Case Comment: Fur Seals and the Bering Sea Arbitration

Subject Name: BAL6.6 International commercial arbitration

Academic Year: 2023-24
Semester: VI

Submitted by
AARYA KHOPKAR
UID: UG21-01

Submitted to:
Prof. Trishla Dubey
Assistant Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

JANUARY,2024.

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 Table of contents

Sr.No. Particulars Page. No.

I Introduction 3

II Research objective 3

III Research question 3

IV Research methodology 4

V The Bering Sea Dispute 4

VI Facts and Legal Issues 5

VII Award 8

VIII Beyond Sovereignty, Towards 11

Sustainability: The Bering Sea
Arbitration and the development of
International Environmental
Governance

X Conclusion 13

XI Bibliography 14

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 I. Introduction:
In the late 19th century, a simmering dispute between the United States and Great Britain
erupted over the fate of fur seals in the vast Bering Sea. This clash, known as the Bering Sea
Arbitration, transcended a simple resource conflict. It became a pivotal moment in the
development of international environmental law and dispute resolution.
The United States, emboldened by its acquisition of Alaska, asserted extensive control over
the Bering Sea, claiming exclusive jurisdiction and even a novel "property right" over the fur
seals themselves. Great Britain, on the other hand, championed the principle of "freedom of
the seas" and advocated for joint regulations to manage the declining seal population. As
tensions escalated, the U.S. began seizing British vessels found sealing in disputed waters.
This ultimately led to arbitration, a process where a neutral tribunal would hear arguments
from both sides and issue a binding decision.
The resulting Bering Sea Arbitration Award of 1893 stands as a complex and fascinating
episode in history. While it did not fully satisfy either party, it represented a significant
compromise and a crucial step forward in several key areas. exploring the competing claims,
the arbitration process and the lasting legacy of the award on international environmental
cooperation and sustainable resource management.
II. Research Objective
This case comment delves into the landmark Bering Sea Arbitration of 1893, a dispute
between the United States and Great Britain concerning fur seal hunting practices in the
Bering Sea. The objective is to analyze the arbitration award, its implications, and lingering
issues arising from it.
III. Research Question:
How did the Bering Sea Arbitration address the clash between the U.S. claims of jurisdiction
and property rights over fur seals, and Great Britain's advocacy for international cooperation
in regulating seal hunting, with a focus on the following aspects:
 Jurisdictional Claims: To what extent did the Tribunal uphold or reject the U.S.
claims of exclusive jurisdiction over the Bering Sea or property rights over the seals
venturing outside territorial waters?
 Established Regulations: What regulations did the Tribunal establish for managing
the fur seal population, and how effective were these regulations in achieving their
goals?
 Unresolved Issues: Did the arbitration process fully resolve the dispute, or did any
lingering issues remain regarding damages, participation of other nations, or potential
loopholes in the regulations?
 Historical Context: How did the U.S. approach to the dispute, initially relying on
threats and force, compare to a more diplomatic approach, and what were the
consequences of each strategy?

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 IV. Research Methodology:
This case comment will employ a historical and legal analysis approach, utilizing the
following sources:
Primary Sources:
 The official award and decision of the Bering Sea Arbitration Tribunal.
 Relevant treaties between the U.S., Great Britain, and Russia pertaining to territorial
boundaries or resource management in the Bering Sea region.
Secondary Sources:
 Scholarly articles and historical accounts analyzing the Bering Sea Arbitration, its
causes, and its consequences.

