Nico Schrijver – Permanent Sovereignty over Natural Resources



thank you very much sir Stefan indeed Tuesday is always a special day for me since I serve as a senator in the Dutch house of parliament and we only meet one day a week and that is on Tuesdays so when I asked the president of the Senate for Leif he said well you must have a very good reason I said yes the two professors are close friends professor Stefan hoga professor Marc Luber and moreover as Stefan just put it so nicely it may be my topic of the past but some view it as the topic of the future so you hardly get an invitation which is so tempting to reflect on work which you have done several decades ago the president of the Senate also stated to me well don't forget all consequences of your absence are yours and in fact I must admit it fills me with some feelings of unease to be here on Tuesday because last night when I just passed by train the border from Arnhem to Oberhausen I caught word from my daughter word has it that our Queen will step down and we need by the time that I arrived in Dusseldorf I saw on the Internet much to my regrets that Queen Beatrix has decided to abdicate and this morning I caught several phone calls from The Hague that this afternoon in my absence they receive in committee of citizens concerned citizens who also would like to propose an in or out referendum for the Netherlands as regards to the European Union and since I serve as the vice chair of the Senate Committee on Foreign Affairs and European affairs I must say I'm a little bit nervous what my colleagues some of them very old colleagues do in my absence however I'm very happy to be here and I would like to take you quickly through 50 if not 75 years of history as regards to permanent sovereignty of Natural Resources my task is already considerably lighter a few of the facts that Professor Hoeber covered already so many of the items also featuring in in my lecture so I I will discuss with you that permanent sovereignty indeed emerged as a new principle of public international law any post 1945 periods and that it is a powerful organizing principle within world politics as we will note the verse was far from easy and that is reflected in the brief discussion on the main roots of resource or foreign tea the genesis and is also reflected in the fact that there are more the just one right holders and it's also reflected in the widening scope of the objects to which the principle relates I will briefly summarize in fact professors hobus lecture when I discussed the phases in the evolution of UN policy as regards natural resource management the principal came about and caught shape obviously in different political phases with a variety of actors involved items five and six and since it yeah was was conceptualized in the political organs of the United Nations that is for us lawyers very important to examine whether it has been incorporated in hard sources of international law in terms of article 38 of the statute of the International Court of Justice is that a reflection in treaty law what about judicial decisions especially from international tribunals and Court items and number seven and eight and nine of course first of all permanent sovereignty came about to to emphasize the right of states and peoples to dispose freely of the natural resources but many more resource rights became related to the principle obviously to formulate rights is much more popular than to identify duties yet in in the later phases but try to make sure that permanent sovereignty is also used for the goods for for humankind as a whole for the environment etc so we will also review the resource related duties and then building on the lecture by State Farm I will say a few words on the legal status and I discussed with you what kind of new directions the principal is taking in the 21st century now I can be very brief on the two main routes on the one hand permanent sovereignty was part of the movement to strengthen the sovereignty political sovereignty in Latin America economic sovereignty of the newly independent states and in your folder I was happy to see these old resolutions 5 2 3 6 to 6 from the early 50s which testified to death particular rules but secondly it was also of course part and parcel of the struggle of colonial people's colonial territories for political independence it was part of the self-determination of the decolonization movements and it was widely felt that the achievement of political self-determination would be an empty shell without economic self-determination so you can affect see it as some kind of double burst if that is at all possible but in it when I was working on this topic we were a bit in the baby period so for me my family so forgive me that I also use terms like cradle the cradle of this principle stood in the UN General Assembly in a way the UN General Assembly served as the mids one and that is very special and especially for me in the length of who go gracias to argue that international law does not only come about as a result of an centuries-old customary practice of states and does not come as a result of an diplomatic treaty making conference but resulted and from from yeah their solutions non-binding resolutions nor creating resolutions from a political organ such as the UN General Assembly that that really needed some analysis indeed if you read a resolution 1803 professor Hobart introduced you to to to the Declaration I will not repeat it you will see that it is partly an hybrids and controversial resolution touching on a variety of issues including in impart to for example state responsibility often neglected in in the discussions on this