Bering Sea Arbitration
Encyclopedia
The Bering Sea Arbitration arose out of a fishery
dispute between Great Britain
and the United States
in the 1880s which was closed by this arbitration in 1893.
all her territorial rights in Alaska
and the adjacent islands. The boundary between the two countries was a line drawn from the middle of Bering Strait
south-west to a point midway between the Aleutian and Komandorski Islands
dividing the Bering Sea into two parts, the larger being on the American side. This portion included the Pribilof Islands
, the principal breeding-grounds of the seals in those seas.
By Acts of Congress, passed between 1868 and 1873, the killing of seals was prohibited on the Pribiloff islands and in "the waters adjacent thereto" except upon certain specified conditions. No definition of the meaning of the words "waters adjacent" was given in the act. In 1870 the exclusive rights of killing seals on these islands was leased by the United States to the Alaska Commercial Company
, on conditions limiting the numbers to be taken annually, and otherwise providing for their protection. As early as 1872 the operations of foreign sealers attracted the attention of the United States government, but any precautions then taken seem to have been directed against the capture of seals on their way through the passages between the Aleutian Islands, and no claim to jurisdiction beyond the three-mile limit appears to have been made. On March 12, 1881, the acting United States Secretary of the Treasury
, in answer to a letter asking for an interpretation of the words "waters adjacent thereto" in the acts of 1868 and 1873, stated that all the waters east of the boundary line were considered to be within the waters of Alaska territory. In March 1886 this letter was communicated to the San Francisco customs
by Daniel Manning
, U.S. Secretary of the Treasury, for publication.
; it also contended that the protection of the fur seal
was an international duty, and should be secured by international arrangement. The British imperial government (then still in charge of foreign affairs for the Dominion of Canada) repudiated the claim, but was willing to negotiate on the question of international regulation.
. America had seal nurseries on the Pribiloff Islands and Russia on the Komandorski group. Neither Britain, nor the dominion of Canada
, had land access to the Bering Sea or seal breeding grounds. Thus, to prohibit pelagic sealing would have been to exclude Britain from the industry.
The United States insisted that such prohibition was indispensable on the grounds that pelagic sealing involved the destruction of breeding stock, because it was practically impossible to distinguish between the male and female seal when in the water; and that it was unnecessarily wasteful, inasmuch as a large proportion of the seals so killed were lost. Britain contended that in all known cases the extermination of seals had been the result of operations upon land, and had never been caused exclusively by sealing in the pelagic zone.
The negotiations came to nothing, and the United States fell back upon their claim of right. In June 1890 it was reported that certain American revenue cutters had been ordered to proceed to Bering Sea. Sir Julian Pauncefote, the British ambassador at Washington, having failed to obtain an assurance that British vessels would not be interfered with, laid a formal protest before the United States government.
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 Bering Sea. They also claimed an interest in the fur seals, involving the right to protect them outside the three-mile 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 the February 29, 1892, a definitive treaty was signed at Washington. Each power was to name two arbitrators, and the president of the French
Republic, the king of Italy
, the king of Norway
and Sweden
were each to name one.
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 Norway and Sweden. The sittings of the tribunal began in February and ended in August 1893. Henry Williams Blodgett
acted as U.S. counsel before the tribunal.
, the leading counsel for Great Britain.
The North Pacific Fur Seal Convention of 1911
severely curtailed the sealing industry.
Fishery
Generally, a fishery is an entity engaged in raising or harvesting fish which is determined by some authority to be a fishery. According to the FAO, a fishery is typically defined in terms of the "people involved, species or type of fish, area of water or seabed, method of fishing, class of boats,...
dispute between Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in the 1880s which was closed by this arbitration in 1893.
Origins
In 1867 the United States government purchased from RussiaRussia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
all her territorial rights in Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
and the adjacent islands. The boundary between the two countries was a line drawn from the middle of Bering Strait
Bering Strait
The Bering Strait , known to natives as Imakpik, is a sea strait between Cape Dezhnev, Chukotka Autonomous Okrug, Russia, the easternmost point of the Asian continent and Cape Prince of Wales, Alaska, USA, the westernmost point of the North American continent, with latitude of about 65°40'N,...
south-west to a point midway between the Aleutian and Komandorski Islands
Komandorski Islands
Commander Islands or Komandorski Islands are a group of treeless Russian islands located east of the Kamchatka Peninsula in the Russian Far East, in the Bering Sea...
dividing the Bering Sea into two parts, the larger being on the American side. This portion included the Pribilof Islands
Pribilof Islands
The Pribilof Islands are a group of four volcanic islands off the coast of mainland Alaska, in the Bering Sea, about north of Unalaska and 200 miles southwest of Cape Newenham. The Siberia coast is roughly northwest...
