Foreign Relations of the United States, 1902, Whaling and Sealing Claims Against Russia, On Account of Arrest and Seizure of the American Vessels “Cape Horn Pigeon,” “James Hamilton Lewis,” “C. H. White,” and “Kate and Anna,” Appendix I

EXHIBIT E.

[St. Petersburg, October 24/November 5, 1891]

Note from the Minister of Foreign Affairs of Russia to the Minister of the United States of North America at St. Petersburg, October 24, 1891, No. 3598.

I did not fail to communicate to whom it concerned the contents of the letter you had the kindness to address to me under date of the 7th October.

To-day I have the honor to inform you that, according to the information received from the governor-general of the territory of L’Amour, the crew of the schooner James Hamilton Lewis, seized off the Medny Island for illegal sealing, is now at Vladivostok and receives for its maintenance, the captain 1 ruble, and the sailors each 50 kopecks per day, and that the necessary measures have been taken provisorily by the local authorities in order that they may not lack the necessities.

Please to accept, etc.,

de Giers.

Annex I.

résumé of negotiations relative to the question of the protection of seals, which preceded the conclusion of the arrangement between russia and the united states, dated april 22 (may 4), 1894.

The right of legitimate defense of the Imperial Government against the acts of poaching in which Canadian and American vessels were engaged in the Russian waters of Bering Sea, which acts were considered by the United States as quite as prejudicial in the eastern part of the same sea, found expression in 1891 in the sending of a cruiser for the purpose of the necessary suppression.

In the month of September of the year 1892, the legation of the United States at St. Petersburg, on the occasion of the assemblage of the tribunal of arbitration of Paris, made known to the Imperial Government the point of view of the American Government in the question submitted to the tribunal. In November of the same year the legation, in a verbal communication, the terms of which have been preserved in writing in the ministerial archives,^a expressed, in the name of the Cabinet of Washington, the hope that Russia would maintain her own manner of viewing and acting with regard to poaching vessels hunting seals in Russian waters, which entirely conformed to the views and intentions of the Federal Government. In case Russia thought of modifying its point of view, the Federal Government asked that these modifications should not be made until after the award of the tribunal of Paris.

At the same time the English embassy on the 11th (23d) January, 1893, in accordance with the request of the Canadian sealers to know what were the limits of the prohibited zone during the season of 1893, expressed to the Russian Government the desire to know if it would be inconvenient to inform these sealers that to the west of the line of demarcation of 1867 sealing is prohibited only to the strict limit of Russian territorial waters.

These circumstances obliged the Russian Government to enter into a detailed examination of the questions which had been brought up with regard to the protection of the seal species in the western part of Bering Sea. After having given to the American legation every assurance on the subject of the absence of any intention on the part of Russia to modify its views concerning the suppression of poaching, the ministry of foreign affairs judged the occasion fit to submit the request of the English embassy to the consideration of a special commission to be charged with the determination of what measures were necessary to prevent the future total destruction of these precious animals through illegal hunting of the seals.

This commission was instituted by imperial order under the presidency of Privy Counselor Kapoustine. It was also called upon to examine the claims presented by the English embassy on the subject of the seizure by Russian cruisers of vessels sailing under the British flag during the hunting season of 1892.^b The said commission in its seance of January 17, 1893, arrived at the conclusion that the best means of assuring proper regulation of sealing would be to have resort to an international agreement which should determine the place, time, and conditions of hunting. However, in view of the approaching commencement of the sealing season, the commission deemed it necessary that the Imperial Government should take urgent preservative measures, and to this end to interdict to all foreign vessels hunting seals for a distance of 10 miles along the Russian coasts and 30 miles around the Commander and Tuleny islands. In support of the necessity of these measures the following circumstances were brought forward: The convention of 1891 between the United States and England had created for Russians engaged in sealing a situation unusual and most unfavorable to the interests of Russia; thus among the number of seal skins confiscated by Russian cruisers in 1891 and 1892 there was an average of 95 per cent of females. This circumstance sufficed to show that the poaching was committed within Russian territorial waters, since the females, during the period of reproduction, corresponding to that of the sealing, did not absent themselves much from the shores. The establishment of a zone of 30 miles was explained by the necessity of preserving the seals during their excursions seaward in search of nourishment in the depths called the “sealing grounds,” and which are at a certain distance from the islands. The commission was of the opinion that the measures proposed, by it were not contrary to the general principles of international law, since they had a character essentially provisional and were justified by the rule of “force majeure and legitimate defense.” In conclusion, the commission proposed to furnish the cruisers with identical instructions, and to authorize them to chase and search poaching schooners which they might sight in Russian waters, but which, being chased, might reach the high seas. In the second place, to promulgate a special law establishing the civil and criminal responsibility of persons engaged in illegal sealing; and lastly, to send a sufficient number of cruisers to protect the Russian industry and to organize in it a system of armed inspection on the islands themselves.

