International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2015 Issue

Historic Moments in International Law


The Global War for Resources:  A Sneak Preview

Stephen C. NeffBy: Stephen  C.  Neff, Reader in Law – Public International Law, University of Edinburgh Law School

One of those things that always seems to be “just around the corner” is the much-announced global war for resources.  (See, for example, Michael Klare, Resource Wars: The New Landscape of Global Conflict (2001), as well as his more recent contribution, The Race for What’s Left:The Global Scramble for the World’s Last Resources (2013).)  Admittedly, the current downward swoosh of the world price of oil – and more general decline in commodity prices -- takes a bit of the sting out of this long-running story.  But we can be certain that it will be back. And it might even be true, at some time and in some fashion.

Come to think of it, it has been true already, in a fashion.  This was during the 19th Century, when the quest for fertilizers, to boost agricultural productivity, took some interesting forms – with a little help from the lawyers.  The particular resource in question was guano, i.e., the desiccated droppings of seabirds, most notably on various islands of the Pacific Ocean and Caribbean Sea.  (“Guano,” incidentally derives from the Quechua word huanu, meaning dung.  Modern molecular biologists have inherited it as the root of the word “guanine,” which is one of the four nucleotides of the DNA molecule.)

The use of guano as a fertilizer in Europe began around 1840 and expanded rapidly in the following years. Such was the demand for guano-based fertilizers that unscrupulous sellers took to adulterating it, by mixing it with loam of the same color, to deceive desperate would-be customers. The pickings (of the droppings) were richest on various small islands – mostly uninhabited rocks -- off the coast of Peru.  But other islands also had inviting prospects. 

Guano mining (if that is the right word for it) was no South Seas idyll. It involved the laborious scraping of rocks in exposed conditions in torrid climates. On the islands of Banaba and Nauru, in the central Pacific, the conditions were especially harsh.  Not surprisingly, the labor was often done by native Polynesians and imported Chinese workers.

International law entered the picture in 1856, when the United States enacted the Guano Islands Act. This interesting legislation operated at a couple of levels. For one thing, it was a sort of general license to American nationals to take possession, on their own initiative, of islands with guano deposits – provided that the lands in question did not belong, at the time, to any government. These American entrepreneurs could take possession in the name of the United States, although actual sovereignty would not be acquired by the American government unless the president accepted the transfer. In international legal parlance, it may be said that provision was made for the acquisition of United States title to such islands on the basis that they were terrae nullius (i.e., belonging to no one) and consequently available for acquisition by occupation by the first taker.In international law, however, occupation means the bringing of political order to an area, not the mere physical presence of nationals.

The Guano Act further provided that, at the discretion of Congress, the claimants of an island could be given a monopoly on guano extraction from it. A key additional condition was that the guano that was mined could only be sold to United States nationals or residents.  In a world of scarce resources, it is best not to take chances.  In case the competition with aggressive foreigners heated up unduly, the president was authorised to deploy the American armed forces to protect the rights of the claimants.

The 1856 Act led to the acquisition of American sovereignty, or at least claims to sovereignty, in some rather out-of-the-way places. Most notably, it provided the basis for the United States’s claim to the Midway Islands in 1867 -- the first permanent American possession in the Pacific. The hope was that it would prove suitable as a naval station, although that proved unfeasible in the event.


This guano-fuelled expansion did not go uncontested.  In particular, Colombia objected to the acquisition by the United States in 1869, pursuant to the Guano Act, of three small Caribbean islands:  Roncador, Serrana and Quitasueño.  On Roncador and Serrana, the United States placed navigation beacons. A modus vivendi was eventually arrived at, in 1928, in which the two countries agreed to maintain the status quo, with the United States continuing in possession of the islands, but with Colombians being allowed to continue fishing in the vicinity. Later still, in 1972, a final settlement was concluded between the United States and Colombia.  In this agreement, which took effect in 1982, the United States renounced its claims to the three islands.

That was not the end of the story, however, since Nicaragua then entered the picture, disputing Colombia’s title to the islands.  This contest was adjudicated by the World Court in 2012, resulting in the rejection of Nicaragua’s claim and confirmation of Colombia’s title to the islands.

As more and more islands came to be scraped clean of guano, a new source of fertilizer was identified, in the form of nitrates.  These, unfortunately, were found in rather inhospitable places – chiefly in the Atacama desert area of what was then northern Chile, southern Peru and southwestern (i.e., coastal) Bolivia.  So desolate was this nitrate-rich area – it is possibly the most arid place on Earth – that the Spanish colonizers had never bothered to delimit a boundary between Chile and Peru.  That oversight left ample scope for territorial quarrelling, which erupted, in 1879, into the War of the Pacific, with Chile pitted against Peru and Bolivia – possibly the first clear case of a war over natural resources.  (It is true that the Franco-Prussian War of 1870-71 brought the valuable iron-ore resources of Lorraine into the German Empire; but that had not been the cause of the conflict.)

In the War of the Pacific, Chile was triumphant, even to the point of occupying Lima for three years. As a result, it obtained outright sovereignty over the previously Peruvian province of Tarapacá, in a bilateral peace treaty concluded in 1883. Title to the erstwhile Peruvian provinces of Tacna and Arica was to be determined by a plebiscite within ten years, during which time they would be under Chilean occupation.  Bolivia lost its coastal province of Antofagasta, although the final peace treaty confirming this was not arrived at until 1904.  For Chile, the War paid off handsomely indeed.  Nitrate sales were so large as to furnish the major share of the country’s national budget for the next forty years. Only with the development of synthetic fertilizers during World War I did the great nitrate bubble begin to burst.

The War of the Pacific produced several ripple effects in international legal circles for some time to come.  The envisaged plebiscites for Tacna and Arica were never held. But a settlement was eventually reached in 1929, through the good offices of President Hoover of the United States: Tacna was returned by Peru, while Arica went to Chile.  The Bolivian case has been rather more interesting.  In one of the world’s most longstanding grudges, Bolivians have continued to resent the loss of Antofagasta and to dream of recovery of a seacoast.  The country has two museums devoted to the lost coast and even (reportedly) puts on an annual “Miss Coastline” beauty pageant.  More concretely, Bolivia sought, in the 1920s, to take advantage of an interesting provision in the League of Nations Covenant, which entitled the League Assembly to “advise the reconsideration . . . of treaties which have become inapplicable.”  The hope was that the terms of the 1904 treaty could be altered and the coastal area recovered.  This initiative did not succeed.  But the matter has recently been revived, now in the form of an action in the World Court. In 2013, Bolivia sought a declaration from the Court that Chile has a legal obligation to negotiate in good faith over the question of a passage to the Pacific for Bolivia. This matter is still pending.

For those with an interest in the guano saga, a highly informative information source is Gregory T. Cushman, Guano and the Opening of the Pacific World:  A Global Ecological History (2013), although it does not deal with legal issues. As for the global struggle over resources, the next major instalment concerned the race for phosphates – also with sundry international legal elements. Perhaps a future column will deal with that subject.

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