexander I, in the year 1821, which pro hibits foreign vessels from approaching within 100 Italian miles of the coasts and islands then belonging to Russia in Behring Sea. It is not, as I understand, contended that the Russian Government, at the time of the issue of this Ukase, possessed any inherent right to enforce such a prohibition, or acquired by the act of issuing it any claims over the open sea beyond the territorial limit of three miles, which they would not otherwise have possessed. But it is said that this prohibition, worthless in itself, acquired validity and force

against the British Government because that Government can be shown to have accepted its provisions. The Ukase was a mere usurpation; but it is said that it was converted into a valid international law, as against the British Government, by the admission of that Government itself.

I am not concerned to dispute the contention that an invalid claim may, as against another Government, acquire a validity which in its inception it did not possess, if it is formally or effectively accepted by that Government. But the vital question for decision is whether any other Government, and especially whether the Government of Great Britain, has ever accepted the claim put forward in this Ukase. Our contention is, that not only can it not be shown that the Government of Great Britain, at any time since 1821, has admitted the soundness of the pretension put forward by that Ukase, but that it can be shown that it has categorically denied it on more than one occasion. On the 18th January, 1822, four months after the issue of the Ukase, Lord Londonderry, then British Foreign Secretary, wrote in the following terms to Count Lieven, the Russian Ambassador in London :

Upon the subject of this Ukase generally, and especially upon the two main principles of claim laid down therein, viz., an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, His Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts and in those seas can be deemed to be illicit; or that the ships of friendly Powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown, in these vast and very imperfectly occupied territories, could, by the acknowledged law of nations, be excluded from navigating within the distance of 100 Italian miles, as therein laid down, from the coast."

On the 17th October in the same year the Duke of Wellington, Ambassador at Verona, addressed to Count Nesselrode a note containing the following words:

"Objecting, as we do, to this claim of exclusive sovereignty on the part of Russia, I might save myself the trouble of discussing the particular mode of its exercise as set forth in this Ukase. But we object to the sovereignty proposed to be exercised under this Ukase not less than we do to the claim of it. We cannot admit the right of any Power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to the distance of 100 Italian miles."

Again, on the 28th November, 1822, the Duke of Wellington

addressed a note to Count Lieven containing the following words:

"The second ground on which we object to the Ukase is that His Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations; and we cannot found a negotiation upon a paper in which it is again broadly asserted. We contend that no Power whatever cau exclude another from the use of the open sea; a Power can exclude itself from the navigation of a certain coast, sea, &c., by its own act or engagement, but it cannot by right be excluded by another. This we consider as the law of nations; and we cannot negotiate upon a paper in which a right is asserted inconsistent with this principle."

It is evident, therefore, that so far as diplomatic representation went, the King's Government of that date took every step which it was in their power to take, in order to make it clear to the Russian Government that Great Britain did not accept the claim to exclude her subjects for 100 miles' distance from the coast, which had been put forward in the Ukase of 1821.

Mr Blaine does not deal with these protests, which appear to Her Majesty's Government to be in themselves amply sufficient to decide the question whether Great Britain did or did not acquiesce in the Russian claim put forward by the Ukase. He confines himself mainly, in the despatch under consideration, to the consideration of the Treaties which were subsequently made between Great Britain and Russia and America and Russia in the year 1825; and especially of that between Russia and Great Britain. This Treaty, of which the text is printed at the close of Mr. Blaine's despatch, does not contain a word to signify the acquiescence of Great Britain in the claim recently put forward by Russia to contiol the waters of the sea for 100 miles from her coast. There is no stipulation upon which this interpretation can be imposed by any process of construction whatsoever. But there is a provision, having in our judgment a totally opposite tendency, which indeed was intended to negative the extravagant claim that had recently been made on the part of Russia; and it is upon this provision that the main part of Mr. Blaine's argument, as I understand it, is founded. The stipulation to which I refer is contained in Article I, and runs as follows:

"Article I. It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in any part of the ocean commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the

natives, under the restrictions and conditions specified in the following Articles."