, the principal breeding-grounds of the seals in those seas.
By Acts of Congress, passed between 1868 and 1873, the killing of seals was prohibited on the Pribiloff islands and in "the waters adjacent thereto" except upon certain specified conditions. No definition of the meaning of the words "waters adjacent" was given in the act. In 1870 the exclusive rights of killing seals on these islands was leased by the United States to the Alaska Commercial Company
Alaska Commercial Company
The Alaska Commercial Company is a company that operated retail stores in Alaska during the early period of Alaska's ownership by the United States. From 1901 to 1992, it was known as the Northern Commercial Company . In 1992, it resumed business as the Alaska Commercial Company under the...
, on conditions limiting the numbers to be taken annually, and otherwise providing for their protection. As early as 1872 the operations of foreign sealers attracted the attention of the United States government, but any precautions then taken seem to have been directed against the capture of seals on their way through the passages between the Aleutian Islands, and no claim to jurisdiction beyond the three-mile limit appears to have been made. On March 12, 1881, the acting United States Secretary of the Treasury
United States Secretary of the Treasury
The Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...
, in answer to a letter asking for an interpretation of the words "waters adjacent thereto" in the acts of 1868 and 1873, stated that all the waters east of the boundary line were considered to be within the waters of Alaska territory. In March 1886 this letter was communicated to the San Francisco customs
Customs
Customs is an authority or agency in a country responsible for collecting and safeguarding customs duties and for controlling the flow of goods including animals, transports, personal effects and hazardous items in and out of a country...
by Daniel Manning
Daniel Manning
Daniel Manning was an American businessman, journalist, and politician most notable for having served as the 37th United States Secretary of the Treasury....
, U.S. Secretary of the Treasury, for publication.
British involvement and escalation
In the summer of 1886, three British Columbian sealers, the Carolena, Onward and Thornton, were captured by an American revenue cutter 60 miles from land. They were condemned by the district judge because they had been sealing within the limits of Alaska territory. Diplomatic representations followed and an order for release was issued but, in 1887, further captures were made which were judicially supported on the same grounds. From that point the United States claimed exclusive jurisdiction over the sealing industry in the Bering SeaBering Sea
The Bering Sea is a marginal sea of the Pacific Ocean. It comprises a deep water basin, which then rises through a narrow slope into the shallower water above the continental shelves....
; it also contended that the protection of the fur seal
Fur seal
Fur seals are any of nine species of pinnipeds in the Otariidae family. One species, the northern fur seal inhabits the North Pacific, while seven species in the Arctocephalus genus are found primarily in the Southern hemisphere...
was an international duty, and should be secured by international arrangement. The British imperial government (then still in charge of foreign affairs for the Dominion of Canada) repudiated the claim, but was willing to negotiate on the question of international regulation.
Negotiations
Between 1887 and 1890, negotiations were carried out between Russia, Great Britain and the United States with a view to a joint convention but the parties were unable to agree on basis for regulating sealing in the open seas, the pelagic zonePelagic zone
Any water in a sea or lake that is not close to the bottom or near to the shore can be said to be in the pelagic zone. The word pelagic comes from the Greek πέλαγος or pélagos, which means "open sea". The pelagic zone can be thought of in terms of an imaginary cylinder or water column that goes...
. America had seal nurseries on the Pribiloff Islands and Russia on the Komandorski group. Neither Britain, nor the dominion of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, had land access to the Bering Sea or seal breeding grounds. Thus, to prohibit pelagic sealing would have been to exclude Britain from the industry.
The United States insisted that such prohibition was indispensable on the grounds that pelagic sealing involved the destruction of breeding stock, because it was practically impossible to distinguish between the male and female seal when in the water; and that it was unnecessarily wasteful, inasmuch as a large proportion of the seals so killed were lost. Britain contended that in all known cases the extermination of seals had been the result of operations upon land, and had never been caused exclusively by sealing in the pelagic zone.
