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



as to re((uire no further exposition. It is the latter rip;ht, not the former, that the 

 United States contend to have been exercised, lirst by Russia, and later by them- 

 selves. 



Therefore, it follows from this statement that it is not a question oi 

 exclusive jurisdiction in the sea, because exclusive jurisdiction in the 

 sea means, as I pointed ont on a previous occasion, a jurisdiction exclu- 

 sive of all other Powers — a right to saj^ to all other Powers and persons 

 " You shall not enter here if it is our will that you shall not enter here ". 

 That is sovereign jurisdiction; it involves treating the area to which 

 that assertion relates as if it were territory, because, as 1 pointed out 

 ou a previous occasion, such a right as the one which is now asserted, to 

 defend a special property interest, is not a right exercisable in a 

 868 defined area; it is a right which, if it exists — (whether it exists 

 and what its true character is I will discuss hereafter) — would 

 exist and be exercisable wherever the property to be defended existed 

 and at the time was. It, therefore, would have no local area of circum- 

 scription at all. 



But, further, let me draw the attention of the Arbitrators to the form 

 of question 4 : 



Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in 

 Behring Sea, east of the water boundary in the Treaty between the United States 

 and Russia of the 30tli Marcb, 1867, pass unimpaired to the United States under that 

 Treaty? 



The Tribunal will notice those words "pass unimpaired". That is 

 clearly referring to a right of jurisdiction, a right of territorial jurisdic- 

 tion ; because how could it be suggested that if it is a right of protec- 

 tion of property, incident to projierty, there could be any question of 

 that being impaired'? 



Such a right would come into existence when the right itself came 

 into existence, and would exist as long as the right itself existed. There 

 could be no question of a derivative title to protection in the property if 

 it existed at all; or of its passing unimf>aired. Therefore, that question 

 again throws light on what the meaning of the first of these three ques- 

 tions is, namely, an assertion of territorial sovereignty by the United 

 States. That it was exclusive jurisdiction in a limited area, and not a 

 general right which follows property wherever it is, is further shown by 

 the modus vivendi. The modus vivendi stipulates that if the result of the 

 Arbitration be to affirm the right of British sealers to take seals in Beh- 

 ring Sea, then the United States is to compensate Great Britain ; if, on 

 the other hand, the result of the Arbitration should be that Great 

 Britain has no right to take seals in Behring Sea, then that Great 

 Britain is to compensate the United States for this loss; again showing 

 jurisdiction in a limited area — jurisdiction in the eastern part of Behring 

 Sea. ISTow it is important for us to follow this out, (although it is, in the 

 view of my learned friends, no more than a subordinate question), 

 because it shows that which I must again and again and again refer to 

 and recur to — that the claim of the United States is essentially a terri- 

 torial claim, and because it shows also that the whole area of dispute 

 between these parties, (which is the limitation, as we contend, of the 

 authority of this Tribunal), is limited to the area of Behring Sea. 



There is one other general observation which I have to present, and 

 then I pass on. It will be observed that the third question deals spe- 

 cifically with the point raised by Mr. Blaine in his celebrated letter of 

 December 17, 1890, which he said, if decided in oneway, was conclusive 

 of the question: namely, whether Behring Sea was included in the 

 phrase " Pacific Ocean ". I observe on that in passing, that if that 



