One of the battles that the newly independent states and developing countries won either by default or design was the inclusion of the principle of natural resources sovereignty in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights
Permanent Court of International Justice had held that France cannot rely on her own legislation to limit the scope of her international obligations. Similarly, in its advisory opinion in the Treatment of Polish Nationals in Danzig case, Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have Passed into the Polish Service Against the Polish Railways Administration) Advisory Opinion of 3 March 1928 (Series B, No. 15) Fourth Annual Report of the Permanent Court of International Justice (15 June 1927—15 June 1928), Series E, No. 4, pp.
213–219. http://legal.un.org/PCIJsummaries/documents/english/PCIJ_FinalText.pdf. (accessed on 16th January 2016). The Permanent Court of International Justice (PCIJ) had held that a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.
101 See article 4 of the United Nations General Assembly Resolution 1803 (XVII) of 1962 on Permanent Sovereignty over Natural Resources.
102 See article 4 of the United Nations General Assembly Resolution 1803 (XVII) of 1962 on Permanent Sovereignty over Natural Resources.
103 See articles 4 and 8 of the United Nations General Assembly Resolution 1803 (XVII) of 1962 on Permanent Sovereignty over Natural Resources.
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(ICESCR).104 It is indeed 'the win' because of the protracted debates which preceded the adoption of the two covenants which were polarised by the emergence of the two antagonistic groups of the post-World War II. The United States and her closest allies were in favour of civil and political rights during the discussions in the commission on human rights.105 The USSR leading the socialist block was in favour of economic, social and cultural rights. The polarisation of the views in the ECOSOC splitted the members into two committees each working separately in line with its set of the rights considered essential.
Interestingly, when the two committees submitted their respective reports and the draft covenants, both of them had entrenched an article on the sovereignty of natural resources. Coincidentally, the provisions related to governance of natural resources were inscribed in article 1 (2) of both covenants. It is argued that article 1 of both covenants provides a compromise between the political and economic rights. Whereas paragraph one focuses on the political aspects of determination, paragraph two focuses on the economic aspects of self-determination.106 For clarity, it is pertinent that the article is quoted for ease of reference.
Article 1 (2) of both the International Covenant on Civil and Political Rights and International Covenant on Economic, Social, and Cultural Rights, 1966 respectively provide;
104International Covenant on Economic, Social and Cultural Rights - Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and International Covenant on Civil and Political Rights - Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966.
105 See the Report of the Tenth Session of the Commission on Human Rights, February-April 1954, UN Doc. E/2573, pp. 35-8, paras. 322 - 335.
106 Gilbert Jérémie, the Right to Freely Dispose of Natural Resources, (2013). p. 321.
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All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (Emphasis mine).
The embroidery of the identical articles in the two covenants is a groundbreaking in so far as the articulation of the right to self-determination of the people, which encompasses the right of the people to freely dispose of their natural resources is concerned. It should be underscored that the entrenchment of the provisions on natural resources in the covenants resonated with earlier efforts under the auspice of the United Nations General Assembly resolutions which had promulgated resolutions on permanent sovereignty over natural resources in the 1950's and early 1960's. As noted earlier, for the first time, the natural resource sovereignty was entrenched into the international legally binding instruments.
Moreover, unlike the United Nations resolutions which vested the right of permanent sovereignty over natural resources to both people and nations, the covenants vests this right to all the people and there is no reference to the states.
It remains unclear whether the reference to "all people" in article 1(2) of the two covenants envisaged the people in a particular polity as a whole. The wording of the articles brings some challenges as far as the implementation of the rights over the sovereignty of natural resources is concerned.
Firstly, the conventional understanding of the international law is that states are the main actors and therefore, they should exercise the right of the permanent sovereignty over natural resources on behalf of the people.107 The conventional
107 Nowak Manfred, UN Covenant on Civil and Political Rights: CCPR Commentary, N.P. Engel, (1993), p. 24; See also, Nowak Manfred, UN Covenant On Civil And Political Rights: CCPR Commentary, 2nd (ed), Engel, (2005); Gilbert Jérémie, the Right to Freely Dispose of Natural Resources: (2013), p. 322.
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understanding of the international law on natural resources sovereignty has throughout been reflected in the earlier UNGA resolutions as an important aspect of the right to self-determination of states under colonial rule. Secondly, the imposition of a duty to the people to respect the obligations arising out of the international economic cooperation based on the principle of international law does not seemingly accept people as one of the actors in the natural resource sovereignty. Thirdly, the articles do not mention the words "permanent sovereignty over natural resources" unlike the UNGA resolutions. With regards to the fact above, both articles use the words the people 'may' and not 'shall' dispose of their natural resources. The wording waters down the right of sovereignty over natural resources from being an absolute right to a discretionary right.
