Bolivia Sea Access (BOLSEA Case)
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CASE NUMBER: 320
CASE MNEMONIC: BOLSEA
CASE NAME: Bolivia Sea Access
A. IDENTIFICATION
1. The Issue
The discovery of mineral deposits "at the sea-bed, or resting
on it, as well as those in the subsoil beneath it" has flared
intense debate concerning the equity, or inequity, of the
distribution of the treasures of the earth. In retrieving deep
sea-bed nodules, developed states have a distinct advantage over
developing states in terms of technology and finance. Moreover,
developing landlocked states, such as Bolivia, are placed in an
even more precarious position due to the geographic disadvantage of
having no outlet to the oceans directly under their jurisdiction.
Consequently, these states, including Bolivia, have striven to
ensure that they will not be prevented from sharing the bounties
recovered from the earth. This goal has been sought primarily
through a multilateral treaty under the auspices of the United
Nations - the United Nations Convention on the Law of the Sea, or
UNCLOS.
2. Description
During the exploits of the first modern oceanographic
expeditions, the Challenger, in 1872-76, potato-sized
conglomerations of ferromanganese and iron-manganese deposits were
discovered on the ocean floor. These nodules, primarily found on
abyssal plains under deep ocean, contain not only manganese and
iron, but nickel, copper, and cobalt. Potential reserves of these
minerals have been cautiously estimated at 290 million tons of
nickel, 240 million tons of copper, 60 million tons of cobalt, and
6 billion tons of manganese. However, the time frame for the
earliest market-favorable development of manganese nodules has been
estimated at ten to fifteen years.
The issues of not only mining these minerals, but also the
distribution of the wealth generated by the mining is not of
immediate importance. In 1958, the Convention on the High Seas was
concluded, but did not include any references to deep sea-bed
mining due to the improbability that the minerals could be
harvested any time soon. Still, the Developing World, the Group
of 77, saw that a dangerous precedent had been set by the Developed
World in the past by which the more industrialized North conquered
and exploited not only the resources of the earth, but also other
less industrialized countries. As a result, the Third World,
including Bolivia, represented by the Group of 77, attempted to set
a precedent of their own embodied in a United Nations treaty
calling for the exploitation of the earthþs resources for the
benefit of all. Thus, the debate during the eleven sessions of the
United Nations Convention on the Law of the Sea was intense,
focusing on whether these minerals were exploitable based on res
nullius, that is, the principle that these resources belong to no
one and are doled out on a first come, first served basis, or res
communis, that is, the principle that these resources are the
property of all, regardless of who gets there first. The former
of these principles was, of course, favored by the industrialized
North while the latter was favored by the underdeveloped South.
In 1970, the United Nations General Assembly, dominated by the
Group of 77, declared that the mineral resources of the deep
sea-bed þbeyond the outer limit of the continental shelf of a state
as defined in Article 76 of the Conventionþ was the "common
heritage of mankind." However, what exactly constitutes the
þcommon heritage of mankindþ is still rather ambiguous. Yet the
principles embodied in Part XI of the Convention, which deals with
deep sea-bed minerals issue, from 1967 to 1975 revolved around five
identifiable issues. First, the idea of first-come, first-served
access to deep-seabed mineral resources was to be terminated;
second, an Enterprise was to be established that would þrepresent
the interests of those who did not have the capability to compete
with private enterprises and the state corporations of powerful
statesþ; third, an International Seabed Agency was to be
established "to manage and regulate ocean mining through
institutions controlled by a majority of states, and not by a
limited number of powerful states"; fourth, production would be
controlled, rather than left to the conditions of the market, and
technology transfers would be mandatory; and fifth, the possibility
that "new and national rights to exploit deep ocean resources could
be terminated" within twenty years of the treaty going into force,
"even over the objections of states whose consent normally would be
required if they were to be bound under the conventional rules of
international law."
