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The Bering Sea Arbitration of 1893: Canada Gets a Seat at the Table

Published online by Cambridge University Press:  10 September 2026

Douglas Harrison
Douglas Harrison*
Affiliation:
Independent arbitrator, Arbitration Place, Toronto, Canada
*
Email: dharrison@harrisonadr.com

Abstract

In the late nineteenth century, increasing demand for sealskins by the fashion industry led to an expansion of the seal hunt in the open waters of the Bering Sea. This practice of pelagic sealing was blamed for a severe drop in the population of the north Pacific fur seal herd that bred on the Pribilof Islands off Alaska and was harvested on shore by US interests. US officials began seizing Canadian ships and crews in international waters in contravention of the accepted principle of freedom of the high seas. After years of diplomatic stalemate and jingoistic sabre rattling, the United States and Great Britain, which still controlled Canadian foreign affairs, agreed to put the legality of the seizures before an international tribunal. The so-called Bering Sea Arbitration, held in Paris in 1893, built on the legacy of the Alabama Claims Arbitration from twenty years earlier and was a major step in Canada’s emergence as a fully independent nation with Canadians playing significant roles as arbitrator, counsel, and agent. The tribunal found the seizures contrary to international law and also found that, while the seals bred on US soil, the United States had no property rights in them. However, to restrict the size and scope of the seal hunt as a means of preserving the species from extinction, the tribunal also set down regulations that are now seen as an early foundation of modern environmental law.

Résumé

Résumé

À la fin du XIXe siècle, la demande croissante de peaux de phoque par l’industrie de la mode a entraîné une expansion de la chasse au phoque dans les eaux libres de la mer de Béring. Cette pratique de chasse pélagique a été tenue responsable d’un grave déclin de la population d’otaries à fourrure du Pacifique Nord qui se reproduisaient sur les îles Pribilof, au large de l’Alaska, et étaient chassées sur le rivage par des intérêts américains. Les autorités américaines ont commencé à saisir les navires et les équipages canadiens dans les eaux internationales, en violation du principe reconnu de la liberté de la haute mer. Après des années d’impasse diplomatique et de bellicisme chauvin, les États-Unis et la Grande-Bretagne, qui contrôlait encore les affaires étrangères du Canada, ont convenu de soumettre la légalité des saisies à un tribunal international. L’arbitrage dit “de la mer de Behring,” qui s’est tenu à Paris en 1893, s’est appuyé sur l’héritage de l’arbitrage des réclamations de l’Alabama vingt ans plus tôt et a constitué une étape importante dans l’émergence du Canada en tant que nation pleinement indépendante, les Canadiens jouant un rôle important en tant qu’arbitres, avocats et agents. Le tribunal a jugé que les saisies étaient contraires au droit international et a également estimé que, même si les phoques se reproduisaient sur le sol américain, les États-Unis n’avaient aucun droit de propriété sur eux. Cependant, afin de limiter l’ampleur et la portée de la chasse au phoque dans le but de préserver l’espèce de l’extinction, le tribunal a également établi des réglementations qui sont aujourd’hui considérées comme les fondements précurseurs du droit environnemental moderne.

Keywords

ArbitrationCanada-US relationsenvironmental lawfreedom of the high seaspelagic sealingwildlife conservationArbitragerelations entre le Canada et les États-Unisdroit de l’environnementliberté de la haute merchasse au phoque pélagiqueconservation de la faune sauvage

Information

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Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 62 , November 2025 , pp. 133 - 151
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© The Canadian Yearbook of International Law/Annuaire canadien de droit international 2026

The starting point of modern international arbitration is often said to be the Alabama Claims Arbitration,Footnote 1 held in Geneva in 1872. That tribunal ordered Great Britain to pay the United States fifteen million dollars for damages inflicted by Confederate ships that had been built in Liverpool in violation of Britain’s neutrality during the US Civil War.Footnote 2 However, as pointed out by Professor Jan Paulsson,Footnote 3 the treaty that established the tribunal strictly circumscribed the arbitrators’ jurisdiction, making the outcome on the merits essentially a foregone conclusion. As well, the party-appointed arbitrators openly discussed the case with the governments that appointed them. The three neutral arbitrators — from Brazil, Italy, and Switzerland — had such limited ability in English, the language of the proceeding, that they were unable to follow oral arguments and had to use French translations of the pleadings and evidence. And, perhaps most importantly, the arbitrators deliberated in the parties’ presence.

Twenty years later, the United States and Great Britain (essentially on behalf of Canada) again found themselves in an arbitration. This tribunal was asked to address detailed questions that required analysis of evidence, expert opinions, and legal argument and to fashion a remedy that not only addressed past harms but also gave directions for future conduct. They studied lengthy written submissions, heard oral argument for almost fifty days, and deliberated in secret. The three neutral tribunal members were conversant in English. Referred to as both the Fur Seal Arbitration and the Bering Sea Arbitration Footnote 4 (or the Behring Sea Arbitration in the then style), this proceeding brought the parties back from the brink of gunboat diplomacy, developed a framework for preventing the extinction of a major species, and paved the way forward towards the establishment of more permanent arbitration structures.

Importantly, for Canada, it marked a significant step in its development from a British overseas dominion to an independent nation. While the diplomatic and legal history of the fur seal dispute has been well canvassed from the British and American perspectives, the Canadian perspective has been more limited.Footnote 5 This article is an attempt to highlight the involvement of Canadians, particularly in their legal roles, during the initial stages of the dispute, the negotiations leading up to the arbitration treaty, the preparations for the arbitration, and the lengthy arbitration hearing itself.

1. Origins of the dispute

In the Victorian era, sealskin was used for jackets, gloves, hats, and other high-end fashion accessories. London was the centre of the fur industry, employing thousands and supplying markets worldwide. The Pacific northern fur seal was prized for its dense undercoat, and, in the 1880s, the principal source of its skins were the Pribilof Islands in the Bering Sea, off the west coast of Alaska.Footnote 6 There, 80 percent of the northern fur seal population came ashore each summer to breed before returning to the ocean for the balance of the year.Footnote 7 While the fashion industry consumed about ten thousand sealskins a year in 1860, by the 1880s, the figure was twenty times that.Footnote 8 In 1870, three years after the United States had purchased Alaska from Russia, the US Treasury Department granted an exclusive twenty-year lease to the islands to the Alaska Commercial Company (ACC), which was permitted to harvest up to one hundred thousand sealskins annually on land.Footnote 9 The skins were salted, cured, bundled, and shipped to San Francisco, from where they were sent overland to New York and then on to London.Footnote 10 It was a highly profitable business for both the ACC and the US Treasury, the latter more than recovering the 7.2-million US dollars paid to Russia in 1867 over the term of the lease.Footnote 11

Apart from taking seals on land, Indigenous peoples had hunted them in the open waters of the north Pacific for centuries, using spears and harpoons. Europeans first took up the practice, known as pelagic sealing, in the 1850s and 1860s, sailing principally out of Victoria and selling to the Hudson’s Bay Company or to fur buyers from San Francisco.Footnote 12 Initially using the Indigenous methods, these sealers turned to using guns.Footnote 13 In the 1880s, the pelagic sealing fleet grew dramatically — from perhaps a dozen ships operating in the early part of the decade to fifty in 1888.Footnote 14 The impact on the herd was considerable as pelagic hunters usually only recovered one out of every three seals they shot.Footnote 15 And many of those were females as their range away from the islands was more extensive.Footnote 16 The seal population on the Pribilof Islands dropped dramatically — from an estimated 4.7 million in 1872 to seven hundred thousand in 1890.Footnote 17 The reduction in the herd was naturally of great concern to the ACC (whose lease forbade it from hunting seals offshore) and to the US Treasury, although the impact of the land-based hunt on the seal population was seldom questioned.Footnote 18

The applicable US legislation at the time prohibited killing fur-bearing animals in Alaskan waters, which the US Treasury considered to extend over the entire Bering Sea east of the maritime border with Russia.Footnote 19 In 1886, the Revenue Cutter Corwin was issued orders, likely due to pressure from the ACC, to prevent all vessels from sealing in the US side of the Bering Sea.Footnote 20 In early August, the Corwin seized three Canadian ships out of Victoria that had been sealing in the Bering Sea about seventy miles southeast of the Pribilofs.Footnote 21 The crews were taken to Sitka, where the captains and mates were convicted of killing fur seals in Alaskan waters, fined between three hundred and five hundred US dollars, and jailed for thirty days. The three ships were confiscated.

