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.
[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.