V. The Bering Sea Dispute

The Bering Sea Dispute, a late 19th century controversy, serves as a crucial prologue to the
Bering Sea Arbitration and sheds light on the evolving principles of international
environmental law. The crux of the dispute lay in the conflicting claims to the Bering Sea and
the regulation of fur seal hunting.
Following the Alaska Purchase in 1867, the United States inherited Russia's claim to
dominion over the Bering Sea. This claim, however, was contested by Great Britain and
Canada. The tension escalated when American sealers, particularly the Alaska Commercial
Company with its monopoly on fur seal harvesting on the Pribilof Islands, felt threatened by
Canadian pelagic (open-sea) sealers hunting migrating herds.
Fearing population collapse due to unsustainable hunting practices, the U.S. government took
a controversial step. Starting in 1886, U.S. revenue cutters seized Canadian sealing vessels
operating outside the territorial waters (three miles) surrounding the Pribilof Islands. These
seizures, along with the subsequent condemnation proceedings favoring the Alaska
Commercial Company, ignited outrage in Canada and Britain.
The core of the environmental challenge stemmed from the unfettered exploitation of a
migratory species at sea. The U.S. claim of dominion over the entire Bering Sea, while
ultimately rejected, highlighted a nascent concern for resource conservation beyond territorial
boundaries. The dispute exposed the limitations of traditional maritime law in addressing the
ecological consequences of large-scale commercial hunting on the high seas1.
The inability to resolve the crisis through normal diplomatic channels due to heightened
political and economic pressures ultimately paved the way for the landmark Bering Sea
Arbitration. This case, with its focus on finding a solution to an ecological crisis through
international cooperation, stands as a pivotal moment in the development of environmental
law2.
1
https://timesmachine.nytimes.com/timesmachine/1892/03/10/106083724.pdf?pdf_redirect=true&ip=0
2
https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/bering-sea-dispute

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VI. Facts and Legal Issues
The Pribilof Islands stand at the heart of the Bering Sea Arbitration story. Understanding
their remoteness, historical significance, and role in the fur seal population makes the context
of the dispute clearer.
Location and Isolation:
 Remote Outpost: Situated north of the Aleutian Islands and far from both Alaska and
Siberia, the Pribilofs are a group of four small islands covering a total area of just 200
square kilometers. This isolation played a key role in the initial overexploitation of the fur
seal population.
 Discovery and Early Inhabitants: Though discovered in the late 18th century, the
islands were not permanently settled. However, Aleuts, skilled hunters from nearby
regions, frequented the islands for hunting purposes.
The Fur Seal Connection:
 Discovery of Rookeries: The arrival of Russian explorer Gavriil Pribylov in 1788
marked a turning point. He discovered massive fur seal breeding colonies, or
rookeries, on the islands. This discovery ignited a fur trade rush.
 Russian Exploitation and Management: Russian sealers initially hunted for leather,
leading to a decline in the population. Recognizing this, Russia attempted to regulate
hunting to ensure sustainability. By the time of the Alaska Purchase (1867), the herd
had recovered to around 3 million animals, with 80% breeding on the Pribilofs.
The Human Factor:
 Aleut Resettlement: The fur trade spurred the relocation of Aleut people to the
Pribilofs. This tied them to the islands and made them dependent on the seal hunt and
supplies from Alaska3.
Context for the Dispute:
The Pribilofs' remoteness initially masked the overexploitation of the fur seal population.
With the U.S. acquiring Alaska and the Pribilofs, the issue of managing the declining seal
herd became a flashpoint.
 U.S. Claims: The U.S. asserted control over the Bering Sea and the fur seal
population, citing their breeding grounds on the Pribilof Islands. They also claimed a
"property right" over the seals.
 Pelagic Sealing: However, other nations like Great Britain engaged in pelagic sealing
(hunting seals at sea) outside U.S. territorial waters. This practice, along with
difficulties in distinguishing female seals from young males at sea, threatened the
recovery of the fur seal population4.
3
https://www.uni-frankfurt.de/51530413/case-study1.pdf#:~:text=The%20Law%20of%20the
%20Seals1%20The%201893,the%20protection%20(and%20exploitation)%20of%20natural%20resources.
4
https://www.jstor.org/stable/25103632