Soon after news of this reached Ottawa, the federal Cabinet issued an order-in-council protesting the US actions on the high seas “in spite of admitted principles of international law, and in direct opposition to the United States contention of what constitutes common waters on the Atlantic coasts.”Footnote 22 As Canadian external affairs were within the control of the Imperial government in London, the matter was brought first to the attention of the Colonial Office and then the Foreign Office, which in turn lodged a protest with the US authorities through the British minister in Washington, DC, reserving all rights to compensation.Footnote 23 At this time, Canadian-US relations were already tense due to an ongoing dispute over American access to the east coast fishery.Footnote 24 Diplomatic negotiations over Canada’s fur sealing rights ensued over the next few years, sporadically interrupted by changes in those involved, US elections, and the balancing act played by Great Britain in directly negotiating with the Americans while not alienating the Canadians.

The principal negotiator for Great Britain was Sir Julian Pauncefote, who became the minister in Washington in 1889. He was assisted from the early stages by the Canadian minister of marine and fisheries, Charles Hibbert Tupper. Tupper, a Harvard Law graduate who practised in Halifax, had joined Sir John A. Macdonald’s Cabinet in 1888 at the age of thirty-four when his father, Sir Charles, became Canada’s high commissioner in London.Footnote 25 Tupper was a man in a hurry.Footnote 26 He was known as a somewhat intemperate workhorse, who “often … went off at half cock.”Footnote 27 In a private letter, Macdonald noted that “Charley has got the bumptiousness of his father, and should be kept in his place from the start.”Footnote 28

The US secretary of state, Thomas Bayard, was of the view that the Bering Sea was part of the high seas and that US jurisdiction did not extend beyond the accepted three-mile limit.Footnote 29 However, concerns remained over the preservation of the seal population and how that could be achieved.Footnote 30 Another six Canadian ships were seized in 1887, but Bayard ordered the seizures stopped in 1888 while the possibility of negotiating a convention that would put limits on sealing was discussed with Great Britain and Russia.Footnote 31 A tentative agreement reached between the British prime minister, Lord Salisbury, and E.J. Phelps, the US minister in London — which would have closed the pelagic sealing season from April to November in a defined area of the sea — was rejected by Canada.Footnote 32

In 1889, under the new US administration of President Benjamin Harrison, who had been elected on a protectionist trade platform, seizures resumed. The new secretary of state, James Blaine, took the position that the United States had a right to protect the seals in the open seas (and to protect the profits of the land-based hunt). In his view, pelagic sealing, as practised by British Columbian sealers, was ruining the industry and was contrary to “good morals and … good government the world over.”Footnote 33 On 2 August 1889, Tupper wrote to Lord Knutsford, the colonial secretary, after the US seizure of a Canadian ship, stressing that “the time is most opportune for sending a British ship of war into [the] Behring Sea with instructions to prevent any further seizure of British vessels in the open waters. I feel sure that if this course be adopted, the result will be the promotion of a peaceful settlement of the question upon terms which will ensure the enjoyment by British subjects of the privileges conceded by international law.”Footnote 34 US revenue cutters and British warships cruised through the Bering Sea that summer, and jingoistic sentiments appeared in both US and Canadian newspapers, but no hostilities ensued.Footnote 35

As diplomatic discussions carried on through 1890, Pauncefote felt an agreement with the United States would have to include a prohibition on any pelagic sealing for a period each summer — a concession that Tupper resisted. In a letter to Macdonald in April 1890, Tupper questioned whether Pauncefote was too interested in making life easy for himself in Washington rather than pushing for the best outcome for Canada: “I cannot refrain from urging that in future negotiations with the United States, no British Minister at Washington should act for us. … If Canadians cannot act for Great Britain in the negotiation of Canadian affairs, the Mother Country should at least send out a strong and fearless man from home who would be indifferent to the impression he might personally make upon the United States Administration.”Footnote 36

In 1890, Britain proposed referring the question of what regulations might be needed to preserve the seals to arbitration by an impartial government.Footnote 37 It also indicated a willingness to arbitrate the legality of the US seizures of the Canadian sealing ships and any compensation.Footnote 38 Meanwhile, Harrison and Blaine’s approach softened — no seizures occurred that summer, and Lord Salisbury released the British warships to sail elsewhere.Footnote 39 After the 1890 congressional mid-term elections, in which the Republicans suffered heavy losses,Footnote 40 and after embarrassing public revelations of a secret deal to allow sixty thousand seals to be killed on the Pribilofs by a new lessee that had strong ties to the Republican party,Footnote 41 Blaine proposed six questions for arbitration, most of which related to the jurisdictional rights in the Bering Sea that Russia had transferred to the United States in 1867 and to sealing rights beyond the three-mile limit.Footnote 42 Canada pushed for the question of compensation to be added but eventually relented once Great Britain gave assurances that those claims “would be pressed at the earliest moment practicable.”Footnote 43 Pending a resolution, Great Britain and the United States agreed to a modus vivendi, prohibiting the killing of seals at sea and on land other than seventy-five hundred that could be harvested as food for the Indigenous Aleuts on the islands.Footnote 44

2. The agreement to arbitrate

An arbitration treaty, known as the Treaty of Washington 1892, was negotiated and signed in Washington, DC, by Blaine and Pauncefote on 29 February 1892.Footnote 45 It was approved by the US Senate on 29 March 1892, without amendment, after review by the Committee on Foreign Affairs.Footnote 46 The questions for the tribunal, as set out in the treaty, were as follows:

  1. 1. What exclusive jurisdiction in the sea now known as the Behring’s Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of cession of Alaska to the United States?

  2. 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?

  3. 3. Was the body of water now known as the Behring’s Sea included in the phrase “Pacific Ocean,” as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring’s Sea, were held and exclusively exercised by Russia after said Treaty?

  4. 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring’s Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that Treaty?

  5. 5. 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 Sea when such seals are found outside the ordinary 3-mile limit?Footnote 47

If the tribunal’s determination of those questions led to the need for regulations “for the proper protection and preservation of the fur-seal” in the Bering Sea, then the tribunal was to determine what regulations were necessary outside the accepted limits of US maritime jurisdiction.Footnote 48 In addition, provision was made for each government to appoint two commissioners who would together “investigate … all the facts having relation to seal-life in Behring’ Sea, and the measures necessary for its proper protection and preservation.”Footnote 49 Their reports would be filed with the tribunal.Footnote 50

Paris was agreed as the place of the arbitration, and the agreed procedure largely resembled that of the Alabama Claims Arbitration. The proceeding would be conducted in English despite some initial objections by the French foreign minister, although it was agreed that the daily protocols and the award would be prepared in French and English.Footnote 51 In Geneva, it was left to the tribunal to request oral argument, which it did on a number of points. However, that tribunal determined that “it was not competent for the agents or counsel” to make such requests themselves. For the Bering Sea Arbitration, a provision was added that either party “may also support” its case and written arguments “before the Arbitrators by oral argument by Counsel.”Footnote 52 The Americans had sought a similar tribunal of five arbitrators, with three neutrals. However, at Great Britain’s insistence, each party this time would appoint two arbitrators. This permitted the appointment of both a British and a Canadian jurist in order to satisfy (or appease) the Canadian government.Footnote 53