particular resolution so partly we can note that it was in the words of Roslyn hiking's and declaratory resolution and indeed and declaration which declares the state of the art in this particular fields you see that in paragraph one in paragraph eight but in paragraph one we see also that disgrace I law creating by fasting permanent sovereignty in both peoples and nations read states so not only States but also nations with the qualification that both of them are vested with the duty to exercise this new attribute resource Oran T in the interest of national development and for the well-being of the people partly that is also permissive declaration in the sense that it permits it rubber stamps policies which until that moment were often found to be in contravention of international law for example the nationalization paragraph that you can take foreign property rights according to international and national law and that you have to pay only appropriate compensation not full prompt and effective the whole formula and that when it comes to dispute settlement local remedies first so here it is impermissible paragraph legitimizing the policies of certain Latin American countries which embarked on rather controversial nationalization programs at the same time it also has in the words of John Rene Dupree his name was already mentioned by Stefan it also has features of the raw program at valve program Ettore writes it's etiquette lines for future policies for example in a paragraph that they say the well natural resources should really be processed very well should be a basis for independent national development so as a result of all these discussions in the 50s and early 60s partly an echo so partly in the Commission on Human Rights but mostly in the context of the UN General Assembly and somewhat often consensus emerged and very soon indeed this declaration 1803 was filled as the economic decolonization declaration dependent to the very well known decolonization declaration 1514 adopted in 1960 and indeed arbitrated to free in the mid seventies in 77 in the Texaco award stated it formulates the opini o us communist of the international community so that was a very important statement during days that the Declaration was challenged as being outdated as a result of the adoption of rather controversial resolutions concerning a new international economic order and they will discuss later with you to what extent this declaration the contents of this declaration has been adopted in other sources in hard sources of international law first just briefly and we can have discussion on it if you like later obviously right holders are peoples but more and more of course they are Templeton the foods by by States in the beginning it was really for people's and for underdeveloped countries developing countries newly independent nations but very soon from seventies on all states and some people say well we should refine refine allies that's dimension of people's sovereignty as right all the Newtonian objects button right holder to permanent sovereignty you can also home the I was just reading reviewing in context of a peer review an article and by a philosopher and I say well why is that territorial connection to net soul resources necessary how can we defend it then these are planetary planetary resources they belong to all of us they they belong to humankind they are part of an ecological system whatever it may be that has not really been expressed so far we have seen from time to time emphasis on the rights of peoples in occupied territories in Western Sahara in East Timor the Palestinian people reflected also in some paragraphs in the Israeli wall opinion of 2005 by the International Court of Justice and of course we see now very often permanent sovereignty in a new chapter as regards the rights of the indigenous peoples a very interesting declaration adopted just five years ago in 2007 which really emphasized emphasizes the people's dimension once again through the lenses of indigenous peoples rights to their natural habitats to their forests to the fish in their waters to their natural resources in general and in the Senate I'm sitting next to the floor leader of the party for the animals with two seats in our Parliament and he teaches me every Tuesday that we have to see nature as an holistic whole and that we deal especially you lawyers he tells me you deal in a way to entrepot centric way always human related but nature answers should have rights well of course there is a very famous book I believe Christopher stone was the altar should trees have standing and shoot animal animals have rights we have not come very far at least not in international law more in ethics maybe or in philosophy on that question that I just flag it opx we always talk about Natural Resources living nonliving exhaustible non exhaustible by the way you can also have mum exhaustible moon living resources I wouldn't be surprised if professor hobo as a specialist in both the law of outer space and the law of the sea has some poly metallic module in his study which is an example of a nonliving resource but at the same non exhaustible because they can grow on the deep seabed of the period of 25 to 30 years so it is interesting also to to dwell upon the issue what our natural resources but I find it from an environmental point of view also very interesting to Fleck the term not very often used but it is in declaration 1803 and a very first paragraph the concept of natural Wells so I'm not talking about the tree but I'm talking about the forest I'm not talking about the fish but I talk about the lake about the river about the see where the fish can can can swim