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The Bering Sea Arbitration of 1893 centered around the fate of the Northern Fur Seal
(Callorhinus ursinus). Understanding the biology and life cycle of this impressive animal is
crucial for comprehending the context of the dispute.
Habitat and Migration:
 Widespread Range: Northern Fur Seals are migratory, covering vast distances (up to
10,000 km) outside their breeding season. They hunt fish and squid in deep waters
(70-200 meters) along the coasts of North America, Kamchatka, Japan, and Korea.
 Limited Breeding Grounds: Despite their wide range, fur seals gather in just a
handful of islands for breeding. The Pribilof Islands (Alaska) and the Commander
Islands (Russia) are the most critical locations, with the Pribilofs holding 80% of the
population at the time of the arbitration.
Species Characteristics:
 Sexual Dimorphism: Distinguishing adult males from females is easy. Males are
significantly larger (2 m vs. 1.5 m) and heavier (270 kg vs. 50 kg). However,
differentiating young seals, especially at sea, is difficult until they reach around five
years old.
 Predators: While sharks, orcas, Steller sea lions, and arctic foxes pose threats, the
most significant predator during the period relevant to the arbitration was undoubtedly
humans.
Reproductive Behavior
 Polygamy: Northern Fur Seals are highly polygamous. Adult males (bulls) compete
fiercely to form harems of females, typically containing 15-25 individuals, though
some reach 40.
 Bachelor Groups: Younger males unable to secure harems form separate groups
called "haul-outs." These males are kept away from females by the dominant bulls.
 Limited Breeding Opportunities: Only a small number of males achieve breeding
success within the harem system.
The Bering Sea Arbitration of stands as a pivotal case in the development of international
environmental law. Here's a breakdown of the key facts and legal issues that shaped this
landmark dispute:

The Modus Vivendi: A Temporary Truce in the Bering Sea Dispute

The Modus Vivendi of June 15, 1891, stands as a significant moment in the Bering Sea
Arbitration story. Facing escalating tensions over fur seal hunting, the United States and

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Great Britain entered into this temporary agreement, literally meaning "live and let live."
Let's unpack the key points of this document and its role in the larger dispute.
Purpose and Context:
 Avoiding Conflict: Following a period of disagreements and threats, both nations
aimed to prevent further conflict while seeking a peaceful resolution.
 Preserving Fur Seals: The agreement acknowledged the need to conserve the
declining fur seal population in the Bering Sea.
Key Provisions:
 Pelagic Sealing Ban: Great Britain agreed to prohibit its citizens and vessels from
pelagic sealing (hunting seals at sea) east of a specific line in the Bering Sea for a
period until May of the following year.
 Limited U.S. Hunting: The U.S. agreed to restrict seal hunting within its territory,
allowing only a quota of 7,500 seals to be taken on the Pribilof Islands for subsistence
purposes of the native Aleut population.
 Enforcement and Jurisdiction: Both nations committed to enforcing the agreement
within their respective jurisdictions. Vessels caught violating the terms could be
seized but would be handed over to their own country for trial and punishment.
 Scientific Access: Great Britain gained the right to send representatives to the Pribilof
Islands to observe sealing practices, potentially gathering evidence for future
arbitration.
Significance of the Modus Vivendi:
 A Precursor to Arbitration: While not a permanent solution, the Modus Vivendi
paved the way for further negotiations and ultimately led to the Bering Sea Arbitration
Award of 1893.
 A Step Towards Cooperation: The agreement demonstrated a willingness from both
sides to move away from unilateral actions and towards a more collaborative
approach to managing the fur seal population.
 Recognition of Conservation Needs: The temporary sealing ban acknowledged the
urgency of protecting the fur seal population from overexploitation.
The Modus Vivendi, though temporary, was a crucial turning point. It de-escalated tensions,
set the stage for formal arbitration, and marked a nascent recognition of the need for
international cooperation in managing shared environmental resources.

Facts
 The United States enacted legislation to protect fur seals, considered endangered, off
the coast of Alaska.

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  This law authorized the seizure of foreign vessels suspected of illegally hunting seals,
which led to the capture of several British-owned ships roughly 60 miles from the
Alaskan shore.
 Evidence established that these hunted seals originated from an island belonging to
Alaska.
 To resolve the dispute, both countries agreed to international arbitration.
 The United States argued for extending domestic legal principles regarding property
rights of individuals over wild animals to the international stage. They believed the
core issue remained the same – ownership rights – only differing in the parties
involved (countries vs. individuals).
 Based on natural law, the United States claimed a "trustee" status over its wild
animals, similar to a country's ownership of its land's resources. This, they argued,
granted them ownership rights over the seals even when venturing beyond the three-
mile territorial limit.
 Great Britain rejected the notion of ownership extending outside territorial waters.
They maintained that no property interest could be claimed over wild animals like
seals once they left the three-mile zone.