Be it as it may, if one traces the history behind the framing of these articles would appreciate the fact that the drafters had anticipated a danger if the articles were left without restrictions. The eminent fear were that if the exercise of the right of permanent sovereignty over natural resources was left to the people without restrictions, it would sanction unwarranted expropriation or confiscation of the foreign property and would subject the international investment agreements into a unilateral renunciation with impunity.108
The protection of the foreign investment was important since the right of self-determination was not intended to be a threat to the foreign investments. It was rather to warn against the foreign exploitation which jeopardise the local population with its own means of substance. The subjection of the exercise of the right of permanent sovereignty over natural resources of the people under the international law obligations had nothing more than ensuring that, in a worst-case scenario, where there are expropriation and/or confiscation of the foreign
108see Gilbert Jérémie, the Right to Freely Dispose of Natural Resources: (2013), p. 323; see also UNGA: “Annotations on the text of the draft International Covenants on Human Rights”, UN Doc.A/2929 (1955), p. 15, para. 20.
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investments, would be adequately protected and compensated.109 When one looks at the wording and framing of article 1 (2) of the two covenants, would subscribe to the fact that these articles are self-contradictory in terms of exercising the rights of sovereignty over natural resources. The two covenants somehow departed from the UNGA resolutions in relation to providing the right of states to expropriate and confiscate the foreign property, arguably, natural resources were amongst other rights to be covered and therefore, could not be provided in detail.
In addressing the dichotomy indicated above, the drafters of the two covenants ingeniously complemented article 1 (2) of both covenants with bold, spirited articles, to wit, article 47 of the ICCPR and article 25 of the ICESCR respectively. These articles provide verbatim that 'nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources'. If one wants to appreciate article 1(2) of both covenants, one cannot read them independently and in isolation of articles 47 and 25 of the ICCPR and ICESCR respectively.
It is further argued that these articles override article 1(2) of the covenants in order to meet new demands in the wake of the evolution of the international politics and law.110 Perhaps, a more convincing interpretation argument would be that article 47 and 25 of ICCPR and ICESCR respectively, were aimed at curbing
109 Casese Antonio, Self-Determination of People: A Legal Reappraisal, Cambridge, Cambridge University Press, (1999), p. 56.
110 Casese Antonio, Self-Determination of People, (1999), p. 57; See Provisional Summary Record (27 October 1966) UN Doc A/C.3/SR.1405, para. 3. As an illustration, during the debate that led to the adoption of article 25 of the ICESCR, the delegate from Ethiopia highlighted that one of the rationales to include such an article was the effort of “underdeveloped countries to seek to protect their resources against the imperialist powers which sought to exploit them under the cloak of technical assistance or international economic co-operation.” This statement echoes the position of several other countries supporting the inclusion of article 25, which viewed the restrictions on the rights of peoples to dispose of their own natural resources as a way of ensuring the continuous economic exploitation of such resources. See, Halperin David, Human Rights and Natural Resources 9 William and Mary Law Review , (1968), p. 770, demonstrates that articles 25 of ICESCR and 47 of the ICCPR have strong anti-colonialist connotation.
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the erosion of peoples' right to freely dispose of their natural resources. The erosion was susceptible to obligations arising from the international economic cooperation based on the mutual benefits and international law.111
However, notwithstanding the ingenuity of the drafters entrenching article 47 of the ICCPR and article 25 of the ICESCR as safeguards against the encroachment of the peoples' rights to freely dispose of natural resources in the covenants, their achievements were in so far as the covenants were concerned and not the international law in general. In other words, an obligation arising out of the international law cannot be water downed by invoking the articles. To put this matter clear, both covenants have identical articles which state succinctly that nothing in the covenants can impair the obligations arising out of the United Nations Charter. For purposes of clarity, the two covenants are reproduced here for ease of reference.
Articles 46 and 24 of the ICCPR and ICESCR respectively provide;
Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant. (italics mine)
As stated above, the covenants subject themselves to obligations arising from the United Nations Charter and constitutions of any of her specialised agencies.
One needs to read Article 103 of the United Nations Charter, which states that obligations under the charter override other international agreements. The position is further elaborated under article 1 of the UN Charter and states that the purposes of the United Nations, among others, include maintenance of
111 Dam-de Jong Daniëlla, International Law and Governance of Natural Resources in Conflict and Post-conflict Situations, Cambridge University Press, (2015), p. 77.
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international peace and security. Any international rights which threat the maintenance of international peace and security must be settled in conformity with the principle of justice and international law.112
2.5 Two Steps Forward, Three Steps Back: Moving from a Compromise to