Paper short abstract:

This paper explores jurists’ earliest efforts (at Paris, in 1892-93) to adapt international law to the novel kinds of disputes that the depletion of certain species and the specter of anthropogenic species extinction engendered in an age of rapid industrialization and inter-imperial competition.

Paper long abstract:

In the winter of 1893, as rival empires accelerated their fossil-fueled scramble to expropriate as much of the as-yet-uncolonized world as possible, seven leading British, U.S., and European jurists convened in an elegant court room in Paris. Their charge: to adjudicate a highly anticipated international arbitration between Britain and the U.S. over jurisdiction, the law of the sea, and culpability for the near-collapse of a commercially valuable species—the Northern fur seal. Counsel presented wide-ranging arguments concerning the territorial and jurisdictional status of the Bering Sea; the legality of the U.S. Revenue Marine’s seizure of multiple Canadian, U.S., and Indigenous sealing schooners on the high seas; and the U.S. claim of property in the seal herds, which bred on the U.S.-held Pribilof Islands/Tanax Amix.

The U.S. lost the arbitration on all points (which may explain why U.S. historians have largely ignored it). Yet U.S. jurists, while advancing obviously self-interested arguments, also drew on a variety of premodern legal sources to break interesting juridical ground, including arguing that the U.S. had a right to own, protect, and “care” for the Pribilof’s fur seal herds, “in trust for mankind,” wherever they might migrate. Drawing on scientific research, jurists recast the relationship between the so-called “laws of nature” and natural law, ventured theories of culpability for anthropogenic extinction, and critiqued the limits of a jurisprudence (international law) that imposed static, national/imperial borders on a natural world in motion. This paper focuses on Justice Harlan’s long—and long-forgotten—dissenting opinion.