and can be caught I'm talking about fertile soil from which you can exploit living natural resources no matter whether it is cotton or banana or and Koko so natural Wells as the resource base is extremely important sometimes I also know that I spotted the term national resources I see that especially also in the resolution resolutions concerning the rights of the Palestinian people and not just the rights to the natural resources but also their cultural resources all in one goal and in the environmental literature we of course talked also about the environmental utilization space to what extent can we use the planet the earth the oceans for fishing the forests for timber hoods without disrupting the regenerative capacity of these natural wells and resources and that is meant by the term environmental utilization space and more and more we come to learn that there are very important ecological functions to be played by by a forest or by the winds or by the polar regions or by the climate system or by the ozone layer and very often and that is indeed what I also learn from my neighbor of the party of the animals they are part of an invisible ecological whole they are part of an ecological system which we do not yet understand for for just a few persons very briefly on the faces in the evolution of resource or foreign t-seven already recalled the very interesting discussions during the Second World War the Atlantic Charter for example about industrial nations being concerns about the dependence on raw materials from overseas and that was reflected in indeed faces Institutes of the IMF the World Bank in the articles of agreement for further gets the FAO we used the term the optimal use the full use of the natural resources of the world and you also see it in some very interesting proposals from that time which did not cut the majority but interesting proposals especially from consumer organizations in the United States to fuel the Middle East oil fields as a common resource as an international resource to be shared by all nations very soon nationalism came up already with the Truman declaration to bring extensive maritime areas under the resource sovereignty of the coastal state in order to secure access to secure control power of the marine resources living and non-living very soon we caught that face with these early resolutions of the 50s on economic as well as political decolonization it became part of the movement to stimulate to enable underdeveloped countries to make the take off with their economies and to serve to have sovereignty of natural resources serving as the basis for that independent national development as indicated in the 1962 declaration 1803 we caught the face often somewhat harmonious ID how to obtain better commodity prices in the 60s by concluding international commodity agreements for its own thoughts the United Nations conference on Trade and Development established in 1964 has been very instrumental program Ettore resolutions both of whom thoughts but also of the General Assembly personally I always still like resolution 21:58 adopted in 1966 it is in your folder that is a program Ettore resolution how to use natural resources as the basis for industrialization of developing countries how to be MD as it was called processing marketing and distribution how to get more fair more equitable commodity prices how to in the further phase link them with the prices of industrial products and then we enter invite phase 5 the period of confrontation because the 60s did not bring about but the group of 77 the caucus of all developing countries on economic issues but um thoughts but many powers had wanted and became an end to the period of cooperation and one felt that confrontation using permanent sovereignty as a weapon using it as the basis the legitimization of an nationalization policy using it as the legitimizing principle for the establishment of producer as sessions not only in the field of oil OPEC but also for bauxite 14 and perhaps also for bananas and tea and cocoa that did not work so very soon after a few years one returned from confrontation to cooperation and other concerns came to the fore in the 70s it was also the deadly decade of the first United Nations conference on the protection of the human environment resulting in the beautiful Stockholm declaration legally a very inspiring document and that gave rise to treaty making in the 70s it gave rise to the UNEP principles in 78 on the sharing of trans boundary resources and soon the parameters indeed shifted from confrontation to cooperation and then we entered into the face of the sustainable development discourse highlighted by broom plants but basically having its roots in the Stockholm declaration in the important work of the United Nations Environment Programme in a charter for nature developed by the IUCN the World Conservation Union but of course put high on the political agenda as a result of the Brundtland commission's report our common future and put in political terms in Rio the UN conference on Environment and development in 1992 and and basically Stockholm plus 20 the real declaration of 1992 became once again the basis for a lot of norm setting standard setting treaty making we got a host of new multilateral and regional treaties which elaborate on the notion of sustainable use of Natural Resources but then all of this all these seven phases were always based upon the presumption that it would be a blessing to have natural resources within your territory that it could serve as the basis for development well already in the Netherlands when we became too spoiled with getting a lot of money out of Germany for our natural