There followed a diplomatic controversy, in the course of which the United States developed the contentions which were afterwards laid before the tribunal of arbitration. The claim that Bering Sea was
mare clausum was abandoned, but it was asserted that Russia had formerly exercised therein rights of exclusive jurisdiction which had passed to the United States, and they relied
inter alia upon the ukase of 1821, by which foreign vessels had been forbidden to approach within 100 Italian miles of the coasts of Russian America. It was pointed out by Great Britain that this ukase had been the subject of protest both by Great Britain and the United States, and that by treaties similar in their terms, made between Russia and each of the protesting powers, Russia had agreed that their subjects should not be troubled or molested in navigating or fishing in any part of the Pacific Ocean. The American answer was that the
Pacific Ocean did not include the Bering Sea. They also claimed an interest in the fur seals, which were threatened with extinction, involving the right to protect them outside the limit. In August 1890
Lord Salisbury proposed that the question at issue should be submitted to arbitration. This was ultimately assented to by the secretary of state,
James Gillespie Blaine, on the understanding that certain specific points, which he indicated, should be laid before the arbitrators. On February 29, 1892, a definitive treaty was signed at Washington, D.C. Each power was to name two arbitrators, and the president of the
French Republic, the king of
Italy, the king of
Sweden and Norway were each to name one.
Terms of reference and arbitrators The points submitted were • What exclusive jurisdiction in the sea now known as Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior to and up to the time of the cession of Alaska to the United States? • How far were her claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? • Was the body of water now known as Bering Sea included in the phrase "Pacific Ocean", as used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in Bering Sea were held exclusively exercised by Russia after the said treaty? • Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary, in the treaty between the United States and Russia of the 30th of March 1867, pass unimpaired to the United States under that treaty? • Had the United States any and what right of protection over, or property in, the fur seals frequenting the islands of Bering Sea when such seals are found outside the three-mile limit? In the event of a determination in favour of Great Britain the arbitrators were to determine what concurrent regulations were necessary for the preservation of the seals, and a joint commission was to be appointed by the two powers to assist them in the investigation of the facts of seal life. The question of damages was reserved for further discussion, but either party was to be at liberty to submit any question of fact to the arbitrators, and to ask for a finding thereon. The tribunal was to sit at
Paris. The treaty was approved by the
United States Senate on the March 29, 1892, and ratified by the president on April 22. The United States appointed as arbitrator Mr.
John M. Harlan, a justice of the
Supreme Court, and Mr
John T. Morgan, a member of the Senate. The British arbitrators were
Lord Hannen and
Sir John Sparrow David Thompson. The neutral arbitrators were the
Baron de Courcel, the
Marquis Visconti-Venosta, and Mr.
Gregers Winther Wulfsberg Gram, appointed respectively by the
President of the French Republic, the
King of Italy, and the
King of Sweden and Norway. The sittings of the tribunal began in February 1893 and ended in August.
Henry Williams Blodgett acted as U.S. counsel before the tribunal.
Main arguments When the evidence was before the tribunal, it was plain that the United States had a very weak case with regard to the claim of exclusive jurisdiction in the Bering Sea (the first claim), and it was not strongly pressed by the counsel of the United States. The real question, therefore, and the one upon which the chief argument was directed, was the second of the two claims put forward on behalf of the United States, the right of property in the seals and the right of protecting them beyond the limit. It was suggested that the seals had some of the characteristics of the domestic animals, and could therefore be the subject of something in the nature of a right of property. They were so far amenable to human control that it was possible to take their increase without destroying the stock. Sealing upon land was legitimate sealing; the United States being the owners of the land, the industry was a trust vested in them for the benefit of mankind. On the other hand, pelagic sealing, being a method of promiscuous slaughter, was illegitimate; it was
contra bonos mores and analogous to piracy. Consequently, the United States claimed a right to restrain such practices, both as proprietors of the seals and as proprietors and trustees of the legitimate industry. Such a right to restrain was a novelty hitherto unrecognized by any system of law.
James C. Carter, therefore, as counsel for the United States, submitted a theory of international jurisprudence which was equally novel. He argued that the determination of the tribunal must be grounded upon "the principles of right," that "by the rule or principle of right was meant a moral rule dictated by the general standard of justice upon which civilized nations are agreed, that this international standard of justice is but another name for international law, that the particular recognized rules were but cases of the application of a more general rule, and that where the particular rules were silent the general rule applied." The practical result of giving effect to this contention would be that an international tribunal could make new law and apply it retrospectively. Carter's contention was successfully combated by
Charles Russell, the leading counsel for Great Britain.
Conclusion The award, which was signed and published on 15 August 1893, was in favour of Great Britain on all points. The question of damages, which had been reserved, was ultimately settled by a mixed commission appointed by the two powers in February 1896, the total amount awarded to the British sealers being $473,151.26 - in excess of US$10 million in present-day inflation-adjusted dollars. Since the decision was in favor of Great Britain, in accordance with the arbitration treaty the tribunal prescribed a series of regulations for preserving the seal herds which were to be binding upon and enforced by both powers. They limited pelagic sealing as to time, place, and manner by fixing a zone of 60 miles around the Pribilof Islands within which the seals were not to be molested at any time, and from May 1 to July 31 each year they were not to be pursued anywhere in Bering Sea. Only licensed sailing vessels were permitted to engage in fur sealing, and the use of firearms or explosives was prohibited. The regulations were to remain in force until abolished by mutual agreement, but were to be examined every five years with a view to modification. A joint commission of scientists from Great Britain and the United States further considered the problem, and came to the conclusion that the pelagic sealing needed to be curtailed. However further joint tribunals did not enact new legal restrictions, and then Japan also embarked upon pelagic sealing. The treaty went into effect on December 15, 1911, and continued for fifteen years mandating that the Pribilof Islands become a sanctuary for seals. ==See also==