Arctic Exploration and International Law

Author(s): James Brown Scott

Source: The American Journal of International Law, Vol. 3, No. 4 (Oct., 1909), pp. 928-941
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2186419
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 ARCTIC EXPLORATION AND INTERNATIONAL LAW
The announcement on September 1, 1909, by Dr. Frederick A.
Cook, that he had discovered the north pole on April 21, 1908, and
the almost contemporary declaration on September 6th, of Robert
A. Peary, of the United States Navy, in command of the Roosevelt,
that he had discovered the north pole on April 6, 1909, are, if sub-
stantiated, not only international events and scientific achievements
of the greatest interest and value, but. the culmination of centuries
of effort, directed not merely to reach the pole, but to shorten con-
mercial routes by the discovery of a northwestern and northeastern
passage, to advanee our knowledge of arctic geography and to make
known in a disinterested and scientific spirit, the flora, fauna, and
the physical configuration of the arctic regions.
Less interesting, perhaps, but not without value, is the discussion
of the title to the vast regions discovered and explored, and the prin-
ciples of law supposed to be involved in the claims which either may
be or have been made to the ownership of the regions thus dis-
covered. In view of the inherent interest of the subject, the heroism
of the achievement, and the principles of international law involved
in the acquisition of territory, it seems not inappropriate to consider
in summary form certain pllases of arctic exploration.
Arctic explorations may conveniently be divided into three classes:
first, the voyages for the discovery of a northern passage to the west
or to the east; second, purely scientific expeditions for the advance-
ment of geographical knowledge; third, polar expeditions properly
so-called, for the actual discovery and location of the pole.
For the purpose of this article the early expeditions which opened
up Iceland and Greenland may be disregarded, just as the prede-
cessors of Columbus are ordinarily passed over in considering the
discovery of America, because, however important one or the other
may have been, the expedition of Columbus to discover a passage
to India opened up a new and unsuspected world and suipplied at
once the impetus and incentive to the adventurous of all countries to
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 929

set sail for the unknown lands, the knowledge of whose existence
was due to the persistent energy, personal sacrifice, and unconquer-
able faith of the great discoverer. Whatever scientific purpose Co-
lumbus may have had in mind, his enterprise, was primarily com-
mercial. To the enlightened Isabella and the astute Ferdinand he
displayed visions of territorial expansion and commercial gain.
For the painful and expensive routes by land to Cathay and the
fabulous East, simple and direct communication by water was to be
substituted, and the boundless and inexhaustible treasures of the land
of dre.ams were to be poured into the lap of Spain.
The jarring claims of rival advent.urers and discoverers led in-
evitably to conflict and controversy. The universally recognized
authority of the Pope, for Protestantism had not yet threatened his
supremacy, made him a natural arbitrator, and Spain and Portugal
laid before him for amicable settlement their claims to the unknown
world based upon discovery and by a Bull as famous as it is
universally discredited at the present day, Alexander VI drew an
imaginary line from pole to pole, awarding the lands on one side to
Spain, on the other to Portugal. The successful rounding of the
Cape of Good Hope by Vasco da Gama in 1497 closed the waterway
to other than Portuguese adventurers. The claims of Spain to the
vast tracts of America to the south, based upon discovery, and fol-
lowed by a more or less effective occupation, closed the south to
European navigation. The adventurous turned to the north, and in
1497 Cabot proposed a northwest passage to the Indies, so that Eng-
land at least might participate in the spoils of the- East. As General
Greely puts it in his admirable and authoritative handbook,
The discovery of the continent of America and the search for a north-
west passage are inseparably connected, the first event having directlv
resulted from the latter pursuit. The idea of such a passage originated
with John and Sebastian Cabot, father and son.1

But Cabot was not content with proposing, he sought to execute his
project and in the year 1498 he coasted, to quote General Greely,