gas and that gave rise to the notion of the Dutch disease that in the literature that indeed you become so so used to export revenues from natural resources that you become not that alert in other sectors of your economy and that basically it can prove nots to be a blessing to this to dispose of a lot of natural resources but of course here I'm not referring to the Dutch disease here I'm referring to conflict resources all too often we have been able to note especially after the end of the Cold War that natural resources access to the resources control of the resources serve as sources of conflicts in an interstate context the Iraq Kuwaiti war the war in the great lake Lakes region involving Burundi Rwanda the Democratic Republic of Congo Uganda but also very often intra state war internal Wars the conflict steamer in Cambodia feeding the Khmer Rouge the blood diamonds in Liberia and Sierra Leone the control on the access to and exploitation of the mines in certain parts of the Democratic Republic of Congo so we really also became a settled with the problem of conflict resources in a moment I will say more about it but as you see quite a variety of actors if I limit myself now to the United Nations system came to deal with natural resources policy not just the two main political organs the General Assembly and the Security Council but there has been in the past also a very important role for ECOSOC under ECOSOC there functioned Committee on Natural Resources which was an important committee also for the design the drafting of national resource laws national mining laws in the early decades the Commission on Human Rights served for a long time as an eco soccer subsidiary organ I mentioned already the role of altered sir I now learned from diplomats in Geneva that it should now mean the no circumstances take any decision but in the past in the past in thought so there's a front-runner in many discussions on how to improve the conditions for development of developing countries including foreign investment policy including natural resource policy more and more we see also the specialized agencies taking on a role in my newest book if I may immodestly refer to it I did a lot with World Bank FAO UNDP W and all policies in the fields of natural resource policies because they have been really important actors I mentioned already producer associations including OPEC and of course we have so many treaty organizations from the 1990s all in the field of the environment the the plot of the climate change Secretariat in BOM for example or in the field of development and also even the treaty bodies in the field of Human Rights including the UN Committee on which I serve the UN Committee on Economic Social and Cultural Rights takes up very often natural resource related issues but in general terms to return to my periods of cutting babies the General Assembly served as the Midwife who talks especially for the program Ettore resolutions and now you see increasingly the Security Council taking on a role indeed when I did my doctoral thesis I could find only one resolution relating to peace and security and Latin America dealing with the issue of non-intervention and that was in the early 70s just after the I ended nationalizations in in Chile and other latin-american countries embarking on nationalization programs and basically it was a resolution confirming sovereignty and that permanent sovereignty of natural resources is part and parcel of it and that for the sake of peace and security other countries should not interfere with the exercise of permanent sovereignty by by the right holders but now we see the Security Council in fact more than the General Assembly taking on a role as regards the conflict resources and by way of example I have just listed stood as solutions and they happen to be both from 2003 14:57 relating to yeah mining in the Democratic Republic of Congo and 1521 relating to the blood diamonds in Liberia and it has led to Security Council action and to sanctions to the Kimberley Process to registration of conflict resolved meanwhile we can see an extensive follow-up of the principles in treaty law it is reflected in international commodity agreements which are all based upon the principle that commodity exporting countries indeed are the owners can exercise sovereignty of their natural resources we can see it reflected in the 1958 law of the sea Convention but most notably of course in the 1982 comprehensive UN Convention on the law of the sea in the parts on the exclusive economic zone and the continental shelf but also in other parts we see especially also the duties which go hand-in-hand with the exercise of resource sovereignty for example in part 12 relating to the protection of the marine environment we see a host of international investment treaties including for Europe for example the energy charter treaty which also is based upon the notion of permanent sovereignty of energy resources we see indeed countries such as Norway Russia and in an earlier phase also the United Kingdom invoking sovereignty of the own oil resources we see permanent sovereignty reflected in international environmental agreements most notably in the beautiful Convention on the conservation of biological diversity as opposed to the rather ugly global China a climate change treaty which is hardly a treaty is more on poorly formulated declaration of intentions and with all problems resulting from this we see it in human rights treaties most notably article 1 in the first important Human Rights treaties of a global nature in the first article and also the first time that two human rights treaties have one identical article 1 and that