Q6 COUNTER-CASE OF GREAT BRITAIN. 



75 (6.) United States Case, pp. 299, 300— 



"The United States Government will claim: First. That in view ot the facts 

 and circumstances established by the evidence, it has such a property in the 

 Alaskan seal herd as entitles it to preserve the herd from destruc- 

 tion in the manner complained of, by an employment of such reasonable force as 

 may be necessary. Second. That irrespective of the distinct right of property 

 in the seal herd, the United States Government has for itself, and for its people, 

 an interest, an industry, and a commerce; .... and that no part of the 

 high sea is, or ought to be, open to individuals for the purpose of accomplishing 

 the destruction of national interests of such a character and importance." 



SUMMAKV Oi< jjkITISH RePLY. 



The right of protection mentioned in Point 5 of Article VI is now alleged to be exer- 

 cisable in every part of the high sea, and is claimed by the United States on 

 general principles, which, if sound, gave a like right to Russia. Such right is 

 said to be independent of any jurisdiction alleged to have been formerly exer- 

 cised by Russia in Behring Sea, by virtue of a prescriptive title. But acts of 

 protection by Russia, had there been such, could in no way be attributed to a 

 jurisdiction founded on prescriptive title, or used as evidence of such title, if 

 they would have been equally justitiable without it. 



The United States can have no right of protection in seas where it has no jurisdic- 

 tion. For, on the unappropriated sea, all nations are equal and independent, 

 and cannot interfere with each other's ships, except for piracy. 



The Treaty, rightly construed, does not give i>ower to the Tribunal to decide whether 

 the United States have jurisdiction, for any purpose, over waters outside that 

 part of Behring Sea where the United States claim exclusive jurisdiction. No 

 claim to jurisdiction of any kind, beyond that limited area, had been made before 

 the Treaty was signed; and it refers no questions to arbitration, except such as 

 had then arisen between the Contracting Powers. 



The words in whicli the grounds of claim to this widely-extended right of protec- 

 tion are stated, are difficult of interpretation. The "common law"' referred to 

 cannot be that of England, which has no force in a dispute between nations. 

 "Civil law," whether denoting Roman law, or used in opposition to criminal 

 law, is inappropriate here. The right claimed must depend on international law, 

 of which "the practice of nations" can only afford evidence, and which recog- 

 nizes all the "interests of mankind" of which the Tribunal can take cognizance 

 in dealing with rights as distinguished from regulations. 



One of the purposes of the ordinary 3-mile limit is that of exclusive fishing. 



There can be no property in free-swimming seals, which are proved in Chapter VII 

 to be ferw natura', and are, therefore, res nuUlus even by tbe law of the United 

 States. Still less is the property vested in the United States Government; and 

 their lessees neither have nor claim any interest in these animals. 



If the identification of each seal and its annual return to tbe Pribylofi" Islands be 

 assumed as facts, they show no title without proof that the seal was tame or 

 reclaimed before its departure; and that it intended to return, not only to the 

 islands, but to some spot where it would be under the care and control of its 

 owner. 



The laws of seven British Colonies, of Scotland, Ireland, and ten other countries 

 (including Russia), are quoted or referred to in the United States Case, appar- 

 ently for the piirpose of supporting the alleged right of protection. But in no 

 instance is it shown that ex-territorial jurisdiction over foreigners is asserted or 

 exercised. 



76 THE PROTECTION SPOKEN OF IN THE CONTENTION IS A PRO- 



TECTION AS OF RIGHT. 



In the question now to be discussed, and in the conten- 

 tions of the United States above quoted, the protection 

 spoken of, whether expressly or impliedly, is a protection 

 as of right; it is in no way dependent on the exercise by 

 the Arbitrators of the power of making llegulations given 

 them, in a certain event, by the Treaty of the 29th Febru- 

 ary, 1892. If, for the sake of brevity, the passages in which 