1A Handbook of Polar Discoveries, by A. W. Greely, U. S. A., 3rd edition,

1906, p. 12.
930 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

Along the American continent northward to about 670 30' N., doubt-
less discovering the mouth of Hudson Strait-where appalling dangers
and abundant ice obliged him to retrace his way southward, until he
reached the vicinity of the 38th parallel - still searching for a. passage
as far as "that part of the firme lande, now called Florida." Thus
from the venture on the passage resulted a knowledge of some 1800 miles
of American seacoast. While the explorations thus made disclosed the
existence of a great continenet as an inseparable barrier to voyageuLrsfor
China, it incidentally gave such an accurate knowledge of America as
led to unexpected advantages in later voyages, enabling explorers to have
more specific aims and definite destinations.2
Of the innumerable successors of Cabot it is only possible, within
the compass of a few pages to indicate the expeditions of pioneer
explorers who by a concensus of opinion have opened the way to
the northwest passage. In the early period, therefore, only three
expeditions will be considered, but, however modest their equipment,
they not only pointed the way to the passage but for two centuries
registered the greatest advance made in America toward the pole.
The first of the trio was John Davis, who in his three voyages to the
.northwest sighted and described Greenland, -" the loathsome view "
of whose shore " and irksome noyse of the yce was such as to breed
strange conceites among us,"'- crossed, the strait which bears his
name, and which is not m.erely the entry to the northwest passage
but to the polar expeditions properly so-called, pushed up to 720 12'
N., and " covered the, west coast of Greenland from Cape Farewell
to Sanderson's Hope, and on the American side from Cape Dyer,
Cumberland Island, to Southern Labrador." 3
Henry Hudson, known for his discoveries in Spitzbergen and Nova
Zembla (1607-9), and of the noble river within our country which
perpet.uates his name, entered the straits and found his death in the
bay which also bears his name, while seelking the northwest passage
(1610). The four years of Hudson's life for which we have record
run from 1607-1611, but in Spitzbergen he opened up the whale
fisherv, gave England title to HuLdson Bay and its territory rich
in furs, and the Dutch their claim to New Netherlands by the dis-
covery of Hudson River.
2 lb., pp. 12-13.
3 lb., pp. 15-16.
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 931

In 1616 William Baffin in the Discovery, a craft of fifty-five tons.,

sailed through Davis strait and the bay since known as Baffins Bay,
and reached latitude 770 45' north, a record unequalled in that. sea,
as General Greely says, for two hundred and thirty-six years. He
penetrated over three hundred miles farther north than Davis and
added
To geographical knowledge Ellesmere and Prudhoe Lands, and Baffin
Bay, with its radiating sounds of Smith, Jones, and Lancaster. With
this voyage ended all efforts to discover a route to Cathay and the Indies
by Davis Strait; " for two centuries the waters first navigated by Baffin
remained unvexed by any keel, and the credit of his discoveries passed
from the mind of man." 4
The various expeditions to America and the search for a nortlh-
west passage were made by professional navigators to find a channel
for commerce. The rebirth of arctic exploration and the western
passage was due to a professional merchant-man, William Scoresby,
who in the pursuit of whale-fishing made scientific discoveries and
observa.tions of the greatest value on the coast of Greenland, and
influenced by scientific as well as commercial motives proposed in
1817 to Sir Joseph Banks, president, of the Royal Society of London
" researches toward deciding whether or not a -navigation into- the
Pacific by a northeast or northwest plassage existed." 5 Fortunately
for the cause of science Mr. (later Sir) John Barrow was then secre-
tary of the admiralty and acting upon his advice the British govern-
ment fitted out a series of expeditions both for the discovery of the
northwest passage and the location of the pole. The land expeditions
under Franklin, Richardson and Back, resulted in mapping a large
portion of the northern continent of America; the expedition under
Ross (1818) was a disappointment, but Parry entering Lancaster
Sound, pushed as far west as longitude 113' 48', made known the
series of islands far to the west which bear his name, and as the
result of his experience, to quote again General Greely,
formulated the well-known canons regarding ice-navigation, which time
and experience have only tended to confirm. He says: "The eastern
coast of any portion of land, or, what is the same thing, the . western
41b., p. 21.
5 lb., pp. 85-86.
932 THE AMERICAN JOURNAL OF INTERNATIONAI, LAW