relates exactly to the right to both political and economic self-determination and that all peoples may freely dispose of the mental resources and that in no case a people may be deprived of its means of subsistence so that is an very powerful formulation of the people's dimension of sovereignty of natural resources that was followed up for example in the African Charter you see it in state succession treaties although hardly ratified you see it in some new conventions relating to the law of armed conflict conflict I found for example quite recently a new protocol relating to illicit exploitation of natural resources in the Great Lakes region and that is in 2006 treaty which formulates in article 1 the concept of illicit exploitation well that is any exploration development acquisition disposition of Natural Resources contrary to law custom practice or the principle of permanent sovereignty of Natural Resources and in article 3 member states of this conference of states bordering the Great Lakes region and they confirmed that they shelled freely dispose of their natural resources we see also quite some follow work in international jurisprudence Stephan mentioned already the early Texaco awards 1977 regarding the nationalization of oil companies in Libya in particular Texaco but we have also in the context of the principle you this show body of the United Nations the International Court of Justice various decisions to report we have of course various axman's on Fisheries jurisdiction various adjustments on continental shelf the limitation professor hava also mentioned already the landmark judgment on armed activities on the territory of Congo in which the court found that indeed that the principle is a principle of customary international law it is being referred in some advisory opinions Namibia and Western Sahara certainly also the 2005 opinion on the legal consequences of the construction of the Israeli wall this perhaps also being taken up in the new WTO case I'm not fully up-to-date so I'm not too happy that we have professor Weiss as one of the next speakers perhaps he also can update us on this particular case and I see it in an interesting way more and more in human rights related jurisprudence first of all in the context of the inter-american Commission and inter-american Court on human rights relating to the cases of Indians indigenous peoples brought against their own state in Bolivia in Ecuador in Sirena but I also see it in the context of the rather fragile African system for the protection of human rights some pronouncements by the African Commission concerning self-determination in the case of the Oconee people in the Niger Delta or more recently in the case of the local communities of the endorois ethnic group versus the on state in Korea and they all touch upon various diamond Asians of permanent sovereignty here gives the quote from the Congo case the armed activities judgments so that is an important finding that declaration 1803 is mentioned by name and that in one go principle is identified as a principle of customary international law with the following paragraphs I was not very happy because they say it only applies in times of peace and not in times of armed conflicts and I am not convinced that they have the right I think judge Koroma in his separate opinion has a very strong point to say that permanent sovereignty permanent sovereignty applies both in times of peace and in times of armed conflict now to bring my lecture more and more to a summary I have made a list of the rights emanating from it you can see from it that of course the basic rights relates to possess to use to freely dispose to explore to exploit to market to manage to conserve the resources and these three items relate both to the resources on land and of course in the sea related to it based upon it is the right to regulate foreign investment including two decks foreign investments and perhaps also under certain specific circumstances and meeting international law requirements the rights to take property expropriate or nationalize another controversial is to have permanent sovereignty as the basis for demanding a share in the management of local subsidiaries of multinational companies or to withdraw from unequal treaties or to revise unilaterally the terms of agreed arrangements and the same course also for the rights to determine unilaterally the amount of compensation and to settle investment disputes solely upon the basis of national law basically that has been outlawed that has not been legitimized by subsequent legal developments so especially the first of these three sheets is the most relevant one and that was always quite popular to talk about the deepening of the principle of permanent sovereignty by formulating an increasing number of rights however in the later two or three phases of the eight phases in evolution which I identified we see also the formulation of of duties obviously always less popular but very important and in we see already in the first paragraph of the 1962 declaration the formulation of the condition to exercise sovereignty over natural resources for purposes of promoting national development not to fill the pockets of the ruling elite so there's also a matter of good governance requirements and to use the resources for the well-being of the people stockholm added exercise due care for the environment for nature as such the UNEP guidelines in 1978 followed up by quite a number of regional and multilateral treaties cooperates duly informed making optimal use with respect to trans boundary resources fulfill in general terms your resource rights in good faith we see that also in article 8 of