Britain chose as its arbitrator Law Lord Baron Hannen of Burdock, who had acted as its agent in a 1853–55 mixed commission that addressed a dispute over US fishing rights in the Gulf of St. Lawrence.Footnote 54 The Canadian appointee was federal Attorney-General Sir John Thompson, who had at one time been Tupper’s law partner in Halifax. As attorney-general, he had steered the passage of the Criminal Code through Parliament from 1890 to 1892.Footnote 55 In November 1892, he became prime minister after Sir John Abbott resigned due to poor health and Conservative party leaders turned to Thompson to form a government. At that point, the British Foreign Office came to view Thompson’s continuation as arbitrator as improper but eventually stood by the Canadian choice, not wanting to take the blame if Thompson was forced out and the outcome went in the Americans’ favour.Footnote 56

The United States appointed as its two arbitrators Supreme Court Justice John M. Harlan, who was fluent in French, and Senator John T. Morgan of Alabama, a known anglophobe.Footnote 57 Harrison and Lord Salisbury had agreed that the three neutral arbitrators would be chosen by France, Sweden, and Italy, maritime powers who were friendly to both sides, and simply informed the Canadians of this.Footnote 58 The three appointed were, respectively, Baron Alphonse de Courcel, a veteran French diplomat and politician,Footnote 59 Gregors Winther Wulfsberg Gram, the Norwegian prime minister in Stockholm,Footnote 60 and Marquis Emilio Visconti Venosta, an Italian senator and former minister of foreign affairs.Footnote 61 All of them were lawyers. At one point, Mexico and Brazil had been suggested as countries that could select arbitrators, to which Canada objected, fearing that either one “would be open to corrupt influence.”Footnote 62

3. The pre-hearing preparations

Each government was to be represented by an agent, who oversaw the preparation and presentation of its case. Given the importance of the outcome to Canada, Lord Salisbury and Foreign Secretary Knutsford let Ottawa choose the British agent.Footnote 63 Prime Minister Sir John Abbott, with Cabinet’s full support, chose Tupper.Footnote 64 The US agent was John W. Foster, a veteran diplomat. Soon after being selected as agent, he succeeded Blaine as secretary of state in June 1892 after the latter resigned due to poor health. Following the election in November that returned Grover Cleveland to the White House for his second term, Foster resigned as secretary of state but was kept on as the agent by the incoming secretary of state, Walter Q. Gresham.Footnote 65

As for counsel, the British team was led by the attorney-general, Sir Charles Russell, assisted by the former attorney-general, Sir Richard Webster. They were joined by Christopher C. Robinson, QC, of Toronto, and backed up by a team from the British Foreign Ministry. Robinson was one of Canada’s leading litigators of the time and had acted for the federal government numerous times.Footnote 66 Robinson came from a distinguished Toronto legal family — his father was Sir John Beverley Robinson, who had been attorney-general of Upper Canada and later chief justice of the Court of Queen’s Bench; his older brother John, also a lawyer, was at one point the lieutenant governor of Ontario. A one-time partner of D’Alton McCarthy and Britton Bath Osler, he was known for simplifying complex cases and for a dignified and benevolent manner, speaking in a “high-pitched, gentle voice.”Footnote 67 He was also a master of what is now known as work-life balance — he limited the number of briefs he would accept to ensure that he would not find himself overburdened and would have enough time for exercise, reading, and travel.Footnote 68

Senior counsel for the United States was Edward J. Phelps, who was chosen before the Treaty of Washington 1892 was even drafted. He had been deeply involved in the matter while serving as the US minister in London during the first Cleveland administration. At Phelps’ request, President Harrison chose prominent New York lawyer James C. Carter as associate counsel as well as District Court Judge Henry M. Blodgett. Later, New York lawyer Frederic R. Coudert was added as Phelps wanted someone on the team who spoke French and had connections with the Paris bar.Footnote 69 Soon after the Treaty of Washington was in place, each side’s legal team got to work on the written cases. The US team’s junior counsel, including Robert Lansing and William Williams, assembled and wrote the US case and counter case at the State Department in the summer and fall of 1892.Footnote 70 Meanwhile, Tupper worked with Robinson, the legal team in Britain, and a group from the Foreign Office, including Sir Thomas Sanderson, then the assistant permanent under-secretary of state for foreign affairs but who had been a law clerk on the British legal team at Geneva in 1872.Footnote 71

The US argument was two-fold. First, contrary to its long-held view of freedom of the high seas, it claimed that it had exclusive rights in the Bering Sea that permitted it to stop foreigners from engaging in pelagic sealing. Russia had declared its authority over the seal herd in the 1820s, and Great Britain had acquiesced in that. The US inherited this right of prescription from Russia when it purchased Alaska in 1867. Second, it claimed property rights in the seals in the same way that ranchers held property in cattle on the open range — although the seals roamed the ocean, they were products of US soil, and the United States was engaging in their husbandry. Pelagic sealing was contra bonos mores, and it caused injury to the United States.

The British response was that, while there was a need for regulations to preserve the seal herd, the US position was unsustainable: Russia had never claimed exclusive sealing rights in the Bering Sea prior to 1867, and there were no property rights in wild animals when they were not in your possession. Prior to the hearing, the US argument based on the Russian position was severally hampered when it was discovered that many of the Russian documents on which the United States relied had been wrongly translated.Footnote 72 As Sir Charles Russell later stated to the tribunal, after the discovery of the falsifications, “the question of derivative title under Russia, the question of territorial domination exercised by Russia, … receded into the background” of the US case.Footnote 73

4. The hearing

Harlan sailed to France in mid-December 1892, joining his family who had been touring in Europe since August.Footnote 74 The Harlans stayed at the Hotel Lafond on the rue de la Trémoille, as did Senator Morgan and his family, who had also been in Europe since the summer.Footnote 75 The American agent, John W. Foster, arrived in March and took up residence with the American lawyers and staff at the Continental Hotel on rue de Castiglione.Footnote 76 Thompson left Mackenzie Bowell and George Foster in charge in Ottawa, as acting prime minister and house leader, respectively, while he and his family sailed from Montreal in March 1893. They also stayed at the Continental Hotel when they arrived in Paris but found it “too high” and soon moved to the more modest (and reportedly cooler) Hotel Dominici down the street.Footnote 77 The British and Canadian lawyers and staff were at the Hotel Chatham, around the corner on Rue Daunou.Footnote 78

The hearing took place in the banqueting hall of the French Foreign Ministry on the Quai d’Orsay. A monumental painting of the hearing, completed by American Carl Gutherz in 1894, shows Russell rising to make a point during Phelps’s argument in a large room with a soaring muraled ceiling, red velvet curtains, massive golden chandeliers, and an oversized map of Alaska and the North Pacific Ocean mounted above the raised dais. Twenty lawyers, seated at two rows of tables, face the tribunal members, their secretaries, and stenographers. Behind counsel are several rows of spectators.Footnote 79 The tribunal sat for fifty-three days, commencing at 11:30 a.m., breaking for lunch, and rising by 4:00 p.m., Tuesday through Friday. The lunches were often six or seven courses, served with four or five wines, fresh fruit, and cigars.Footnote 80

The first meeting of the tribunal took place on 23 February 1893 but was adjourned at the parties’ request for one month after they filed their briefs (the US case, counter case, and written argument ran nearly three thousand pages and included over 450 sworn affidavits; the British materials were only slightly smaller).Footnote 81 At the attendance on 23 March, de Courcel was selected as tribunal president. After some brief opening remarks, he announced that the proceedings would be open to the public and then adjourned them until 4 April, after Holy Week. During the week of 4–7 April, the tribunal heard motions brought by the United States seeking to have the tribunal refuse to admit a supplementary British report on seal life and strike portions of the British counter case that referenced damages. The tribunal said that the British report could be referred to in oral argument but otherwise deferred decisions on both motions to a later date.