sides of seas or inlets having a tendency at all approaching north and

south, are, at a given season of the year, generally more encumbered
with ice than the shores with an opposite aspect." Ships, he adds,
should be kept disengaged from ice so that they may be at liberty to
take advantage of the occasional openings in-shore, by which alone the
navigation of these seas is to be performed with any degree of certainty.6
A private expedition (1829-34) under the command of Captain
John Ross and his nephew James C. Ross, located the magnetic pole.7
Just as the agitation of the Royal Society of London, seconded as
it was by Sir John Barrow, led to the remarkable explorations of the
early part of the century, so the insistence of the Royal Geographical
Society persuaded the British government to undertake anew the
search for the northwest passage. Sir John Franklin had won en-
viable distinction and showed the highest qualities as a scientific
explorer in his land expeditions across the northern shores of the
American continent and, notwithstanding the objection to him on
the score of age-the First Lord of the Admiralty pointed out to
him that he was sixty years of age, to which Franklin eagerly an-
swered " No, no, my Lord, only fifty-nine," - he was entrusted in
1846 with the command of the expedition, consisting of the Erebus
and Terror, in order to make the northwest passage. The fate of
the unfortunate expedition is known, even t.o the uninitiated, but,
although Franklin did not cross from sea to sea, it is nevertheless a
fact that his expedition, sailing through Lancaster Sound to the west,
proceeded through Peel Straight to the south and entered the waters
of the connecting channel between the east and the west. Sir John
Franklin died (June 11, 1847) before the wrecking of the expedi-
tion upon which his hopes were set and every man of the expedition
lies in an unknown arctic grave; but "they fell down and died as
they walked," and, as Sir John Richardson so beautifully says,
" forged the last link of the northwest passage with their lives." 8
6 Ib., p. 94.
7 "The most important work done by James Clark Ross, giving
imperishable
renown to his name, was the determination of the position of the north magnetic
pole, which his observations placed at Cape Adelaide, on the west coast of
Boothia Felix, in latitude 70? 05' N., longitude 96? 44' W. Parry at Port Bowen
located it in 700 43' N., 980 54' W. Amundsen relocated it near King William
Land in 1904." 1b., p. 97.
8 1b., p. 133.
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 933

However unsuccessful the venture may have been, the consequences

have made it justly the most famous in the annals of arctic explora-
tions, because the numerous relief expeditions, some forty in number,
fitted out between 1847 and 1857 by the Government of Great Britain
and by private enterprise in England and the United States, have
traced the northern boundary of the Western Hemisphere from sea
to sea, have examined the islands, bays, inlets and straits to the
north of the continent within the region of the passage and enabled
McClure, partly by water and partly by land, to cross the narrow
space of fifty-seven miles which separated the known east from the
known west, thus accomplishing the purpose for which the original
expedition embarked.
Amundsen's expedition of 1905 demonstrated the possibilitv of
crossing the passage by boat as McClure had previously proved its
existence, but it is to be feared that geography rather than commerce
will reap the benefit of centuries of heroic effort and enterprise.
Commercialism, which lay at the bottom of the search for a north-
west passage to the Indies inspired the expeditions to reach Cathay
and the Indies by a northeast.ern route. Omitting the efforts of the
early INorse and Russian searien, to whom the eastern part of the
passage must have been known, the first extended venture through
unknown seas was the expedition of Sir Hugh Willoughby and
Richard Chancellor, in three small ships, which left England in
1553. Wholly unsuccessful, Willoughby and his companions per-
ished from scurvy, but Chancellor, animated by the desire to " either
bring that to passe which was intended, or else to die the death,"
entered the White Sea, was hospitably received by a monastry on the
Dwina and made his way to Moscow, where he passed the winter.
The expedition, devoid of geographical or scientific results, laid the
foundation of a large and very lucrative British trade under the
Dontrol of the Muscovy company, organized in 1555. As said by
Nordenskiold - the most scientific explorer and perhaps the best
equipped mentally of arctic investigators - to whom the world owes
the actual transit through the northeast passage:
Incalculable was the influence which the voyages of Willoughbv and
Chancellor had upon English commerce and on the development of the
934 THE AMERICAN JOURNAL OF INTEIRNATIONAL LAW

whole of Russia, and of the north of Norway. From the monastery at

the mouth of the Dwina a flourishing commercial town (Archangel) has
arisen, and a numerous population has settled on the coast of the Polar
Sea. * * * Regular steam communication has commenced along
the Arctic Ocean far beyond the sea opened by Chancellor to the world's
commerce.9