These demands were unacceptable to many of the Northern
industrialized states who refused to sign the final draft of the
treaty in 1982, particularly the United States. Other states
refusing to sign included Belgium, West Germany, Italy and the
United Kingdom. In fact, in 1984, Belgium, France, West Germany,
Italy, the Netherlands, the United Kingdom, and the United States,
and later Japan, agreed to a Provisional Understanding Regarding
Deep Seabed Mining which assured that mining rights among
reciprocating states would be respected and mining sites would not
overlap. Following the completion of the draft of the Law of the
Sea, President Ronald Reagan explicitly outlined US objections
preventing the US from signing the treaty. These objections were
primarily concerned with the deep sea-bed mining provisions of Part
XI of the Law of the Sea. The first of these objections was that
the regime should not deter development of any deep seabed mineral
resources to meet national and world demand; second, it should
assure national access to these resources by current and future
qualified entities to enhance US security of supply, avoid
monopolization of the resources by the operating arm of the
international authority, and promote the economic development of
the resources; third, it should provide a decision making role in
the deep seabed regime that fairly reflects and effectively
protects the political and economic interests and financial
contributions of participating states; fourth, it should not allow
for amendments to come into force without approval of the
participating states; fifth, it should not set other undesirable
precedents for international organizations; and sixth, it should be
likely to receive the advice and consent of the US Senate.
Clearly, the objectives of the Group of 77 and the objectives
of the US were antithetical to one another. The positions taken by
the North and the South were manifestations of the ongoing debate
concerning the current international economic order and the
responsibilities of developed and developing states. Obviously,
the res nullius argument implied that the major beneficiaries of
deep seabed mining would be the First World. If the regime was
based on a first-come, first-served basis, underdeveloped and
technologically backward states were unlikely to be served at all.
The res communis argument not only supported the distribution of
the common heritage of mankind to all, but also implied that the
North should help underdeveloped states help themselves. If the
distributional scheme of the earthþs wealth, as envisioned by the
South, was to help them escape the general conditions of poverty
and underdevelopment, the North could and, therefore, should
accelerate this escape by severing the dependence of the South on
the North. One way of achieving this development and prosperity
was through the mandatory technology transfers embodied in the
original drafts of the Law of the Sea. "A primary objective of the
Group of 77 in seeking to create such an international system was
to help bring about orderly and rational management of the
resources of the area by fostering healthy development of the world
economy, minimizing adverse economic effects on developing states
who are land-based mineral producers, expanding opportunities for
the use of resources, and ensuring the equitable sharing of
benefits among states, particularly the developing countries."
Given the need for "highly sophisticated technology developed
at substantial cost and applied at considerable risk in relatively
uncharted terrain under complex environmental conditions," only a
very select group of commercial firms could even hope to extract
the minerals. The potential Northern beneficiaries of deep
seabed mining had no interest in forging a New International
Economic Order and, of course, resisted the technology transfer
requirements of the initial drafts. Western high-technology
companies such as Lockheed, Deep Sea Ventures, Kennecott, Newport
News Shipyard, Afernod, DOMA, AMR, and Eurocean engaged in research
beginning in the 1950s resulting in dramatic advances making
locating and extracting nodules from the seabed a very real
possibility. In fact, the initial stages of research and
development have been completed since at least 1982. These
companies sought to avoid such competition minimizers as mandatory
technology transfers by first, forming consortia, which would have
effectively monopolized seabed mining and spread risk among
potential rivals, and second, by urging their respective
governments to support their claims to seabed areas.
Both of these tactics generally had little impact on the early
Conventions, but the free-market arguments set forth by such firms
were embraced by Western leaders such as Reagan with the
aforementioned results. Despite the earlier setbacks as the result
of Third World solidarity, these types of companies still had a
monopoly on potential seabed mining technology. Land-based
producers had mining technology for land-mining, but these
techniques were inappropriate for deep seabed mining. Moreover,
conventional dredge techniques were not cost-effective methods of
obtaining nodules. Despite rhetoric acknowledging every stateþs
right to the sea, developing states, especially land-locked states,
were barred from ocean resources by the glass walls of technology.
As a result of the vast differences between a few powerful states
and a multitude of weak states, the Law of the Sea remained in
limbo for nearly twelve years.