the 1962 declaration with a specific reference that foreign investment agreements freely entered into shall be observed in good faith observe international obligations including world economic duties perhaps emanating from the membership of the World Bank the FAO the United Nations and in general terms the the host of what you can call global or world environmental duties emanating from the series of world environmental agreements so as far as the legal status is concerned indeed as Professor Hall noted in the title of his lecture it emerged a soft law that became incorporated in treaty law it is being referred to in judicial decisions and semi judicial decisions nowadays of human rights treaty bodies this widely recognized in doctrine the ICJ filtered in 2005 as a principle of customary international law yet I would argue that the principle does not rise to the status of your scholars because that would imply that never any deviation is possible and as I refute with you we have so many specific agreements and general agreements by which states commits themselves to certain modalities in exercising their sovereign rights including in the field of foreign investment that I feel that the proposition of some alters that like perhaps self-determination but I think also self-determination is not a norm of your scope expert okay some people say but in for permanent sovereignty of Natural Resources I do not see that you can allocate it and just Kogan's States now we learned from this whole evolution of the principle that all kind of new concepts legal principles political concepts can be generated in UN natural resources debates and I mentioned seven to you that is first of all permanent sovereignty over natural resources and the whole issue of international commodity agreements was closely related to it although not exclusively the sharing of trans boundary resources International River agreements the you network for integrated river management of the Mekong the Sun Bay see the Nile in the context of the law of the sea with common heritage of humankind and also in the context of the international law for the moon and other celestial bodies I believe from a legal point of view the hard core of sustainable development is the principle of sustainable you of natural resources see the fish stock agreement see so many bilateral agreements see the Convention on Biological Diversity see a lot of national resource laws so I think that is a very important discourse sustainable use of Natural Resources in international environmental law we also work with the concept of the common concern of humankind and lastly I mentioned already that in Security Council resolutions there is frequent references to natural resource sanctions or to certification of conflict resources no matter whether it relates to conflict timber or to Kimberley registered diamonds so these are all very important new concepts now Natural Resources has an a signal remain and principal concern of the United Nations we can note many operational activities in this field not only standard-setting but you will need P you need o own thoughts but especially also the specialized agencies nowadays the FAO the World Bank agencies they conduct a lot of operational activities the whole debate gave rise to the development of new concepts in international law at the same time therefore I mentioned the term hybrid resolution and somewhat controversial resolution resolutions there is always a tension if not a contradiction between on the one hand sovereignty of states and self-determination of people between economic nationalism and the duty for International Economic Cooperation on the order tension between state rights emanating from permanent sovereignty on the one hand and acquired rights of foreign investors for example on the other and that that makes it a lot of diamond dynamic concepts for a while but more ten years ago that nowadays I was also concerned about the erosion of the concept of state sovereignty about the trend of privatization liberalization which effect undermines resource sovereignty and we can also note of course in international environmental politics and changing approach more functional regimes not territorial based regimes but the law sometimes follows the fish rather than that you really did limit specific maritime zones and control powers in a certain area well we discussed the impact of the sustainable development discourse on the principle the rise of the attention for the rights for the indigenous peoples the claims for more participatory approaches involve the people in development processes that all in all you can see that the principle yeah more or less managed to survive if all these storms and that it is very often taking new directions for example now in the field of international humanitarian law very interesting principle discussions on how to link sovereignty of the natural resources as the basis of rights and duties to the obligations of an occupying power and what kind of adaptations that will require require based on the recent experiences in Africa in the progressive development of international humanitarian law so in this intricate interplay of diverging interests that is quite remarkable that this 50 years old declaration on permanent sovereignty of natural resources still is an important and dynamic cornerstone of rights and duties and serves as a basic principle for nearly all particular policies in this fields and the same goes for international law as yeah one of the fine instruments in world politics for the art of balancing rights and duties thank you for your attention you

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