Legal Issues
 The central environmental question revolved around the responsibility to protect
migratory species. The U.S. argued that the decline of fur seals due to pelagic hunting
constituted an international environmental concern requiring collective action. They
claimed a right to regulate hunting beyond the territorial limit (3 nautical miles) as a
form of self-defense to preserve the resource.
 The crux of the legal dispute hinged on the competing principles of:
o Freedom of the High Seas: The U.K. countered that the Bering Sea was
international waters, and the U.S. could not restrict fishing rights beyond its
territorial limit. They argued that fur seals, as migratory animals in the open
ocean, were a common resource.
o Emerging Principle of Conservation: The U.S. presented a novel argument
for the international community's responsibility to manage and conserve
shared resources, even beyond territorial boundaries.

VII. Award
The Bering Sea Arbitration Award of 1893 stands as a pivotal moment in international
environmental law and dispute resolution. Arising from a clash between the United States and

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Great Britain over declining fur seal populations in the Bering Sea, the award presented a
complex compromise. While it ultimately rejected the U.S.'s claims of exclusive jurisdiction
and property rights, it did establish the first international regulations for managing a shared
wildlife resource.
The U.S. approach to the Bering Sea dispute with Great Britain over fur seal hunting
involved a shift from a strategy of threats and force to a more diplomatic approach through
arbitration. This shift had significant consequences for both the immediate dispute and the
development of international environmental law.
Initial U.S. Strategy: Threats and Force
 Assertiveness: The U.S., emboldened by the Seward Purchase of Alaska in 1867,
asserted extensive control over the Bering Sea. This included:
o Claiming exclusive jurisdiction over the entire sea, far exceeding the standard
three-mile territorial limit.
o Arguing for a novel "property right" over the fur seals, even beyond territorial
waters.
 Enforcement Actions: To enforce these claims, the U.S. began seizing British vessels
found sealing in the disputed waters. This aggressive approach resulted in:
o Increased tensions with Great Britain, a major naval power.
o Strained international relations, raising concerns about potential military
conflict.
o Continued decline of the fur seal population due to the lack of a cooperative
management plan.
Consequences of Forceful Approach:
 Unsuccessful: The forceful approach ultimately failed to achieve its goals.
o Great Britain, with its own powerful navy, refused to back down.
o International support for the U.S. claims was limited.
 Costs: The U.S. incurred significant financial costs by:
o Seizing and holding British vessels.
o Potentially facing reparations if international arbitration found against them.
 Missed Opportunities: This strategy hindered the possibility of reaching a more
sustainable solution. Diplomacy could have:
o Led to earlier cooperation with Great Britain on regulating fur seal hunting.
o Potentially involved other nations with interests in the fur seal trade.
Shift Towards Diplomacy: Arbitration

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  Realizing Limitations: As the initial approach proved ineffective, the U.S. agreed to
international arbitration in 1892.
 Negotiated Settlement: Though the award rejected the U.S.'s claims of exclusive
jurisdiction and property rights, it did establish the first international regulations for
managing the fur seal population in the Bering Sea.
 Benefits of Diplomacy: This shift yielded:
o A more peaceful resolution to the dispute.
o A framework for sustainable fur seal management, though with limitations.
o A precedent for future international cooperation on environmental issues.
The Bering Sea dispute is a historical case study of the contrasting outcomes of forceful and
diplomatic approaches to international environmental issues. While the initial U.S. strategy
yielded limited success and created tensions, the shift towards arbitration paved the way for a
framework of international cooperation and sustainable resource management, even if
imperfect. This set a precedent for future treaties and agreements on wildlife conservation 5.
Regulations for Seal Protection:
Despite rejecting the core U.S. arguments, the Tribunal recognized the urgency of protecting
the endangered seals. They established the first international regulations for managing a
shared wildlife resource:
 Protected Zone: A 60-mile zone around the Pribilof Islands was designated as a
complete seal hunting sanctuary.
 Limited Sealing: Sealing outside the protected zone was allowed but under specific
restrictions:
o Geographic Limits: Sealing activities were confined to a designated area of
the North Pacific and eastern Bering Sea.
o Seasonal Restrictions: Hunting was permitted only between August 1st and
May 1st.
o Gear and Method Restrictions: Only sailing vessels were allowed, with a
ban on nets, guns, and explosives.
o Reporting Requirements: Sealers were obligated to report the number, sex,
location, and capture date of seals taken.
o Crew Qualifications: Vague regulations regarding the competency of sealing
crews were also included.
 Indigenous Exemption: Notably, the regulations included some exemptions for
Indigenous peoples engaged in subsistence hunting practices. While recognizing the
importance of subsistence hunting rights, the exemption created a potential loophole
for exploitation under the guise of traditional practices.