Formal argument got underway on 12 April 1893. Counsel had agreed that the US argument on the five questions would proceed first, followed by the British, after which the British would make submissions on proposed regulations, and the United States would respond. Carter began by speaking for eight days on the law of the sea and the US property interests in the seals, arguing that, by excluding pelagic sealers on the high seas, the United States was acting in self-defence and for the benefit of all mankind in saving the seal herd. He also argued that US property rights in the seals persisted when they swam in the open ocean because of their natural instinct to return to the Pribilof Islands.Footnote 82 Coudert followed Carter with a four-day presentation on seal life and the causes of their declining numbers.Footnote 83 In response, Russell spoke for eleven days, denying that the United States had any property rights in, or jurisdiction over, the seals on the high seas and noting that such rights had never been exercised by Russia. He also submitted that the United States had no rights to protect the seals beyond the islands but said that Great Britain recognized the need for regulations.Footnote 84 Webster then spoke for four days, reviewing the US claims that derived from Russia and expanded the arguments on property rights.Footnote 85

Robinson followed Webster for two days with “the scraps and the leavings.”Footnote 86 After first observing that, up to this point, international arbitrations had concerned “the exercise of belligerent rights” or national boundaries — both matters of international law — he noted that the issues in this case might have “arisen between individuals and might have come up for decision in any ordinary court.”Footnote 87 He then deftly reviewed how the US position on property rights over wild animals, and notions of having a form of trusteeship over the herd for the benefit of the rest of the world, would not succeed under any municipal law and were not supported by any theories of either international law or natural law: “[T]hey are theories which it would be impossible to incorporate into any system of laws with a view to carrying them out.”Footnote 88 When Morgan tried to engage him on various hypotheticals to demonstrate the need for restrictions on pelagic sealing, Robinson replied: “I have never myself seen the utility of putting extreme cases, which have not occurred, and which will never occur.”Footnote 89 He told the tribunal that it did not lie in the mouth of the United States to condemn the practice of pelagic sealing as immoral given what had happened to the buffalo and the passenger pigeon in that country.Footnote 90

The British team then carried on for another six days addressing the regulationsFootnote 91 with Robinson closing by submitting that “Prohibition is not a regulation.”Footnote 92 The British position, in essence, was that banning pelagic sealing within twenty miles of the islands was sufficient. Phelps responded for the Americans arguing — for eleven days — for a complete ban on pelagic sealing in the north Pacific Ocean.Footnote 93 Thompson, who had been a judge on the Supreme Court of Nova Scotia before his election to Parliament, thought the lawyers had failed to live up to their reputations: Russell, while vigorous and quick was ill-mannered and undignified; Webster was very ordinary; and Carter always spoke with a wad of tobacco in his mouth (when he ended his initial submissions, Thompson was “delighted”).Footnote 94 Thompson thought Phelps was “the greatest liar on land.”Footnote 95

In early June, British Prime Minister William Gladstone demanded that Russell return to London to participate in the home rule debate, calling his lengthy stay in Paris “an outrage” and asking why the tribunal was not sitting on Mondays.Footnote 96 On hearing this, Tupper privately wrote to Lord Rosebury, the foreign minister, saying he feared Russell’s withdrawal “would be attributed to a lack of that interest on the part of the British Government which up to this point has so strongly manifested in that part of the case which peculiarly affects Canadian interest — namely Regulations.”Footnote 97 He noted that the United States had taken “great pains” to create an impression that Britain had been dragged reluctantly into the dispute and, but for Canada, “would have been only too glad to assist the United States in the object of its desire.”Footnote 98 He said that he had discussed the subject “fully” with Thompson, who shared “[to] the full the apprehension which I have attempted to express.”Footnote 99 Russell did leave Paris on 13 June after he concluded his three days of submissions on the regulations but was back by the third day of Phelps’s submissions.Footnote 100

De Courcel and Morgan, and, to a lesser extent, Harlan and Lord Hannen, engaged counsel in lengthy questioning throughout, while the three neutral arbitrators barely spoke at all. Thompson spoke on only a handful of occasions, usually to clarify a fact or document. During the course of the hearing, the delegations did not restrict themselves to working on the case. There were numerous social activities over the months — a ball at the Elysée Palace; dinners and luncheons hosted by the French president, the French Foreign Ministry, the British Chamber of Commerce, and others; evenings at the theatre and the opera, and sightseeing to St. Cloud and Versailles.Footnote 101 Tupper’s private secretary Joseph Pope wrote in his memoirs that the Canadians frequently dined in the Eiffel Tower, “the coolest place one could find,” and noted that, in mid-July, Thompson held a dinner for over forty Canadian students at the Café Marguéry, “where we ate of the famous sole à la Marguéry and otherwise enjoyed ourselves.”Footnote 102

The hearing ended on 8 July 1893, and the tribunal began deliberating. While the agents and counsel were not present, unlike at the Geneva arbitration, news of the deliberations leaked out. Pope heard that Thompson pulled Morgan half-way across the table at one point and that one day the French foreign minister sent a note into the arbitrators’ room to ask them to make less noise.Footnote 103 Tupper, Robinson, and Thompson were frequently in communication. On 20 July, Tupper wrote to Webster, noting that Harlan’s handwriting had been seen all over an opinion written by Gram, and saying that Lord Hannen was being too conciliatory.Footnote 104 Tupper said that he was supplying Thompson “with such notes as he wants” and that he was going to ask Thompson if he could send Webster a copy of Thompson’s opinion on the area to be subject to regulation, which Thompson had given to Tupper “in strict confidence.”Footnote 105 On 21 July, Robinson sent a note to Tupper, saying that, based on what he was hearing, the tribunal “may give us our rights and then legislate them out of existence.”Footnote 106

On 23 July, Tupper wrote to Russell that “[t]he Baron is substantially with us, though much that he has said shows he has reluctantly come to his conclusions. … Harlan is seriously insisting that no findings should be made [on Questions 1–4] … on the ground that they are immaterial. … He and Thompson are to try to arrange a set of findings, so far as they can agree.”Footnote 107 On 26 July, Tupper wrote Sanderson, providing details on what Harlan, Morgan, and de Courcel had said in the previous two days’ deliberations, noting that, after Justice Harlan had delivered a harangue while standing and pounding his fists on the table, “Thompson has concluded he is not sane!”Footnote 108 That same day, he told Russell that Lord Hannen spoke after Justice Harlan “ably supporting you.”Footnote 109 On 4 August, Tupper wrote to Sanderson: “We are, I hear, likely to be kept to what is called the ‘Salisbury line’ 49°N and prohibited from sealing May to October. This is practically prohibition.”Footnote 110

5. The award

The award was released on 15 August 1893.Footnote 111 The tribunal found in favour of Great Britain and Canada on all of the questions put to them in the treaty, namely: (1) Russia had never exercised jurisdiction over the sea beyond the three-mile limit; (2) Britain had never recognized any other distance; (3) the Bering Sea was included in the Pacific Ocean in the Treaty of 1825 between Great Britain and Russia; (4) all Russian rights had passed to the United States; and (5) the United States had no right of possession or property in the fur seals beyond the three-mile limit. Morgan dissented on the first two questions, while both he and Harlan dissented on the last. Both wrote lengthy dissenting opinions.Footnote 112

As for the regulations, Canada did not get a favourable result as Tupper had grimly forecast eleven days earlier.Footnote 113 The tribunal, by a majority of four to three, with Thompson, Harlan, and Morgan in the minority, forbade any pelagic sealing not only in a sixty-mile zone around the islands but also from 1 May to 31 July, north of 35 degrees and east of 180 degrees. No nets, shotguns, or rifles were to be used to hunt seals within the Bering Sea at any time. Indigenous hunters were exempted provided they used canoes or “undecked boats” carrying no more than five people and were hunting solely for their own purposes. The Canadians were unhappy with the outcome. Pope later called the award “a barren victory … a Pyrrhic one.”Footnote 114 The day after the award was released, the Ottawa Citizen wrote: “[I]t appears at present as though the arbitrators had given us the shell, and handed over the kernel to Uncle Sam.”Footnote 115 Noting that Lord Hannen had sided with the majority in approving the regulations, the Ottawa Free Press declared: “The rights of the Dominion were once more sacrificed to placate the Americans. The lesson of the Bering Sea Arbitration is that Canada should have the right to deal directly with foreign nations.”Footnote 116 Sealers in Victoria were said to be “disgusted with the results of the arbitration,” the president of their association saying that “the business is destroyed.”Footnote 117