The commission further expressed the opinion that the British Government should be informed of such of the measures as it should be deemed expedient to make known to it, in order that it might lend its assistance toward their execution by duly warning the Canadian sealers that they should conform to the rules. Finally, the commission judged it well to invite the participation of Japan in the negotiations with England and the United States on the subject of the preservation of the seals because of the special fact of the passage of the animals between the Japanese and Russian coasts.

The decisions of the Kapoustine commission having been duly sanctioned, the ministry of foreign affairs on February 12, 1893 (Exhibit A), informed the English embassy of the resolution taken by the Imperial Government to forbid sealing for an extent of 10 miles from the Russian coasts and within a zone of 30 miles around the Commander Islands. On this occasion the considerations in question set forth by the commission and which actuated these measures were brought to the attention of the embassy. The Russian Government stated distinctly the following: “The insufficiency of a strict application in this relation of the general rules of international law relative to territorial waters was shown by the very fact of negotiations having been opened since 1887 between the three powers principally interested, to the end of agreeing upon special and exceptional measures. The necessity of such measures was confirmed by the Anglo-American agreement of 1891. In entering into these pour parlers and this agreement the British Government had itself admitted the expediency of an eventual modification of the general rules of international law.”

The Cabinet of Washington having been informed of these measures through the medium of its representative at St. Petersburg, to whom a copy of the aforesaid note was communicated, the American legation requested the Russian Government to suspend the execution of the measures, since their publication might have an unfortunate effect upon the success of the claims submitted to the tribunal of arbitration at Paris by the Federal Government (Exhibit 6.) A telegram received from the Russian minister at Washington informed the Imperial Government that the Secretary of State of the American Union shared the same opinion. The Federal Government did not, however, make any formal proposition as to the course to be pursued in the affair; meantime the ministry of foreign affairs received the reply of the British embassy dated 9th (21st) March, 1893; after a new note from the Russian Government, dated April 6, 1893 (Exhibit C), the agreement was entered into between the two cabinets; and it is thus that the arrangement with England on this subject was concluded, in May, 1893. It was formulated in an exchange of notes between the minister of foreign affairs and the British embassy, the one of May 10 (22), 1893, No. 175, the other of May 18 (30) of the same year.

In concluding this agreement, however, the Russian Government deemed it necessary to make certain reserves of principle—notably, that in consenting to put the vessels infringing this interdiction at the disposal of the British authorities the Government did not mean in any way to prejudice the question of right of a bordering State to extend its jurisdiction in certain special cases beyond territorial waters taken in their restricted sense; in the second place the Russian Government reserved to itself for the future every latitude of choice of any system of preservation of the seals, and, finally, that the arrangement in question should not in any way serve as a precedent and should have an exclusively provisional character. (Note of the Imperial ministry of foreign affairs to the British embassy, dated May 10, 1893, Exhibit D D.)

With the same object of preservation, and on the basis of the decision of the Kapoustine commission, the Russian Government modified and supplemented some legislative measures concerning sealing. A notice of the counsel of the Empire, clothed with the supreme sanction June 1, 1893, established the necessary measures in this respect.

On August 15, 1893, the tribunal of arbitration at Paris pronounced its award in the litigation pending between England and the United States. The decision, which did not sustain the pretentions of the United States, could not naturally have been favorably received by the American public. Although the English point of view had prevailed, as the decision was to a certain extent a compromise, the limitations of the right of sealing caused, also, a certain discontent in Canada.

The States participating in the arbitration of Paris were under obligations to take, by the terms of the decision, legislative, measures and the negotiations between the cabinets of London and Washington were continued.

