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THE QUESTIONS TO BE ANSWERED.
The first question to be answered by the Tribunal is
“What is intended as the point of commencement of the line ?” The description in the Treaty of 1825 is
“A partir du point le plus méridional de l'ile dite Prince of Wales, lequel point se trouve sous la parallèle du 54° 40' de latitude nord et entre le 131° et le 133€ degré de longitude ouest (méridien de Greenwich).”
The British Case on this head, proceeding, as it is believed, on admitted or indisputable facts, may be stated briefly and in general terms, supported by some references to the overwhelming evidence on which it is based.
Article IV of the Treaty provides
“Il est entendu, par rapport à la ligne de démarcation déterminée dans l’Article précédent,
“1. Que l'île dite Prince of Wales appartiendra toute entière à la Russie.”
It is true that an attempt was once made by the United States to apply this language to the island latterly named Wales Island, the southeasterly point of which Vancouver had named Point Wales after a friend.
But it is understood that this contention is no longer pressed, and it will be so treated at present.
There can, indeed, be no doubt that “Prince of Wales Island," wherever it occurs, refers to the large island to the north of Dixon's Entrance shown in Vancouver's charts and described in bis book, the main sources of information available to the negotiators. This land was rightly surmised by him to be “much broken
and divided by water," but he did not verify his supposition, 46 and, while calling what was in fact a group by the name of
“Prince of Wales Archipelago,” he showed it in the chart, unsurveyed, as one island. Nor did he fix astronomically the situation of the southern points. It was thus naturally called Prince of Wales Island during the negotiations and in the Treaty.
There are two southern points on this land, shown on the chartCape Chacon and Cape Muzon-both within the limits of longitude, and both very near the latitude mentioned in the clause. And, indeed, there is also on Bean Island a small island lying close on the west side of Cape Chacon, a point called Cape Nunez, the latitude of which is now ascertained to be between those of the two Capes Chacon and Muzon. This island may be treated as a discrepancy, and need not be separately noticed hereafter.
Obviously the negotiators, ignorant of the precise latitude, and therefore uncertain of the precise situation, desired to describe whatever point should turn out to be the most southerly. Recent investigations have shown that while Cape Chacon, the more easterly, is in latitude 54° 41' 25", Cape Muzon, the more westerly, is in latitude 54° 39' 50", being thus slightly the more southerly.
Cape Chacon is, in fact, on Prince of Wales Island, the great island of the archipelago, and later formally distinguished by that name; while Cape Muzon, though represented, as from a distance it appeared to Vancouver to be, on a peninsula of that same island, is, in truth, on a separate island close adjoining.
Thus, Cape Chacon is the most southerly point of Prince of Wales Island as now known, and is the point in this sense answering the description. And it might be from one point of view rather more favourable to Great Britain than Cape Muzon.
But Great Britain concedes that it sufficiently appears that Cape Muzon, the more southerly point, fulfils the essential conditions of the Treaty, and should be held to be the point of departure.
And the result is, after all, substantially the same for the purposes in hand, whichever Cape is chosen. For the point under discussion is, in truth, important only as the starting-point of a
line which was to leave the whole of Prince of Wales 47 Island to Russia and which was to ascend to the north along
the “passe” called Portland Channel. (See Article III: “La dite ligne remontera au nord le long de la passe dite •Portlard Channel.')
It thus appears (as will be elaborated on the subsequent questions) that if the starting-point should be held to be Cape Muzon,
the line should yet, in order that Russia may possess the whole of Prince of Wales Island, hug or be deflected round Cape Chacon, which would thus become a fresh, and the only important, point of departure.
What has been said would suffice as a statement of the British view. But it is understood to be the contention of the United States that the point in question is absolutely governed by the parallel of latitude mentioned later in the description, namely, 54° 40'.
The point so fixed being slightly north of the extremity of Cape Muzon would, of course, but for the later provision that the whole of Prince of Wales Island should belong to Russia, cut off a small part of that cape, but the use of this geographical description avoids all question.
It is not proposed here to anticipate in detail the case of the United States, and Great Britain reserves her right to deal later fully therewith as it may be presented. But it may be proper and convenient that the construction of the Treaty advanced by Great Britain should be at once fortified by a brief summary of the case for taking the geographical, rather than the astronomical, as the governing definition.
