711.008 North Pacific/92

The Secretary of State to the Ambassador in Japan (Grew)

No. 1262

Sir: The Department encloses for your confidential information a memorandum containing a review of developments and observations in connection with the question of the participation of Japanese in the salmon fisheries in certain waters of Bering Sea and Bristol Bay.

There is growing insistence on the part of American fisheries interests upon governmental action in the direction of conserving for their benefit the salmon resources of Alaskan waters. Moreover, the exacerbation of feelings on the Pacific coast which the prospects of Japanese participation in Alaskan fisheries are likely to engender cannot but be prejudicial to good relations between the United States and Japan. Consequently, notwithstanding the difficulties outlined in the enclosed memorandum which appear to lie in the way of a solution of this question satisfactory to American fisheries interests, it is important that means be devised as promptly as possible to meet the situation.

The Department after reviewing all the circumstances involved has come to the conclusion that the best hope of reaching a solution satisfactory to all concerned lies in an effort to commit the governments of the countries bordering the North Pacific Ocean to a policy of conservation of the salmon resources of those waters. To this end the Government of the United States would propose to the Governments of Japan, the Soviet Union and Canada the conclusion of a multilateral convention under which each of the parties would establish a governmental agency to formulate a national policy for the conservation of their respective salmon resources in the northern Pacific Ocean, conformable to the principles of permitting an escapement to spawning grounds of a portion of the annual run of salmon in such waters, of establishing regulations to give effect to such policy, and of each party exercising control over its nationals and [Page 741] their vessels engaged in salmon fisheries. It would be desirable that the proposed convention provide for the creation of an international commission whose function it would be to receive and correlate reports from and to act in advisory capacity to the several national commissions on matters affecting the conservation of salmon resources. Most essential of all in connection with the objective sought by the Department would be the inclusion of a provision whereby the contracting parties would mutually and reciprocally agree that their respective nationals and vessels would be prohibited from engaging in fishing for salmon in waters within fifty miles of the shore line of any of the other parties except as otherwise might be specifically provided.

It will thus be seen that the Department envisages a convention which, without impairing existing principles of international law, would operate to prevent Japanese from exploiting our salmon resources for the period of its life, during which time Japan and the Soviet Union (as well as the United States and Canada) would employ methods calculated to prevent depletion of their own salmon resources.

Although the Japanese Government has clearly indicated that it would not be in position to consider the question of entering into negotiations with the American Government until the Japanese Government had completed its investigations of the fishery resources of Bristol Bay, the Department is of the opinion that it would not be inappropriate at this time for the Embassy to sound out the Foreign Office at Tokyo on the subject of a convention of the character described with the suggestion that the appropriate Japanese authorities might welcome an opportunity to consider such a convention in connection with the Japanese survey now being made of the salmon resources of the northern Pacific. The Department accordingly requests that you make such an approach at the first favorable opportunity. If the Embassy’s approach should meet with a favorable response, you may suggest that this Government would be prepared to endeavor to work out with the Japanese Government the details of such a convention.

There are circumstances in the situation which render it important that the matter be handled with discretion and delicacy. The salmon interests and labor unions on the Pacific coast have gone on record as opposing the conclusion of any treaty with Japan in regard to salmon. It is their view that the United States has proprietary rights in the salmon of Bering Sea and that, therefore, such salmon should not be the subject of any treaty with Japan. The discussions which have accompanied the assertion of that point of view indicate, however, that these elements on the Pacific coast are apprehensive [Page 742] lest any such treaty with Japan should provide for some Japanese participation, limited though it might be, in salmon fishing off the coast of Alaska. The possibility of any approach along the lines of conservation, carrying with it an undertaking on the part of each Party to prohibit national fishermen from approaching the coast line of each of the other parties, except as otherwise might be specifically agreed to, has thus far not been envisaged, but it is in the Department’s opinion likely that premature disclosure of the fact that there is under consideration a convention along the lines indicated would create misconceptions with regard to the contents of the proposed convention and excite opposition in this country to any negotiation on this matter with Japan.

The Department proposes to await the results of the approach to the Japanese Government before taking similar action vis-à-vis any of the other powers, as it considers that the attitude of Japan is more problematical and has a more crucial bearing upon the prospects of success in the objectives sought than that of any of the other powers.

