4 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



That tlien, Sir, is tbe hypotliesis upon which I proceed to consider 

 the question of Kegulations. 



I cannot better express myself in this regard than is expressed at 

 page 159 of the British Counter Case, and with the permission of the 

 Tribunal I will read some passages from that Counter Case. Itis neces- 

 sary it is there said in chapter 9. 



in approaching: the consideration of the question of Regulations (if any are to be 

 made) to recall its relation to the five points raised by the Vlth Article of the Treaty, 

 bearing in mind that it is only in the event of those five questions having been so 

 determ'ined as to render the concurrence of Great Britain necessary that the author- 

 ity of the Arbitrators as to Regulations arises (Article VII). 



What, then, does that determination involve? It involves the recognition of the 

 proposition that Behring Sea is to be regarded as a sea open to the connnerce and to 

 the fishermen of the world, and that the United States have no exclusive right of 

 protection or property in the fur-seals frequenting the islands of the United States 

 in Behring Sea when such seals are found outside the ordinary 3-mile limit. 



It follows that the rights and interest of the United States in fur-seals frequent- 

 ing such islands do not diti'er from the rights and interests of any other portion of 

 mankind, except in so far as the territorial possession of those islands by the United 

 States gives to their nationals the exclusive right of capture in territorial waters, 

 and the advantages derived from the fact that the seals congregate in large numbers 

 on those islands, thereby giving the opportunity for their slaughter. 



I stop there for a moment. 



Therefore, to begin with, the question is to be approached and only 

 to be approached, as we conceive, upon this basis of fact that the only 

 peculiar or special right which the United States have is the right 

 which they possess ratione soli — the riglit that they possess by reason 

 of the possession of the islands which gives them facilities for the cap- 

 ture of these animals /ent? naturce, but gives them no other right of any 

 different character than that possessed by all mankiud. They have 

 the right to take them ratione soli exclusively on the Islands. They 

 have the right to exclude anybody else from trespassing on that domain. 

 They have the right to take them exclusively within the three mile 

 limit and to exclude others from that zone but outside that zone, and 

 on the high sea, the rights of all are equal and the Nationals or lessees 

 of the United States Islands have no other greater or different right 

 than that possessed by the nationals of any other Country on the face 

 of the globe whose opportunities and whose interests may suggest 

 them pursuing i)elagic sealing upon the open sea. 



Now if that be so, and it is upon that basis and upon that basis alone, 

 that I and my learned friends will argue this question at all, two ques- 

 tions will arise, first what are the rules which you may make or which 

 you can make in other words what is the extent of your jurisdiction and 

 authority, and the next question is, what are the rules which in fair- 

 ness and equity you ought to make. As to each of those questions I 

 propose to say a few words. 



The questions are, what is the extent of your jurisdiction as to rules, 

 and next to what extent, in what direction ought you to exercise that 

 jurisdiction. In other words, what can you do is the first question, 

 and what ought you to do is the second question. 



Now it is obvious that the first question, namely, the extent of your 

 jurisdiction, depends on the Treaty. You can only exercise the juris- 

 diction that the parties have given you. The discharge of your duty, 

 which you have taken upon yourself, is confined to and defined by the 

 terms of that document under which or from which your authority 

 springs. I am only concerned, Mr. President, to deal with one point 

 upon the question of the extent of your jurisdiction, and that point is 

 this, I will convey it to your apprehension in a sentence, in a moment, 



