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THE ARCTIC AND ANTARCTIC REGIONS AND THE

LAW OF NATIONS

The announcement of the discovery of the North Pole raised in several quarters, among others the British and the Canadian Parliaments, the question whether the act of discovery gave to the United States any right of possession over the North Pole.

In searching for the answer to this question, it is necessary to ascertain the rules of the Law of Nations that govern analogous

cases.

What was previously presumed, proved to be correct, that at the North Pole there is no land, but only ice resting on the deep sea, and in order to reach the Pole, it must be approached for a long distance over the ice resting on the deep sea.

What is the law applicable to the sea? Originally formulated by Queen Elizabeth, and more fully expounded by the Hollander, Hugo Grotius, the freedom of the high seas was controverted in the reign of Charles the First by the publication of the treatise Mare Clausum written some years before by England's ablest jurist of that time, John Selden.1

At various times all or almost all the nations of the world have taken a hand in the controversy of the freedom of the high seas. And each state has argued on the side that at the time seemed best for its own individual interests. But in the long run the family of nations has pronounced without equivocation in favor of the freedom Naturally if the North Polar Sea were open there would be no question of its being as free as any part of the broad Atlantic and Pacific Oceans.

of the seas.

The North Polar Sea, however, is covered with ice. Ice, unlike the water of the high seas, is a solid substance upon which mankind

1 Walker:

A History of the Law of Nations, Vol. I, p. 161; Oppenheim:

International Law, Vol. I, p. 303.

can build habitations and live for an indefinite period of time. Thus during the Russo-Japanese War, the Russians built during the winter seasons a railroad on the ice over Lake Baikal and established a station mid-way across the frozen lake. And over that piece of railroad they forwarded many thousands of men and great quantities of stores and implements of war. In that sense it might be urged that men might permanently occupy the ice cover of the Polar Sea. But the ice at the North Pole is never at rest. It is in continual motion. It moves slowly in a direction from Bering's Strait towards the Atlantic Ocean. Consequently any habitation fixed upon it would be continually moving. And such possible occupation would be too precarious and shifting to and fro to give any one a good title. And so the rules of the Law of Nations that recognize the freedom of the high seas, would seem to apply naturally to a moving and shifting substance like the North Polar Sea ice at all points beyond the customary three-mile limit from the shore.

In the Antarctic, however, conditions are different from the Arctic. For in the former area, the South Pole and the region around is covered not by a deep sea as at the North Pole, but by land. This land, whose continental proportions were first made known to the world by the discoveries of Commodore Charles Wilkes of the American Navy, is being explored bit by bit by men of many nations. In this work of discovery many Americans besides Wilkes, such as Palmer and Pendleton, have had an active share. Naturally whatever claim of priority of discovery is due to the work of these Americans redounds to the advantage of our country.

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But discovery alone is not sufficient to give a good title to a new, unoccupied land. The custom among nations for centuries, that gradually crystallized into a part of the Law of Nations, is that in order to perfect the right given by discovery, it must be followed by occupation.

Queen Elizabeth, in a famous reply to Mendoza, the ambassador of Philip the Second of Spain, took the view that discovery must be

2 Edwin Swift Balch: Antarctica.

followed by effectual occupation to give a good title of possession. The Queen said,3

she did not understand why either her subjects or those of any other European Power should be debarred from traffick in the Indies: that she did not acknowledge the Spaniards to have any title by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were in actual possession of; for their having touched only here and there upon a Coast, and given names to a few rivers and capes, were such insignificant things as could in no ways entitle them to property (proprietas) further than in the parts where they actually settled and continued to inhabit.

In this view of the rules of the Law of Nations, Spain later eventually concurred. During the controversy over Nootka Sound, in a declaration on the 4th of June, 1790, signed by Count de Florida Blancas, that he sent to the courts of Europe, the King of Spain said that he limited his claims to

the continent, islands and seas which belong to His Majesty, so far as discoveries have been made and secured to him by treaties and immemorial possession, and uniformly acquiesced in, notwithstanding some infringements by individuals who have been punished upon knowledge of their offences.*

Mr. Westlake, who held the Whewell Chair of International Law at Cambridge University from 1888 to 1908, sums up the idea of title by discovery that was held when the new world was being disHe says, 5

covered.

it was not imagined that any title could be gained by a discovery made by subjects without authority from their governments. The title, though for shortness it might be spoken of as one by discovery, was always understood to be one by discovery and occupation, and occupation, with the consequent acquisition of dominion, could in the nature of things be only the act of a state.

