178. Bering Sea Arbitration (1893)

BY PRESIDENT BARON ALPHONSE DE COURCEL, JAMES LORD

HANNEN, AND SENATOR JOHN TYLER MORGAN

In 1892 Great Britain and the United States submitted to arbitration the question as to the jurisdictional rights of the United States in the waters of Bering Sea, especially her right to regulate or prohibit pelagic sealing. The treaty further provided that, in case the award was against the claims of the United States, the arbitrators should decide upon a set of concurrent regulations for the protection and preservation of the fur seals resorting to Bering Sea; and the two nations agreed to cooperate in securing the adhesion of other powers to such regulations. The award was against the claims of the United States; regulations were drawn up and included in it, but they proved ineffectual. This extract is taken from the speeches of the arbitrators at the time of the presentation of the award. — Bibliography as in No. 175 above.

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ENTLEMEN: Now we have come to the

[Baron Courcel.] end of our task. We have done our best to accomplish it, without concealing from ourselves the difficulties which complicated it, nor the heavy responsibilities which it has imposed upon us. Selected from various nationalities, we have not considered ourselves the representatives of any one in particular, nor of any government or any human power, but, solely guided by our conscience and our reason, we have wished only to act as one of those councils of wise men, whose duties were so carefully defined by the old capitularies of France. To assist us, we have had at our disposition a library of documents, compiled with extreme care, and in order that we might not lose our way among so many sources of information, men holding a high rank among the most learned jurists and eloquent orators of which the Old or New Worlds could boast have been willing so liberally to bestow upon us their advice.

During weeks and months our labors have been prolonged, and it constantly appeared that some new matter had risen before us and that some new problem pressed upon our attention.

To-day... we are assembled to inform you of the result of our labors, hoping with all our hearts that they may be profitable to man, and conformable to the designs of Him who rules his destiny. . . .

We have felt obliged to maintain intact the fundamental principles of that august law of nations, which extends itself like the vault of heaven above all countries, and which borrows the laws of nature herself to protect the peoples of the earth, one against another, by inculcating in them the dictates of mutual good will.

In the regulations which we were charged to draw up we have had to decide between conflicting rights and interests which it was difficult to reconcile. The Governments of the United States of America and Great Britain have promised to accept and execute our decisions. Our desire is that this voluntary engagement may not cause regret to either of them, though we have required of both sacrifices which they may, perhaps, regard as serious. This part of our work inaugurates great innovation. Hitherto, the nations were agreed to leave out of special legislation the vast domain of the seas, as in times of old, according to the poets, the earth itself was common to all men, who gathered its fruits at their will, without limitation or control. You know that even to-day, dreamers believe it possible to bring back humanity to that golden age. The sea, however, like the earth, has become small for men, who, like the hero, Alexander, and no less ardent for labor than he was for glory, feel confined in a world too narrow. Our work is a first attempt at a sharing of the products of the ocean, which has hitherto been undivided, and at applying a rule to things which escaped every other law but that of the first occupant. If this attempt succeeds, it will doubtless be followed by numerous imitations, until the entire planet, until the waters as well as the continents will have become the subject of a careful partition. Then, perhaps, the conception of property may change amongst men. . . .

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[Lord Hannen.] . . . Mr. de Courcel, I have to discharge a duty which gives me peculiar satisfaction. I have to express to you our high appreciation of the manner in which you have presided over our deliberations. The public has had the opportunity of witnessing the sagacity, the learning, and the courtesy with which you have guided the proceedings during the arguments. Your colleagues only can know how greatly those qualities have assisted us in our private conferences. Let me add, that our intimate relations with you have taught us to regard you with the warmest esteem and affection. Permit me to say that you have won

in each of us an attached friend.

I must not conclude without an allusion to the remarkable occasion which has brought us together. We trust that the result will prove that we have taken part in a great historical transaction fruitful in good for the world. Two great nations, in submitting their differences to arbitration, have set an example which I doubt not will be followed from time to time by others, so that the scourge of war will be more and more repressed. Few can be so sanguine as to expect that all international quarrels will be speedily settled by arbitration, instead of by the dread arbitrament of

war; but each occasion on which the peaceful method is adopted will hasten the time when it will be the rule and not the exception.

One of our poets has said that every prayer for universal peace avails to expedite its coming.

We have done more than join in such a supplication; we may hope that we have been the humble instruments through whom an answer has been granted to that prayer which I doubt not ascends from the hearts of these two kindred nations, that peace may forever prevail between them. . . .

[Senator Morgan.] The arbitrators on the part of the United States most sincerely unite in the very happy expressions that have fallen from Lord Hannen, of grateful appreciation of the splendid hospitality of the French Government and people. . . .

If we should take a narrow view of the results of this arbitration, the United States would have a regret that the important judicial questions we have been considering were not stated in a broader form in the treaty between these great Powers. The opportunity was offered when the treaty was in process of formation to have presented in a more equitable light the rights of the nations to whose islands and coasts the fur-seals habitually resort for places of abode and shelter in the summer season; to control and protect them under the legal rules and intendments that apply universally to the animals that are classed as domestic, or domesticated animals, because of their usefulness to men.

