64 COUNTER-CASE OF GREAT BRITAIN. 



There is thus no evidence whatever of the existence, the 

 enforcement, or the recognition by other nations of any 

 restriction npon sealing. 



BURDEN OF PROVING LOSS OF JURISDICTION BY RUSSIA 

 DOES NOT LIE ON GREAT BRITAIN. 



TJnited states It is emphatically denied that the burden lies on Grea-t 

 Case, p. 5/. Britain of proving that Eussia has lost her alleged juris- 

 diction in Behring Sea. The plain meaning of the Trea- 

 ties indeed^leaves no point to be proved; but, in any 



case, when a nation is contending for a jurisdiction 

 60 in excess of that which is admitted by international 



consent, the onus must rest with that nation of prov- 

 ing the existence of such jurisdiction by instances of its 

 exercise, or of its recognition by other Powers. The claims 

 of the TJnited States cannot be supported merely by the 

 negative fact that, for many years after the Ukase and the 

 Treaties, there is no record of pelagic sealing in Behring 

 Sea. 



A?i!nrtbv Toi^fii' ^^^^ *^^^ i)oint. Lord Salisbury, in his despatch to Sir J. 

 ''uniVeAista'i^e'iPanncefote of the 2nd August, 1890, wrote in the follow- 

 No. 2 (1890)," No. jj^p- words • 



382, ]). .519. ^"& wuius. 



Case p Hl!"^' '^ ^* ^^ impossible to admit that a public right to fish, catch seals, or 

 pursue any other lawful occupation on the high seas can be held to be 

 abandoned by a nation from the mere fact that for a certain number 

 of years it has not suited the subjects oi that nation to exercise it. 



ABSENCE OF SEALING- VESSELS FROM BEHRING SEA WAS 

 NOT DUE TO RUSSIAN EXCLUSION. 



British Com- That the absence of sealing-vessels from Behring Sea was 



po\*t'para! 100.*^" ^^ot <^^6 ^^ ^^7 cxclusion by Russia, is attested by the United 



Unite i' states. States Casc itself; where it is shown that pelagic sealing 



Case, p. 187. ^^^^ ucvcr attempted as a practical industry until after the 



cession of Alaska to the United States. 



It is clear, moreover, that the Eussian Government, in 

 1846, took a different view of its rights from that now con- 

 tended for by the United States. In that year, the Gov- 

 ernment was specially invited by the Governor-General of 

 Eastern Siberia to enforce the prohibition of whaling within 

 United states a distaucc of 40 miles of the shore. The reply of the Eus- 

 Case, p. 57. gi^^^ Government was, however, not that it preferred not to 

 " strictly enforce " such right, but that no kind of right 

 existed. The Foreign Office wrote : 



RUSSIAN FOREIGN OFFICE SAYS THAT IT HAS NO RIGHT TO EXCLUDE 

 FOREIGN SHIPS FROM BEHRING SEA. 



Tikraenieflf, " We hare no right io exclude foreign ships from that part of the great 

 British Case, Ap- (,^g^„ „./jj(;7,.gfj,(^(,Y(/f.s the eastern shore of Siberia from the north-toestern 

 pen IX. vo . 1, p. g^j^j.^, gj j^yierica, or to make the payment of a sum of money a condi- 

 tion to allowing them to take whales." The Foreign Office were of 

 opinion that the fixing of the line referred to above would reopen the 

 discussions formerly carried on between England and France on the 

 subject. The limit of a cannon-shot, that is about 3 Italian mik-s, 

 would alone give rise to no dispute. The Foreign Office observed, in 

 conclusion, that no Power had yet succeeded in limiting the freedom 

 of fishing in open seas, and that such pretensions had never been recog- 

 nized by the other Powers. 