The Russian Government, for its part, was interested in the question whether the provisions of the award of the Paris tribunal might not properly be extended to the western portion of Bering Sea. Overtures to this end had been made to the Russian Government by the Cabinet of Washington, which believed it equally desirable to induce Japan to participate in this agreement. The Government of the United States finally decided, however, that it was better to await the conclusion of its own negotiations with England, free to adopt the rules which should be worked out in concert with that power as a basis of a more extended agreement.

However, as the arrangement concluded between Russia and England approached its expiration, ths Russian Government was obliged to study under what conditions the said arrangement had in practice been applied during the year 1893, and what measures should be taken for the future. It was shown that the prohibited zone of 30 miles protected in some measure the seals which had succeeded in passing the line where the poachers were stationed, but abandoned to the latter the herds of animals which pass the month of June and part of July on what is called the “sealing grounds” as well as the whole of them when they betake themselves to the places where they resort from February till June; in this respect the 30-mile zone was insufficient and the only result had been to modify the methods the poachers, who continued to engage in their industry, less no doubt in the proximity of the islands, but quite as much on the high seas in the places where the seals fed. It was further recognized that the arrangement with England was paralyzed by the fact that America was not included in it. While recognizing the importance of concluding as soon as possible an arrangement with the cabinets of London and Washington on the basis of the provisions of the award of the Paris tribunal, including in it those rules which might be worked out later between the United States and England, and inviting Japan to participate, still, as these negotiations might be prolonged it was necessary to renew the arrangement actually existing with the English Government, but without giving it a term and to proceed to the conclusion of a similar arrangement with the Ameriean Government.

It is thus that the arrangement of 1893 with England was renewed, by an exchange of notes between the ministry of foreign affairs and the British embassy dated December 11 (23), 1893, No. 4338, and December 29 (January 10), 1893 (1894). No term was put to this agreement which should remain in force until further notice. At the same time negotiations were entered into with the United States for the conclusion of a similar agreement. On February 8, 1894, the ministry of foreign affairs addressed a note to this effect to the American legation. (Exhibit C.) The Imperial Government therein expressed the conviction that the Federal Government having always professed the broadest and the most equitable views in regard to the protection of the legitimate seal industry, would adhere to the proposition under consideration. In its reply dated March 8, 1894 (Exhibit F F), the American legation stated that the Government of the United States recognized with pleasure the cordial character of the Russian proposition testifying to the desire of the Imperial Government to arrive at an equitable and lasting agreement on the subject. The dispatch addressed by the Department of State to the American minister at St. Petersburg, dated March 30, and which was transmitted to the Imperial Government, was conceived in the same spirit. (Exhibit G G.)

Before proceeding to the signature of the arrangement with the United States relative to the prohibition of the seals, the Imperial Government deemed it necessary to formulate to the American Government the same reserves of principle as to England. It is thus that the minister of foreign affairs transmitted to the legation of the United States at St. Petersburg the note dated March 21 (April 2), 1894, containing these reserves. (Exhibit H H.) They were thus expressed: First. It is understoon in the first place that the understanding arrived at between our two governments leaves intact all the rights of Russia in its territorial waters. Second. In delivering to the authorities of the United States the American ships engaged in sealing within the prohibited waters, we do not at all mean to prejudice the question of the right of a bordering power to extend its territorial jurisdiction in certain special cases beyond territorial waters, strictly so called. Third. The Imperial Government reserves its entire liberty of action as to choice in the future between the two systems of protection of the fur seals, either by a prohibited zone or by a completed interdiction of pelagic sealing or its regulation on the high seas. Fourth. The present arrangement shall be in force only until further notice. It shall possess only a provisional character and shall in no sense serve as a precedent.

The arrangement was signed at Washington April 22 (May 4), 1894.

In the meantime the Imperial Government declared itself ready to enter into negotiations for the conclusion, in concert with England and Japan, of a general agreement looking to the protection of the seals in the limits of the extent of sea north of latitude 35° on the basis indicated by the award of the tribunal of Paris. A written communication in this sense was addressed by the Russian minister at Washington to the Federal Government. The negotiations relative to an agreement of this nature are not terminated.

1. This communication was recorded in a document now in the dossier. The memorandum giving a copy of this document is in the handwriting of his excellency Mr. Chichkine, then gerant of the ministry of foreign affairs, to whom the American minister made the verbal declaration aforesaid.
2. The Government of the United States had at that time brought no claim for arrests of American vessels in 1891 and 1892.