The successful resistance of the Net,herlands to Spanish aggres-

sion enabled the Unit,ed Provinces to husband their resources at home
and to obtain commercial markets upon the high seas. The pre-
ponderance of Spain and Portugal in the south limited the Dut.ch
to the north and therefore impelled by like motives with the English,
they sought the route to Cathay by the north of Europe and Asia.
Unsuccessful in their purpose, t,he expeditions under William
Barents, (1594) Ryp, and Heemskerek (1596), with Barents as chief
pilot, opened up Spitzbergen and Nova Zembla, and afforded the
world a noble example of heroism and self-sa.crifice in the devoted
death of William Barents.
Of Barents' voyages General Greely says, quoting Beke,
Barents made so many discoveries and traced so large an extent of
coast, both of Spitzbergen and Nova Zembla, that the surveys of all of
the whole of our recent explorers (1853), put together, are insufficient
to identify all the points visited by him.10

As in the case of the northwest passage, the succeessful expedition

of Baffin was followed by two centuries of inactivity, so Barents re-
mained for well-nigh two centuries without a competent successor.
Numerous valuable expeditions were made t.o Nova Zembla., and
Spitzbergen, and the geographbyof northern and western Europe was
laid down by navigators and scientists, but it was only in 1875 that
the question of the northeast passage was revived and executed by
Nordenskiiild, who in the Vega reached Bebring Sea by the north-
eastern passage in it.s memorable vovage (1878-1879) and thus dem-
onstrated the pos,sibility not only of the passage but, the usefulness
of the route during certain port-ions of the year as a channel of
commerce.
9 lb., p. 36.
i0 lb., p. 28.
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 935

The importance of scientific research in the Arctic regions has been

more or less appreciated since the early days of the 19th century. Only
within the last 30 years, however, have the natural sciences been fully
represented on polar voyages, and valuable as were the former individual
contributions, yet they were restricted and inconclusive. A revolution
was wrought in this direction through the efforts of Lieutenant Charles
Weyprecht, Austrian navy, which eventuated in the establishment of the
International Circumpolar stations.11
On September 18, 1875, Lieutenant Weyprecht, one of the dis-
coverers of Franz-Josef Land, to quote the language of Sir Clement
R. -Markman,
read a thoughtful and carefully prepared paper before a large meeting
of German naturalists at Gratz on the scientific results to be obtained
from polar research and the best means of securing them. He urged
the importance of establishing a number of stations within or near the
Arctic Circle, in order to record complete series of synchronous
meteorological and magnetic observations.12
The. remarks of Lieutenant Weyprecht have, fortunately, obtained
a wider hearing than the little group to which they were addressed
and have resulted in the establishment of various eircumpolar sta-
tions which have sent forth no less than fifteen expeditions, the most
interesting of which, to the American reader, is Lieutenant Greely's
expedition of 1882-1885. There is no doubt that the truly perma-
nent value of arctic explo:rations does not lie in the success or failure
of the explorer, and while we may and do admire the heroism dis-
played, whether the important object of the explorer has been accom-
plished or not, the permanent value of the expedition is determined
by the positive addition it makes to scientific knowledge, for, as
Lieutenant Weyprecht clearly stated,
(1) Arctic research is of the highest importance for a knowledge of
nature's laws; (2) geographic research is valu-ablein proportion as it
opens the field to scientific research generallv; (3) the north pole has,
for science, no greater significance than any other point in the higher
latitudes.13

