MINING INTEGRATION AND COMPLEMENTATION TREATY BETWEEN THE REPUBLIC OF ARGENTINA AND THE REPUBLIC OF CHILE (ENGLISH VERSION)
| Jurisdiction | Derecho Internacional |
(2001)
MINING INTEGRATION AND COMPLEMENTATION TREATY BETWEEN THE REPUBLIC OF ARGENTINA AND THE REPUBLIC OF CHILE (ENGLISH VERSION)
Subsecretaría de Energía y Minería
Buenos Aires, Argentina
Liliana Tassile
Consejo Federal de Minería
Buenos Aires, Argentina
Florencia Heredia
Estudio Beccar Varela
Buenos Aires, Argentina
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I. NATURAL RESOURCES UNDER INTERNATIONAL LAW
In order to discuss the topics of the Mining Integration and Complementation Treaty, which is the subject matter of this paper, it is most important to analyze the specific features of the natural resources in the light of international law.
Accordingly, International Law recognizes three categories of natural resources: those that are owned by each State, those that belong to the international community and those that are shared by two or more countries.1
The main resources included in the last mentioned category are: international rivers, mineral deposits located in the territory of two or more states, the atmosphere, migratory animals and those whose habitat comprises the territory of more than one State.
The idea of setting the basis for a general legal system that will rule the shared natural resources responds to a conception which commenced to be accepted under positive law after the 1972 United Nations Environment Conference (Stockholm Conference). Strictly speaking the term "shared resources" started to be used with some degree of accuracy after the approval of Resolution 3129 (XXVIII) by the United Nations General Assembly.
As aforesaid, only after the Stockholm Conference was there a general legal regulation applicable to shared resources based on the good neighbor principle and the doctrine of "abuse of right."
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The features of these two principles may be said to be as follows:
a) The obligation not to cause an appreciable damage.
International Law has a rule that provides that every State is bound to act in such a way that it will not cause an appreciable damage beyond the limits of its territory. This provision is based on customs and usage and applies to all shared resources. This rule or provision has also been welcomed in various international treaties that deal with different aspects and mechanisms to avoid and, if applicable, repair any damages caused.2
b) Equitable and Reasonable Use
The finite nature of the natural resources has given rise to their "reasonable use" as a main standard.
In concurrence with the two principles described above, it has become a practice to advise the involved States of any proposed project for the use of shared resources on the part of a country to be carried out in its own territory. In this way each State will have the opportunity to determine whether the project in question is going to cause any detectable damage or if it entails an equitable and reasonable use of the resource.
For the purpose of an implementation of this information exchange principle, the treaties that deal with this matter establish the necessary mechanisms of notice and data access. In this respect the following has been provided:
The States have to facilitate the pertinent information on activities or events that take place within their jurisdiction or under their control any time they believe, or have reasons to believe, that such information will be necessary to avoid severe damages being caused to the environment in areas located outside their national jurisdiction.3
The Mining Integration Treaty between Argentina and Chile constitutes a legal framework that deals with the exploration and exploitation of shared mining resources on reasonable use basis, promoting the rational and integral development of the mining resources within its territorial scope.
The provisions of the Treaty are dominated by the mentioned good neighbor principle, which is the core of integration itself, and the intention has been to compile in a legal text a full series of regulations that rest on the coordination of the activities of the various entities involved in the development of the mining business.
Furthermore, some guidelines have been set for the subsequent information exchange among the contracting Parties in order to monitor the progress of the mining project.
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While we have mainly referred to the principles established in the 1972 Stockholm Conference, actually they have also been eventually accepted in other international instruments such as the 1992 Rio de Janeiro Environment Conference and other treaties, resolutions and recommendations from United Nations organizations and at present they have been given the stand of general principles of indisputable application in the field of international law.
As it can be appreciated these principles are projections to international law and they imply that the legal scheme applicable to the shared resources essentially comprise: reasonability in their exploitation and distribution of profits.
