Bering Sea Arbitration

Arbitration between Great Britain and the United StatesThe Bering Sea Arbitration of 1893 arose out of a fishery dispute between the United Kingdom of Great Britain and Ireland and the United States in the 1880s. The United States Revenue Cutter Service, today known as the United States Coast Guard, captured several Canadian sealer vessels throughout the conflict. Diplomatic representations followed the capture of the first three ships and an order for release was issued by the British imperial government (then still in charge of foreign affairs for Canada), but it did nothing to stop the seizures and none were released. This led to the U. S. claiming exclusive jurisdiction over the sealing industry in the Bering Sea, and that led to negotiations outside of the courts. The award was given in favor of the British, however, and the Americans were denied exclusive jurisdiction. The British were awarded compensation for the damage that had been inflicted on their vessels, and the American sealing zone remained as it was prior to the conflict (60 miles).

In 1867 the United States government purchased from Russia all her territorial rights in Alaska and the adjacent islands. The boundary between the two countries was a line drawn from the middle of the 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 Pribilof Islands and in "the waters adjacent thereto" except upon certain specified conditions. This created a large swathe of friction between the executive and legislative branches of the U. S. government with the presidential veto employed by Ulysses S. Grant on two notable occasions. 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. Beginning in about 1886, it became the practice of certain Canadian vessels to intercept passing seals in the open ocean (over three miles from any shore) and shoot them in the water (pelagic sealing), often killing both male and female. As a result of this practice, the real possibility of the destruction of the seal fisheries became apparent, together with industries valuable to both the United States and Great Britain. They were condemned by the district judge because they had been sealing within the limits of Alaska territory and owed a pro tanto obligation to respect the sovereign laws of the District of Alaska. 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 Sea; 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 Canada) repudiated the claim, but was willing to negotiate on the question of international regulation.

Between 1887 and 1890, negotiations were carried out among 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 zone. 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 three mile 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.

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.