It is safe to say that the future lies with scientific explorations, and.
the fitting out and adequate equipment of expeditions for a purely
IAIb., p. 221.
12 Clement R. Markman, Ency. Brit., 9th. Ed., vol. 19, p. 326.
13 lb., p. 327.
 936 THlE AiMERICAN JOURNAL OF INTERNATIONAL LAW

scientific purpose rather than for the gratification of the personal

ambitions of individual explorers, and that in the course of time the
plan outlined by Lieutenant Weyprecht will, if carried out, remove
the mystery which heretofore has surrounded the extreme northern
and southern portions of the world.
As briefly stated in this article, arctic explorations have been made
the advance guard of commerce, and the earliest expeditions whether
to the east or to the west were for a purely commercial purpose,
namely, to discover a short route for commercial purposes to China,
Japan, or the Indies. It was not until the revival in arctic explora-
tion, due to the efforts of the British whaler, Scoresby, that the
attempt to reach the pole was seriously contemplated. In 1827
Parry, seasoned by four arctic expeditions, attempted to reach the
pole by the Spitzbergen route, and reached the latitude of 820 45'
N., the record for the next forty-eight years. The voyages of the
Americans Kane (1853) and Hayes (1859) were not, according t.o
General Greely, "open a.ttempts to reach the north pole, though
incidentally the leaders looked in that direction."
The polar expedition of Nordenskiold in the Sofia reached 810 42'
N., 1?7 30' E. Although unsuccessful in reaching the pole, Nor-
denski6ld, seientifically equipped, and a scientist by profession,
made such valuable collections that it is said he achieved more and
broadened the horizon of knowledge more than if he had merelv
reached the pole. An expedition sent out by the United States gov-
ernment in 1870 commanded by Charles Fraincis Hall reached 82?
11' N., then the highest north, but was surpassed in 1876 by the
British official expedition under Captains Nares and Markham in
the western hemisphere and by Nansen in the eastern hemisphere.
In 1901 the Duke of the Abruzzi reached 86? 34' N. by way of
Franz-Josef's Land. In 1906 Peary made 870 6' N. In summing
up his chapter on north polar voyages General Greely says that,
England held the honors of the farthest north through Hudson, 1607,
Phipps, 1773; Parry, 1827; Nares, (by Aldrich on land) 1875, and (bv
Markham on sea) 1876. This record, unbroken for 275 years, passed
to the United States by the International Polar Expedition commanded
by Greelv, Lockwood, and Brainard, reaching 83? 24' N. on land and
sea. Nansen gained the honor in 1895, 860 05' N. on the ocean, to yield
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 937

it to Abruzzi, whose assistant Cagni reached 86? 34' N., in 1902, the
highest of today. Greely's record of land was exceeded 16 miles by Peary
in 1900, who yet holds that record.14
Supposing that both Dr. Cook and Commander Peary have reached
the north pole t,he possibility of reaching it ha,s thus been demon-
strated, and it must be a subject of congratulation to our people that
the prize s.o long and so eagerly battled for has been won, and that
tlhe glory of the achievement belongs to the United States.
In speaking of the element.s which enter into pola.r explorations
Sir John Franklin said:
Arctic discovery has been fostered from motives as disinterested as
they are enlightened; not from any prospect of immediate benefit, but
from a steady view to the acquirement of useful knowledge and the ex-
tension of the bounds of science; and its contributions to natural history
and science have excited a general interest. The loss of life in the
prosecution of these discoveries does not exceed the average deaths in
the same population at home.15
It cannot be doubted that the commercial element first prompt,ed
arctic exploration and the material profits have been almost incal-
culable. For example, we know that the Hudson Bay Company
found the fur trade in the region watered by the bay whic,h Hudson
discovered an inexhaust.ible mine of wealth; that another of Hud-
son's voyages gave rise to the Spitzbergen whale fishery, from which
alone during one hundred and ten years (1668-1778) Holland drew
products valued at one hundred millions of dollars. And General
Greely assert,s that " it may be assumed that in a little over two
centuries the arctic regions have furnished to the civilized world
product,s aggregating a thousand millions of dollars in value." 16
If considered, therefore, from the standpoint. of adventure, arctic
explorat,ion records some of the noblest. inst,ances of disinterested
heroism, devotion, and daring. If viewed from the material st.and-
point, the results of the explorat,ions have been highly profitable t,o
industry and commerce, but from another standpoint, arctic explora-
tions have amply justified the losses of life and property sacrificed in

'4 Greely, op. cit., p. 182.