Tupper declared that the regulations were not in the interest of either Canada or the United States, and he predicted that 1894 would end with the largest catch yet by pelagic sealers: “That this great slaughter will occur at a time when it may be most destructive to the seal species, will be the fault of the regulations, not of our hunters who must take when they can.”Footnote 118 Thompson had a more sanguine reaction. On returning to Ottawa on 27 August 1893, he told a welcoming crowd: “I admit there may be cause for dissatisfaction in reference to the award. … It is satisfactory for us to know that so dangerous a cause for dispute between us and our neighbours has passed away, with other causes that are gradually being settled, and will, I hope, in future be settled by resort to peaceful tribunals rather than the arbitrament of war.”Footnote 119

6. The aftermath

As the terms of the arbitration had not included a claim for damages, negotiations ensued over Canada’s outstanding claim for compensation for the shipowners and crew who had been caught up in the seizures, totalling over 540,000 US dollars. In August 1894, US Secretary of State Gresham offered to settle the matter for 425,000 US dollars, but the Senate voted down the appropriation. US relations with Britain had soured over the ongoing British Guiana-Venezuela boundary dispute in which the United States had intervened on behalf of Venezuela.Footnote 120 Meanwhile, in April 1894, both the United States and Great Britain had passed legislation to give effect to the regulations.Footnote 121

In February 1896, the United States and Great Britain agreed to a mixed commission to address the monetary claims. Judge William Putnam of the US Circuit Court of Appeals and Justice George King of the Supreme Court of Canada, the commissioners, held hearings in Victoria. In December 1897, they awarded the claimants a total of 473,151.26 US dollars, which was paid by the United States the following year after Senate approval.Footnote 122 Immediately after the award, Tupper was lauded in the Canadian press, and knighted, and he subsequently served as minister of justice in the Cabinet of Prime Minister Sir Mackenzie Boswell, and as solicitor general during his father’s brief term as prime minister in 1897.Footnote 123 His dissatisfaction over the outcome and the treatment of Canadian interests by Great Britain continued. In an 1896 article, he wrote: “A review of the regulations at Paris and the action of the British Government since, indicate not only an intense desire on the part of England to humour and appease the authorities of the United States, but show also a grave indifference to considerations material to the development of British interests on this continent.”Footnote 124 In 1897, he moved out west where he established a successful law practice in Vancouver and left Parliament in 1904.Footnote 125

Robinson was offered a knighthood but turned it down, much to the displeasure of Queen Victoria.Footnote 126 He was retained again by the federal government as its lead counsel in the 1903 arbitration with the United States to settle the boundary between British Columbia and Alaska.Footnote 127 While the Bering Sea Arbitration captured considerable public interest in Great Britain, Canada, and the United States in its time, it has largely faded into obscurity, perhaps unsurprisingly given that it revolved around the right to kill fur seals. But its impact has not been insignificant. The award confirmed the doctrine of freedom of the high seas, and it is now seen as an early foundation of modern environmental law, demonstrating the role international law can play in settling disputes over valuable resources that are beyond the jurisdiction of any one state and also in developing rules to preserve them.Footnote 128 In the words of one scholar, the US case in Paris “helped popularize the idea that certain species of ‘wildlife’ might constitute a global heritage in need of state and/or multilateral protection.”Footnote 129 In turn, this later led to numerous agreements to protect seals, whales, and fish stocks.Footnote 130

Hersh Lauterpacht wrote that the “principal significance” of the Bering Sea Arbitration was the parties’ conferring of a legislative authority on the tribunal to frame regulations, which he called “a useful expedient … when the situation demands the adjustment of the law to the exigencies of the situation.”Footnote 131 That authority was again conferred by the United States and Great Britain on the tribunal in the 1909 North Atlantic Coast Fisheries Arbitration. Footnote 132 As between the United States and Great Britain, their recognition of a common approach to resolving international disputes through arbitration built a closer relationship. In 1897, they signed the Olney-Pauncefote Treaty,Footnote 133 by which they agreed to arbitrate, with some exceptions, all differences that could not be resolved through negotiation. However, the treaty was not ratified largely due to lingering anti-British sentiments among US Senators.Footnote 134 International arbitration subsequently moved in a multilateral direction. At the peace conferences held in The Hague in 1899 and 1907, US officials played a large role in the creation of the Permanent Court of Arbitration (PCA).Footnote 135

For Canada, the arbitration was a stepping stone along its way in transitioning from a colony to an independent nation. While it did not gain treaty-making power until 1931, by virtue of the Statute of Westminster,Footnote 136 after 1893, it increasingly acted on its own accord in foreign affairs. It was a full participant at the 1898 Joint High Commission with the United States to address several outstanding issues,Footnote 137 it again had a prominent role in the Alaska Boundary Arbitration in 1903,Footnote 138 and it benefited from the inclusion in the 1908 Arbitration Convention between the United States and Great Britain of a clause effectively providing that no matters affecting Canada could be arbitrated before the PCA without its consent.Footnote 139 The following year, Canada and the United States moved to create the International Joint Commission, which would become a permanent structure to address boundary-related disputes.Footnote 140 It has also been suggested that the dispute enhanced the notion of Canadian identity in that the cause of the sealers in British Columbia had been taken up vigorously by politicians in Ottawa, and pressure had been successfully placed on Great Britain to stand up for Canadian interests.Footnote 141

As for the seals, the pelagic hunt continued but began to abate after a peak harvest in 1894.Footnote 142 By 1897, the Pribilof Islands herd had dwindled to four hundred thousand and, by 1910, to 150,000 from the 2.5 million of thirty years earlier.Footnote 143 In early 1909, the United States approached Japan, Russia, and Great Britain about a possible resolution for sealing throughout the entire Bering Sea, and, in 1911, The North Pacific Fur Seal Convention was signed.Footnote 144 Under its terms, Canada outlawed pelagic sealing in return for two hundred thousand US dollars, 15 percent of the US and Russian herds (taken on land), and 10 percent of the Japanese herd as well as a guaranteed minimum payment from the United States and Russia if they suspended the land hunt.Footnote 145 By the 1950s, as the commercial hunt declined, the population of the Pribilof fur seal herd had rebounded to 2.1 million.Footnote 146 The land-based hunt was ended by the US government in 1983.Footnote 147 Today, only subsistence hunting of no more than twenty-five hundred seals annually by the local Aleut Community on the Pribilofs is permitted.Footnote 148

References

1 Alabama Claims of the United States of America against Great Britain — Award Rendered on 14 September 1872 by the Tribunal of Arbitration Established by Article I of the Treaty of Washington of 8 May 1871 (1872), 29 RIAA 125, online: <legal.un.org/riaa/cases/vol_XXIX/125-134.pdf> [Alabama Claims Arbitration]. Tom Bingham, “The Alabama Claims Arbitration” (2005) 54 ICLQ 1 at 24 (“[t]he Alabama arbitration is … significant as one of the very few instances in history when the world’s leading nation … has agreed to submit an issue of great national importance to the decision of a body in which it could be … heavily outvoted”). VV Veeder, “The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator — From Miami to Geneva” (2013) 107 ASIL Proceedings 387 at 390 (“[t]he Alabama Claims Arbitration … [was] the first international tribunal of its kind in modern times and the basic model for international arbitration today”).

2 Alabama Claims Arbitration, supra note 1 at 133–34.

3 Jan Paulsson, “Chapter 1: The Alabama Claims Arbitration: Statecraft and Stagecraft” in Ulf Franke et al, eds, Arbitrating for Peace: How Arbitration Made a Difference (Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2016) 7.

