Changing concept of sovereignty over natural resources

Sovereignty in its widest sense means the supreme, absolute and uncontrollable power by which

any independent State is governed. Through the years, the concept of sovereignty has evolved to

include not only territorial sovereignty but permanent sovereignty over natural resources (PSNR) as

well. Fundamentally, PSNR means the State can freely dispose of its natural wealth and resources

within its territory. Correlatively, the principle brings about the State duty to properly manage its

wealth and resources as well as due care of the environment.

Efforts at formulation of the principle culminated in the adoption of a UN resolution called Declaration

on Permanent Sovereignty over Natural Resources in 1962. The principle progressively developed

that by 1972, the well-known Principle 21 of the Stockholm Declaration on the Human Environment

declares the sovereign right of States to exploit their own natural resources pursuant to their own

environmental policies. However, the right is qualified by the obligation not to cause any extra-

territorial environmental harm.

For many years, the main purpose of international agreements related to the principle of permanent

sovereignty over natural resources was the maximum use and development of natural resources

instead of rational management and conservation of natural resources in order to prevent their

depletion or degradation. Perhaps, the reason was the concept of sovereignty is difficult, if not

impossible, to fathom in an ecological frame of reference. The very thought of ecology is based on

the notion of interdependence rather than independence. In fact, rights of full disposal were granted

to States on the basis of territorial sovereignty rather than a principle of sharing the worlds

resources. The trend was overtaken after the 1972 UN Stockholm Conference on the Human

Environment by resource-oriented multilateral environmental agreements (MEAs) or treaties. An

example is the UN Law of the Sea Convention (1982) which adopted the regime of common

heritage of mankind by which non-State areas are not freely appropriated anymore by financially

capable developed countries for their exclusive use. Similarly, incorporation of the integrated

ecosystem approach in the Convention on Biological Diversity (1992) enumerates State duties to

properly manage its species of plants and animals which, in effect, limits a States exercise of

jurisdiction over its natural resources. From unrestrained freedom of action, State sovereignty was

interpreted in a more functional way to mean specific uses of a resource rather than absolute and

unlimited jurisdiction within a given geographical space.

Functional sovereignty is bolstered by reference of various PSNR-related UN resolutions and

treaties to mankind referring to areas and resources beyond the limits of national jurisdiction or the

global commons. In this connection, mention should be made that at the 1992 UN Conference on

Environment and Development in Rio de Janeiro, proposals were made to characterize biological

and genetic resources as well as the worlds forests as the common heritage of humankind. Thus,

the three Rio treaties recognize that change in the Earths climate and its adverse effects are a

common concern of humankind (Climate Change Convention); that the conservation of biological

diversity is a concern of humankind (Convention on Biological Diversity); and desertification and

drought are problems of global dimension and human beings in affected areas should be at the

centre of concerns to combat desertification and to mitigate the effects of drought (Convention to

Combat Desertification). Note that in those treaties people, humankind and the environment as such

are objects rather than subjects of international law. As objects, indirectly they have rights under or

are beneficiaries of international law through subjects of international law, referring to the State

actors in the international legal system.

Sovereignty has served as the foundation of public international law since the Peace of Westphalia

(1648) with sovereign states as the principal actors in international relations. But as can be gleaned,

times have changed. What does the principle represent in the changing world? Current thinking

maintains permanent sovereignty over natural resources as a State-oriented law under which natural

resources regimes co-exist but barely interact. Be that as it may, the trend, as can be observed, is

towards a legal interpretation that is humankind-oriented, under which sustainable development and

environmental preservation are approached from a global perspective. At its core is cooperation

aimed at implementation of the right to development, the wise management of natural resources,

equitable sharing of transboundary natural resources and the global commons for preservation for

the coming generations. With this legal thinking and the concomitant framework, sovereignty over

natural resources as the fountainhead of rights and obligations can very well continue to serve as a

basic principle of public international law. The above-enumerated treaties incorporate the law of

interdependence in the sustainable use of natural resources emphasizing States are under the duty

to cooperate with each other to promote development sustainability of the common environment.

With this latest development in the increasing appreciation of PSNR, is it not time to re-think and re-

actualize sovereignty in order to formally recognize its functional role as demanded by changing

times?

After all, the general principle that ensues from all this is that the Earths biosphere is the common

heritage of all life on earth of which humanity is the steward

Common sovereignty over transboundary natural resource

Transboundary natural resources transcend national jurisdictions, which means that the exercise of

jurisdiction of one state affects the environment of one or more other states or areas

Owing to the original and traditional interpretation of sovereign rights of sates over their natural

wealth, resources become depleted or exhausted as each state seeks to maximize its own benefit

by exploiting the resources. Also, existing international law on transboundary natural resources

tends to be piecemeal and uneven when dealing with the issue of transboundary waters, e.g. ECE

Transboundary Watercourses Convention (1992), Danube Convention (1992); and living resources,

e.g. Whaling Convention (1946), Antartic Marine Living Resources Convention (1980).

The international challenge for coordination and cooperation to ensure the equitable and sustainable

or reasonable utilization and management of transboundary natural resources was brought forth by

two international legal studies done by the World Commission on Environment and Development

(1986) and the International Council of Environmental Law (2004) which expound on the principle

that States are entitled to a reasonable and equitable share in the beneficial uses of a transboundary

natural resource. According to this principle, no use or category of uses is inherently superior to any

other use or category of uses. Whether a certain use is reasonable or not has to be determined in

the light of all relevant factors in each particular case. These factors may include, inter alia,

geographic, hydrologic, climatic, biologic or ecological conditions, the existing use made of the

natural resource, the economic and social needs of the States concerned, the feasibility of

alternative means including the availability of other resourcesto satisfy these needs and the

possibility of compensation to one or more of the States concerned as a means of adjusting conflicts

among uses. The essence of the principle of equitable utilization is that instead of laying down a

norm with a more or less specific content, it rather prescribes a certain technique aimed at reaching

an equitable result in each concrete case.

The principle has been applied in many multilateral environmental agreements or treaties specifically

those concerning the use of the waters of international watercourses. Examples are the Indus

Waters Treaty between India and Pakistan (1960) and the Agreement Regulating the Withdrawal of

Water from Lake Constance between Austria, Federal Republic of Germany and Switzerland (1996)

which determined the delimitation of the rights and duties of each State over the transboundary

waters.

An example in Southeast Asia is the Agreement on the Cooperation for the Sustainable

Development of the Mekong River Basin (1995) drawn in accordance with the principle of

safeguarding sovereignty, territorial integrity and mutual benefit.

Aside from treaties, the equitable utilization principle was also a recommendation in the 1972 UN

Stockholm Conference on the Human Environment which says The net benefits of hydrologic

regions common to more than one national jurisdiction are to be shared equitably by the nations

concerned (Recommendation 51). It was also a recommendation of the Action Plan adopted by the

1977 UN Water Conference which declared that In relation to the use, management and

development of shared water resources, national policies should take into consideration the right of

each State . . . to equitably utilize such resources (Recommendation 91). Furthermore, highest

courts or arbitral tribunals in Germany, the United States, Switzerland and India have also frequently

applied the principle of equitable utilization in the sharing of waters of interstate watercourses.

To efficiently manage what is left of the earths natural resources, a relaxed concept of sovereignty

was thought of through equitable sharing of transboundary natural resources and the global

commons. It appears on the basis of State practice that a rule of customary international law has

emerged requiring States to cooperate in the conservation and management of transboundary

natural resources.