First: In the case of Bering Sea, nearly a hundred years back, as we have seen, Great Britain refused to assent to the claim of Russia that as that sea was bound only by Russian lands, it was a closed sea belonging to her. And the British Empire in that protest, backed by a similar policy on the part of the United States of America, was successful. Second: When, toward the close of the last century, America attempted to set up a claim to protect the fur seals far out at sea, beyond the three-mile limit, at first on the basis that Bering Sea was a closed sea, Great Britain quickly forced her to retire from such an untenable line of argument. Then the United States, waiving all claim to Bering Sea as a closed sea, sought merely to claim a right of protection over the fur seals in the waters of Bering Sea as they searched for food around their land habitat, the Pribiloff Islands, which since 1867 have belonged to America. The British Empire successfully contested this claim before the Paris Tribunal on the ground that the American jurisdiction over the sea was absolutely limited to three miles from land. It is hard to understand how the situation of Hudson Bay, encircled by Canadian land, differs from that of Bering Sea, when it was surrounded by Russian land. In both instances the connection with the ocean, in one case with the Atlantic, in the other with the Pacific, is much more than six miles wide. Why is a different interpretation of the law necessary in the case of Hudson Bay from that applied to Bering Sea by Great Britain? That the law should be uniformly applied to both cases is the more apparent, when it is remembered that in the case of the frontier of the Alaskan lisière, the Canadian Government gave its assent to and the leading statesmen of the British Government subsequently confirmed, the principle of law, that, in deciding from where the three miles seaward of the territorial sea should be measured in the case of bays more than six miles wide, the line across such bays from shore to shore, where first the estuary was only six miles across, should be taken as the base line for computing the three-mile limit of the territorial sea. In view of the stand taken by the British Empire in defining the extent of the territorial sea in the waters of Bering Sea and along the Alaska lisière, together with the distinct declaration of Sir Robert Phillimore, an advocate of the British Crown, that Hudson Bay is an open sea, the status of that great sea as a part of the high seas is confirmed by the acts of the British Government and the utterances of its officials. There is still another sea in North America, enclosed by British lands, which from the earliest times has been recognized, and which is still recognized today as an open sea the Gulf of St. Lawrence. For this gulf is joined to the ocean by two straits the straits of Belle Isle and Cabot both of which are more than six miles wide. Although much smaller than Bering Sea and Hudson Bay, the freedom of the Gulf of St. Lawrence and the right of American fishermen to catch fish in that gulf or inland sea has been recognized by implication in the treaties of 1783 and 1818 between the United States and Great Britain.106 Mr. Westlake is also of the opinion that the Gulf of St. Lawrence is an open sea.107 As the Gulf of St. Lawrence - which is as much enclosed by the British lands of Newfoundland and Canada as Hudson Bay is by Canada alone is an open sea, how then could the British Empire logically maintain that Hudson Bay is a closed sea? Finally, there is another reason why in the interest of all the world, Canada even included, the free status of the waters of Hudson Bay should be maintained. Humanity as a whole in the struggle for existence has sought for a long time to mitigate the tortures and horrors of war for individuals, and more recently, especially in the last few decades, even attempted to enable nations to escape in a measure from the destruction and miseries entailed by war. The first of these objects has been accomplished in a slow but nevertheless progressive way by the gradual development of the law of nations. That law by regulating the conduct of individuals and states in war times has done away, more and more, with needless injury to private individuals and their property, and has gradually afforded some relief even to the active combatants 106 Treaties and Conventions concluded between the United States of America and other Powers since July 4, 1776 (1889), pp. 377, 416. 