4 Proceedings of the Tribunal of Arbitration, Convened at Paris under the Treaty between the United States of America and Great Britain Concluded at Washington February 20, 1892, 16 vols (Washington, DC: Government Printing Office, 1895) [Fur Seal Arbitration].

5 See, inter alia, William Williams, “Reminiscences of the Bering Sea Arbitration” (1943) 37 Am J Intl L 562; Charles Callan Tansill, Canadian-American Relations, 1875–1911 (New Haven, CT: Yale University Press, 1943) at 267–371; Charles S Campbell, Jr, “The Anglo-American Crisis in the Bering Sea, 1890–1891” (1961) 48 Mississippi Valley Historical Rev 393; Charles S Campbell, Jr, “The Bering Sea Settlements of 1892” (1963) 32 Pacific Historical Rev 347; Gerald O Williams, The Bering Sea Fur Seal Dispute: A Monograph on the Maritime History of Alaska (Eugene, OR: Alaska Maritime Publications, 1984); James Thomas Gay, American Fur Seal Diplomacy (New York: Peter Lang Publishing, 1987); MIH Macallister, “Seals, Empire and Mass Politics: The 1893 Fur Seal Arbitration” (2020) 42 Intl History Rev 1192; John R Crook, “The Bering Sea Fur Seal Arbitration: The Lawyers Try, But Fail, to Save the Seals” in Charles N Brower et al, By Peaceful Means: International Adjudication and Arbitration — Essays in Honour of David D Caron (Oxford: Oxford University Press, 2024) 23.

6 Helen Louise Cowie, Victims of Fashion: Animal Commodities in Victorian Britain (Cambridge: Cambridge University Press, 2022) at 57–62. Fur seals had also existed in large numbers in the southern Pacific Ocean, but, by the late nineteenth century, those populations had been driven to near extinction by over-hunting.

7 Briton Cooper Busch, The War against the Seals (Montreal and Kingston: McGill-Queen’s University Press, 1985) at 95–96. Most of the balance of the northern Pacific fur seal population in the 1880s bred on Russia’s Commander Islands in the western Bering Sea.

8 Ibid at 128.

9 LD Kitchener, Flag over the North (Seattle, WA: Superior Publishing Company, 1954) at 36–38.

10 Busch, supra note 7 at 113.

11 Kitchener, supra note 9 at 38–39.

12 Peter Murray, The Vagabond Fleet (Victoria, BC: Sono Nis Press, 1988) at 13–17.

13 Busch, supra note 7 at 132.

14 Ibid at 136–37. The opening of the Canadian Pacific Railway in 1885 also gave the Canadian fur buyers a more direct route to get their pelts to London rather than shipping them via San Francisco.

15 Ibid at 145.

16 Ibid at 96–99. After giving birth to pups on the islands, the females would hunt for fish during the nursing season in the Bering Sea and beyond into the Gulf of Alaska.

17 Ibid at 119–20.

18 Ibid at 121; Kitchener, supra note 9 at 53.

19 Fur Seal Arbitration, supra note 4, vol IV, at 85–86.

20 Ibid at 4: 91–92; Busch, supra note 7 at 145. The US Revenue Cutter Service, the predecessor of the US Coast Guard, operated as a division of the Treasury Department. Truman R Strobridge and Dennis L Noble, Alaska and the US Revenue Cutter Service, 1867–1915 (Annapolis, MD: Naval Institute Press, 1999) at 12. With respect to pressure on the Treasury Department from the Alaska Commercial Company, see Murray, supra note 12 at 57.

21 Fur Seal Arbitration, supra note 4, vol V, at 17–18.

22 Ibid at 5: 78–79.

23 The British North America Act 1867 did not assign external affairs to the Canadian federal Parliament; in this period, external affairs were “universally regarded, in both Canada and Britain, as the business of the British government.” CP Stacey, Canada and the Age of Conflict: A History of Canadian External Policies, vol 1: 1867–1921 (Toronto: University of Toronto Press, 1984) at 3.

24 In 1886, in retaliation for certain US tariffs, Canada barred Americans from fishing within its three-mile limit and from coming ashore to buy bait or transship cargos, leading to the United States giving notice of termination of an 1871 agreement and adopting similar reciprocal restrictions on Canadians. The matter was not finally resolved until the early 1900s. James Morton Callahan, American Foreign Policy in Canadian Relations (New York: MacMillan Company, 1937) at 366–76.

25 Kaitlin McKinnon, “Sir Charles Hibbert Tupper, K.C.” (2010) 68 The Advocate 94; Murray, supra note 12 at 92.

26 In a letter to Sir Charles Tupper in June 1890, Sir John A. Macdonald said the younger Tupper’s “only fault, if it is a fault, is that he would like to carry all his reforms in a day.” EM Saunders, ed, The Life and Letters of the Rt Hon Sir Charles Tupper, Bart, KCMG (New York: Frederick A Stokes Company, 1916) at 140.

27 PB Waite, Canada 1874–1896: Arduous Destiny (Toronto: McClelland & Stewart, 1971) at 220.

28 PB Waite, The Man from Halifax (Toronto: University of Toronto Press, 1985) at 245 [Waite, Man from Halifax].

29 By the mid-eighteenth century, it was an accepted principle of international law that the freedom of the seas applied to the open ocean, while claims of sovereignty could extend over the waters adjacent to a nation’s coastline. The Dutch jurist Cornelis van Bynkershoek, drawing on the earlier work of Hugo de Groot (Grotius), wrote in 1702 that claims to territorial waters were limited to one’s ability to physically control them from land-based fortifications. At that time, the maximum range of cannon was three miles. By the late nineteenth century, this had become the accepted distance for most maritime nations including the United States and Great Britain (there were some variations: Sweden and Norway, for example, claimed four miles and Portugal claimed six). David J Bederman, “The Sea” in Bardo Fassbender & Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012) 350 at 366–77; Thomas Baty, “The Three-Mile Limit” (1928) 22 Am J Intl L 503.

30 Charles C Tansill, The Foreign Policy of Thomas F Bayard, 1885–1897 (New York: Fordham University Press, 1940) at 463.

31 Busch, supra note 7 at 148.

32 Callahan, supra note 24 at 439–40. Callahan suggests that Canada objected in part because the US Senate that same year rejected a treaty concerning US fishing rights off the Canadian east and west coasts.

33 Ibid at 484.

34 Letter from Charles Hibbert Tupper to Lord Knutsford, 2 August 1889, CH Tupper Papers, University of British Columbia Archives, box 1, no 108.

35 Macallister, supra note 5 at 1196–1200.

36 Callahan, supra note 24 at 488.

37 Ibid at 489–90.

38 Ibid at 492–94.

39 Campbell, “Anglo-American,” supra note 5 at 401–02.

40 Macallister, supra note 5 at 1198.

41 Tansill, supra note 5 at 322–23.

42 James Blaine was an advocate for arbitration — he spoke passionately in favour of it at the first Pan-American Conference in October 1889, but the delegates voted down his proposal for establishing a hemispheric general arbitration treaty. Thomas A Bailey, A Diplomatic History of the American People, 10th ed (Englewood Cliffs, NJ: Prentice-Hall, 1980) at 407–08. By 1896, the United States had submitted to arbitration fifty-one times not only with Britain but also with France, Mexico, Haiti, Chile, and others. Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (New York: Oxford University Press, 2016) at 30.

43 Campbell, “Bering Sea,” supra note 5 at 348–52.

44 Fur Seal Arbitration, supra note 4, vol I (appendix), at 317. The modus vivendi was renewed for 1892 after a difficult round of further negotiations and sabre rattling in the press. Ibid at 1: 6; G. Williams, supra note 5 at 24–27.

45 Telegram from Sir Julian Pauncefote to Lord Salisbury, 29 February 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892) no 124 at 63.

46 Ibid at 185.

47 Treaty and Convention between Great Britain and the United States of America Relating to Behring’s Sea, art VI, reprinted in Fur Seal Arbitration, supra note 4, vol I (appendix), at 1 [Treaty of Washington 1892].