The final drafting of the Law of the Sea was vexed not only by
sharp disagreements between the North and the South. There were
divergent interests within this divide as well. Despite the
appearance of solidarity of the Group of 77, this unity was more a
reflection of the movement against the North by the South for the
New International Economic Order rather than a lack of conflict
among Third World states. The hollowness of this solidarity is
evident when the postures of Third World coastal states and that of
Third World land-locked states are taken into account. On the one
hand, coastal states were guaranteed exclusive economic rights to
at least some of the ocean's minerals under Article 76 of the
Convention simply by virtue of their geography.
On the other hand, land-locked states were guaranteed nothing.
They lacked the technology to exploit minerals deep under the
ocean, and had no claim to a reserved exclusive economic zone that
could be exploited later if and when the appropriate technology was
made available. The coastal South had to take what they could when
they could to ensure they got something, yet this approach
threatened to undermine the steadfastness of the South as a whole
against the North. In effect, "to some 60 land-locked and
geographically disadvantaged States, the extensive resource
jurisdiction granted to the coastal State was the result of
selfishness and a narrow nationalism that subverted the
Conference's promise of a more equitable Law of the Sea which would
take into account the interests of humanity as a whole."
The land-locked or geographically disadvantaged states,
including Bolivia, the Group of LLGDS, although sharing the general
approach of the Group of 77, did not initially unite with the Group
of 77 wholeheartedly, challenging "both developing and developed
countries and advanced proposals which could not be placed within
the established North/South paradigm." Naturally, many Northern
LLGDS were also concerned about their rights to the sea. In 1971,
a group of LLGDS from both developed and underdeveloped parts of
the globe submitted the Preliminary Working Paper to the Sea-bed
Committee concerning the exploitation of the deep sea-bed. This
group, including Afghanistan, Austria, Belgium, Hungary, Nepal, the
Netherlands, and Singapore, proposed a middle point between the
positions taken by the Coastal Northern and Coastal Southern
states. These states recommended a system in which the Assembly of
the Authority "should have the power to establish a body which
could conduct the direct exploration, exploitation, and marketing
of deep sea-bed resources" while still allowing for private State
interests to pursue their own claims.
In sum, what this group suggested was a system that made
allowances for "the direct licensing of private and public
enterprises a well as joint ventures and service contracts."
This approach would have given developed LLGDS the freedom to
pursue their interests while ensuring that underdeveloped LLGDS
would not be excluded from the benefits of the oceanþs resources.
Ironically, although the Paper was only a draft document and not
embraced by the General Assembly, the final draft of the Law of the
Sea arising out UNCLOS III, the final Convention in 1982, created
a parallel system of exploitation very much like the system
supported by the Group of LLGDS.
The rights of the Group of LLGDS to ocean resources was
founded on a rather straightforward argument, stemming directly
from the earlier pronouncements of the deep sea-bed as the common
heritage of mankind. Following from calls that the deep sea-bed
regime should "ensure the exploitation of these resources for the
benefit of mankind," it would have been irrational to exclude a
large portion of mankind based simply on a geographical
technicality. Indeed, many of the geographical boundaries are the
results of Northern colonization. On a more political level, major
Southern coastal states such as Brazil and India supported this
rationale in order to prevent setting a precedent of exceptions
which the North could then follow, resulting in potential
undesirable exclusions of Southern states from resources of which
the impacts and implications might not be so obvious. If the
South was to be successful in forging a NIEO, then anything less
than an all-encompassing package deal would be unacceptable. In
addition, the Group of LLGDS accounts for nearly half of the Group
of 77.
Paradoxically, the LLGDS were particularly sensitive to the
deep sea-bed regime, yet they had unusual influence over the larger
issue at stake, for without the support of the Group of LLGDS, the
entire NIEO championed by the Third World would be jeopardized. Of
course, the Southern LLGDS as well as the Southern coastal states
realized that a unified front was necessary if they were to
successfully overcome Northern objections. Accordingly, at UNCLOS
III, the Group of 77 made significant overtures to the Group of
LLGDS. The combined result of these maneuverings were embodied
in the final draft of the Law of the Sea, stating that the
exploration and exploitation of the oceans would be for þthe
benefit of mankind as a whole, irrespective of the geographical
location of States, whether land-locked or coastal, and taking into
particular consideration the interests and needs of the developing
countries.
