ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 1 93 



She Lad no right beyond, unless there is to be asserted on the part of 

 Russia, or on the part of United States, some power over the adjoining- 

 sea of an exchisive kind, which is not found to be recognized by inter- 

 national law. There may be such a right if there is property in tlie 

 fur-seal. That I shall discuss when the question comes up. There 



951 may be such a right if there is property in the seal herd. That 

 I shall discuss when I come to the question in its proper order. 



I am assuming that the question relates not to property in the seal, and 

 not to property iu the herd, but to what the rights are; and the circum- 

 scription of the rights which, as territorial owner, any nation possesses 

 is, according to authority, exactly as 1 have stated it. 



Now, what is the foundation of this argument? The ultimate founda- 

 tion of it is this — that no question of exchisive jurisdiction in a defined 

 area cau exist apart from territorial dominion, from Exclusive juris- 

 sovereign power, over that area; because the assertion of ^•^^^'o°^'^ij^'*^j|'^^^^^^^^ 

 exclusive jurisdiction is an assertion that nobody else has apart from territo- 

 a right to go there; is an assertion of the right to "''^ ''°™""°°- 

 exclude everybody else from that place; is an assertion of the right to 

 treat the particular area covered by so much water just on the same 

 principle as if it were so much land, and a part of the admitted terra 

 firma of the particular Power that is claiming to exercise it. What 

 does that auiount to when it is extended to a claim on the high sea,s? 

 It conflicts with, is repugnant to, two great principles: first, the prin- 

 ciple of limitation of territory to a specific distance from the shore, 

 terrcB dominium Jinitur uhifinitvr armor um vis. It is next repugnant 

 to the great principle of the equality of every nation, small and great, 

 upon the high sea outside the three mile limit, or whatever the mar- 

 ginal belt is. It is therefore an assertion contlicting with the sover- 

 eignty of any and all other Powers, who are equal and have equal 

 rights upon the high sea. 



Am I to be invited by the Tribunal to justify that position, apart 

 from the right of defence incident to property, which I am not dealing 

 with ? I am assuming the question to mean what 1 have endeavoured to 

 demonstrate it means. Is it necessary that I should argue that upon 

 the basis there is no such right? Why, it is hardly put forward in the 

 argument of my learned friend. What is put forward by my learned 

 friends is to be found on page 19 of their Counter Case. 



The distinction, between the right of exclusive jurisdiction over Behriug Sea on 

 the one hand, and the right of a nation on the other liand, to presarve for tlie use 

 of its citizens its interests on land by the adoption of all necessary, even though 

 they be somewhat unusual, measures, whether on land or sea, is so broad — 



Yes, indeed ! 



as to require no further exposition. 



And SO they are content to leave this proposition. If that means 

 preserve for the use of its citizens its interests on land by adopting 

 measures at sea to protect its property or its property interest, which 

 I suppose is what is meant, 1 will deal with it presently; but what I 

 am dealing with now is the first part of the case, that this claim, this 

 question five, points to the right of the exclusive territorial jurisdic- 

 tion over the eastern part of the Behring Sea; and if that be the right 

 meaning of the question, my learned friends admit it is the 



952 latter right, not the former, that the United States contend to 

 have been exercised, first by Eussia, and later by themselves. 



The President. — Sir Charles, if you construe the question five as 

 meaning only rights of jurisdiction, do you not think than that ques- 

 tion five would be just a repetition of question four? 



B S, PT XIII 13 



