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Article III is reserved mutually by both Powers. This contemplates the possibility, at least, that some of these waters may be British.
This Article has, however, been used to furnish an argument against the British contention. It has been said that it shows that Great Britain was taken for a limited period a licence to frequent waters of this description on this coast that were ex hypothesi Russian. That is undoubtedly true. But the point is whether they were necessarily all of them, and in every part, Russian. This in no way follows from the licence given by the Article, which, of course, only postulates that there should be some Russian waters to which it may apply. It equally postulates that there should be some British waters to which it may apply.
The sixth question is as follows:-
“ If the foregoing question should be answered in the negative, and in the event of the summit of such mountains proving to be in places more than 10 marine leagues from the coast, should the width of the lisière which was to belong to Russia be measured (1) from the mainland coast of the Ocean, strictly 80 called, along a line perpendicular thereto, or (2) was it the intention and meaning of
the said Convention that where the mainland coast is indented 77 by deep inlets forming part of the territorial waters of Rus
sia, the width of the lisière was to be measured (a) from the line of the general direction of the mainland coast, or (b) from the line separating the waters of the Ocean from the territorial waters of Russia, or (c) from the heads of the aforesaid inlets?”
This question is expressed to arise “if the foregoing question should be answered in the negative, and in the event of the summit of the mountains proving to be in places more than 10 marine leagues from the coast."
This is understood to refer to the event of a double condition being fulfilled, viz., if
1. The coast-fringe is held not to be necessarily continuous on the mainland; and also
2. The summit of mountains prove to be in places more than 10 marine leagues from the coast of such (possibly discontinuous) fringe.
The answer which Great Britain contends should be given to the points raised in this question appears from what has been said in dealing with the fifth question. The width of the lisière should be measured along a line perpendicular to the general direction locally of the mainland coast of the ocean, that is to say, from the line of the “côte” as interpreted in the answer submitted to the last question, which line was described as the datum line.
Whether any inlet forms part of the territorial waters of Russia depends on the question how far back the inlet extends from the line of the coast of the Ocean, as above explained. If it extends further than the line of the mountains parallel to such coast, or, in the absence of mountains, further than 10 leagues from such coast, the upper part of the inlet is part of the territorial water of Great Britain. It is only in the event of its not extending beyond those limits that the whole of the inlet forms part of the territorial waters of Russia.
Where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia, the line would still be measured from the line of the general direction of the mainland coast, which would cross the inlet at its mouth in a path so far coincident with the limit of the territorial water (that is to say,
from headland to headland) as might be consistent with the 78 preservation of its character as a general, and not a detailed,
line. The line would not be measured from the heads of the inlets of the kind referred to. According to the British contention, the continuity of the fringe is liable to be broken, on the mainland, not only by the mountain boundary (where found) crossing inlets, but also (where mountains do not occur) by the 10-league boundary doing so.
The British view is that the shore-line of inlets of the kind in question, whether at their head or along their sides, does not affect the datum line furnished by the coast, and therefore does not affect any line ascertained from that datum.
It is submitted that the line of the coast of the Ocean caunot be construed as following the shores of long, narrow, and deep inlets which occur upon it. So far from forming part of the coast of the Ocean, such inlets break its continuity. They form in the strictest sense territorial waters of the Power to which the land on each side of such inlets belongs. They are in no way wanted for the navigation of the vessels of other Powers, unless such right of
navigation has been granted by Treaty or is required for the purpose of lawful access to the shores of such inlets.
The British position on this point may be illustrated by reference to the concrete cases of the Bradfield Canal, the Endicott and Tracy Arms, the Snettisham Inlet, the Taku Inlet, and the Lynn Canal, with its branches Chilkat Inlet, Chilkoot Inlet, and Taiya Inlet.
On the general question of territorial waters, reference may be made by way of illustration to the Convention concerning the fisheries in the North Sea, to which effect was given by “The Sea Fisheries' Act, 1883” (46 and 47 Vict., cap. 22), the Convention as set out in the first schedule to the Statute, and the second Article is as follows:
“As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles.”
It will be observed that, as regards bays, the territorial 79 limit of three miles is to be measured from a line drawn
across the bay at the first point where the width does not exceed ten miles.
It is submitted that the principle invoked in this Convention for the purpose of determining the point from which the three miles of territorial waters should be measured is one to which regard may properly be had in determining what is to be treated as the line of the coast for the purposes of the present Treaty.