5 lb., p. 7.
16 Ib., p. 9.-
938 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

their pursuit. In speaking of their contribution to the world's

knowledge, General Greely has finely said:
From the voyages under consideration the contributions to material
interests and to the sum of human knowledge have been neither Scanty
nor inconsiderable. The air, the earth, the ocean, even the universe, have
disclosed some of their rarest secrets to scientific voyagers in polar lands.
Within the Arctic Circle have been located and determined the poles
of the triple magnetic forces. In its barometric pressures, with their
regular phases, have been found the dominating causes that affect the
climates of the northern parts of America, Asia, and Europe. From its
sea-soundings, serial temperatures, and hydrographic surveys have been
evolved the most satisfactory theory of a vertical interoceanic circulation.
A handful of its dried plants enabled a botanist to prophetically forecast
the general character of unknown lands, and in its fossil plants another
scientist has read unerringly the story of tremendous climatic changes
that have metamorphosedthe face of the earth. Its peculiar.tides have
indicated clearly the influence exerted by the stellar worlds on our own,
and to its ice-clad lands science inquiringly turns for data to solve the
glacial riddles of lower latitudes."7

The announcements of the discovery of the pole by Dr. Cook and

Commander Peary have aroused much discussion in the press as to
the title acquired by discovery. In considering this interesting ques-
tion 18 it must be borne in mind that title by discovery applies to
land, not to water, for it cannot be maintained that the discovery of
an opien sea conveys ownership of the water or indeed to the lands
wasihed by it, as it is universally held that the open seas, beyond the
limit of territorial waters, are insusceptible of appropriation. In
like manner, it would not be asserted that the discovery of an iceberg
or a floating field of ice conveyed title to the land upon which the
iceberg happened to rest, or in whose neighborhood it floated to the
sea. In the technical sense, the conveyance of water within de-
fined limits would not transfer the land covered by it, whereas the
conveyance of the land covered by the water would pass title to the
land as covered by the water. Therefore, we may eliminate from
17 lb., p. 8.
18 The reader interested in the legal aspect of discovery and occupation is
referred to Hall's International Law, 5th ed., pages 100-118; Oppenheim's Inter-
national Law, I:275, 283, and authorities there cited; Moore's International Law
Digest, I:258 et seq.
 ARCTIC EXPLORATION AND INTERNATIONAL LAW 939

consideration polar discoveries disconnected with land, unless we are

prepa.red to insist that a different law obtains in the arctic regions
and that icebergs and ice-floes may not only be acquired but pass
title to adjoining land.
It is true that the discovery of rivers gives title to the lands washed
by thema, but that is because of the necessary and close, connection
between the land and the water, and the evident intent of the dis-
coverers to annex the land, using the water only as a means of identi-
fication. Discovery of unoccupied land may be wholly irrespective
of subsequent occupation, or it may be with int.ent to occupy. In the
centuries immediately following the discovery of America, title was
claimed by mere discovery, and the early charters of some of our
states bear out the st.atement that little or no limit was placed upon
the title so acquired provided the power felt itself strong enough to
enforce the claim, however exaggerated it might be. While inter-
national law does not seek to undo the piast, it gives no countenance
whatever to the claim that mere discovery alone and by itself vests
title. At most discovery creates a presumption, an inchoate right,
whic.h followed by occupation ripens into title. The time within
which occupation should follow depends necessarily upon the cir-
cumstances of each particular case; but while discovery may give
priority to the discoverer, and permit him to reduce the discovery to
possession by actual occupation, a failure to occupy, within what may
be considered in view of all the circumstances a reasonable time, will
undoubtedly be regarded as a renunciation of the original priority
and the right springing from it. In the next place, discovery within
the contemplation of international law, is a political or sovereign
act, and to be the source of right should be made by a navigator duily
commissioned by the authority of the state in whose behalf he acts.
I-t is not asserted that a sovereign could not subsequently ratify the
act of one in its em,ploy, although he was not specifically commis-
sioned for the speci-fic act, but. the intent of the sovereign should be
manifested either at the time or subsequently in unmistakeable terms
so that the act of the individual becomes the act of the state. Dis-
coveries due to private initiative do not of theTnselves convey rights,
for as a private citizen or a commercial company which he repre-
940 THIE AMIERICAN JOURNAL OF INTERNATIONAL LAW