The Law of the Sea is to enter force one year after it has
received ratifications from sixty countries. As of 1989, there had
been over forty. Momentum was growing, yet the Law of the Sea
still lacked the necessary ratifications. Consequently, in 1990,
informal consultations began between then UN Secretary-General
Perez de Cuellar and representatives of the industrialized states.
These consultations were carried on by the present
Secretary-General, Boutros-Boutros Ghali. The results of these
consultations was the draft of the "Agreement relating to the
Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982" in 1994.
The Agreement resolved many of the objections of Western
industrialized states, again particularly those of the United
States. To begin with, the general policy making functions of the
Assembly were originally to be decided by a one-state, one-vote
system. The Agreement modified this mechanism by requiring the
Assembly to work in conjunction with the þCouncil,þ a seat on which
the US has been guaranteed. The Assembly either approves or
returns recommendations made by the Council. Another change
concerns production limitations in which the þnew Agreement
specifies that the provisions regarding the production ceiling,
production limitations, participation in commodity agreements,
production authorizations and selection among applicants shall not
apply. Likewise, the requirement of mandatory technology transfers
shall not apply. Furthermore, the means of choosing applicants
contained within the draft of the Law were changed to a first-come,
first-served basis. Even under the parallel system of exploitation
by both private miners and the Enterprise, the Enterprise would be
under the same obligations and responsibilities of the private
miners in order to prevent the Enterprise from monopolizing the
mining industry.
In addition, the application fee of $500,000 was reduced to
$250,000 and "the detailed financial obligations of miners set
forth in the 1982 text, including the million-dollar annual feeþ
was eliminated. Finally, provisions for a review conference
designed to amend the treaty shall not apply. As a result,
"amendments to the deep seabed mining regime could not be adopted
without US consent." In effect, the idea of res communis was
buried at sea.
The Agreement was adopted by the UN General Assembly on July
28, 1994. The United Nations Convention on the Law of the Sea
which was adopted on December 10, 1982, went into force on November
16, 1994, with the approval of nearly all states, developed as well
as developing.
Within the political groupings molding the debates over deep
sea-bed mining, Bolivia has had to carefully choose its strategy.
At certain times, it has had to align with other LLGDS, including
industrialized states, to ensure equitable treatment regarding
access to the sea and its resources as a land-locked state, while
at others, it has had to align with the Group of 77 to ensure
equitable treatment regarding access to other resources as a
developing state. This strategy culminated in certain assertions
made upon signing the Convention concerning their particular
situation as a developing land-locked country. First, "The
Convention on the Law of the Sea is a perfectible instrument and,
according to its own provisions, is subject to revision. As a
party to it, Bolivia will, when the time comes, put forward
proposals and revisions which are in keeping with its national
interests."
Second, "Bolivia is confident that the Convention will ensue,
in the near future, the joint development of the resources of the
sea-bed, with equal opportunities and rights for all nations,
especially developing countries." Third, "Freedom of access to and
from the sea, which the Convention grants to land-locked nations,
is a right that Bolivia has been exercising by virtue of bilateral
treaties and will continue to exercise by virtue of the norms of
positive international law contained in the Convention." Fourth,
"Bolivia wishes to place on record that it is a country that has no
maritime sovereignty as a result of a war and not of as a result of
its natural geographic position and that it will assert all the
rights of coastal States under the Convention once it recovers the
legal status in question as a consequence of negotiations on the
restoration to Bolivia of its own sovereign outlet to the Pacific
Ocean." This loss of maritime sovereignty was a result of
conflicts with Chile dating back to 1880. In any case, on April
28, 1995, Bolivia formally ratified the Convention.
