3.2 Definition and the Scope of Natural Resources under International Law:
3.2.2 The Position of International Legal Instruments and Tribunals with
3.2.2.3 International Court of Justice and Arbitration Tribunals
As previously noted, the hegemony of the state over natural resources has, under the international law, been assuming a leading role on behalf of the people. This approach has, in most cases, affected the legal interpretation of the right holders. It is not a surprise when most of the legal interpretation approaches of the right lean towards interstate context. If one looks at the UNGA natural resources resolutions, conventions, charters, and treaties would appreciate the above assertion.170
168 Kiwanuka Richard N., The Meaning of "People" in the African Charter on Human and Peoples' Rights,(1988), p. 95.
169 Duruigbo Emeka, Permanent Sovereignty and Peoples Ownership of Natural Resources in International, (2006).p. 46; See also Kofele-Kale Ndiva, Patrimonicide: The International Economic Crime of Indigenous Spoliation, Vanderbilt Journal of Transnational Law, (1995), p. 56.
170 See the following treaties which consistently vest the right of permanent sovereignty in state only; Energy Charter Treaty, Dec. 17, (1994), 34 I.L.M. 360, 394 (1995); The United Nations Convention on the Law of the Sea arts. 56, 93, Nov. 16, 1994, 1833 U.N.T.S. 397 (stating that "in the exclusive economic zone, the coastal State has sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources" and providing for the "sovereign
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Furthermore, even some judicial pronouncements seemed to lean towards the state-centric context of the right over natural resource sovereignty. For instance, in the LIAMCO case,171 the Arbitrator, as previously pointed out at the preceding part, noted that resolution 1803, if not the unanimous source of law, is evidence of a recent dominant trend of states' sovereignty over their natural resources.172 In the East Timor case,173 in a dissenting opinion, the Judge more or less reiterated the position in the LIAMCO's case by arguing each member state of the United Nations to respect each state's right to permanent sovereignty over its natural resources. The interpretational approaches above seem narrow and convey an impression that the state holds the right of sovereignty over natural resources exclusively and relegate the right of the people mischievously. If the above interpretation stands, then, there is a risk that the benefit accruing from the exploitation of natural resources would accrue only to few political elites.
That notwithstanding, in order to understand clearly the right bearer between the state and the people, it is imperative to look at the background of the evolution of the debates over sovereignty over natural resources. It is noted from the documents and travaux preparatoires174 of the debate of PSNR, by and large, the developing countries elaborated their intention of vesting the natural resource
right of States to exploit their natural resources"); United Nations Framework Convention on Climate Change, Mar. 21, 1994, 1771 U.N.T.S. 107; United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818.
171 Libyan American Oil Co. (LIAMCO) v. Libya, reprinted in 20 I.L.M. 1, 53 (1981).
172 Ng'ambi Sangwani Patrick, Resource Nationalism in International Investment Law, (2015) p.
13.
173 East Timor (Portugal v. Australia.), 1995 I.C.J. 90 (June 30).
174 See article 32 of the Vienna Convention on the Law of Treaties, 1969; Haitian Centers Council, Inc. v. McNary,969 F.2d 326, 1329-1334 (2d Cir. 1992) The above case defined the term as "the international equivalent of legislative history" of the treaty, consisting of the "preparatory and conclusive circumstances of a treaty; See also Kadish Mark J., Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Michigan Journal of International Law, (1997), p. 590.
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sovereignty to both the people and the states.175 It was intended to prevent if anything comes to the worst, a well-meaning but weak and myopic leadership from weakening the survival of the countries through granting non-beneficial concessionary rights which would seriously jeopardise the country's future.176 Nico Schrijver elaborates thus;
This 'etatist' orientation in the evolution, interpretation, and application of the principle of permanent sovereignty can well be understood as part of the economic and political emancipation process of developing countries, but equating peoples and States undoubtedly further strengthens the State and subordinates the rights of the people to the whims of those in power. However, a recent tendency can be discerned indicating that the rights of peoples in a non-colonial context are receiving revived attention ...
If this tendency is consolidated, the principle of permanent sovereignty will return to its two roots [which] would certainly be a laudable development, as it implies that States should be instruments to serve the interests of peoples and not vice versa.177
Therefore, the rejuvenated insistence of the people-centric interpretation against the states over the natural resource sovereignty is not cosmetic, but rather it is the firm affirmation of the mistrust which the people have against their
175 See Gess Karol, Permanent Sovereignty over Natural Resources, (1964), pp.406 - 409, Arguing that the representative of Chile at the 17th session of the Permanent Sovereignty Commission noted that it is essential to determine the nature of permanent sovereignty over natural resources and the manner in which it can be exercised and what measure should be taken into account in accordance with the international law.