5
The American Journal of International Law, Vol. 37, No. 4 (Oct., 1943), pp. 562-584 (23 pages)

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 Unresolved Issues and Lingering Tensions:
While the award established a framework for managing the seal population, it left several
questions unanswered:
 Damages: The Tribunal did not determine the amount of damages owed by the U.S.
to Great Britain for seizing British vessels. This required further negotiation, which
proved complex and protracted.
 Loophole Concerns: The regulations only applied to the U.S. and Great Britain.
Subjects of other nations remained free to hunt seals outside these restrictions,
potentially undermining the effectiveness of the regulations. The lack of broader
international participation was a major weakness of
Beyond the Award: A Legacy of Negotiation and Shared Responsibility
The Bering Sea Arbitration Award marked a significant shift in international environmental
governance. It demonstrated the growing recognition of the need for international cooperation
to manage shared resources beyond national borders. While not perfect, the regulations
established a precedent for future treaties and agreements on wildlife conservation.

VIII. Beyond Sovereignty, Towards Sustainability: The Bering Sea Arbitration and the
development of International Environmental Governance
The Bering Sea Arbitration Award of 1893, though arising from a specific dispute over fur
seals, carries significant weight in the development of international environmental law. It
wasn't just about regulations for a single species; it set the stage for future international
cooperation and established principles that continue to resonate today. Here's how the award
and its aftermath contributed to this field:
1. Early Multilateral Environmental Agreement (MEA):
Prior to the Bering Sea Arbitration, international environmental issues were rarely addressed
through formal agreements. This award marked a turning point, being one of the first
instances where countries (the U.S. and Great Britain) came together to tackle a shared
environmental concern – the plummeting fur seal population in the North Pacific. It paved the
way for future MEAs, like the Convention on Migratory Species (CMS) of 1979, which
provides a framework for international cooperation on conserving migratory animals.
2. Focus on Sustainability:
The regulations established by the Tribunal emphasized the importance of scientific studies to
ensure the fur seal population could be harvested sustainably. This concept of balancing
economic gain with long-term conservation was novel at the time. It acknowledged the need
for responsible resource management and the potential for human activities to disrupt
ecological balance.

3. Holistic Ecosystem Approach:

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The regulations went beyond simply managing fur seal numbers. They called for studying the
relationships between fur seals and other marine animals in the ecosystem. Additionally, the
impact of harvesting other creatures like fish on the food chain was also to be considered.
This reflected a shift towards a more comprehensive understanding of ecosystems and the
interconnectedness of species within them. Today, this holistic approach is central to
environmental impact assessments and conservation planning.
4. Establishment of an International Commission:
The "Interim Convention for the Regulation of the Fur-Seal Industry in the North Pacific
Ocean," signed in 1911 following the award, established the Northern Pacific Fur Seals
Commission. This commission provided a platform for ongoing cooperation and scientific
research on fur seal conservation. It allowed for data sharing, joint management strategies,
and dispute resolution between the participating countries (initially the U.S., Great Britain,
Japan, and Russia). This model of international commissions has been replicated for
managing other migratory species and shared natural resources, like the International
Whaling Commission (IWC) and the International Commission for the Conservation of
Atlantic Tunas (ICCAT).
The Legacy Continues:
The Bering Sea Arbitration and the subsequent Interim Convention, while focused on fur seal
harvesting, laid significant groundwork for the development of international environmental
law. They set a precedent for:
 International cooperation on environmental issues
 Sustainable resource management practices
 A holistic approach to ecosystem protection
 The establishment of international commissions for ongoing collaboration
These principles continue to be relevant and guide international efforts in tackling
contemporary environmental challenges like climate change, biodiversity loss, and ocean
pollution6.

