ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 197 



and would not have dwelt even at this length upon it but that it has 

 strictly a more wide-reaching- signiticance; because I have uttei-ly failed 

 in my argument if I have not conveyed to each member of this Tribunal 

 the contention which we are submitting, that in truth the whole area of 

 dispute between these parties was Behring Sea, and nothing outside 

 Behriug Sea; and that if the area of dispute was Behring Sea, and. 

 nothing but Behring Sea, the area of jurisdiction of this Tribunal is 

 restricted within the same limits. 



But I repeat, and I leave that part of the argument by saying that I 

 think the Tribunal will find the more they examine the history of the 

 United States contention, their executive action, their proceedings in 

 their local Courts, the arguments of their representative counsel at 

 Washington — the Solicitor and Attorney General — the diplomatic cor- 

 respondence, Article YII of this Treaty, and lastly Article V of the 

 Modus Vivendi, which recognizes and limits the right to compensation 

 to be paid by us if we have no right to kill seals merely in the Behring 

 sea — that, taking all these things into consideration, the Tribunal, what- 

 ever may be its desire, will find it exceedingly difticult to satisfy them- 

 selves that the area of dispute is not limited by the terms of this Treaty 

 strictly to Behring Sea. 



I have now to say in connection with this, and to repeat what I have 

 already said, that if my suggested interpretation of these questions b^ 

 correct, namely, that.it meant an exclusive right to take fur-seals in 

 Behring Sea, that is to say, a property right of an exclusive character 

 in the fishery in Behring Sea and not in the seals as individuals or in 

 the herd, and that the claim of protection referred to meant a claim of 

 exclusive jurisdiction to protect tliem within the eastern ])art of Behring 

 Sea, — that if that be the true meaning, I am saved the discussion of it 

 because I have already discussed it, and discussed it at length, under 

 the question of the derivative title claimed under Kussia. I hope that 

 is a])preciated by the Tribunal, and I do not desire to repeat myself, 

 nor do I at this stage propose to trouble the Tribunal with the citation 

 of the authorities which show that a claim within a definite area and a 

 claim by which it is sought to exclude other ships of other nations from 

 that definite area of the sea, is a question of the sovereignty: that 

 nothing can justify it according to the rules of international law short 

 of an assertion founded upon the just reasons of prescription and acqui- 

 escence, upon which alone can be based claim of territorial dominion 

 pure and simi^le. 



Now, I assume, and I confess it would be quite natural that the Tri- 

 bunal should be anxious (o assume, as wide a meaning to this 5th 

 956 question as it is capable of; for I agree it is much more important 

 to determine what rights the United States has rather than what 

 is the meaning of this particular question, although the Tribunal, of 

 course, will see that, in order to answer that question correctly, the 

 attempt must be first made to fix what the true meaning of the question 

 is. I have suggested one. 



Now, I will assume that it means the assertion of a right of property 

 in one of three different forms: in the seals, or in the herd as it has 

 been called, or in the industry founded upon the seals; and, correlative 

 to that right of property, the further right of protecting it by search, 

 seizure and confiscation; and I proceed, therefore, to enquire whether 

 there is, in any one of those alleged forms, any legal right of property 

 whatever in the United States. 



I am glad to find myself in agreement on some points with ray learned 

 friends } I agree that the question of property in the seals or in the 



