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WHEN the American petroleum industry turned its attention south of the Rio Grande, at the beginning of the present century, few Latin American states had laws specifically dealing with petroleum deposits. Such legislation as existed was embraced in the old mining laws dealing with coal and mineral ores. In almost all cases these laws were inherited from the mining laws of the mother country whose underlying principle reserved to the Crown all minerals, whether on the surface or in the subsoil, subject to certain rights granted to the discoverer and exceptions based on the nature of certain deposits. Building stones and clays, for example, were considered to be part of the soil rather than deposits in it. In general coal, not then of large value, was in this class, and the real and assumed relations of coal to other hydro-carbon deposits, such as petroleum, has introduced much confusion into legal interpretation of the older laws throughout Latin America. Either from an anxiety to discard all trace of the monarchical system or from motives of private interest, many of the republics abandoned the principle in favor of another rule widely followed in England and the United States -- that the surface owner is also the owner of rights to minerals he may discover in the subsoil. The change, which mostly preceded by several decades the discovery of oil in the United States, was seldom the result of judgment based on long-view national advantage. It derived partly from the desire of states, generally controlled by dictators, to obtain funds from a system of concessions, and partly from the example of the United States, where private ownership had encouraged the rapid and successful exploitation of mineral resources.
The development of the oil industry and its expansion southward forced all the Latin American countries to enact specific legislation. The concession system developed correspondingly. In certain cases concessions were legislatively complete; some required compliance with certain specified laws; while the most vital aspects of others were dealt with by successive ministerial decrees.
Legislative uniformity as regards both conception and treatment of the problem is lacking. In Dutch Guiana petroleum development is restricted entirely to the subjects of the sovereign state; in Brazil effective control must be in the hands of citizens; in British Guiana this stipulation exists but only affects lands belonging to the state. In some states a proportion of the shares must be offered to local citizens; in others a proportion must be allotted free to the national government. In Guatemala petroleum concessions may not be held by nationals of countries which do not extend similar privileges to Guatemalan citizens. In Bolivia, Chile, Colombia, Ecuador, Guatemala, and Peru there is a disposition to hold that deposits of petroleum wherever found are the property, not of the surface owner, but of the state. In some of these states this is an underlying rule and in others it applies only to lands granted before or after certain dates. In Brazil the surface owner has full subsoil rights, subject to liability to expropriation. In Guatemala the surface owner has a right to a share of the royalties enjoyed by the state. In Argentina a bill has passed the Lower House which declares that all petroleum deposits are national property, and authorizes the expropriation of all foreign producing companies, though without as yet providing the requisite funds for their purchase. In Mexico the central government now retains the ownership of mineral resources. Formerly it conceded the landowner the rights to coal and oil in his land, but re-claimed these in 1917, with effects temporarily disastrous alike to the oil industry and to the country's finances. The major difficulty here arose over the status of these minerals in lands to which title had passed from the government prior to 1917 but as to which there had been neither development nor erection of separate title.
A like diversity prevails in the regulations governing the status and domicile of the producing company. In Trinidad, British Guiana, Argentina, Bolivia, and Brazil the company must have a domicile within the country's domain. In Ecuador, if the lessee is a foreign company, the manager must have adequate powers. In Colombia a distinction has been drawn between exploration and exploitation; for the former purpose a local domicile is unnecessary. The laws of this country are now in process of revision and this distinction may disappear. In a few countries the point is not covered by specific regulation.
Many states have an overriding clause which provides for the forfeiture of concessions if they are obtained by, or transferred or mortgaged to, a foreign government, or if a foreign government is admitted as a partner or shareholder. The effect of these clauses is as doubtful as the origin of many of them is obscure; the precise language employed varies in each country and is susceptible of various interpretations, none of which can be regarded as authoritative, since no test case has been brought before any Supreme Court. Their existence in certain states tends to exclude certain companies in which governments have a shareholding or other interest. Such companies exist in England, France, Italy, Spain and elsewhere, and their number is likely to increase.
