• Changing concept of sovereignty over natural resources

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    Amado S. Tolentino Jr.

    Amado S. Tolentino Jr.

    “…..it is time to bring sovereignty down to earth, cut it down to size,
    discard its own rhetoric, to examine, analyze, reconceive the concept
    and break out its  normative content; to repackage it, even rename it;
    and slowly ease the term out of polite language in international relations, particularly in law.”

    Louis Henkin (1994)
    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 world’s 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 State’s 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 world’s forests as the “common heritage of humankind.” Thus, the three Rio treaties recognize that change in the Earth’s 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 Earth’s biosphere  is the common heritage of all life on earth of which humanity is the steward.

    *An environmental law pioneer, the author served as Philippine Ambassador to Papua New Guinea and Qatar.

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    1 Comment

    1. domingo ligot on

      I agree to the need for cooperation among the nations of the world to address the global threats of desertification and other harmful effects of the changing climate due largely to irresponsible unmitigated exploitation of the earth’s resources. But the truth of the matter is it has been the wealthy nations that are guilty of this abuse for so long, that is why they have become so developed and wealthy. It would be unfair I think if third world nations will be required at this time to limit their use of earth’s resources to the same extent as the rich nations thereby perpetuating the gap in their level of development. There should be a formula where the reduction of carbon emissions, for instance, should be much more extensive among the rich nations with developing nations given a larger leeway the use, for example, of fossil fuels correspondingly. This is only fair since rich nations can now well afford new technology that can produce enough energy to sustain their wealth without emissions that harm the environment and developing nations are not yet capable. Besides, lets face it, it was the rich nations profligacy in the use of resources that has brought the world to this sad state.