Bradfield Canal, Endicott and Tracy Arms, the Snettisham Inlet, and Taku Inlet are all land-locked waters, which, for the present purpose, it is submitted are indistinguishable from the rivers of which they are the estuaries.
With regard to Lynn Canal, if the rule adopted in the North Sea Convention is followed, the general line of the coast must be treated as crossing the Lynn Canal in latitude 58° 22' and longitude 134° 53', being the first point from its entrance, where the width does not exceed ten miles. Even if a stricter rule were to be applied in the present case, it would be found that at latitude 58° 46' and longitude 135° 07' the width of the Lynn Canal does not exceed 6 miles, and it is submitted that, by no possibility, can the general line of the coast be placed higher up the Lynn Canal than at this point. A glance at the physical conformation of Chilkat Inlet, Chilkoot Inlet, and Taiya Inlet is enough to show that the shores of these inland waters cannot be treated as the line of the Ocean coast, and yet the contention of the United States appears to be that the heads of these inlets are to be treated as the starting-point from which the lisière at this point is to be measured.
It is submitted that all such inlets form, for the present purpose, no part of the Ocean, that, for the purposes of the Treaty, they stand on the same footing as the rivers which flow into the Ocean either directly or through such estuary, and it is only the British contention which gives effect to the scope and to the specific provisions of the Treaty.
The seventh question is as follows:-
parallel to the coast, which mountains, when within 10 marine leagues from the coast, are declared to form the Eastern boundary?”
Great Britain contends that there are such mountains, and that they are to be found fronting the general coast of the mainland along the whole coast from latitude 56 degrees northwards.
It is to be observed in the first place that the mountains contemplated by the Treaty were described as follows:
“La crête des montagnes situées parallèlement à la côte (Article III).
“La crête des montagnes qui s'étendent dans une direction parallèle à la côte depuis le 56° degré (Article IV).”
This indicates a general parallelism only. Mountains being a natural feature could not, of course, be expected to run uniformly parallel to the coast, whether straight or winding. In this they differ from the arbitrary 10-league line which, especially as it would only fall to be drawn through a country where mountains failed, might be drawn with substantial accuracy parallel to the general line of the coast. Moreover, the Treaty contemplated that the mountains in question might vary in distance from the coast, from its very edge to the extreme limit of the 10 marine leagues, without sacrificing their general parallel character.
It is further to be observed that the mountains were not to be unbroken. This is clear from the circumstance that the line was to be crossed by rivers. According to the British contention, if
there is a gap in the mountains not amounting to a discontinuance of the general line traced by them, this is not to be regarded as interrupting the mountains for the purpose of the line any more than the mouth of a narrow inlet, or the base of a narrow peninsula would be regarded as interrupting the general line of the coast.
Where a gap of this character is found in the mountains on 81 the occurrence of a river, a narrow inlet or a narrow valley,
the line should be continued across that gap and should not be suddenly set back up the gorge of the river or the course of the inlet or valley to the 10-marine-league point. The 10-marineleague line applies to supersede the mountain only where the mountains cease altogether or recede beyond the 10 marine leagues. In the latter case the artificial line begins where the mountains cross the 10-league limit and ceases where they recross it.
According to the British contention, the phrase "la crête des montagnes” signifies the tops of the mountains adjacent to the sea. It was introduced as a concession from the line along the base of this slope proposed by Mr. Canning. The governing idea was that this slope was to be Russian. Whether, when the top of the slope had been attained, it should be found to be backed by a mass of peaks or to end in a ridge descending on the other side to a plain did not concern the Russians, who bargained only for the slope.
The mountains were to be the mountains next the sea. It will be convenient to collect from the correspondence recording the negotiations the passages in which they are described.
A boundary by mountains is first proposed in the Russian counterdraft delivered to Sir Charles Bagot in February 1824. They are described as “montagnes qui bordent la côte.”
The same phrase is used in Sir Charles Bagot's amended proposal which is the next document.
In the Russian observations on this amended proposal the words are “la chaîne de montagnes qui suit à une très petite distance les sinuosités de la côte."
In Count Nesselrode’s despatch of the 17th April, 1824, it is “des montagnes qui suivent les sinuosités de la côte.”
When the suggestion is laid before the Hudson's Bay Company they ask for some more definite demarcation on the coast than the supposed chain of mountains contiguous to it”; they speak of the scanty information available as to “the country in the immediate
8. Doc. 162, 58–2, vol 3—6