Since the first UN Convention on the Law of the Sea in 1973,
the deep sea-bed mining regime has been one of the most contentious
issues in international law. It questions not only legal
jurisprudence, but also opposing ideologies of justice. Although
the Law of the Sea has been universally accepted, the goals of
equity may not be realized. As the acceptance of the amendments
contained within the Agreement attests, Third World states will
more than likely remain at a distinct disadvantage when deep
sea-bed mining becomes actualized. For Bolivia, at the least, it
has overcome the direct threats to its prosperity as a land-locked
country. However, only time will tell whether it can overcome the
barriers to the ocean's resources which confronts other Third World
states.
3. Related Cases
4. Draft Author: Damon C. Morris (June, 1995)
B. Legal Clusters
5. Discourse and Status: AGReement and COMPlete
The Law of the Sea went into force on November 16, 1994.
6. Forum and Scope: United Nations Convention on the Law of
the Sea and MULTIlateral
7. Decision Breadth: GLOBAL
The extensive negotiations during the eleven Conventions were
intended to create a universal Law. With the objections of
developed states assuaged, nearly every country represented in the
United Nations has either signed with intent to formally ratify the
UN Law of the Sea, formally ratified it, or formally confirmed
their intent to act according to it. Exceptions include Bosnia and
Herzegovina, Croatia, the Czech Republic, Slovakia, and the former
Yugoslav Republic of Macedonia.
8. Legal Standing: TREATY
C. GEOGRAPHIC Clusters
9. Geographic Locations
a. Geographic Domain: GLOBAL
The Convention was born out of the need to codify the
customary law that had characterized maritime relations among
states since at least the Justinian Code of 529 A.D. Accordingly,
the LOS participants have tried to create an all-inclusive law
governing everything from a stateþs rights over foreign ships in
its territorial waters to the control of deep seabed minerals.
Thus, the LOS tries to address every issue concerning any body of
water, including the deep seabed where the nodules are located.
b. Geographic Site : GLOBAL
Although nodules are scattered among the ocean floors, they
tend to be concentrated where there is little terrigenous
sedimentation. Thus, the are found on the abyssal plains of the
Atlantic, Indian, and particularly, Pacific Oceans at depths as
great as 5000 meters or more below the surface.
c. Geographic Impact : GLOBAL
The deep seabed regime impacts every country. However, beyond
the normative implications of the þcommon heritage of mankind, "the
regime will have very limited economic impact on Bolivia in the
foreseeable future, taking into consideration the time lag and the
minerals in question. The LOS does, though, unambiguously
acknowledge the rights of landlocked states" access to the ocean
and its resources.
10. Sub-National Factors: NO
11. Type of Habitat: OCEAN
D. TRADE Clusters
12. Type of Measure: LICENsing
Private miners must pay a $250,000 application fee for the
rights to mine a particular area. Curiously, the literature on
deep sea-bed mining does not explain how profits the Enterprise
accrues will be distributed to the world.
13. Impact: INDirect
14. Relation of Measure to Impact:
a. Directly Related: YES Mine
b. Indirectly Related: NO
c. Not Related: NO
d. Process: Yes Habitat Loss
Although estimates of impacts of ocean mining on the
environment are very minor, "dredging will stir bottom sediments up
to 20 centimeters below the sea floor and will distribute these
materials in the lower 100 or so meters of the water column."
Unfortunately, this could kill some organisms that live on the
ocean floor, especially those with slow rates of reproduction. In
addition, one possible method of extraction includes using acids
that could produce highly toxic trailings which must be
neutralized, or stored or disposed of properly.
15. Trade Product Identification: NODULES
Manganese nodules are 17-22% manganese, 8-11% iron, .75-1%
nickel, .5-1% copper, and .25-.28% cobalt. Potential reserves
have been estimated at 6 billion tons of manganese, 290 million
tons of nickel, 240 million tons of copper, and 60 million tons of
cobalt.