I understand Mr. Blaine's argument to be that if Great Britain had intended to protest against the claim of Russia to exclude ships for 100 miles from her coasts in Behring Sea, she would have taken this opportunity of doing so; but that in confining herself to stipulations in favour of full liberty of navigation and fishing in any part of the ocean, commonly called the Pacific Ocean, she, by application, renounced any claim that could arise out of the same set of circumstances in regard to any sea that was not part of the Pacific Ocean. And then Mr. Blaine goes on to contend that the phrase "Pacific Ocean" did not and does not include Behring Sea.

Even if this latter contention were correct, I should earnestly demur to the conclusion that our inherent rights to free passage and free fishing over a vast extent of ocean could be effectively renounced by mere reticence or omission. The right is one of which we could not be deprived unless we consented to abandon it, and that consent could not be sufficiently inferred from our negotiators having omitted to mention the subject upon one particular

occasion.

But I am not prepared to admit the justice of Mr. Blaine's contention that the words "Pacific Ocean" did not include Behring Sea. I believe that in common parlance, then and now, Behring Sea was and is part of the Pacific Ocean; and that the latter words were used in order to give the fullest and widest scope possible to the claim which the British negotiators were solemnly recording of a right freely to navigate and fish in every part of it, and throughout its entire extent. In proof of the argument that the words "Pacific Ocean" do not include Behring Sea, Mr. Blaine adduces a long list of maps in which a designation distinct from that of "Pacific Ocean" is given to Behring Sea; either "Behring Sea," or "Sea of Kamschatka," or the "Sea of Anadir." The argument will hardly have any force unless it is applicable with equal truth to all the other oceans of the world. But no one will dispute that the Bay of Biscay forms part of the Atlantic Ocean, or that the Gulf of Lyons forms part of the Mediterranean Sea; and yet in most maps it will be found that to those portions of the larger sea a separate designation has been given. The question whether by the words "Pacific Ocean" the negotiators meant to include or to exclude Behring Sea depends upon which locution was esteemed to be the correct usage at the time. The date is not a distant one, and there is no ground for suggesting that the usage has changed since the Anglo-Russian Treaty of 1825 was signed. The determination of this point will be most satisfactorily ascertained by consulting the

ordinary books of reference. I append to this despatch a list of some 30 works of this class, of various dates from 1795 downwards, and printed in various countries, which combine to show that, in customary parlance, the words "Pacific Ocean" do include Behring Sea.

1

If, then, in ordinary language, the Pacific Ocean is used as a phrase including the whole sea from Behring Straits to the Antarctic Circle, it follows that Article I of the Treaty of 1825 did secure to Great Britain in the fullest manner the freedom of navigation and fishing in Behring Sea. In that case no inference, however indirect or circuitous, can be drawn from any omission in the language of that instrument to show that Great Britain acquiesced in the usurpation which the Ukase of 1821 had attempted. The other documents which I have quoted sufficiently establish that she not only did not acquiesce in it, but repudiated it more than once in plain and unequivocal terms; and as the claim made by the Ukase has no strength or validity except what it might derive from the assent of any Power whom it might affect, it results that Russia has never acquired by the Ukase any right to curtail the natural liberty of Her Majesty's subjects to navigate or fish in these seas anywhere outside territorial waters. And what Russia did not herself possess she was not able to transmit to the United States.

Her Majesty's Government have, in view of these considerations, no doubt whatever that British subjects enjoy the same rights in Behring Sea which belong to them in every other portion of the open ocean; but it is, nevertheless, a matter of sincere satisfaction that the President is willing to refer to arbitration what he conceives to be the matters which have been under discussion between the two Governments for the last four years. In regard to the questions as they are proposed by Mr. Blaine, I should say that as to the first and second, no objection will be offered by Her Majesty's Government. They are as follows:

"1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States ?

"2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ?"

The third question is expressed in the following terms:

"Was the body of water now known as the Behring Sea included in the phrase 'Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia; and what rights (if any) in the Behring Sea were given or conceded to Great Britain by the said Treaty ?" Her Majesty's Government would have no objection to referring

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