The Department is of the opinion, however, that there are important considerations which should influence the Japanese Government in favor of concluding the proposed convention. In the estimation of the Department the Japanese survey of the salmon runs in Bristol Bay has primarily been prompted by concern over the future of Japanese fisheries in waters off the coast of the Soviet Union in Asia where on account of relative proximity Japanese fishermen can operate more conveniently and economically than in waters as remote as Bristol Bay. (In this connection, reference is made to the statements made by Mr. Booth enclosed with your despatch No. 1425 of August 9, 1935.44) The convention would serve to bring Japan into association with the Soviet Union for the conservation of the salmon resources of the waters of the northwestern Pacific. It may confidently be expected that appropriate conservation measures which the convention would seek to provide would serve not only to insure against a depletion of these resources arising from unrestricted fishing, but also to develop a permanent adequacy of supply. Such association would also provide Japan with an approach for regularizing Japanese participation in fisheries in Soviet waters. It is obvious too that while Japan might benefit temporarily from unrestricted fishing in Alaskan waters, such operations would soon bring about a depletion in those waters of the salmon resources. Even without Japanese participation such depletion would result if the American and Canadian Governments did not continue to restrict the operations of their own fishermen and to expend considerable sums for the propagation and conservation of salmon. Naturally it would be difficult for these governments to continue [Page 743] to restrict the operation of their fishermen in the face of competition by nationals of other countries who are not subject to restriction.

The fact that the Japanese Government is already committed to policies of conservation with regard to a number of natural resources and the further fact that the Society of Oceanic Promotion in its report of February 1937 (forwarded to the Department as enclosure No. 1 to despatch No. 2348 of April 2, 1937, from the Embassy45) recommends to the Japanese Government that care be taken for the preservation and protection of salmon, encourage the hope that the Japanese Government would give favorable consideration to the proposal of a convention of the type the Department has in mind.

A further consideration in favor of the proposed convention is that it would serve to bring to an end the agitation on the Pacific coast against Japan to which the prospect of Japanese participation in Alaskan salmon fisheries has given rise. The evidence given in the past by the Japanese Government of its desire to remove causes of friction which might arise in American-Japanese relations gives ground for the belief that this proposal will receive the earnest consideration of the Japanese Government, especially as no concession of principle is involved.

The Department requests that you report by telegraph the results of your approach to the Japanese Government on this matter. You should indicate whether in your opinion it would be opportune at this time to provide the Japanese Government for its consideration with a draft of the proposed convention.

Very truly yours,

Cordell Hull
[Enclosure—Memorandum]

The possibility that Japanese vessels might fish for salmon in waters off the coast of Alaska, especially in the non-territorial waters of Bristol Bay, into which flow the rivers where are spawned the highly prized red salmon, has for several years engaged the attention of the Department of State and of the Department of Commerce. So early as 1930, the Department of Commerce pointed out to this Department that a difficult situation would be presented if Japanese vessels were to pack salmon in international waters off the coast of Alaska; and shortly thereafter the desirability was suggested to the Japanese Government that it withhold from Japanese fishing vessels licenses to fish for salmon in Bristol Bay.

As a result of informal discussions which ensued between the Embassy at Tokyo and various Japanese officials and Japanese interested in the fishing industry, it was ascertained that the Japanese Government [Page 744] did not find it practicable to give this Government an informal undertaking to prevent Japanese fishing vessels from packing salmon in Bristol Bay, but informal assurances were given that no licenses would be issued to private Japanese fishing interests to fish for salmon in that area without previous notification having been given to this Government.

Since 1932, the Japanese Government has each year sent one or two of its public vessels to waters off the coast of Alaska for the purpose of studying the fishery resources of those waters. From time to time, Japanese floating crab canneries have operated in the non-territorial waters of Bristol Bay, and occasionally Japanese fishing vessels have engaged in waters off the coast of Alaska in the catching of cod, halibut, hake, and other types of fish, which catches, it is understood, are converted into fish meal and fertilizer, and are used also for the extraction of fish oil. No evidence has been obtained by any agency of this Government that Japanese vessels, with the single exception hereafter noted, have engaged in packing salmon in Bristol Bay; nevertheless, manifestations of increasing interest of the Japanese in the fishery resources of Bering Sea cause widespread apprehension in Alaska, of which Territory the salmon packing industry is the principal industry, and in the Pacific northwest.