In the Antarctic Continent none of the nations who can bring forward the claim of discovery to various parts of that continent, have as yet perfected, or even attempted seriously, owing to the

Camdeni Annales, Anno 1580: tr. in Twiss's Law of Nations, p. 208.
Cited by Westlake: International Law, Pt. I, p. 103.

5 Ib., p. 99.

immense impeding power of nature, to perfect their respective titles of discovery by effective occupation. The English have attempted recently a sweeping annexation of much of West Antarctica (which they call Graham Land) and the adjoining groups of islands. By letters patent published in July, 1908,

the groups of islands known as South Georgia, the South Orkneys, the South Shetlands, and the South Sandwich Islands, and the territory known as Graham Land [that is the continental land mass directly south of Chili and Argentina], situated in the South Atlantic Ocean to the south of the fiftieth parallel of south latitude and the eightieth [sic] degree of west longitude,

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are declared to be dependencies of the Falkland Islands and to be within the jurisdiction of the Governor of those islands. Commenting on this attempted act of annexation of many islands and a vast tract of land that have always been regarded as not belonging to any one, a writer in the Scottish Geographical Magazine says:

Of these islands South Georgia has for long been a dependency of the Falklands, having been annexed by Britain in 1775. But the South Shetlands were at one time, at least nominally, claimed by the Argentine Republic, and the same country, it must be remembered, makes use of the South Orkneys for the meteorological observatory which they took over from the Scotia and still maintain. The South Sandwich Group is still unexplored, though it is, or until recently undoubtedly was, visited by sealing schooners. This annexation of part of the Antarctic regions is the first attempt to lay serious claim to what was previously no-man's land. It no doubt arises from the fact that these waters are now visited by a number of whalers who are making shore stations, such as at Deception Island, and South Georgia. A whaling station is also to be established on New Island, a small island of the Falkland Group. A whaler has now to pay an annual license at the Falkland Islands to be allowed to fish in these waters and to make use of the harbors of the islands.

The English in their attempted wholesale annexation have included Deception Island close to the continental mass of West Antarctica. But Norwegian and Chilian whalers are actively using the same island and harbor as their base for the whale fishery. On December 24, 1908, Dr. Charcot, commander of two French antarctic expedi

The Scottish Geographical Magazine, August, 1909, pp. 435–436. 7 August, 1909.

tions, reports that about two hundred Norwegian citizens and some Chilians were using Deception Island as their base in their quest for whales. The active use by citizens of two nations, one a neighboring South American state, of this island that has been from time immemorial a part of no-man's land saves for the world at large the rights of all of the family of nations to participate in the bounties of nature around Deception Island. But even supposing that Great Britain had established a good possession, through occupation, to Deception Island, the possession of that island would not give her possession of the continental mass of land directly south of South America. In that land mass, known in part as Palmer Land, Graham Land, Danco Land, etc., and often designated as a whole as West Antarctica, no power has as yet established an effective occupation. Deception Island is first spoken of by the American sealer, Fanning, as being used by American sealers as a harbor of refuge, under the name of "Yankee Harbor."9 Even if Norway and Chili through the actual use of that island by their whalers did not preserve it for the family of nations as a common possession of all mankind, and so block the claims of any one Power to the possession of all of West Antarctica, yet for Great Britain to now assert that she has obtained by her proclamation of July, 1908, possession of West Antarctica,10 the continental land mass lying south of South America, would cause her to run counter to her own interpretation of the Law of Nations in respect to what effects possession, from her great Queen Elizabeth to one of her greatest living international jurisconsults, Westlake. So, too, the best opinion of the international juris-consults of other lands are against her.

Vattel says:11

All mankind have an equal right to things that have not yet fallen into the possession of anyone; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country

Ib., June, 1909, pp. 326-327.

Fanning: Voyages Round the World, etc., pp. 434-440; Edwin Swift Balch: Antarctica, p. 86 et seq.

10 The Scottish Geographical Magazine, August, 1909, p. 436.

11 Vattel: The Law of Nations, tr. by Chitty, p. 98.

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