In the absence of decided cases, the law in several Latin American states is doubtful with respect to the right of the surface owner to draw oil and gas from adjacent sub-soil in another's possession. English mining law gives the right to the discoverer of a vein of lead to follow the vein beneath the property of others, and to remove the ore. So long as mining was carried out on a small scale, this ancient principle, known as the Apex law, which was merely confirmed by Edward I in 1287, encouraged mining by guaranteeing to the discoverer the fruits of his enterprise. As deep mining became common, however, this guarantee proved unworkable, and the principle of vertical limitation was adopted. It is enforced today in the coal industry. In the United States a succession of legal decisions has established the principle that oil or gas in the earth belongs to that surface owner who captures it and reduces it to possession, this rule having been derived from an older one covering wild game. Surface ownership, therefore, confers the right to drill and produce oil and gas from the owner's or from adjacent properties; offsetting thus becomes the only remedy. Whether this principle would be maintained in the courts of certain Latin American countries, where the principle of vertical limitation is enforced, is not certain.
It would be the task of an encyclopædist to survey the entire body of disparities in Latin American oil legislation, for it is a maze of bewildering diversity. Laws have grown partly out of purely fortuitous circumstances, as in Argentina, where the legislation owes some of its inspiration to a strong radical party, recruited largely from recent immigrants from Europe, and partly out of a desire to avoid the political inconveniences suffered in Mexico and elsewhere by the sudden growth of a highly organized industry in a pastoral and agricultural economy. In only one particular have the laws anything in common; they serve to restrain the wasteful system of exploitation practised in the United States. The very difficulties placed in the way of the development of petroleum deposits by foreign capital tend to conserve the potential production of large Latin American areas. Thus they operate at the moment to the advantage of the oil industry as a whole during the present period of overproduction.
As we have seen, the primary determining factor of the Latin American oil legislation in existence and in contemplation has come from the old Spanish mining laws. But other influences have been at work. For example there are many traces of the strong diplomatic influence exerted by Washington in 1919, when the view was widely held in the United States that its own oil resources were within measurable distance of depletion, if not exhaustion, and that outside sources of supply were vital to the national welfare. The predominant factor at present, however, is the somewhat violent national reactions directly provoked by the diplomatic and commercial activities of the post-war period. Legislation born in fear and nursed in an atmosphere of misapprehension and distrust seldom deserves a permanent place among a nation's statutes. It is almost invariably harmful to its economic welfare. Such Latin American oil legislation as owes its inspiration to this influence is no exception to the rule. It is based on the following assumptions:
First, that petroleum deposits in any given country are the absolute property of the inhabitants, to be utilized or not solely in their own interests, without reference to the needs of the world at large.
Second, that the investment of large amounts of foreign capital in an undeveloped country is a potential menace to that country's independence, whether political or economic; that this applies in a peculiar degree to the capital required for petroleum development; and that special enactments are therefore necessary to prescribe the conditions under which such foreign capital investments may be made.
Third, that there is a probability of a world shortage of petroleum products in the comparatively near future and that each government has the duty in the vital interests of its nationals, and therefore the right, to take steps to conserve its own reputed deposits of petroleum for the use of future generations.
Fourth, that exports of petroleum, whether crude or refined, constitute a drain on the natural resources of the country concerned, without adequate counterbalancing advantages, since petroleum deposits, however vast, are limited.
We will first consider the assumption that petroleum deposits, in common with other sources of raw material, are the absolute property of the territorial authority, without reference to the needs of the rest of the world.
International jurisprudence, while recognizing specifically the absolute sovereignty of the territorial authority within its borders, condemns its exercise in a manner needlessly detrimental to others. A host of international organizations has grown up in the last century to give effect to this principle in the realm of communications, in hours and conditions of labor, in sanitation, in transit problems, and in many other fields. It is not unreasonable to suggest that the time is ripe for international recognition of the increasing interdependence of all countries in regard to raw materials, and for an attempt to translate the necessary implications of such recognition into a form of agreement.
"Private property," wrote Mill in his book on Distribution, "in every defence of it, is supposed to mean the guarantee to individuals of the fruits of their own labor and abstinence. The guarantee to them of the fruits of the labor and abstinence of others, transmitted to them without any merit or exertion of their own, is not of the essence of the institution. . . . To judge of the final destination of the institution of property, we must suppose everything rectified which causes the institution to work in a manner opposed to that equitable principle of proportion between remuneration and exertion, on which, in every indication of it that will bear the light, it is assumed to be grounded." Had Mill been dealing with the rights of states in relation to the world and to each other, and not with those of individuals, it can scarcely be doubted that he would have demanded a revision of the assumptions on which national policy is now based so far as concerns the control of raw materials and especially of mineral resources.
