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Changing concept of sovereignty over natural

resources
July 5, 2013 10:18 pm
by Amado S. Tolentino J r.
..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 worlds 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 States 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 worlds forests as the common heritage of humankind.
Thus, the three Rio treaties recognize that change in the Earths 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 Earths 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.



Common sovereignty over transboundary natural
resources

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 resourcesto 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 earths 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.