14
It may be interesting to state the substance of the Queen's Advocate's advice as to the best method of establishing British rights. He suggested—
(1) a system of licences on a moderate scale of payment either generally to fish in all places or limited to particular places. The acceptance of such licences by foreigners would tend to validate Her Majesty's title, and the licensees would have an interest in preventing unlicensed fishing;
(2) that in the absence of any local Ordinance there must be no penal measures against foreigners other than interrupting their fishing within the three-mile limit--no fines, forfeitures, or other punishments;
(3) that the propriety of farming out rights of fishery with a view to raising revenue
to maintain police boats might be considered:
(4) that an Ordinance should be passed forbidding unlicensed fishing under moderate
penalties.
The Queen's Advocate was vague on the subject of the United States claim, merely remark- ing that, if the United States set up no formal claim, the British title was undoubtedly good against all others, and that " should such a claim be set up it should be dealt with according to the farts and arguments which might be therein adduced," but that the interruptions and warnings of the British authorities were sufficient to prevent the acquisition of a title by uninterrupted user and prescription.
It will be observed that at this time the case of the Falkland Islands differed in several respects from that of, say, the Heard Islands; in particular, there had been over 20 years' British occupation, and there was a Colonial Government with power to make laws.
The proposal to legislate was not carried out, as the Governor represented that it would be a nullity unless a ship-of-war enforced it, and would only bring his authority into contempt. Her Majesty's Government agreed that it would be inadvisable to take any formal steps to establish preserves of the whale and seal fisheries, since there was neither a resident population to turn the exclusive right to account nor any naval forces to enforce it.
In 1883 the Colonial Government proposed to pass an Ordinance providing for licences to fish off the coast. The Colonial Office supported the proposal, but the Foreign Office negatived it for fear of American protests. Finally, in 1892, Lord Salisbury agreed to allow legislation to protect the seal fishery on the ground that the attitude of the United States Government in regard to the Behring Sea question rendered a protest unlikely, but suggested waiting till the Behring Sea Arbitration Tribunal had given its award. An Ordinance was ultimately passed in 1899. No protests have been received; but this may be due to the fact that the Falkland Islands Government has no means of preventing poaching, and has therefore not had occasion to attempt to enforce the law against United States vessels. In any case, the circumstances are so different that no inference can be drawn that the United States Government will not uphold the claims of their citizens in regard to uninhabited islands elsewhere. If they do, the claim will presumably be made not on behalf of any particular individual, but on behalf of all and any United States fishing vessels which may choose to visit the island. It is important to bear this distinction in mind. The form of exclusive licence hitherto employed makes provi- sion for a foreign claim of sovereignty, and private claims are, of course, provided for by law. But the case of a claim by an indefinite number of individuals pursuing an industry does not appear to have been considered.
Colonial Office,
May, 1910.
G. G.
P.S. In a despatch received since the above memorandum was written, the Officer Adminis- tering the Government of the Falklands reports that he has approved of the issue of a licence to the Compania Argentina de Pesca to kill seals in South Georgia, with the following conditions:
(a) To render an accurate account of the number and kind of seals taken, and to report and locate on the chart where such seals were found in large numbers or " rookeries."
H or where others were observed.
(b) No pup or young seals to be killed or taken.
(c) To avoid as far as possible the killing or capturing of the female seal.
(d) The sealing season to be the period from the first day of January to the thirtieth
day of September.
(e) The close season to be the whole of the year except the "sealing season."
The magistrate of South Georgia mentions that as the hair seal is principally killed for
the blubber, a very large number is required to make the venture pay. Hence restriction of the number of hair seals to be taken is difficult.
June, 1910.
G. G.
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PUBLIC RECORD OFFICE
Reference :-
C.O.885
252
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