COUNTER-CASE OF GREAT BRITAIN. 69 



THE TREATY ONLY REFERS TO QUESTIONS WHICH HAD 

 ARISEN AT ITS DATE; AND THESE INCLUDED NO 

 CLAIMS EXTENDING BEYOND THE SPECIFIED AREA. 



When the question stated at the liead of this chapter 

 speaks of a right of protection bej^oiid the ordiuary 3-mile 

 limit, it is assumed that the part of Beliring Sea in which 

 exclusive jurisdiction is claimed is the only area with which 

 the two Powers are concerned. For, previously to the 

 Treaty of 1892, no claim of jurisdiction, exclusive or other- 

 wise, beyond the limits of Behring Sea, had been made by 

 the United States. The preamble and the 1st Article both 

 express what, it is submitted, would in any case be implied, 

 that "the questions which have arisen" are those which 

 are referred. 



The claim made by the United States is set forth in Mr. cS AppfS 

 Blaine's despatch of the 17th December, 1890. There, ^"i- *'■ p- 286. 

 Question 5 is proposed in the following form: 



What are now the rights of the United States as to the fur-seal 

 fisheries in the waters of the Behriug Sea outside of the ordinary 

 territorial limits, "whether such rights grow out of the cession hy 

 Russia of any special rights or jurisdiction held by her in such 

 79 fisheries or in the waters of Behring Sea, or out of the owner- 

 ship of the breeding-islands and the habits of the seals in 

 resorting thither and rearing tlieir young thereon, and going out from 

 the islands for food, or out of any other fact or incident connected 

 with the relation of those seal fisheries to the territorial possessions 

 of the United States. 



The writer proceeds in the same despatch : 



THE UNITED STATES ONLY CLAIM TO HOLD A SMALL SECTION OF 

 BEHRING SEA FOR PROTECTION OF THE FUR-SEALS. 



The repeated assertions that the Government of the United States 

 demands that the Behring Sea be pronounced mare cfausnm, are with- 

 out foundation. The Government has never claimed it, and never 

 desired it. It expressly disavows it. At the same time, the United 

 States does not lack abundant authority, according to the ablest expo- 

 nents of international law, for holding a small section of the Behring 

 Sea for the protection of the fur-seals. Controlling a comparatively 

 restricted area of water for that one specific purpose is by no means 

 the equivalent of declaring the sea, or any part thereof, mare clausum. 



In an earlier imssage in the same despatch, Mr. Blaine CMe,'*l^pfnd!x! 

 states: vol. i, p. 263 



If Great Britain can maintain her position that Behring Sea at the 

 time of the treaties with Russia of 1?<24 and 1825 was included in the 

 Pacific Ocean, the Government of the United States has no well- 

 grounded claim against her. 



In replying, on the 21st February, 1891, Lord Salisbury, ^'^'^•' p- 2^'^- 

 with reference to the question thus proposed, said : 



The first clause, "What are now the rights of the United States as 

 to the fur-seal fisheries in the waters of the Behring Sea outside of 

 the ordinary territorial limits?" is a question which would be very 

 properly referred to the decision of an arbitrator. But the subsequent 

 clause, which assumes that such rights could have grown out of the 

 ownership of the breeding islands and the habits of the seals in 

 resorting thereto, involves an assumption as to the prescriptions of 

 international law at the present time, to which Her Majesty's Govern- 

 ment are not prepared to accede. 



