TLC.O. 885
سالسا
14
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE I BE REPRODUCED PHOTOGRAPHIC-
2
from the nearest Russian coast (Enclosure in Sir R. Morier's No. 255 of the 21st October).
That thus it would be seen that, according to the statements of the Russians, as well as of the masters of all the schooners, the seizures were effected beyond the usually recognized territorial limit of 3 miles.
That, in consideration of the question at issue between Her Majesty's Government and that of Russia, it was necessary to bear in mind what rights were claimed by Russia in her waters in the Pacific.
31
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That in a note addressed by M. de Giers to the United States' Chargé d'Affaires at St. Petersburgh on the 8th (20th) May 1882, it was laid down that "the prohibi- "tion of hunting and fishing in these waters extends strictly to the territorial waters of Russia only" (see United States' White Book. Ex. Doc. No. 106, H.R., 1889, p. 262).
That in the case of the “Araunah the late Law Officers, of the Crown laid it down, in their reports of the 2nd May and 9th October 1890,* that even if that vessel, at the time of seizure, was herself outside the 3-mile territorial limit, the fact that she was, by means of her boats, carrying on fishing within Russian waters without the prescribed licence, warranted her seizure and confiscation according to the provisions of the municipal law regulating those waters.
That in the reports received from Mr. Howard and Sir R. Morier of their interviews with the representatives of the Russian Foreign Office (Mr. Howard's No. 213 and Sir R. Morier's No. 217 of the 17th and 23rd September), the latter appeared to have raised the question whether, supposing the sealers had been taken in the open sea, the Russian cruisers would not have been justified, if they had previously observed them in flagrante delicto in territorial waters, in pursuing them thence into the open sea until they overtook and captured them.
That on that point our attention was invited to a Memorandum sent home with Sir R. Morier's Despatch, No. 218, of the 23rd September, bearing on the claims of Russia to territorial rights beyond the limit of 3 marine miles from low-water mark.
That with regard to the right of the authorities of a foreign State to pursue within a reasonable time and bring back into barbour a ship which had sailed beyond the territorial water of that State, we should find that, in the case of the British barque "St. Mary's Bay," which was seized outside the 3-mile territorial limit of Chilean waters by the harbour authorities of Valparaiso, our predecessors were of opinion that the Chilean authorities did not by their action infringe any principle of international law (Law Officers, 5th November 1891).
But that it appeared clearly from the affidavits above referred to, and the accompany. ing Russian protocols, that the three vessels in question were not followed out of the territorial waters of Russia, but were taken in the open sea.
That your Lordship was yourself disposed to think it would be difficult for Her Majesty's Government to object to such seizures, in cases where the offence and flight of the incriminated vessels had been continuous, and the pursuit had been commenced while they were still within territorial waters.
That it seemed, moreover, that much might be said in justification of a pursuit and subsequent capture, even if the offending vessel had made good her escape from territorial waters before the pursuit was commenced, provided always that the pursuit was begun within a reasonable time after the offence, and also at the earliest possible moment available, having regard to the means of pursuit at hand.
That on those points, however, your. Lordship specially desired to be favoured with our opinion, for your assistance in the further consideration of the general question.
That on receiving the protests and depositions of the masters, mates, and others on board the British vessels respecting their capture and subsequent treatment, Sir R. Morier was instructed to communicate to the Russian Government the evidence forwarded to Her Majesty's Government, and to state that they would await the result of the inquiries being made before advancing any definite claims on behalf of the owners and crews (see Sir R. Morier's No. 202 of the 18th October).
That a draft of a note had been prepared by his Excellency for presentation to the Russian Government, and, after some slight alterations, was forwarded for our opinion.
That Sir Thomas Sanderson was to request that we would take the papers which were transmitted with his letter into our consideration, and that we would favour your
No. 177A in Vol. IV. and one not printed.
3
Lordship with our opinion whether the terms of the proposed draft note to the Russian Government sufficiently and properly meet the requirements of the case, or, if not, in what respects they might advantageously be altered or amended; and that Sir Thomas Sanderson was to add that your Lordship would, at the same time, be glad to be favoured with our views upon the questions specially raised on p. 17 of his letter, as well as with any observations which we might desire to offer on the matter generally.
We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to
Report-
1. That we have made some unimportant alterations in the draft of the proposed note to the Russian Government, and we think it sufficiently and properly meets the requirements of the case, subject to this observation: The argument beginning on p. 4 of the draft proceeds on the ground that even if the vessels had been poaching in territorial waters their subsequent seizure was not the result of a "hot pursuit" under circumstances to justify such seizure in the open sea upon principles of international law, but there is nowhere the allegation that they had not been so engaged.
It is obvious that the position of the Government would be morally, as well as legally, much stronger if it feels justified in denying the alleged fact that the vessels had been poaching in territorial waters on the occasions in question.
2. We think your Lordship's views (set forth at pp. 16 and 17 of Sir Thomas Sanderson's letter of the 16th instant) correctly indicate the considerations by which the legality of a seizure outside territorial waters for an offence within them ought properly to be determined.
We have, &c.
C. RUSSELL.
JOHN RIGBY.
List of Papers to accompany Reference to the Law Officers of November 16, 1892.
No. of Document
From whom received or to whom sent.
in Collection.
No. of Despatch.
Date.
I
Admiralty
September 1, 1892,
2
Colonial Office.
"
3
19
4
To Mr. Howard
34
13
5
Mr. Howard
6729
Telegraphic.
52
Telegraphic.
214
}]
*
To Sir R. Morier
167
8
To Admiralty -
19
Sir R. Morier -
55
"
Telegraphic.
10
Mr. Herbert
=
257
21
IL
Mr. Howard
213
"
12
Sir R. Morier -
217
"
13
218
"
1
222
"
"
15
59
11
October
"
144 2888 GENRES
13,
37
"
15,
12
16,
"9
17,
"
20,
"
37
"
17,
27
"
"
Telegraphic.
16
223
"
September 27,
"2
*
232
October
1, ""
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To Sir R. Morier
180
"
5,
"+
181
37
"
""
5,
"9
21
192
13
"
Admiralty
12
Colonial Office -
39
Sir R. Morier -
242
11
71
244
"
Admiralty
"
To Sir R. Morier
202
+
19
Sir R. Morier.
251
"1
Admiralty
n
"3
Colonial Office -
21
37
"
19
To Sir R. Morier
217
}}
Sir R. Morier
64
19
33
"
24
35
"
Admiralty
Telegraphic.
65
Telegraphic.
To Sir R. Morier
37
Sir R. Morier -
38
27
"
39
"
To Sir R. Morier
Colonial Office
255
11
44
"
13
Telegraphic.
256
"J
25,
"
262
"
263
13
20,
"
221
"
"2
November 1,
27
ONT A HER
14
17
24,
19
"F
11A
Sir R. Morier to M. Chichkine (draft note)
42
43
44
44
49
ESTESLIS
Law Officers' opinion, “Araunah
case
"
"
43
"St. Mary's Bay "Arctic" case
case
16
Seal Fishery (Bebring Sea) Act
17
17
Order in Council
"
19
50
Seal Fisheries in Behring Sea. "Correspondence communicated by Mr. Cleveland to the Senate of the United States in ac- cordance with the Resolution of the Senate of the 2nd January 1889. [Senate Ex. Doc. No. 100]; Correspondence respecting the seizure of the British schooner "Araunah" off Copper Island. ["Russia, No. 1 (1800) ”] -
May 2, 1890.
October 29, 1890. November 5, 1891.
"
27,
"
1891.
1891.
1892,
-
1889.
1890.