My colleague and I concurred in the view that the treaty presented this subject for consideration in its broadest aspect. Our honorable colleagues, however, did not so construe the scope of the duty prescribed to the Tribunal by the treaty. They considered that these questions of the right of property and protection in respect to the fur-seals were to be decided upon the existing state of the law, and, finding no existing precedent in the international law, they did not feel warranted in creating one. As the rights claimed by the United States could only be supported by international law, in their estimation, and inasmuch as that law is silent on the subject, they felt that under the treaty they could find no legal foundation for the rights claimed that extended beyond the limits of the territorial jurisdiction of the United States.

This ruling made it necessary to resort to the power conferred upon the Tribunal to establish, by the authority of both Governments, regulations for the preservation and protection of the fur-seals, to which the treaty relates. In this new and untried field of experiment, much embar

rassment was found in conflicting interests of an important character, and yet more difficulty in the uncertainty as to the facts upon which regulations could be based that would be at once just to those interests, and would afford to the fur-seals proper preservation and protection.

The United States will fully understand and appreciate those difficulties, and will accept the final award as the best possible result, under existing conditions. A very large measure of protection is secured by the regulations adopted by the Tribunal to the Alaskan herd of fur-seals; and the virtual repression of the use of firearms in pelagic sealing is an earnest and wise guaranty that those common interests may be pursued without putting in serious peril the peace of the two countries.

Senate Executive Documents, 53 Cong., 2 sess. (Washington, 1895), VII, pt. i, No. 177, pt. 1, pp. 71-73 passim.

179. The Olney Doctrine (1895)

BY SECRETARY RICHARD OLNEY

Olney was a prominent corporation lawyer in New England. He became attorneygeneral in Cleveland's cabinet in 1893, and later was made secretary of state. In 1895, when the administration took an active interest in the boundary dispute between Venezuela and British Guiana, he sent to Bayard, the United States ambassador to Great Britain, the letter of instruction from which this extract is taken. The interpretation given to the Monroe Doctrine in Olney's letter was generally considered to enlarge the scope of that policy, and hence has been popularly called the Olney Doctrine. In 1896, acting in behalf of Venezuela, he negotiated a treaty with Great Britain which submitted the boundary question to arbitration. — Bibliography: D. C. Gilman, James Monroe, 269-280; Providence Public Library, Monthly Bulletin, II, 12-21; Channing and Hart, Guide, § 178. - For other expositions of American foreign policy, see Contemporaries, III, Nos. 84, 106, 147, 148; below, Nos. 192, 196.

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T is not proposed, and for present purposes is not necessary, to enter into any detailed account of the controversy between Great Britain and Venezuela respecting the western frontier of the colony of British Guiana. The dispute is of ancient date and began at least as early as . . . 1814. . . . The claims of both parties, it must be conceded, are of a somewhat indefinite nature. .

... Great Britain . . . apparently remained indifferent as to the exact area of the colony until 1840, when she commissioned an engineer, Sir Robert Schomburgk, to examine and lay down its boundaries. . . .

. . the exploitation of the Schomburgk line in 1840 was at once followed by the protest of Venezuela and by proceedings on the part of

Great Britain which could fairly be interpreted only as a disavowal of that line. . . . Notwithstanding this, however, every change in the British claim since that time has moved the frontier of British Guiana farther and farther to the westward of the line thus proposed. . . .

The important features of the existing situation . . . may be briefly stated.

1. The title to territory of indefinite but confessedly very large extent is in dispute between Great Britain on the one hand and the South American Republic of Venezuela on the other.

2. The disparity in the strength of the claimants is such that Venezuela can hope to establish her claim only through peaceful methods — through an agreement with her adversary either upon the subject itself or upon an arbitration. . .

5. Great Britain, however, has always and continuously refused to arbitrate, except upon the condition of a renunciation of a large part of the Venezuelan claim and of a concession to herself of a large share of the territory in controversy.

6. By the frequent interposition of its good offices at the instance of Venezuela, by constantly urging and promoting the restoration of diplomatic relations between the two countries, by pressing for arbitration of the disputed boundary, by offering to act as arbitrator, by expressing its grave concern whenever new alleged instances of British aggression upon Venezuelan territory have been brought to its notice, the Government of the United States has made it clear to Great Britain and to the world that the controversy is one in which both its honor and its interests are involved and the continuance of which it can not regard with indifference.

. . . those charged with the interests of the United States are now forced to determine exactly what those interests are and what course of action they require. It compels them to decide to what extent, if any, the United States may and should intervene in a controversy between and primarily concerning only Great Britain and Venezuela and to decide how far it is bound to see that the integrity of Venezuelan territory is not impaired by the pretensions of its powerful antagonist. Are any such right and duty devolved upon the United States? If . . . any such right and duty exist, their due exercise and discharge will not permit of any action that shall not be efficient and that, if the power of the United States is adequate, shall not result in the accomplishment of the end in view.