48 Ibid, art VII.

49 Ibid, art IX.

50 The British and US commissioners filed separate reports at the hearing, having been unable to agree on anything other than the decline in the seal population was “the result of excessive killing by man.” Bering Sea Commission, Joint Report, reprinted in Fur Seal Arbitration, supra note 4, vol I (appendix), at 307–10.

51 John W Foster, Diplomatic Memoirs, vol 2 (New York: Houghton Mifflin, 1909) at 32–34.

52 Treaty of Washington 1892, supra note 47, art V.

53 Telegram from Sir Julian Pauncefote to Lord Salisbury, 16 November 1891, Further Correspondence Respecting the Bering Sea Seal Fisheries (U.S. No. 3) (London: H.M. Stationery Office, 1892), no 166 at 116; Telegram from Lord Knutsford to Sir Julian Pauncefote, 29 December 1891, Further Correspondence Respecting the Bering Sea Seal Fisheries (U.S. No. 3) (London: H.M. Stationery Office, 1892), no 195 at 136.

54 “The English Bench and Bar of To-Day; VI. Sir James Hannen” (1892) 4:11 The Green Bag 505 (Boston).

55 Criminal Code, 1892, 55–56 Victoria, c 29; Waite, Man from Halifax, supra note 28 at 335–39.

56 Letter from Sir Charles Tupper to Charles Hibbert Tupper, 4 January 1893, reprinted in Saunders, supra note 26 at 167–68.

57 Loren P Beth, John Marshall Harlan: The Last Whig Justice (Lexington, KY: University Press of Kentucky, 1992) at 168; Waite, Man from Halifax, supra note 28 at 372.

58 Telegram from Lord Salisbury to Sir Julian Pauncefote, 20 January 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 42 at 21; note from Sir Julian Pauncefote to James Blaine, 21 January 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 68 at 35; note from Foreign Office to Colonial Office, 27 January 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 57 at 31.

59 “Courcel, Alphonse Chodron, baron de” in G Vapereau, Dictionnaire universel des contemporains, 6th ed (Paris: Librairie Hachette et Cie, 1893) at 385; Foster, supra note 51 at 34.

60 Foster, supra note 51 at 35.

61 “Visconti Venosta, Emilio, Marquis” in Hugh Chisholm, ed, Encyclopaedia Britannica, 11th ed, vol 28 (New York: Encyclopaedia Britannica, 1911) at 129; Foster, supra note 51 at 34–35.

62 Telegram from Lord Stanley to Lord Knutsford, 9 January 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 24 (inclosure 4) at 11.

63 Note from Thomas Sanderson to Colonial Office, 2 April 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 207 at 191; Telegram from Lord Knutsford to Lord Stanley, 14 April 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 241 (inclosure 1) at 291.

64 Note from Sir John Abbott to Charles Hibbert Tupper, undated 1892, CH Tupper Papers, University of British Columbia Archives, box 2-2, no 701e; letter from Lord Salisbury to Charles Hibbert Tupper, 21 June 1892, Further Correspondence Respecting the Seal Fishery in Behring Sea, January to June 1892 (London: Foreign Office, 1892), no 373 at 425.

65 Foster, supra note 51 at 37–42.

66 In 1891, G. Mercer Adam, a pre-eminent Canadian literary figure, wrote that Christopher Robinson “stands at the head of his profession in the Dominion.” G. Mercer Adam, Toronto Old and New: A Memorial Volume (Toronto: Mail Printing, 1891) at 91. His previous briefs included acting as Crown counsel in the appeal of Patrick James Whelan (the assassin of Montreal member of parliament D’Arcy McGee), and as the lead Crown prosecutor at the trial of Louis Riel. He had also appeared several times before the Judicial Committee of the Privy Council, including as the federal government’s counsel in the Ontario-Manitoba boundary dispute in 1884. Patrick Brode, “Robinson, Christopher (1828–1905)” in Dictionary of Canadian Biography, vol. 13 (Toronto and Quebec City: University of Toronto/Université Laval, 2003), online: <www.biographi.ca/en/bio/robinson_christopher_1828_1905_13E.html>.

67 “Death of Mr. Christopher Robinson, K.C.” (1905) 25:11 Canadian Law Times 643 at 649 (McCarthy and Osler would go on to establish their own firms whose successors today are, respectively, McCarthy Tétrault LLP and Osler Hoskin & Harcourt LLP).

68 Julia Jarvis, Three Centuries of Robinsons: The Story of a Family (Don Mills, ON: TH Best Publishing, 1967) at 184.

69 Foster, supra note 51 at 35–37.

70 W. Williams, supra note 5 at 565–66. Robert Lansing was Foster’s son-in-law and later served as secretary of state under President Woodrow Wilson. His nephew John Foster Dulles served as secretary of state during the Eisenhower administration.

71 Renata Eley Long, In the Shadow of the Alabama: The British Foreign Office and the American Civil War (Annapolis, MD: Naval Institute Press, 2015) at 184.

72 Foster, supra note 51 at 40–41. See also Geoffrey Marston, “Falsification of Documentary Evidence before International Tribunals: An Aspect of the Behring Sea Arbitration, 1892–3” (2000) 71 Br YB Intl L 357. The translator, Ivan Petroff, a native Russian speaker, confessed that he was guilty of making “gross inaccuracies and interpolations, amounting to falsification” but never explained why he had done so. Foster wrote: “Before he began his labors I had explained to [Petroff] the character of our contention, and it is supposed he made the interpolations in order that I might be the better pleased with his work.” Foster, supra note 51 at 41.

73 Fur Seal Arbitration, supra note 4, vol XIII, at 120.

74 Malvina Shanklin Harlan, Some Memories of a Long Life, 1854–1911 (New York: Modern Library, 2002) at 139. Beth, supra note 57 at 165 (who says that Harlan only accepted the tribunal appointment after President Harrison assured him that his wife and youngest daughter could accompany him to Paris).

75 Ibid; Joseph A Fry, John Tyler Morgan and the Search for Southern Autonomy (Knoxville, TN: University of Tennessee Press, 1992) at 88.

76 Foster, supra note 51 at 45. Until recently, the hotel was operated as the Westin Paris Vendôme.

77 Waite, Man from Halifax, supra note 28 at 369. Hotel Costes now occupies the former Hotel Dominici buildings at 7–9 Rue Castiglione.

78 Maurice Pope, ed, Public Servant: The Memoirs of Sir Joseph Pope (Toronto: Oxford University Press, 1960) at 90. This building is no longer a hotel.

79 Carl Gutherz, Bering Sea Arbitration Court, oil on canvas, 199.4 x 250.2 cm, Anchorage Museum, Anchorage, AK (1894). When the painting was displayed at the Corcoran Gallery in Washington, DC, in 1903, a writer for the Washington Times declared it “one of the few notable paintings identified with the history of the United States.” Marilyn Masler & Marina Pacini, eds, Carl Gutherz: Poetic Vision and Academic Ideals (Memphis: Memphis Brooks Museum of Art, 2009) at 30.

80 Waite, Man from Halifax, supra note 28 at 373.

81 The following day, Charles Hibbert Tupper happily reported to Sir John A. Macdonald that “a certain Mr. Frer” will act as a secretary to the tribunal, noting that he “is practically half a Canadian, having lived many years in Quebec where he married his wife.” Letter from Charles Hibbert Tupper to Sir John A. Macdonald, 24 February 1893, CH Tupper Papers, University of British Columbia Archives, box 3-1, no 1091l at 1091q.

82 Fur Seal Arbitration, supra note 4, vol XII, at 5–280.

83 Ibid at 283–426.

84 Fur Seal Arbitration, supra note 4, vol XIII, at 3–402.

85 Ibid at 409–568.

86 Ibid at 571.

87 Ibid at 572.

88 Ibid at 598.

89 Ibid at 582.

90 Ibid at 615–16. Over the course of the nineteenth century, over-hunting in the United States had caused the extinction of the passenger pigeon and had nearly wiped out the bison. Kurkpatrick Dorsey, The Dawn of Conservation Diplomacy: US-Canadian Wildlife Protection Treaties in the Progressive Era (Seattle: University of Washington Press, 1998) at 13.