16. Economic Data: UNKNOWN
Given fluctuating mineral prices, it is difficult to
estimate the potential economic effects of these minerals since
mining is estimated to be at least 10 years away. Mining the
nodules will obviously increase the supply of the minerals
contained within the nodules, but this increase will not
necessarily entail an increase in demand. Moreover, despite
possible negative economic consequences for land-based producers,
especially Third World producers dependent on mineral export,
Bolivia is not a major exporter of any of these minerals.
17. Impact of Measure on Trade: LOW
Although the mining of nodules could adversely affect
land-based producers of these minerals, Boliviaþs main mineral
exports are zinc, tin, silver, and gold. In addition, with the
enactment of the Agreement, trade is unlikely to be significantly
inhibited by the LOS once deep seabed mining becomes viable.
Again, the time frame of mining the nodules also makes the impact
on global trade relatively low.
18. Industry: MINING
19. Exporter and Importer: NONE and NONE
Manganese nodules are not yet a viable alternate mineral
resource to land-based mined minerals.
20. Environmental Problem Type: NA
21. Species Information
22. Impact and Effect: HIGH and PRODuct
23. Urgency and Lifetime: LOW and 100s of years
The earliest time frame for favorable market development of
manganese nodule mining is estimated at 10 to 15 years.
24. Substitutes: LIKE and RECYCling
VI. Other Factors
25. Culture: NO
26. Trans-Boundary Issues: YES
Since deep seabed mining will occur beyond any state's
jurisdiction, all states have an interest in deciding the proper
procedures for the production and consumption of the extracted
nodules.
27. Human Rights: YES
28. Relevant Literature
Bowen, Robert E. The Land-locked and Geographically Disadvantaged
States and the Law of the Sea. Political Geography Quarterly 5:1.
63-69.
Churchill, Robin R. and Alan V. Lowe. Land-locked and
Geographically Disadvantaged States, Ch. 18 in The Law of the Sea,
2nd ed. Manchester University Press. 1988. 316-329.
Dibb, Tracey. Exploitation of the Deep Seabed: Do Land-locked
States and the Third World Get a Look In? Sea Changes No. 6, 1987.
50-79.
Johnston, Douglas M. The New Equity in the Law of the Sea.
International Journal 31:1. 1975-76. 79-99.
Kulebyakin, V.N. The Rights of Land-locked and Geographically
Disadvantaged States, Ch. 6 in Igor Paulovich Blishchenko, ed. The
International Law of the Sea. Moscow: Progress. 1988. 139-145.
Ghaussy, Saadollah. Land-locked and Geographically Disadvantaged
States vis a vis Deepsea Mining, in The Deep Seabed and its Mineral
Resources, Proceedings of the The International Ocean Symposium.
Nov.15-17, 1978. Tokyo. Tokyo: Ocean Association of Japan, Mar.
979. 115-117.
Glassner, Martin Ira. Developing Land-locked States and the
Resources of the Sea-bed. The San Diego Law Review 11:3. 1974.
633-655.
Govindaraj, V.C. Land-locked States - Their Right to the Resources
of the Sea-bed and the Ocean Floor. Indian Jounal of International
Law 14:3-4. 1974. 409-424.
Symonides, Janusz. Geographically Disadvantaged States Under the
1982 Convention on the Law of the Sea, in Hague Academy of
International Law. Recuil des Cours, Vol. 208. Dordrecht:
Martinus Nijhoff. 1988. 287-406.
Tabibi, Abdul Hakim. The Right of Free Access To and From the Sea
for Land-locked States, As Well As Their Right to Exploitation of
Living and Non-Living Resources of the Sea. Osterreichische
Zeitschrift fur Offentliches Recht und Volkerrecht 29:1-2. 1978.
75-79.
Upadhyaya, Lakshman Kumar. Representation of Land-locked and
Geographically Disadvantaged Countries in the Council of
International Sea-bed Authority. Nepal Law Review 10:1. 1986.
1-4.
Wani, Ibrahim J. An Evaluation of the Convention on the Law of the
Sea from the Perspective of the Land-locked States. Virginia
Journal of International Law 22:4. 1982. 627-665.
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