The negotiations came to nothing, and the United States fell back upon their claim of right. In June 1890 it was reported that certain American revenue cutters had been ordered to proceed to Bering Sea. Sir Julian Pauncefote, the British ambassador at Washington, having failed to obtain an assurance that British vessels would not be interfered with, laid a formal protest before the United States government.
Arbitration
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 clausumMare clausum
Mare clausum is a term used in international law to mention a sea, ocean or other navigable body of water under the jurisdiction of a state that is closed or not accessible to other states. Mare clausum is an exception to mare liberum , meaning a sea that is open to navigation to ships of all...
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
Inter Alia
-Track listing:# Inter Alia# Outfox'd # Righteous Badass # The Altogether feat. Bix, Apt, UNIVERSE ARM and Cal# The Day-to-Daily# Trouble Brewing # The Prestidigitator# The Force...
upon the ukase
Ukase
A ukase , in Imperial Russia, was a proclamation of the tsar, government, or a religious leader that had the force of law...
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
Pacific Ocean
The Pacific Ocean is the largest of the Earth's oceanic divisions. It extends from the Arctic in the north to the Southern Ocean in the south, bounded by Asia and Australia in the west, and the Americas in the east.At 165.2 million square kilometres in area, this largest division of the World...
did not include Bering Sea. They also claimed an interest in the fur seals, involving the right to protect them outside the three-mile limit. In August 1890 Lord Salisbury
Robert Gascoyne-Cecil, 3rd Marquess of Salisbury
Robert Arthur Talbot Gascoyne-Cecil, 3rd Marquess of Salisbury, KG, GCVO, PC , styled Lord Robert Cecil before 1865 and Viscount Cranborne from June 1865 until April 1868, was a British Conservative statesman and thrice Prime Minister, serving for a total of over 13 years...
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 the February 29, 1892, a definitive treaty was signed at Washington. Each power was to name two arbitrators, and the president of the French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
Republic, the king of Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, the king of Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
and Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
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
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...
. The treaty was approved by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on the March 29, 1892, and ratified by the president on April 22.
The United States appointed as arbitrator Mr. John M. Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
, a justice of the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, 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
Gregers Winther Wulfsberg Gram
Gregers Winther Wulfsberg Gram was a Norwegian jurist and politician, and international arbitrator. He was a Supreme Court Assessor, Norwegian Prime Minister in Stockholm from 1889 to 1891 and from 1893 to 1898 and County Governor from 1898 to 1915.-Personal life:Gram was born in Moss as the son...
, appointed respectively by the president of the French Republic, the king of Italy, and the king of Norway and Sweden. The sittings of the tribunal began in February and ended in August 1893. Henry Williams Blodgett
Henry Williams Blodgett
Henry Williams Blodgett was a United States federal judge.Blodgett was born in Amherst, Massachusetts in 1821. He moved to Illinois with his parents in 1831...
acted as U.S. counsel before the tribunal.
Main arguments
The main interest of the proceedings lies in the second of the two claims put forward on behalf of the United States. This claim cannot easily be stated in language of precision; it is indicated rather than formulated in the last of the five points specially submitted by the treaty. But its general character may be gathered from the arguments addressed to the tribunal. 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. It is obvious that such a right was a novelty hitherto unrecognized by any system of law. Mr. J.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. Mr. Carter's contention was successfully combated by Sir Charles RussellCharles Russell, Baron Russell of Killowen
Charles Arthur Russell, Baron Russell of Killowen, GCMG, PC, was an Irish statesman of the 19th century, and Lord Chief Justice of England and Wales.-Early life:...
, 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.The North Pacific Fur Seal Convention of 1911
North Pacific Fur Seal Convention of 1911
The North Pacific Fur Seal Convention of 1911, formally known as the Convention between the United States and Other Powers Providing for the Preservation and Protection of Fur Seals, was an international treaty signed on July 7, 1911 designed to manage the commercial harvest of fur bearing mammals ...
severely curtailed the sealing industry.
Further reading
- British Columbia: From the Earliest Times to the Present, Vol .2, Chapter XXVII "The Sealing Industry and the Behring Sea Arbitration", E.O.S. Scholefield and F.W. Howay, S.J. Clarke Publ. Co, Vancouver, 1914]
- History of British Columbia from its earliest discovery to the present time, Chapter XX "Fur Sealing and the Alaska Boundary", Alexander Begg, William Briggs, Toronto, 1894