106

FOURTH DAY.-THURSDAY, SEPTEMBER 17, 1903.

All the Members of the Tribunal were present.

Sir ROBERT FINLAY. To-day we have got the atlas from the London Library which accompanied the original edition of Vancouver. will hand it up.

The PRESIDENT. Thank you very much.

Sir ROBERT FINLAY. It will be found exactly like the atlas which was produced from the Parliamentary Library yesterday, but there appears to be no title to it, and with reference to the French edition of Vancouver handed in yesterday I think it is before the Tribunal. The PRESIDENT. Yes, Mr. Attorney-General.

Sir ROBERT FINLAY. I was about to call attention to a point on the French edition of Vancouver which was handed in yesterday. On the title-page it is headed:

66

Voyage de Découvertes à l'Océan Pacifique du Nord, et Autour du Monde, dans lequel la Côte Nord-Ouest de l'Amérique a été soigneusement reconnue et exactement relevée: ordonné par le Roi d'Angleterre, principalement dans la vue de constater s'il existe, à travers le continent de l'Amérique, un passage pour les vaisseaux de l'Océan Pacifique du Nord à l'Océan Atlantique septentrional; et exécuté en 1790, 1791, 1792, 1793, 1794, et 1795, par le Captaine George Vancouver. Traduit de l'Anglais. Ouvrage enrichi de Figures, avec un grand Atlas."

And there is a curious note at the end of the advertisement overleaf, which is not quite accurate in its reference to the English edition because they say this:

"L'original Anglais ne contient aucune notice de l'Atlas. Il nous a paru utile de suppléer à cette omission."

The original English edition does contain a notice of the atlas; it refers to it as a folio volume and gives a list of the charts which are contained in that atlas. It is on p. 7. I draw attention to it the day before yesterday. I think the notice which is given in the French edition is absolutely faulty. On the page following that there is the sentence to which I have already drawn attention. There is what is called a "notice des planches qui composent l'atlas du voyage de Vancouver."

107

When the Tribunal adjourned yesterday, I had been dealing with the evidence which relates to the identity of the Portland Canal and I was about to proceed to advert to one argument which is developed at some length on behalf of the United States, to which, therefore, it is necessary I should direct the attention of the Tribunal. It is what has been spoken of as the thalweg theory. It is developed in the Argument of the United States in a passage which begins on p. 39.

The PRESIDENT. That is as to the upper end of the Portland Canal, is it not?

119

Sir ROBERT FINLAY. No, I think it is rather as to the opening into the sea, and as far as I can follow, the argument is this: That the southern channel, that to the south of Pearse Island, is a better and more navigable channel, and that, therefore, it ought to be taken in preference to the other.

The PRESIDENT. Yes.

Sir ROBERT FINLAY. I have already drawn attention to the earlier part of this passage, which begins at p. 39. At the bottom of p. 41 the American Argument proceeds to deal with what is headed as: The Thalweg as the boundary of Conterminous States," and the argument is this:

66

"If the maps and narrative of Vancouver shall both be looked to, and if, on the whole evidence, there shall be a doubt as to what the negotiators meant, then the result should be controlled by the rule of international law, which declares that, if there be more than one channel in a body of water dividing conterminous states, the deepest channel is the mid-channel or thalweg for the purposes of territorial demarcation. According to Grotius: 'A river that separates two Empires is not to be considered barely as water, but as water confined within such and such banks and running in such and such channel.' According to Vattel: 'If, of two nations inhabiting the opposite banks of the river, neither party can prove that they themselves, or those whose rights they inherit, were the first settlers in those tracts, it is to be supposed that both nations came there at the same time, since neither of them can give any reason for claiming the preference; and in this case the dominion of each will extend to the middle of the river.'

66

Sir Travers Twiss has well said that 'Grotius and Vattel' speak of the middle of the river as the line of demarcation between two jurisdictions, but modern publicists and statesmen prefer the more accurate and more equitable boundary of the mid-channel. If there be more than one channel of a river, the deepest channel is the mid-channel for the purposes of territorial demarcation; and the boundary line will be the line drawn along the surface of the stream corresponding to the line of deepest depression of its bed. Thus we find in the Treaty of Angovie (17th September, 1808), concluded between the Grand Duchy of Baden and the Helvetic Canton of Angovie, that the thalweg, or water frontier line, is defined to be the line drawn along the greatest depth of the stream,' and as far as bridges are concerned, the line across the middle of each bridge.' The islands on either side of the mid-channel are regarded as appendages to either bank; and if they have been once taken possession of by the nation to whose bank they are appendant a change in the mid-channel of the river will not operate to deprive that nation of its possession, although the water frontier line will follow the changes of the midchannel."

