How Bird Dung Affected American Imperialism and U.S. Views of International Law

The Summer 2010 issue of Cabinet has an interview with Professor Christina Duffy Burnett of Columbia about the legal status of islands.  When we’ve written about this issue here on Opinio Juris, we thought of issues relating to how islands can affect claims to underwater resources, or the question of Guantanamo as a legal black hole, or the issue of climate change and sinking islands. But I don’t think we ever discussed the connection between bird poop and imperial history. So I guess it’s about time.

Burnett’s interview has this near the beginning:

This is a very general question, but let’s take a stab at it anyway: do islands matter in the law?

The best way to get at this may be to start with something quite specific. In the summer of 2003, I stumbled on a 969-page typescript treatise which is kept in the library of the US State Department. Flipping through this great leather-bound brick of onion-skin pages, I gradually absorbed that the whole massive volume had been put together in the 1930s by a lawyer working for the US Government who’d been given a killer assignment. Apparently somebody had walked over to the desk of this poor functionary, scribbling away in some basement office, and said something along the lines of: “You know, we have a bunch of islands in the Pacific and the Caribbean—little islands. How about you figure out what the deal is with all these places, legally speaking.” I was holding the result: The Sovereignty of Islands Claimed Under the Guano Act and of the Northwest Hawaiian Islands, Midway, and Wake. And it was splendid to behold: nearly a thousand pages of intricate legal arguments and historical documentation on the strange history of the United States’ nearly invisible, but surprisingly vast, insular empire.

The Guano Act? What is guano? It’s bat excrement, right?

Yes. And bird doo, too. In this case, it refers to the bird version.

So there was a US law about bird droppings that somehow proves important for thinking about the law of sovereignty?

Indeed. The Guano Islands Act of 1856 arguably laid the legal groundwork for American imperialism.

Can you explain how?

Basically what happened was that in the first half of the nineteenth century, Europeans and Latin Americans figure out that the phosphate-rich deposits of seabird droppings that had accumulated on many small Pacific islands make spectacular fertilizer. The stuff is like magic, and farmers everywhere are suddenly clamoring to get their hands on some. There’s a boom, the price skyrockets, the Peruvians more or less control the market, and supplies are short. Everybody is looking for new sources, there’s tons of fake guano trading hands—it’s chaos. Enter the US farm lobby. Farmers in the United States start pressuring Congress to pass some sort of legislation that will improve domestic access to this vital excrement. The result is the Guano Islands Act, legislation that authorized the United States to take control of a guano island if a citizen discovered it and undertook certain actions to take possession of it.

The interview goes on from there with discussions of U.S. practice regarding the territorial acquisition of islands, the legal neologisms that were used to provide a bit of cover for policymakers, how the jurisdictional ambiguities that were devised have echoes today in the Guantanamo litigation, and the lasting importance of the “Insular Cases” decided by the U.S. Supreme Court.

Very interesting and surprisingly relevant for a wide variety of issues ranging from national security policy to the relationship of domestic courts to foreign policy, to current debates over sovereignty and self-determination. I had not been familiar Burnett’s scholarship but now I am looking forward to reading it.

Hat tip: Things Magazine