The need for revision is implicit in almost every page of the resolutions passed by the World Economic Conference at Geneva in May 1927. This conference, like that of 1928 at Havana, was, it is true, silent on the question of petroleum, to which only incidental references were made; but the argumentum ab silentio, always weak, is wholly inapplicable. One resolution, dealing with the economic and fiscal treatment of nationals of one country admitted to settle in the territory of another, has a direct application, however, to the oil industry. It reads as follows: "Recommends a diplomatic conference for the purpose of drawing up an international convention for the abolition of unjust distinctions. . . . Meanwhile bilateral agreements providing for equitable reciprocity . . . might effect a valuable improvement." This resolution is a substantial endorsement of the policy embodied in the Mineral Leasing Act passed by the United States Congress in 1920[i], and deserves special attention at the hands of those Governments who have not yet found themselves able to give effect, in the sphere of petroleum legislation, to the policy unanimously endorsed by their representatives at Geneva.
The second assumption, that the investment of foreign capital is a potential menace and must be rigorously controlled, is perhaps more difficult to deal with than the first one. It is a thesis which is from time to time advanced in Great Britain, when, for example, American capital seeks an outlet in the electrical or automobile industry, or when the German chemical industry extends its activities across the Channel. It is frequently raised in the United States both in regard to petroleum and other companies. The course of wisdom in this matter is the middle course. On the one hand, each nation must maintain sufficient control over its resources to hold its own in competition with others: on the other hand, it must do so compatibly with the general welfare. In principle, it is obviously undesirable to limit the inflow of foreign capital into Latin American states, especially at a time when it is urgently needed and is scarce and dear. Few Latin American countries can afford to discriminate against foreign capital, still less against capital from the United States, since the bulk of their exports (except in the case of Argentina) are destined for the United States.
In point of fact, the statistics of foreign investments in the ten states of South America show that they have little cause for alarm. In 1928, United States investments were estimated at rather over 2,000 million dollars, as against 4,000 million dollars from Great Britain and 2,000 million dollars from other countries. Public loans in the ten countries total rather over 1,500 million dollars. It is clear that, generally speaking, Latin American borrowings are well spread. From Latin America's point of view it is more important that its exports, and therefore its imports, should be more widely distributed than at present. It is bad to borrow exclusively from one country; it is worse to trade with one country only, and worse still if that country is also the principal lender.
High American tariffs are, however, a real source of grievance to Latin American statesmen. They have not forgotten that the third of President Wilson's Fourteen Points was: "The removal as far as possible of all economic barriers and the establishment of an equality of trade conditions among all the nations consenting to the peace and associating themselves for its maintenance." They believe, too, that the recent purchases by United States interests of Latin American business concerns hitherto controlled by European capital are part of a deliberate plan whose object is not so much to earn dividends as to win trade. They do not desire to become subject to the sort of economic servitude which is liable to supervene when trade is conducted with one country only and with one which is also the principal lender.
The facts nevertheless suggest that the political-economic danger to Latin America from an influx of foreign capital is negligible and that within the life-time of men now living these countries will have largely ceased, like the United States, to borrow abroad and will have become financially self-sufficient.
We shall now turn to the third assumption, that there is a probability of a world shortage of petroleum and that each nation should therefore conserve its own deposits.
To begin with, it is clear that the principle of national conservation of mineral resources cannot be confined to petroleum and that if it is exercised in regard thereto other nations who need it will be tempted to retaliate. There are many metals of which one nation or group of nations has a virtual monopoly today, e.g. mercury, Spain and Italy; gold, the British Empire; vanadium, Peru; copper, the United States. If the nations of the world were to initiate a series of export controls, based on a policy of national conservation of raw materials, or in retaliation for such a policy, the prospects of civilization would be poor indeed.