107 Westlake, International Law (1904), Vol. I, p. 193. against the sufferings caused by the clash of nations in war.108 And the second object, likewise, has been sought by the application of that law to the disputes of nations in an effort to settle their differences, not by mere force, but upon the principles of eternal justice. As the Dutch Privy Councillor, General den Beer Poortugal, has well said: The more the extent of the area of war can be reduced, the more this brutal power can be restricted to agreed limits, the more are its terrible consequences diminished for peaceful inhabitants. When powerful nations have coveted the possession of the same rich land, so as to feed and give activity to their growing populations, war has often resulted to settle the difficulty. For while the honor of nations is as safe with their advocates pleading before an international court composed of distinguished jurists as is that of individuals in the hands of their counsels arguing their disputes before the municipal courts, the international tribunals of arbitration have not had the power always to adjust the differences between nations growing out of their mutual desire to appropriate portions of the earth, as the municipal courts, with the whole force of their respective states behind them, are able to decide the disputes growing out of commerce and business competition between individuals. free trade obtained all over the world, the chief present cause for war would be partly removed. But judging by the past history of the world, universal free trade is an impossibility. Upon the sea, however, free trade has in a great measure won as against a policy of commercial protection. For the fundamental question summed up in the juristic battle between Hugo Grotius and John Selden was in truth a contest whether free trade or protection should prevail upon the seas. And owing to the inability of any one state to appropriate to itself possession of the salt water in the way that the commonwealth can take possession of land, the cause of freedom of trade won If 108 Albericus Gentilis, De Ivre Belli, Libri Tres, Nunc primum in lucem editi. Ad illvstrissimvm Comitem Essexiae. Hanoviae, apud Hoeredes Guilielmi Antonii (1612); Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Lausanne (1751); J. de Louter, Het Stellig Volkenrecht (1910); Milenko R. Vesnitch, Deux précurseurs français du Pacifisme et de l'Arbitrage International (1911). the victory in large measure. Had nations been physically able to appropriate the sea as they hold the land, the thesis of Selden and not that of Grotius would have prevailed. In that judicial contest, each of the protagonists yielded something, Selden the right of navigation,109 and Grotius the possession of nations to the sea immediately adjoining their shore.110 After the extent of this strip of sea, known as the territorial sea, had been reduced by Bynkershoek and the opinions of many succeeding jurists to relatively small proportions, the principle of "historic bays" was invoked and pushed forward to increase in various parts of the world the area of the territorial sea in the interest of individual nations. And this effort, in which all nations are eager to join, whenever it is a benefit to themselves, tends to restrict the area of the open door upon the seas. In the interest of the peace of the world this effort to extend the territorial sea in restraint of international competition should be halted. For if a great fishing ground is open to the fishermen of all the world subject to proper international regulations to protect not only the fishermen themselves, but also the maintenance of the fishery, there is not in the case of such a portion of the seas that cause for the desire on the part of some Powers to obtain what another enjoys but which they can not touch, that in the final analysis is the cause of war. Therefore, in the interest of all nations, Hudson Bay should remain what it has been in the past, an open sea. THOMAS WILLING BALCH. 109 Selden, Mare Clausum, The Right and Dominion of the Sea (1663), p. 123 et seq. 110 Grotius, De Jure Belli ac Pacis, Libri, Tres (1853), liber II, cap. III, sec. VIII. BOARD OF EDITORS OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW CHANDLER P. ANDERSON, Washington, D. C. CHARLES NOBLE GREGORY, George Washington University. GEORGE W. KIRCHWEY, Columbia University. ROBERT LANSING, Watertown, N. Y. JOHN BASSETT MOORE, Columbia University. Editor in Chief JAMES BROWN SCOTT, Carnegie Endowment for International Peace, Washington, D. C. Business Manager GEORGE A. FINCH, 2 Jackson Place, Washington, D. C. EDITORIAL COMMENT THE TREATIES OF ARBITRATION WITH GREAT BRITAIN AND FRANCE. On March 7, 1912, the Senate advised and consented by a vote of 76 to 3 to the ratification of the proposed treaties of arbitration with Great Britain and France, amending their texts in certain particulars and interpreting by formal resolution the obligation to arbitrate created by the treaties. The final status of the treaties, due to the action of the Senate, is clearly seen from the text of the resolution of ratification which follows in full: IN EXECUTIVE SESSION, SENATE OF THE UNITED STATES. (Legislative day, March 5, 1912; calendar day, March 7, 1912.) Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of a treaty signed by the plenipotentiaries of the United States and Great Britain on August 3, 1911, extending 460 |