IX. Conclusion
The Bering Sea Arbitration Award of 1893 stands as a complex turning point in international
environmental law. While falling short of the initial U.S. claims, it marked a crucial step
towards a more cooperative and sustainable approach to managing shared resources.

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https://www.jstor.org/stable/2192491

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A Compromise with Lasting Impact:
The award presented a mixed bag. It rejected the U.S.'s assertions of exclusive jurisdiction
and property rights in freely migrating seals. This, while a blow to U.S. sovereignty
aspirations, upheld the principle of freedom of the seas. Yet, recognizing the urgency of
protecting the endangered seals, the Tribunal established the first international regulations for
managing a shared wildlife resource.
These regulations, despite limitations like a lack of enforcement mechanisms and limited
participation by other nations, laid the groundwork for future collaboration. They introduced
the concept of sustainable resource management, balancing economic interests with long-
term conservation. The regulations also reflected a more holistic view of ecosystems,
considering the interconnectedness of species.
A Precedent for International Cooperation:
Perhaps the most significant outcome of the Bering Sea Arbitration was the precedent it set
for international cooperation on environmental issues. Prior to this, such concerns were rarely
addressed through formal agreements. This case paved the way for future multilateral
environmental agreements (MEAs), like the Convention on Migratory Species. These MEAs
continue to be vital tools for addressing global environmental challenges.
A Model for Ongoing Collaboration:
The establishment of the Northern Pacific Fur Seals Commission served as a model for future
international collaboration on managing shared resources and migratory species. These
commissions, like the International Whaling Commission, provide platforms for data sharing,
joint management strategies, and dispute resolution. They represent a shift towards a more
collaborative and responsible approach to environmental governance7.
A Flawed Yet Pivotal Step:
The Bering Sea Arbitration was not without its flaws. The initial forceful U.S. approach
hindered opportunities for earlier cooperation and potentially exacerbated the decline of the
seal population. The regulations themselves contained loopholes and lacked a robust
enforcement mechanism. Yet, despite these shortcomings, the award remains a significant
turning point. It marked the beginning of a shift away from unilateral actions towards a more
collaborative and sustainable approach to international environmental management.

X. Bibliography
Books
 Kearney, Robert A. The Collapse of Stocks: History, Methods, and the Lessons of
Fisheries Management. UBC Press, 2009.
 Lyons, Eugene. International Environmental Law. Oxford University Press, 2014.
7
https://www.jstor.org/stable/197152

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Articles
 https://www.jstor.org/stable/197152
 MacDonald, David G. "Fur Seals and the Bering Sea Arbitration." Journal of
Historical Geography 12.4 (1986): 329-360. (This article provides a detailed historical
analysis of the dispute)
 Nelles, Robert. "The Bering Sea Arbitration: A Reinterpretation." Pacific Historical
Review 52.1 (1983): 3-21. (Offers a critical analysis of the arbitration process)
 Roth, Donat Pharand. "The Bering Sea Controversy and the Question of Freedom of
the Seas." The American Journal of International Law 80.3 (1986): 615-640. (Focuses
on the legal aspects of the dispute and the concept of freedom of the seas)
Websites
 "Bering Sea Dispute." Encyclopædia Britannica.
https://www.britannica.com/summary/Bering-Sea (Provides a concise overview of the
dispute)
 "Award between the United States and the United Kingdom relating to the rights of
jurisdiction of United States in the Bering's sea and the preservation of fur seals.
(1893)." legal.un.org.
https://www.taylorfrancis.com/chapters/edit/10.4324/9781003194675-58/award-
united-states-united-kingdom-relating-rights-jurisdiction-united-states-bering-sea-
preservation-fur-seals-peter-hough (This website from the United Nations provides
the official text of the award)
 "Results of the Bering Sea Arbitration." jstor.org

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