108

Then Bluntschli and Rivier are referred to:

"Hall says that where the boundary follows a river, and it is not proved that either of the riparian states possess a good title to the whole bed, their territories are separated by a line running down the middle, except where the stream is navigable, in which case the centre of the deepest channel, or, as it is usually called, the thalweg, is taken as boundary.' The rule is not limited however, to cases in which rivers are boundaries between conterminous states; it extends as well to the thalweg of a strait, sound, or arm of the sea.' That view is thus stated in Field's International Code, p. 16, 'Boundary by a stream or channel, 30. The limits of national territory, bounded by a river or other stream, or by a strait, sound, or arm of the sea, the other shore of which is the territory of another nation, extend outward to a point equidistant from the territory of the nation occupying the opposite shore; or, if there be a stream of navigable channel, to the thread of the stream, that is to say to the mid-channel, or, if there be several channels, to the middle of the principal one.' To the same effect is Halleck, who says, 'But where the river not only separates the conterminous states, but also their territorial jurisdictions, the thalweg or middle channel, forms the line of separation through the bays and estuaries through which the waters of the river flow into the sea.'

"As a general rule, this line runs through the middle of the deepest channel,

although it may divide the river and its estuaries into very unequal parts. But the deeper channel may be less suited, or totally unfit, for the purposes of navigation, in which case the dividing line would be in the middle of the one which is best suited and ordinarily used for that object. The division of the islands in the river and its bays would follow the same rule.

"In this case it is proven that the channel contended for by the United States is the deepest, broadest, and by far the most important, because it is, in fact, the only really navigable and safe one. Vancouver, if his narrative shall be regarded as admissible evidence, put that fact at rest by describing the narrow, rocky, and really unnavigable channel contended for by Great Britain as an object of no great value or consideration.' In describing his boat exploration to the sea, partly through this channel, he says, and though our utmost exertions had been called forth in tracing the continent through this labyrinth of rocks we had not advanced more than 13 degrees in a right line from the ships to the entrance of this inlet.' He never dared to traverse that part of it, heretofore designated as the 'foul ground,' even in open boats."

Perhaps it would save time to read the whole of this part of the argument; there is not much more of it:

"At no time, either before or after his boat excursion, did he ever venture to enter the smaller channel with his ships. His charts fix the fact that he navigated with his ships the larger channel, into the junction with Observatory Inlet, both in and out. The reason he gives in his narrative for this preference is that the route by which the vessels had advanced to Salmon Cove, being infinitely better for them to pursue towards Cape Caamano, than the intricate channel through which I had passed in the boats.' As hitherto pointed out the smaller channel is of an average depth of 64 fathoms, and of an average width of only three-quarters of a nautical mile, at two points, narrowed to a width of about an eighth of a mile, while the greater channel, of an average depth of 218 fathoms, is of an average width of 2.58 nautical miles. As stated heretofore, the volume of water contained in the larger channel is about eleven and a-half times as great as that contained in the smaller, while the narrowness of the smaller produces a choking of the waters passing through it, in its tidal action, to such an extent that about 90 per cent. of the tidal flow is through the channel contended for by the United States.

66

'Is it, therefore, a matter of wonder that the British Admiralty chart of 1868 should have entirely ignored the smaller channel as unworthy even of a name or survey, while the larger was carefully designated as 'Portland Inlet'? There is no question here of weighing evidence in order to determine which one of two channels running through an arm of the sea' is the deepest, widest, and most navigable. The proof does not leave any room for doubt. It is simply a question of substituting for the general rule of international law, designating such thalweg as the boundary, a special and conventional rule, declaring a smaller, narrower, and shallower' labyrinth of rocks' as the boundary. The only possible way in which Great Britain could work out that result would be to establish affirmatively that such was the special Contract and Agreement entered into with Russia in the Treaty of 1825, the effect of which would be the suspension of the general rule of international law declaring the deepest and most navigable channel the midchannel, and the substitution in its place of a special and conventional rule declaring the contrary."

109

6

Then follows a list of references:

"Reference in this connection is made to the rule of construction No. 6, set forth above, which provides that it is not to be presumed without very strong reason that one of the Contracting Parties intended to favour the other to his own prejudice. It is not to be presumed, therefore, that the Russian Government intended to abandon the use of the only channel leading to its possessions along the southern boundary of the lisière, which it knew to be navigable and safe, and to confine itself to the use of a channel which was not of sufficient importance to be clearly shown on some of the charts, and on others was shown to be so broken and tortuous that its dangerous and undesirable character both for navigation and as a boundary is evident at a glance."

Now, the first observation that I wish to make upon that is that the rule in question is one applicable to rivers, and to what may be properly designated as the estuaries of rivers. All the earlier citations

relate to rivers specifically. The suggestion is made at the top of p. 43, that the rule extends:

6

"As well as to the thalweg of a strait, sound, or arm of the sea.'"

The only authority given for that is a quotation from Field's "International Code," where, on p. 16, this expression occurs:

"After referring to the rule that where there is a river or stream, or a strait or a sound, or an arm of the sea, the point is a point equidistant fom the territory of the nation occupying the opposite shore."

"Or if there be a stream or navigable channel, to the thread of the stream, that is to say, to the mid-channel; or if there be several channels, to the middle of the principal one."