In the hope that some arrangement might be made with the Japanese Government whereby these apprehensions would be allayed, the Embassy at Tokyo was instructed in 193546 to inquire whether the Japanese Government would be disposed to enter into negotiations with this Government looking toward the conclusion of a convention whereby Japanese nationals would be prohibited from engaging in fishing for salmon in certain non-territorial waters of Bristol Bay. The Embassy was informed by the Japanese Foreign Office that the Japanese Government would not be in position to decide whether it would enter into such negotiations until after investigations which were being made of the fishery resources of Bristol Bay had been concluded, and further assurances were given that no licenses would be granted for the time being by the Japanese Government to fishing vessels to fish for salmon in waters off the coast of Alaska.

Recently the Japanese Government appropriated Yen 89,000 for a study of the runs of salmon off the coast of Alaska, and, as a result, the Tenyo Maru and an accompanying trawler during the season of 1936 made extensive investigations in the waters of Bristol Bay. It is understood that the investigations thus initiated by the Japanese Government are to continue for three seasons.

[Page 745]

The Japanese vessel Chichibu Maru was observed by the Coast Guard cutter Morris on June 8, 1936, fishing for salmon with gill nets many miles off shore in Bering Sea. In reply to an inquiry made by the Embassy in Tokyo, the Foreign Office stated that the vessel under reference had been licensed to fish only off the coast of Siberia.

Although evidence is lacking that substantial injury has been done by Japanese to the fishery resources off the coast of Alaska, the operations of Japanese public vessels, of Japanese floating crab canneries, and of Japanese fishing vessels has brought about among the people of Alaska and certain sections of the population of the Pacific states a state of feeling which may be described without exaggeration as one of alarm. That state of feeling is reflected in articles which are appearing with increasing frequency in newspapers and periodicals. Representative of such articles is one entitled “Protect our Alaska Salmon from Alien Exploitation” which appeared in the September issue of Pacific Fisherman.

Your attention is especially drawn to certain statements in the article mentioned in the Pacific Fisherman, as follows:

“Regardless of anything else, however, we can and must by all means maintain and insist upon our inherent, exclusive and proprietary right to these salmon, wherever they may be found, as a distinctive natural resource of Alaska. Such a claim can be supported on substantial grounds, and is based on recognized biological, geographical and economic facts …”47

“It is the duty of our Government to proclaim and maintain this principle; to demand its recognition; to devise and promulgate firm policies that will effectively protect the American fisheries. Our right will be recognized if we assert it and insist upon it—as Japan has repeatedly and successfully insisted upon carrying out its national policies, regardless of opposition, even when its claim was based on no such firm ground as is ours in Alaska. All that is needed is reasonable firmness and energy in maintaining our right.”

The Department is making a study of the thesis advanced by the Pacific Fisherman that the salmon spawned in American waters are property of the United States wherever they may be found. It would seem from examinations thus far made that there are many points of resemblance between such a contention and the position which was taken by the United States in the fur seal arbitration case of 1893.48

In 1868 and 1869, consideration was given by this Government to the advisability of there being taken measures to prevent extinction by pelagic sealing of the several American herds of fur seals in the Bering Sea, and in accordance with an Act approved March 3, 1869,49 [Page 746] the Pribilof Islands were declared to be a Government reserve. The Congress further prohibited, by an act approved July 1, 1870,50 the killing of “any fur seal upon the islands of St. Paul and St. George or in waters adjacent thereto, except during the months of June, July, September and October in each year”. The killing of fur seals by means of firearms, or by any other means which tended to drive the fur seals away from the islands, was declared to be unlawful. The measures taken by Congress to protect the seals were found to be inadequate so long as the proscribed methods of killing the fur seals could be employed with impunity in extraterritorial waters. Upon being apprized of this fact the Acting Secretary of the Treasury directed officers of the Treasury Department to consider all the waters eastward of an imaginary line, defined by the treaty between Russia and Great Britain of February 16, 1825,51 as the western line of demarcation between their respective possessions in North America, as being comprised within the waters of Alaska. During the years ensuing, United States revenue cutters seized on the high seas a number of British vessels, which were thereupon charged with capturing seals in violation of section 1956 of the Revised Statutes of the United States, which declared it to be unlawful to kill seals “within the limits of Alaska territory or in the waters thereof”. These vessels were taken into American harbors, tried before the various courts, their masters were found guilty, and the vessels were confiscated and condemned to be sold.