No reliable estimate of world resources in oil has yet been made or can possibly be made in the near future. Such estimates as have been published have been promptly questioned by competent engineers and in due course falsified by experience. The world's output today is far below the capacity of actual producing wells. For our purposes we may take the estimates of the United States Geological Survey as being the best available basis for dispassionate consideration. These credit the world with some 43,000 million barrels, of which the United States holds about one-sixth and Latin America about one-third. When it is borne in mind that the total population of Latin America from Mexico to Tierra del Fuego inclusive is under rather than over 90 millions, as compared with over 120 millions in the United States, and that the per capita consumption of petroleum products in Latin America today is estimated to average scarcely one-twentieth of the corresponding figure for the United States, it is clear that no group of people has less reason to fear a shortage of petroleum than the Spanish and Portuguese speaking communities of the New World. Plainly it is a mistaken policy to base oil legislation not only on an assumed shortage but on the idea that no new sources of power and no better means of discovering and utilizing petroleum will be discovered. All the petroleum produced to date is less than two-thirds of a cubic mile in bulk; there is much more than that somewhere.
We come to the fourth assumption, that exports of petroleum constitute a drain on the natural resources of the country concerned, without adequate counterbalancing advantages. In this connection the following quotation from a recent speech by Sir John Cadman before the American Petroleum Institute is very much to the point:
So soon as a nation's oil resources are discovered, their forces tamed and harnessed, and the process of extraction reduced to a matter of routine, that nation is within her rights in conserving an ample measure of these resources for the greater safety of her realm. . . . In a country of small consumptive power the mere possession of natural oil is of itself an asset only in so far as a whole complex of external conditions makes it so. Without hundreds of investors willing to lose four times out of five in the hope that at the fifth they will make good their losses; without the instruction of a whole faculty of technical resource, founded and developed in other countries -- or, it may be, in another hemisphere; without an army of pioneers who have adjusted the needs of man to the character of the product and vice versa; without a network of distributive systems having been traced upon the face of the globe -- without every one of these things, the oil deposits, priceless as they are potentially, might just as well have been deeply buried in the moon.
More than one attempt has been made in recent years to secure the collective consideration of economic problems by the United States and the Latin American states. At the first session of the American Institute of International Law held at Washington in 1916 the jurists representing the American republics adopted a declaration of the rights and duties of nations, Article 11 of which reads as follows:
Every nation has the right to independence in the sense that it has a right to the pursuit of happiness and is free to develop itself without interference or control from other States, provided that in so doing it does not interfere with or violate the rights of other States.
This, the first official recognition of what Herbert Spencer terms "universalistic hedonism" as an international principle, was as far as the jurists were prepared to go in 1916. But at Havana in 1928, at the Sixth International Conference of American States (generally known as the Pan American Conference), the Governing Board recommended the preparation of projects of uniform legislation on "(a) commercial law and other branches of legislation in which uniformity is possible and desirable;" and "(c) principles to which the juridical status of companies in a foreign State should be adjusted, with a view to securing uniform standards." A resolution was passed organizing three permanent committees, at Rio de Janeiro, Montevideo and Havana respectively, to deal systematically with these and other matters, with a view to including them in the agenda of a future international conference. The committee with headquarters at Havana was constituted to undertake the study of comparative legislation and to consider the expediency of uniformity of legislation. Its functions were defined as follows:
(a) To present to the governments a list of the subjects susceptible of codification and uniformity of legislation, including those definitely subject to regulation and formulation, and those which international experience and new principles and aspirations of justice indicate require prudent juridical development. The presentation of this list shall be for the purpose of obtaining from the governments a statement as to the subjects which in their opinion might be the object of study as a basis of the formulation of conventional regulations or of organic declarations.
(b) To classify, on the basis of the aforesaid list and of the replies of the governments, the subject matter in the following manner: (1) subjects which are susceptible to codification because they have the unanimous consent of the governments; (2) subjects which are susceptible of being proposed as subject to codification because, while not unanimously supported, they represent the predominant opinion of the governments; (3) subjects with respect to which there is no predominant opinion in favor of immediate regulation.
(c) To present the foregoing classification to the governments in order to ascertain their general views with respect to the manner in which the juridical problems of codifiable subjects can be brought up and resolved as well as all information and juridical, legal, political, diplomatic and other antecedents which might lead to a complete understanding.
(d) To request and obtain from the national societies of international law their scientific opinion and their general views regarding the regulation and formulation of the juridical questions which are the objects of these committees.