91 Fur Seal Arbitration, supra note 4, vol XIV.

92 Ibid at 323.

93 Ibid, vol XV.

94 Waite, Man from Halifax, supra note 28 at 375–76.

95 Ibid at 383.

96 Pope, supra note 78 at 97.

97 Letter from Charles Hibbert Tupper to Lord Rosebury, 9 June 1893, CH Tupper Papers, University of British Columbia Archives, box 3-2, no 1108m.

98 Ibid.

99 Ibid.

100 Fur Seal Arbitration, supra note 4, vol XIV, at 77; vol XV, at 73.

101 Pope, supra note 78 at 89–95.

102 Ibid at 98.

103 Ibid at 100.

104 Note from Charles Hibbert Tupper to Richard Webster, 20 July 1893, CH Tupper Papers, University of British Columbia Archives, box 3-3, no 1118a.

105 Ibid.

106 Ibid, box 3-3, no 1118b.

107 Ibid, box 3-3, no 1118c.

108 Ibid, box 3-3, no 1126c.

109 Ibid, box 3-3, no 1126b.

110 Ibid, box 3-3, no 1126ii.

111 Fur Seal Arbitration, supra note 4, vol I, at 75.

112 John Marshall Harlan, Opinions of Mr. Justice Harlan at the Conference in Paris of the Bering Sea Tribunal of Arbitration (Washington, DC: Government Printing Office, 1893); John T Morgan, Opinions of Senator Morgan at the Conference in Paris of the Bering Sea Tribunal of Arbitration (Washington, DC: Government Printing Office, 1893).

113 Fur Seal Arbitration, supra note 4, vol I, at 79–81.

114 Pope, supra note 78 at 99–100.

115 “The Bering Sea Case: Comments on the Verdict of the Arbitrators,” The Globe (17 August 1893) at 1.

116 Ibid.

117 Ibid.

118 “His Work was Well Done: And Now He Is Sir Charles Hibbert Tupper,” Ottawa Citizen (September 1893), enclosed in CH Tupper Papers, University of British Columbia Archives, Scrapbooks, set 2, vol I, at 28.

119 “Sir John Thompson Home: Presented with an Address at the Capital: His Speech in Reply,” The Globe (28 August 1893) at 8.

120 Gay, supra note 5 at 95–96.

121 Ibid at 95.

122 Behring Sea Claims Commission, Record of Evidence Taken at Victoria, British Columbia by the Commissioners under the Convention of February 8, 1986, between Great Britain and the United States, vols 1 and 2 (Washington, DC: Government Printing Office, 1896); John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party, Together with Appendices Containing the Treaties Relating to Such Arbitrations, and Historical Legal Notes (Washington, DC: Government Printing Office, 1898) at 2123–31; Gay, supra note 5 at 96.

123 McKinnon, supra note 25.

124 Charles Hibbert Tupper, “Crocodile Tears and Fur Seals” (1896) 28 National Review 87 at 90.

125 PB Waite, “Tupper, Sir Charles Hibbert,” in Dictionary of Canadian Biography, vol 15 (Toronto and Quebec City: University of Toronto/Université Laval, 2003), online: <www.biographi.ca/en/bio/tupper_charles_hibbert_15E.html>.

126 Pope, supra note 78 at 101. Joseph Pope noted that Robinson’s refusal “gave great offence to Queen Victoria, for his acceptance had been taken for granted and the formalities were far advanced.”

127 Norman Penlington, The Alaska Boundary Dispute: A Critical Reappraisal (Toronto: McGraw-Hill Ryerson, 1972) at 83.

128 Philippe Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation (New York: Manchester University Press, 1995) at 29.

129 Rebecca M McLennan, “The Empire of Law Goes to Sea” (2020) 44 Diplomatic History 786 at 806.

130 Sands, supra note 128 at 419.

131 Hersh Lauterpacht, “International Law and Colonial Questions, 1870–1914” in Elihu Lauterpacht, ed, International Law: Being the Collected Papers of Hersch Lauterpacht, vol 2: The Law of Peace (Cambridge: Cambridge University Press, 1975) 126.

132 North Atlantic Coast Fisheries Case (Great Britain, United States) (1910), 11 RIAA 167, online: <legal.un.org/riaa/cases/vol_XI/167-226.pdf>. See also Chandler P Anderson, “The Final Outcome of the Fisheries Arbitration” (1913) 7 Am J Intl L 1.

133 Arbitration with Great Britain, 58 Congress, 3 Session, Senate Documents No 161 (1897) at 2.

134 Nelson M Blake, “The Olney-Pauncefote Treaty of 1897” (1945) 50 Am Historical Rev 228. Apart from the Venezuelan boundary dispute, the other areas of dispute between Great Britain and the United States at this period were British support for the gold standard over bimetallism, British activities in Ireland (especially in US states with significant Irish populations), and the continued existence of the 1850 Convention for Facilitating and Protecting the Construction of a Ship Canal between the Atlantic and Pacific Oceans, and for Other Purposes, Washington, 19 April 1850, which prevented the United States from unilaterally proceeding with a Central America canal. Lionel M. Summers, “The Senate and the Arbitration and Adjudication of International Disputes” (1969) 3 International Lawyer 564 at 574.

135 Richard Langhorne, “Arbitration: The First Phase, 1870–1914” in Michael L Dockrill & Brian JC McKercher, ed, Diplomacy and World Power: Studies in British Foreign Policy 1890–1951 (Cambridge: Cambridge University Press, 1966) at 43–55.

136 (UK), 1931, 22 Geo V, c 4. Section 3 of the statute declared that “the Parliament of a Dominion has full power to make laws having extra-territorial operation.”

137 Stacey, supra note 23 at 86–88.

138 Alaska Boundary Case (Great Britain, United States) (1903), 15 RIAA 481, online: <legal.un.org/riaa/cases/vol_XV/481-540.pdf>. Penlington, supra note 127.

139 Arbitration Convention between the United Kingdom and the United States of America, Together with an Exchange of Notes as to the Interpretation of Article 2, Treaty Series No 21 (London: His Majesty’s Stationery Office, 1908), art 2.

140 Dorsey, supra note 90 at 8.

141 Macallister, supra note 5 at 1205.

142 According to catch figures from the BC Archives, total Canadian pelagic sealing catches were 46,362 in 1892 when the arbitration treaty was signed and grew to 94,474 in 1894. By 1902, they had fallen to 14,800. See Busch, supra note 7 at 144–47.

143 Busch, supra note 7 at 155; Dorsey, supra note 90 at 147.

144 Convention between the United States, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals, Washington, DC, 7 July 1911, Papers Relating to the Foreign Relations of the United States 1911 (Washington, DC: Government Printing Office, 1918) at 260.

145 Dorsey, supra note 90 at 127–60. At one point during the congressional hearings on the treaty, New Jersey representative Edward Townsend brought a trained seal into the committee room to perform circus tricks. See also Alvin C Gluek Jr, “Canada’s Splendid Bargain: The North Pacific Fur Seal Convention of 1911” (1982) 63 Can Historical Rev 179.

146 Deb Vanasse, Roar of the Sea: Treachery, Obsession, and Alaska’s Most Valuable Wildlife (Berkeley, CA: West Margin Press, 2022) at 198. The current population of the herd is about five hundred thousand, the decline attributed to a variety of factors including reduction of food sources due to increased commercial fishing operations in the Bering Sea, orcas hunting more seals due to a drop in whale populations, and climate change.

147 McLennan, supra note 129 at 806.

148 Subsistence Taking of Northern Fur Seals on the Pribilof Islands, 50 CFR pt 216 (2019).