BERING SEA TRIBUNAL OP ARBITRATION. 



ing, or resorting to the coasts, except at points 

 occupied for the purpose of trading with the 

 natives, in any part of " the great ocean com- 

 monly called the Pacific Ocean or South Sea." 

 The treaty with Great Britain in like manner 

 declares fishing, navigation, and trade to be free 

 " in any part of the ocean commonly called the 

 Pacific Ocean." The American diplomatists 

 contended that the Sea of Kamchatka, or Bering 

 Sea, was a distinct body of water not included in 

 the phrase " Pacific Ocean " as used in these 

 treaties, and supported this contention with 

 documents and facts showing that Russia had 

 always asserted and continued to assert and ex- 

 ercise jurisdiction over this sea. The transla- 

 tion of the ukase of 1799 granting a monopoly 

 of trade and fisheries in Siberia and Alaska to 

 the Russian-American company, submitted as 

 evidence in the American case, was discovered 

 by the British Government to be faulty, and the 

 Department of State at Washington, having 

 likewise discovered mistranslations and inter- 

 polations in this and other documents, withdrew 

 them on Nov. 19, 1892. The case as presented 

 to the tribunal was based less on positive rights 

 in Bering Sea than on property rights in the 

 seals, which, though ferae naturce, were guided 

 by a homing instinct, which brought them back 

 unerringly to the seal islands. During the time 

 and in the places where the United States au- 

 thorities sought to protect them from destruc- 

 tion they were identified as members of the 

 Pribylov herd. The animus revertendi indued 

 them with the character of private property, 

 as in the case of falcons, swans, bees, or other 

 wild animals that have been reduced to pos- 

 session. Moreover, it was opposed to natural 

 justice, an immoral act, contra bonos mores, a 

 violation of the law of nature, which is the same 

 thing as international law, to ruin an industry 

 useful to mankind that had been fostered and 

 developed by the United States Government and 

 kill off the female seals, usually destroying three 

 lives, the cow shot in the water but not recov- 

 ered once in five times, the calf on the island, 

 which starves if the mother does not return to 

 feed it, and the unborn calf, besides cutting off 

 the future increase of the female killed. The 

 American counsel before the Tribunal of Arbi- 

 tration drew their principal argument from the 

 law of nature, contending that the question 

 must be adjudged in accordance with the prin- 

 ciples and rules which are dictated by the " gen- 

 eral standard of justice upon which civilized na- 

 tions are agreed." They admitted that "there is 

 no legislation in the ordinary sense of that word 

 for the society of nations," but added, " nor in re- 

 spect to by far the larger part of the affairs of 

 life is there for municipal societies ; and yet 

 there is for the latter an always existing law by 

 which every controversy may be determined. 

 The only difference exhibited by the former is 

 that it has no regularly constituted body of ex- 

 perts called judges clothed with authority to 

 declare the law. And this distinction is wiped 

 away in the case of the present controversy by 

 the constitution of this tribunal." Nor can 

 there be any substantial difference of opinion 

 concerning the sources to which we are to look 

 for the international standard of justice. All 

 law, whether it be that which governs the con- 



duct of nations or of individuals, is but a part 

 of the great domain of ethics. It is founded in 

 each case upon the nature of man and the envi- 

 ronment in which he is placed. There is a 

 measure of uncertainty concerning the precepts 

 of the law of Nature, an uncertainty in a greater 

 or less degree found in all the moral sciences, 

 but the actual practice and usages of nations, 

 though not the only evidence, are the best evi- 

 dence of what is agreed upon as the law of na- 

 tions. These prove what nations have, in fact, 

 agreed to as binding law, but in the absence of 

 evidence to the contrary nations are to be pre- 

 sumed to agree upon what natural or universal 

 justice dictates. The sources to which the arbi- 

 trators have to look in deciding the questions 

 submitted to them therefore are : (1) The actual 

 practices and usages of nations, which are to be 

 learned from history and deduced from acts 

 commonly done by one nation without objection 

 from other nations, from treaties, and diplomatic 

 correspondence : (2) judgments of courts which 

 profess to administer the law of nations ; (3) 

 where the above-mentioned sources fail to fur- 

 nish any rule, the dictates of right, reason, and 

 natural justice; (4) the municipal law of states, 

 so far as it speaks with a concurring voice ; (5) 

 the concurring authority of jurists of established 

 reputation who have made the law of nature and 

 nations a special study. The main contention 

 was tersely presented by Mr. Phelps in the fol- 

 lowing paragraph : 



Much learning has been expended upon the discus- 

 sion of the abstract question or the right of mare clau- 

 sum. I do not conceive it to be applicable to the 

 present case. Here is a valuable fishery, and a large 

 and, if properly managed, permanent industry, the 

 property of the nations on whose shores it is carried 

 on. It is proposed by the colony of a foreign nation, 

 in defiance of the joint remonstrance of all the coun- 

 tries interested, to destroy this business by the indis- 

 criminate slaughter and extermination of the animals 

 in question, in the open neighboring sea, during the 

 period of gestation, when the common dictates of hu- 

 manity ought to protect them were there no interest at 

 all involved. And it is suggested that we are prevented 

 from defending ourselves against such depredations 

 because the sea at a certain distance from the coast is 

 free. The same line of argument would take under 

 its protection piracy and the slave trade when pros- 

 ecuted in the open sea, or would justify one nation in 

 destroying the commerce of another by placing dan- 

 gerous obstructions and derelicts in the open sea near 

 its coasts. There are many things that can not be 

 allowed to be done on the open sea with impunity, 

 and against which every sea is mare clausum; and 

 the right of self-defense as to person and property 

 prevails there as fully as elsewhere. If the fish upon 

 Canadian coasts could be destroyed by scattering 

 poison in the open sea adjacent, with some small 

 profit to those engaged in it, would Canada, upon the 

 just principles of international law, be held defense- 

 less in such a case ? Yet that process would be no 

 more destructive, inhuman, and wanton than this. 

 If precedents are wanting for a defense so necessary 

 and so proper, it is because precedents for such a 

 course of conduct are likewise unknown. The best 

 international law has arisen from precedents that 

 have been established when the just occasion for 

 them arose, undeterred by the discussion of abstract 

 and inadequate rules. 



In developing their argument the American 

 counsel pointed out that there were precedents 

 in the actual practice of nations for exercising 

 legislative power on the high sea, not alone by 



