• Common sovereignty over transboundary natural resources

    Amado S. Tolentino Jr.

    Amado S. Tolentino Jr.

    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 resources—to 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 earth’s 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.

    *Governor, Philippine Ambassadors Foundation, Inc.; Executive Governor (for developing countries), International Council of Environmental Law.