176 Hyde James, N., Permanent Sovereignty over Natural Wealth and Resources, 50 American Journal of International Law,(1956), pp. 854 - 858; Duruigbo Emeka, Permanent Sovereignty and Peoples Ownership of Natural Resources in International Law, (2006), p. 49.
177 Schrijver N.J, Sovereignty over Natural Resources, (1997), pp. 370 -371; Duruigbo Emeka, Permanent Sovereignty and Peoples Ownership of Natural Resources in International Law, (2006).p. 52; Dam-de Jong Daniëlla, International Law and Governance of Natural Resources, (2015), p. 46.
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governments.178 It is, perhaps, absurd and embarrassing to say that the functional meaning of the state and her institutions of governance in the developed countries do not connote the same meaning in the developing countries. The state in the developed world is, in most cases, governed by the firm, systematic and functional institutions of governance whose authorities are derived from the laws. On the contrary, the developing countries' institutions of governance, though derive their authority from the laws, their practical implementation depends on the political elite in power. Thus, the people-centric approach is no more demanding than a qualified state sovereignty characterised by the duties towards its people.179
Accordingly, the thesis suggests more transparency and accountability of states, in particular, the distribution of benefits derived from the exploitation of natural resources. In other words, the state control over natural resources should not be used as a sword against the people rather the shield for the people.180 In the contemporary world where the quest for the exploitation and utilisation of natural resources is increasing, the position of the people in the process is further obscured. The state hegemony is surpassing the people as both de facto and de jure holder of the right over natural resource sovereignty.181
178 Dufresne Robert, The Opacity of Oil: Oil Corporations, Internal Violence, and International Law, (2004), p. 356. Argued that As public prerogatives are always exercised through a form of representative body, there is a structural representational gap between peoples, who are the nominal and residual holders of the prerogatives over natural resources, and governmental representatives, who actually exercise the prerogatives.
179 See Chowdhury Subrata Roy, Permanent Sovereignty over Natural Resources, in Permanent Sovereignty over Natural Resources in International Law, (Kamal Hossain & Subrata Roy Chowdhury (eds) Pinter, (1984).
180 Miranda Lilian Aponte The Role of International Law in Intrastate Natural Resource, (2012), p.
805.
181 For further discussion on the right holders between states and the people see Bastida Elizabeth, Walde Thomas and Warden-Fernandezet Janeth (eds.), International And Comparative Mineral Law and Policy: Trends and Prospects, Kluwer Law International, (2005), pp. 1-36; McHarg Aileen, Barton Barry, Bradbrook Adrian and Godden Lee (eds.), Property and the Law in Energy and Natural Resources, Oxford University Press, (2010).
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It can be argued that the vesting of natural resources in the people was ingeniously thought and planned. This is exacerbated by the contentious debate that preceded the framing of the articles on the sovereignty over natural resources. As noted above, the developing countries insisted of wording the article with the inclusion of the phrase 'permanent sovereignty' in the earlier resolutions and in the International Covenant on human rights as a manifestation of their sovereign right.182 The developed countries on the other hand strongly opposed the inclusion of the phrase 'permanent sovereignty' of the people. Two reasons were advanced in support. Firstly, vesting the right in the people would create unnecessary hurdles since the people are not the subject of international law and as such, cannot honour obligation arising from international law.
Secondly, if the right were vested in the people, it would create unwarranted renunciation of international agreements with impunity.183
The developed countries' insistence on vesting natural resource sovereignty to both states and the people paid off on understanding that under the traditional international law, people have no locus,184 as such, such power would be exercised by the states. The sovereign states have the rights and duties under the international law and therefore, in the spirit of furtherance of international cooperation enshrined in different international legal instruments, states would undoubtedly honour her obligations short of which some political and economic embargos may be imposed. It is emphatically argued that the protracted debates on sovereignty over natural resources emerged as a proper forum to rationally allocate natural resources to the international level between the newly independent states and developed countries. Accordingly, the thesis was perceived as mediating between interstate natural resource allocation which was
182 See Gilbert Jėrėmie, The Right to Freely Dispose of Natural Resources, (2013), p. 321.
183 See Gilbert Jėrėmie, The Right to Freely Dispose of Natural Resources, (2013), pp. 321 - 22.
184 Miranda Lilian Aponte, The Role of International Law in Intrastate Natural Resource, (2012), p.799; See also Schrijver, N.J., Sovereignty over Natural Resources, (1997), p. 58.
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incorporated in the exercise of political and economic powers of the newly independent states in the post-colonial legal order.185