sents is not a sovereign body neither he nor it, through him, can
acquire the incidents of sovereignty. It would appear therefore that
private expeditions do not acquire title to the land discovered either
for themselves or for the country of which they happen to be thc,
subjects or citizens, a fact recognized by the Dominion of Canada
which is said to have recently fitted out an expedition formally to
take possession of the islands in the Arctic O(cean adjoining the
Dominion of Canada. Discovery within the arctic regions has un-
doubtedly vested title, but that is because the expeditions were under
state control and discovery was followed rot merely by a claim of
sovereignty but reduced by actual possession to title. Thus Iceland
and Greenland have been and are Danish colonies. The territory
watered by Hudson Bay passed into possession of Great Britain
and was administered as British territory by British officials until it
was incorporated in 1870 into the Dominion of Canada. The dis-
covery of Tasmania and Australia are examples not exceptions to
the general rule, and Great Britain claims sovereignty over these
territories not by discovery but by effectual occupation. The unsat-
isfactory working of the claim that discovery vests title has led to a
solemn agreement of the powers interested in Africa that occupation
should follow discovery in order to vest title, and that even the intent
to occupy should be notified, thereby redueing to the minimum the
possibility of international controversy arising out of the efforts of
over-zealous explorers and settlers.
There is, however, great difficulty in applying the present theory
and practice of discovery and occupation to the arctic regions even
supposing that the general principles can be considered as universally
accepted, for arctic expeditions are usually voyages of discovery in
which there is no present or future intent to annex the territory
actually discovered. They are undertaken with a scientific not with
a political intent, although it would be eminently proper for an ex-
pedition to be fitted out under the control of a state official for the
express purnpose of annexing any and all lands to be discovered.
Supposing that Dr. Cook reached the north po-le it is difficult to see
how t.he United States acquires anv title to the polar regions, and
even supposing that Commander Peary, an officer of the UTnited
 ARCTIC EIXPLORATION AND INTERNATIONAL LAW 941

States navy, ha.d been specifically detailed to reach the pole, his
expedition was it would seem one of adventure and scientific dis-
covery rnotundertaken for the purpose of extending the sovereignty
of the United States t,o the polar regions.
The justness and applicability of these observations will appear
more clearly by a brief consideration of the Spitzbergen archipelago.
Various nationalities have vied with each other in discovering and
making known Spitzbergen. From the date of its discovery by
Barents, its circumnavigation by Carlsen (1863), and its scientific
explora.tion by Nordenski6ld, the claim of Norwa,y and Sweden to
sovereignty over the island ha,s been urged, but this met, in 1?W71with
the outspoken opposition of Russia, and in 1872 the two governments
agreed formally that the region should remain as it had been, no
man's land (terra nu,llius). The recent separation of Norwav from
Sweden ha.s added a further element, of complication, because the
subjects of Norway claim a peculiar and preponderat,ing interest in
the islands by reason of the fact that the Norwegi.ans may be said
to be the only people who resort to them in considerable numbers.
Certa,in coal-fields in the islands a-re worked by a British corpora-
tion, and an American company is at present exploit,ing coal in
Spitzbergen. Therefore if Spitzbergen, notwithstanding discoverv,
occupation and the assumption of sovereignty by Sweden, is consid-
ered no man's land, it must, be by reason of the fact. that, the voyages
of discovery and the explorations made in the islands during the
past two centuries were scientific, undertaken without the intent of
passing title. T'o remedy this state of affairs, to prot,ect the in-
terests of various nationalities in Spitzbergen, and to secure life arnd
propert,y by the administration of justice, Norway has recently called
an international conference of the powers interested in Spitzbergen to
meet at Christiania (1910) in order to esta,blish a system of adminis-
tration, without, however, appropriating the islands t,o any one of t,he
participating powers or changing the status as terra nu.llius. It
would therefore appear that arctic discovery a,s such vests no title,
and that t,he arctic regions, except and in so far as they have been
occupied, are in the condition of Spitzbergen, that is to say, no man's
land.
JAMES BROWN SCOTT.