The order and the terms of the clause of themselves would produce this result; if there be any conflict between the parts, the reading of the sentence shows which part prevails.
Other considerations are these: On the language of the Treaty, the whole of Prince of Wales Island was to belong to Russia. It was intended to define a starting-point, and a line of demarcation was to be drawn therefrom which would leave that island on the Russian side of the boundary.
Accordingly, the southernmost point of Prince oi Wales Island was designated as such point. It had not yet been ascertained which was such southernmost point. Therefore, it could be, and was,
defined only, but also adequately, by the general geographical 48 description. That description was certain; for astronomical
observations, when taken, would make it so, and id certum est quod certum reddi potest. But the ascertainment not having, as yet, taken place, a doubt remained whether the point was to the westward at Cape Muzon, or to the eastward at Cape Chacon.
S. Doc. 162, 58-2, vol 3
The result of the determination by observation of one or the other of these points as the more southerly might obviously change the incidence of the line to be drawn thence to the Portland Canal as regards Prince of Wales Island.
The line, if running from the westerly point on a course sensibly to the north of east, might (as, indeed, so running from Cape Muzon it would) cut off some part of Cape Chacon. This result was obviated by the provision with regard to the line of demarcation that the whole of the island should belong to Russia.
Everything thus contirms the view, clearly indicated by the words of the clause, that the geographical description was intended to be, and, in fact, was the true description.
To this description, complete in itself, are added. some astronomical indications. These, however, are in form, as necessarily they must have been, general and incomplete. On their face, they do not even profess to fix any point at all. The definition of a point by astronomical co-ordinates demands definite parallels both of longitude and latitude, the intersection of which gives the point. Here the latitude is given as "sous la parallèle due 54° 40' de latitude nord,” which tells us whereabouts the latitude of the southernmost point was assumed to be.
It tells us in this case no more than whereabouts; for the words all taken together show that (as the fact was) the exact latitudes of the points were unknown. Had they been known, the southernmost point could and would have been fixed in the Treaty.
So much as to the latitude. But (just because the latitudes being unknown the southernmost point might be either Cape Muzon or Cape Chacon) there could be no attempt even to approximate the longitude, which depended on the unascertained fact. Accordingly, no such attempt was made, and the longitude is stated to be “entre le 131° et le 1330 degré de longitude ouest (méridien de Greenwich).”
Thus there is no attempt to fix the point astronomically, 49 for there is no fixed point of intersection. That point may
occur anywhere along about 70 miles of longitude. Where? To answer that question, it would be necessary to revert to the geographical description; and that brings us once again away from the parallel down to the southernmost point of Cape Muzon. The astronomical description is thus fatally defective, and cannot be substituted for or control the complete geographical description.
The astronomical indications thus appear to have been added merely for easier identification of the locality at which the geographical point appeared to be situate, and not, in intent any more than in form, as co-ordinates by which that point could, with the existing knowledge, be at the moment fixed.
Reference to the course of the negotiations, so far as permissible, would confirm this view.
be added that, on the mere question of starting-point, there appears, on the theory already suggested when dealing with the geographical description, no substantial difference in practical results between the geographical and the astronomical indications. It is, however, understood that the contention of the United States is raised in order to secure a starting-point on the parallel 54° 40', with a view to setting up the contention that the line should run for no less than 74 miles along that parallel. This, however, arises on
a subsequent question, and, therefore, is here left untouched.
The second question to be answered by the Tribunal is
6 What channel is the Portland Channel?” The words of the Treaty are“La dite ligne remontera au nord le long de la passe dite Portland Channel.”
The only canal known by the name of Portland at the time of the Treaty had been surveyed, charted, described, and named by Vancouver as Portland Canal, and is so called in the first edition of his book, but changed in the second edition to Portland Chan
nel. The variation seems immaterial. 50 Reference is made to Vancouver's charts in the Atlas, Nos.
1, 2, and 3, and also to the compiled map, No. 37, in which the various different contentions are shown.
Great Britain contends that “la passe dite ‘Portland Channel?” means the channel which Vancouver named Portland Canal, and which enters from the ocean between Tongass Island and Kannaghunut Island, leaving Sitklan, Wales, and Pearse Islands on the south and east, and extending northerly 82 miles to its head. Great Britain further contends that if, contrary to the British view, there is to be any departure from the nomenclature and descriptions of Vancouver as the controlling element of decision, then the line