On February 29, 1892, there was concluded at Washington a treaty by which the United States and Great Britain agreed to submit to arbitration the issues raised by the position taken by the Government.52 The arbitral tribunal, which met at Paris on February 23, 1893, and which continued its sessions well into the summer of that year, formulated five questions which were conceived to embrace the real issues in the case. Of these five questions only the fifth needs for present purposes to be considered in connection with the present case, and it was as follows:

“Has the United States any right, and if so, what right of protection or property in the fur seals frequenting the islands of the United States in the Behring’s Sea when such seals are found outside the ordinary three-mile limit?”

The arguments of the agent of the United States on the question presented by the tribunal rested “upon a principle fundamental in the institution of property, that principle being that whenever any useful wild animals, the supply of which may be exhausted by indiscriminate [Page 747] criminate slaughter, or by reckless handling, ‘so far submit themselves to the control or dominion of particular men as to enable them exclusively to cultivate such animals and to obtain the annual increase for the supply of human wants, and, at the same time, to preserve the stock, they have a property in them; or, in other words, whatever may be justly regarded as the product of human art, industry, and self-denial, must be assigned to those who make these exertions, as their merited reward.’ ”

The agent further argued that “The United States hold that the ownership of the islands upon which the seals breed; that the habit of the seals in regularly resorting thereto and rearing their young thereon; that their going out in search of food and regularly returning thereto, all the facts and incidents of their relations to the islands,—give to the United States a property interest therein. …”53

No useful purpose would be served by discussion herein of the entire range of the arguments presented pro and contra. In general, it was the contention of the United States that it was the duty of the tribunal to give effect to principles of reason in determining what are the rights recognized by the law of nations; whereas the efforts of Great Britain were concentrated on the argument that the respective rights in the controversy of the United States and Great Britain should be determined by the tribunal “upon grounds of positive law, resting in the affirmative assent of the nations, independently of ethical considerations arising out of distinctions which the conscience of the world makes between what is morally right and what is morally wrong …”53

It was held by the arbitral tribunal in its award “That the United States have no right to protection of, or property in, the seals frequenting the islands of the United States in Bering Sea, when the same are found outside the ordinary three-mile limit.”

The foregoing syllabus of the Bering sea case, will, it is believed, serve to explain the urgent need of this Government’s approaching the problem under discussion with deliberation and only after the most careful examination of the principles and problems therein involved. From the studies thus far made, the facts upon which a claim by the United States to proprietary rights in the salmon found in extraterritorial waters off the coast of Alaska would rest are substantially analogous to the facts upon which rested the claim of the United States to proprietary rights in the fur seals found off the coast of Alaska. Like the fur seal, the red salmon begins its life cycle within the jurisdictive limits of the United States; it shares with the fur seal the animus revertendi, or the instinct to return to its normal [Page 748] habitat; and like the fur seal, it is protected against extinction by methods involving expenditure of public funds. While it must be emphasized that studies with regard to this matter have not been completed, it would seem that the principal arguments which could be advanced in support of such a claim are those unsuccessfully advanced in the fur seals dispute.

It should further be borne in mind that after the studies have been completed, there would still be need to give thought to the question whether the United States should, by claiming proprietary rights in salmon found in extraterritorial waters, or alternatively by claiming jurisdiction in waters regarded as extraterritorial, take a position at variance with the principle of the freedom of the seas.

  1. Not printed.
  2. Not printed.
  3. See Department’s telegram No. 119, August 3, 1935, 2 p.m., Foreign Relations, 1935, vol. iii, p. 1076.
  4. Omission indicated in the original memorandum.
  5. See Foreign Relations, 1894, Appendix i, pp. 107 ff.
  6. 15 Stat. 348.
  7. 16 Stat. 180.
  8. British and Foreign State Papers, vol. xii, p. 38.
  9. For text of award, see Foreign Relations, 1894, Appendix i, p. 109.
  10. Omission indicated in the original.
  11. Omission indicated in the original.