ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 75 



Kow I am stating- his arguraent fairly I think, and with sufficient 

 fulness. I Avill not deal with that argument in this connection, for the 

 obvious reason that 1 must combat his views when I deal with thecon- 

 strueiion of the Treaties and consider the tirst four questions of Article 

 V; and, as the Tribunal will see I am endeavoring as far as possible to 

 avoid repeating myself, I must reserve that argument till its proper 

 place in the discussion. The purjiose I ain now upon is to show to the 

 Tribunal that whereas the case of derivative title under Eussia, of 

 exclusive rights and exclusive jurisdiction under liussia, is so promi- 

 nently put forward in the diplomatic argument, the case which is now 

 relied upon — the inherent right in every nation to exercise such pro- 

 tective measures as its interests in its own view demand — while I will 

 not say is wholly left out of sight, takes indeed a very unimportant 

 ])lace in the discussion. I -justify that by making but one reference 

 before I leave this despatch. The whole pith of this argument is 

 summed up on page 506; and at the first sentence on that page the 

 point to which his argument is addressed is brought out. 



It only remains to say that -whatever dnty Great Britain owed to Alaska as a 

 Russian province, whatever she agreed to do, or to refrain I'rom doinir, touching 

 Alaska and the Behring's Sea, w;i8 not changed by the mere fact of the transfer of 

 sovereignty to the United States. It was explicitly declared in the Vlth article of 

 the Treaty by which the territory was ceded by Russia, that the cession hereby 

 made conveys all the right, franchises and privileges now belonging to Russia in the 

 said territory or dominions, and appurtenances thereto. 



And he proceeds, and I read this for an additional reason, beyond 

 that of wishing to show his contention : 



Neither by the Treaty with Russia of 1825, nor by its renewal in 1843. nor by its 

 second renewal in 1859, did Great Britain gain any right to take seals in Beh- 

 xing's Sea. In fact, those Treaties were a prohibition n])on her which she steadily 

 respected so long as Alaska was a Russian province. It is for Great Britain now to 

 show by what law she gained rights in that sea after the transfer of its sovereignty 

 to the United States. 



Mr. Justice Harlan. — Sir Charles, was there a formal renewal of 

 the Treaties in the year he refers to, or was it an inaccurate use of the 

 word ? 



Sir Charles Eussell.— Well, Sir, I think it is quite correct. 

 810 I read that latter sentence for a reason that I think will justify 

 me in the oi)inion of the Tribunal — That latter sentence is a com- 

 plete misconcei)tion of the legal position of Great Britain in respect of 

 the fishing rights in Behring Sea. We do not assert, we never have 

 asserted, that Great Britain gained by her Treaties any rights in Beh- 

 ring Sea. Eussia had no capacity to confer those rights — no power 

 except the power of might, if she tried to exercise it and was success- 

 ful, to prevent the exercise of those rights. We refer to those Treaties 

 only to show that Eussia, having asserted claims which were incon- 

 sistent with those rights, withdrew from that assertion, not that she 

 conferred the rights upon us. The rights did not depend upon her or 

 upon her will : they are part of the rights which belong to mankind 

 and to all nations in common. 



Then finally, following an ingenious device in argument, he winds up 

 by seeking to put the onus on Great Britain, and asks how tlie ships of 

 Canada derived a right in 18G8 which they had not exercised for 90 

 years: upon what grounds we can defend in the year 1886 a course of 

 conduct in the Behring Sea which had been carefully avoided ever since 

 its discovery; and finally, by what reasoning her Majesty's Govern- 

 ment conclude that an act may be committed with impunity against 

 the rights of the United States which had never been attempted 

 against the same rights when held by Eussia? 