(e) To organize all the foregoing material and remit it together with drafts of projects to the Pan American Union, which shall submit them to the scientific examination of the Executive Council of the American Institute of International Law so that it may make a technical study of said drafts and present its conclusions and formulas, with full explanations in a report on the subject.
At the opening of the Conference a gallant attempt had been made by Dr. Pueyrredon, chairman of the Argentina delegation, to force the pace and to bring economic questions under the direct purview of the Pan American Union. The preamble to the Convention placed the signatories on record as "desirous of promoting efficaciously the harmonious development of their economic interests," thus vesting the Union with an economic function. Dr. Pueyrredon wished to add the following clause: "Economic coöperation being an essential factor in the realization of these purposes, the signatory States tend to the suppression of unjust obstacles and excessive artificial barriers which may hinder natural interchange or restrict the liberty of commerce between the nations of America, without according privileges or creating exclusions." But his views were not accepted and he resigned his position at the Conference: the Union decided that economic questions were domestic in their nature and beyond its competence. There, for the moment, the matter rests; but not, it is to be hoped, for long.
Innumerable questions of principle and detail, both of legislation and practice, will face those who shoulder the task of standardizing Latin American oil legislation. Many of them have been indicated in this survey. The main aim and object should be to include a measure of rationalization. To be precise, the principle of unit development should be introduced, though without retrospective effect. By this term is meant unified control of single geological formations, or so-called "pools." Wherever commercial foresight or good fortune has made possible the adoption of this principle, it has had the following results:[ii] (1) increased and prolonged supplies, which can be regulated to meet supply and demand; (2) lower costs and a minimum of waste of gas; (3) more oil recovered, i.e. less left irretrievably in the earth, as gas and air lifts, repressuring and other systems can be applied at an early stage; (4) effective control of water; (5) resulting from the above, steady prices, creation of fresh wealth, steady dividends to shareholders, and royalties to governments and other royalty owners.
Further points of international importance which must be arranged are: (1) an international convention to regulate pipelines from one territory through a second to the sea, on the basis of the International Convention of Barcelona on Transit (1921); (2) income-tax questions (already under examination by the League of Nations); (3) import and export duties on petroleum products, crude and refined, and on material for petroleum development.
The time is ripe to make a beginning at the task of codification. As we have seen, the permanent committees set up by the sixth Pan American Conference constitute the nucleus of an organization already empowered to study comparative legislation with a view to the encouragement of uniformity. Other factors are also propitious. Over-production of petroleum in the United States and elsewhere has caused a temporary slackening in the demand for the immediate development of the Latin American oil fields. Mr. Hoover's good-will tour has not been without its effect on American relations. A concerted effort is being made by the principal oil groups, American, British and Dutch, to reach an agreement on general principles which, while leaving each group with the fullest measure of freedom, will in future prevent periods of scarcity and high prices alternating with periods of excess production and cut-throat competition for markets.
But before it is considered for codification, the material must be collected and assembled and tentatively codified. This is a tremendous task. It is such a task as might be undertaken by the oil industry itself. Unlike some great industries, the oil industry is not controlled by financiers, though it occasionally suffers from their intervention; it is master of its own destiny and its captains are not without souls. So far from being a disturbing factor in international gatherings, as is sometimes represented, the petroleum industry has striven, both during and after the war, to find a course consistent alike with its duties to its shareholders, to the nation to which it owes allegiance, and to world welfare. Here is an opportunity for international coöperation in the interests of world welfare. The lead might well be taken by the American Petroleum Institute, with whom, if invited, the representatives of the European industry would gladly collaborate.
Coöperation between national and international forces there must be, if civilization is not to founder. And in the form of codification suggested there is room for the fullest measure of elasticity, which will take into account the varying economic ambitions, as well as needs, of the interested states. It is only through nation working with nation, forgetting national boundaries, that we shall ultimately succeed in placing the mineral resources of the world at the disposal of all humanity on equal terms.
[i] Holland was in 1928 recognized by the United States as a reciprocating country for the purposes of the Act.
[ii] See paper by H. L. Doherty in "Petroleum Development and Technology," published by the American Institute of Mining and Metallurgical Engineers in 1925; also papers by I. L. Dunn and J. O. Lewis in the issue for 1926.