I submit that it is perfectly clear, when that summary contained in Field's" International Code" is read in connection with the authorities, the rule as to the thalweg or deepest part of the channel can be read as having reference to the river, or what may be regarded as forming in one way the part of the river, the estuary, but the rule of the thalweg has no reference whatever to the case of a strait or a long channel like this, which cannot be considered at the lower part of it as the estuary of the river.

Now, the second observation I wish to make upon that passage relates to the concluding paragraph, in which it is suggested that the Russian Government could not possibly intend to abandon the use of the only channel, the only good channel leading to its possessions along the southern boundary of the lisière. It is not a case of the Russian Government abandoning the right of passage, down which they would be able to proceed to any point they pleased at the southern point of the lisière which adjoins the upper part of the canal. Therefore, I contend this contention fails at these two points when it is examined.

But we desire further to bring forward very broadly the consideration that the whole of this thalweg theory can have no application to the present case where the only question is one of identity. The question here is what channel the negotiators designated when they spoke of the Portland Channel. It is not a question of their taking a river or an estuary as the boundary, in which case the thalweg theory might be invoked for the purpose of determining at what point of the channel the line of the boundary was to be drawn. The Treaty says that you are to take the line as going " le long de Portland Channel " or along the Portland Canal. The only question that that raises is, what is the Portland Canal which the framers of the Treaty had in view? The width of Portland Canal running to the north of Pearse Island has nothing to do with the question. I do not dispute that Observatory

66

Inlet near the sea is a wider and better channel for navigation 110 than the northern channel which Vancouver designated the Portland Canal. That is not a matter in controversy but I do say it is absolutely irrelevant.

There is a further observation which arises upon this point. It does not very clearly appear whether the thalweg theory is adduced as a reason for choosing the bigger channel as the Portland Canal in preference to the smaller channel, or whether it is adduced as a reason for drawing the line south of Pearse Island, assuming that the whole of the two channels together, nearer to the sea, separated by Pearse

Island, Sitklan, and Kanaghunut are to be treated as one channel. There is somewhat of a divergency of view in the Argument presented on behalf of the United States on this point, and I desire to compare the two passages, one of which occurs in the Argument of the United States at p. 35. In the Counter-Case at p. 14 this passage occurs, beginning at the middle of the page:

"One of two views must have been taken by the negotiators after examining the region about 54 degrees 40 minutes, as shown on the maps. Either that the whole estuary bounded by the mainland en either side, and comprising both Portland Inlet and Pearse Canal, was to be considered as Portland Canal, in which lay Pearse, Wales, and other islands; or that the estuary as far inland as Point Ramsden was an unnamed arm of the sea, from which diverged two branches, Portland Canal and Observatory Inlet.

"The Arrowsmith Maps, relied upon at St. Petersburgh, would have conveyed the idea that the entire estuary was named 'Portland Canal.' No method of reasoning would have applied the name 'Observatory Inlet,' which extends at right angles to that branch from a point far above Ramsden Point to any portion of the waters below that headland.

66

'On the other hand, the Vancouver Chart of this region appears to name each branch without giving a name to the main inlet below their junction. But in any event an examination of this latter chart would never suggest that the name 'Observatory Inlet,' which appears in small letters on the western side of that channel, and above Point Ramsden, was intended to be applied to the body of water below the Point. Nor would such an examination indicate that the name 'Portland Canal,' placed to the west of the channel, which is clearly delineated as passing Point Ramsden, was applicable to the passage behind Pearse and Wales Islands."

Now, in the Argument at p. 35 there occurs this statement at the top of the page:

"The statement heretofore made that Vancouver's Narrative clearly indicates the fact that he regarded Observatory Inlet only as a branch' of the main body of water or arm of the sea' to which he applied the name of Portland's Canal is confirmed by his chart outlining 'part of the coast of North America,' which appears as No. 2 in the British Atlas, and as No. 4 in the American. No minute examination is necessary to perceive that the name 'Portland Canal' is so printed along one entire side in large letters as to indicate that it is given to the arm of the sea' or fiord as a whole, while the name ‘Observatory Inlet' is printed in smaller type along that branch' in such a way as to preclude the idea that it was intended to apply to any water below Point Ramsden. The accompanying reproduction demonstrates the relative size of the type employed."

Then follow observations in detail upon the size of the type which is employed. Various views are there suggested as to what is to be regarded as the proper nomenclature of the lower part of the channel, and I am not at all certain that the thalweg theory is not intended to be applied to the view that the whole inlet at the lower part is to be regarded as Portland Canal, and that the negotiators in framing the Treaty were content to accept the whole of the channel extending from Cape Fox, I think, on one side to Point Maskelyne on the other, as designated by the term Portland Canal. It seems extremely improbable that they should have taken a channel of that kind, which is divided naturally into two, without saying which it is they meant; but even if that view could be accepted for one moment, I call the

111

attention of the Tribunal again to the fact that it is nowhere said that the line is to run in the middle or in the deepest part of the channel. The expression is that the line is to go " along the Portland Channel."

I apprehend that the words " along the Portland Channel" would rather denote by the side of it, and as everywhere fixing the bound