II. LEGAL AND INSTITUTIONAL BACKGROUND
On November 29, 1984, the Treaty of Peace and Friendship between Argentina and Chile was subscribed in order to promote and intensify economic cooperation and physical integration. For that purpose, a Binational Committee was created in order to develop natural resources exploitation initiatives, among other things.4
Later, on August 2, 1991, the Economic Complementation Agreement (ACE from the Spanish "Acuerdo de Complementación Económica") N° 16 was subscribed in the framework of the Latinamerican Integration Association (ALADI, from the Spanish "Asociación Latinoamericana de Integración") which was subsequently enlarged with the incorporation of Protocol N° 3 of Mining Cooperation and Integration. This document establishes that both States agree to set in motion a scientific and technical information exchange program mainly involving a strip of approximatedly forty kilometers wide both sides the frontier of the respective countries, in order to assess and enable the development of joint projects for the exploration and exploitation of the mining resources existing along the border line of both countries.5 Likewise, they agreed to the convenience of securing, as allowed by the circumstances, the joint development of the resources that exist both sides the frontier, so that their exploration and exploitation will be made in a rational and integrated manner, pursuant to state-of-the-art mining engineering practices and standards. Accordingly, they have agreed to encourage the organization of joint ventures among natural and legal persons of both countries, as well as the participation of foreign investors.6
In December 1993 the "Binational Mining Work Team" was created in the framework of the Mining Action Program, in which environment the first negotiations for the execution of a specific Bilateral Agreement were born.7
In June 1995, in the framework of the ALADI ACE 16, an agreement was reached on the need of signing specific protocols for the development of critical mining projects located throughout the Andean frontier regions of both territories which, although governed by the internal legislation of each State, would be afforded provisions for frontier, customs,
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environmental and other facilities allowing the competent public entities of both countries to coordinate actions oriented to facilitate the performance of the project activities.
Along with the progress of the negotiations, the "Basis and Grounds for a Mining Integration and Complementation Treaty" was prepared and the final document was signed by the Foreign Affairs Ministries on July 1, 1996.
In January 1997 the ACE 16 Additional Protocol XIX (PACHON) and the ACE 16 Additional Protocol XX (PASCUA-LAMA) were signed and in March 1998 the Additional Protocols XXII and XXIII were subscribed in order to set the Regulations for the facilities established for the mentioned projects.
Pursuant to the protocols referred to above, the Binational Work Team was designated as the competent body in charge of seeing to the application of the facilities granted to the mining project. This Team comprised the Foreign Affairs Ministries and Mining Areas of both countries.
On August 8, 1997, the Presidents of both countries subscribed the Joint Presidential Statement which put an end to the wording of the Treaty, leaving for the future the cartography tasks.
The Mining Integration and Complementation Treaty between the Republic of Argentina and the Republic of Chile was subscribed on December 29, 1997, in the cities of San Juan, Argentina and Antofagasta, Chile.
Subsequently, on August 20, 1999 a Complementary Protocol was signed to identify specific aspects of the Treaty involving the acquisition of mining rights and rights in rem with respect to real estate located in frontier zones and discussing topics that are the subject matter of the adoption of Additional Specific Protocols.
After compliance with the internal regulations of each country concerning the acknowledgment of the mentioned instruments — i.e., their approval by both Congresses — it became effective on December 20, 2000, with the exchange of the deeds of acknowledgment which took place at San Pedro de Atacama, Chile.
III. PURPOSE
The Treaty represents the legal framework that will govern the mining business with the scope given in the same, and its purpose is to allow investors to participate in the development of the mining integration that the Parties have declared to be of public use and general national interest.
The Treaty authorizes the Parties' investors to engage in the exploration, exploitation and commercialization of the natural resources found in the Andean frontier zones of both territories which are identified on a map that forms an integral part of the Treaty, while it applies the national status principle and grants boundary facilitations.
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The...
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