Note 1276 — Chapter V · THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.

Award of the Tribunal of Arbitration, p. 23. Declarations made by the Tribunal of Arbitration, 1893. As the Behring Sea case has been often referred to in recent controversies about the right of fishing, as having affirmed the three-mile limit as the true international boundary of the territorial sea, the facts may be briefly recalled. In 1867 the United States purchased from Russia the territory of Alaska with its dependent islands, &c., and an American company, very powerful financially and politically, was formed in 1870, which obtained a lease of the Pribilov Islands in order to engage in the fur-seal industry. Under the Act of Congress of 1870 which enabled this to be done, it was made unlawful to kill any seals upon the islands, “or in the waters adjacent thereto,” except during certain specified months. Sealing vessels, both from the United States and from British Columbia, began to frequent Behring Sea and the waters adjacent to the islands; their competition impaired the practical monopoly of the Company in the markets for seal-skins; and in 1886 three British vessels were seized by American revenue cruisers at distances of 70, 75, and 115 miles from the land, and the masters and mates were fined and imprisoned for illegal sealing. Up to 1890 other eleven British sealers were similarly seized and dealt with for fishing at distances between 15 and 96 miles from land, and five others were ordered out of Behring Sea. In the negotiations which followed, the American Government first pled a virtual mare clausum for the whole of Behring Sea; then that they had jurisdiction up to 100 miles from land; and lastly, that they had special property in and right of protection over the fur-seals in Behring Sea and frequenting the islands for breeding purposes. The Tribunal of Arbitration decided that they had not this right of protection or property “when such seals are found outside the ordinary three-mile limit.” Then the Tribunal, in terms of the treaty appointing them, prescribed the regulations above referred to, leaving to Great Britain the honours of the contest, and to the United States the advantage. The true lesson to be derived from this chapter of international diplomacy, is not that the high tribunal reaffirmed the three-mile limit as the legal boundary of the territorial sea, which they did not do (see letter from Baron de Courcel, the President, p. 664), but that that limit may be set aside and a much wider boundary fixed (in this instance 60 miles) if the protection and preservation of a marine fishery require it. It may be added that of late years pelagic sealing by Japanese has greatly increased in Behring Sea, and since the regulations apply only to British and American subjects, the Japanese carry on their operations up to the ordinary three-mile limit around the Pribilov Islands, and sometimes within it, there having been several encounters with the American patrol-boats involving loss of life, and heavy fines have been inflicted on offenders. In the summer of 1908 a fleet of thirty Japanese schooners, some with sixteen boats, were thus engaged, and according to the Government agent, they effectually blocked the escape of the seals from the islands. The agent says that in the last ten years the seal herds have diminished almost three-fourths, and if the slaughter by the Japanese is not put a stop to, complete destruction of the industry will follow. Thus, while the British are compelled to keep sixty miles off the islands, and can only kill the seals with spears, the Japanese operate up to three miles from shore, and can use firearms or any other method. It is stated that some of the British Columbia sealers are endeavouring to nationalise their vessels in Japan, so that they may be able to fish under the Japanese flag. In April 1910, when the lease of the Company expired, the United States Government did not renew it, but took the seals under their own protection, and an Act was passed prohibiting the killing of the fur-seal unless authorised by the Secretary of Commerce and Labour.