By: 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.
International
Judicial Monitor