The Content of Permanent Sovereignty over Natural Resources - Assignment Example

Questions for Discussion Name Course Lecturer Date 1.0 The content of PSNR. Permanent sovereignty over natural resources is a tool which has taken effect to promote economic and social development and at the same time ensure equitable resources exploitation. Its development was a response to rectify unjustifiable arrangements more so concerning the raw materials and their ownership as multinational corporations dominated great of it specifically in their former colonial states. The principle has improved drastically, from a mere political statement to established set of obligations and rights in various legal regimes. It touches the fields of International Investment Law, International Trade Law, the Law of the Sea, self-determination of peoples and likewise receives significant impact from International Environmental Law. Its principle has evolved from being a tool used by developing states to an instrument directed to all states (Hofbauer, 2009). The content of PSNR includes and addresses the vulnerable position of states and its citizens (Duruigbo, 2006). The land they inhabit has close link with their cultural and physical survival and thus, measures are set to guarantee their development and preservation in future. The great concern is that their territories and lands coincide with those regions which are considered susceptible to development. Such developments entail natural resource extraction, operations and construction of industrial facilities and plants. Peoples have actively organized and engaged themselves in the past decades, appearing on international level to undertake efforts and ensure their inclusion and participation in a world order on equitable basis. Thus the concept of PSNR principle underwent several changes in 20th century and possibly it will as well occur in 21st century. An outline that covers the PSNR most important elements is provided under this topic. As from its initiation, during the creation of states after decolonization, it was set to encompass the states interests and demands. It is mainly rooted in right of self-determination which primarily aims at enabling economic development for developing states. It builds on sovereign equality of states and territorial sovereignty. This permits the states to freely decide and apply the laws and policies that govern their territory and people under their jurisdiction while allowing them chose their own political, economic and asocial systems. Numerous resolutions passed by UN General Assembly originated PSNR. Many of GA resolutions have led to formation of customary international law, International Court of Justice (ICJ) and other judicial bodies’ judgements; evidence its acceptance (Baslar, 1998). There is a strong proof therefore, that the PSNR principle has been acknowledged as a norm to customary international law. One aspect of the content relates to the rights of PSNR. First, this gives the sovereign right to freely dispose, use and exploit natural resources. This is inalienable right given to all states and peoples to freely dispose their natural resources. The states gain the mean to reign over their sovereignty and then control their assets in order to enable economic and political development. The state possibility of determining the fate of their natural resource is build on corollary rights that permit them regulate exploitation and use methods (Duruigbo, 2006). They are therefore entitled to regulate admission of foreign investors, grant successions of exploitation of natural resources, length and period of validity, guide the conduct of entities involved in exploitation and distribution processes and profits. Activities of development, exploitation, utilization are subjected under states’ national laws. This makes it possible for a state to invalidate the existing agreements or re-organize the existing concessions. Furthermore, it may choose to organize other international and national contracts and grant entities access to natural resources. This instance necessitates full enjoyment of rights to natural resources. Secondly, the content gives the freedom of choice of one’s own environmental, economic and developmental policies. Under the reasoning principles, entails deciding on the best suitable policies for environment, development and economy of a country. This line with fundamental ideas of nation’s law; the states’ sovereign equality and the duty of not intervening with matters of domestic jurisdiction. Since the world order allows the states to have equal enjoyment of rights and duties, a nation is free to determine the political, economic, cultural and social systems. The Friendly Relations Declared by UNGA Resolution confirms inclusion of the element. The Charter of Duties and Economic Rights of States have re-emphasized enjoyment of sovereign rights for a nation to choose the economic systems (Summers, 2007). A state may also regulate freely and engage in foreign economic relations and investments of their choice irrespective of its economic, political and social systems. They are also mandated with the rights to freely regulate, expropriate and nationalize their foreign investments. This is mostly applicable to developing nations who inevitably finds it necessary to attract foreign investors for their development (Barbour, 2009). The development of rights in context of PSNR is founded on UNGA Resolutions which confirms the states’ rights of expropriation and nationalization. This are based on reasons or grounds of public utility, national interests and security recognized as individual and private interests for both foreign and domestic interests. The owner in such cases shall be paid an appropriate compensation according to the rules in that state taking those measures as exercise of sovereignty and according to international law. If compensation gives rise to a controversy, settlement of dispute is made through arbitration and international adjudication. Transfer of ownership requires compensation to be made in relation to relevant laws and regulations, and tribunals and domestic law apply in controversy. The other aspect of the content, involves the duties of PSNR. The developments of rights went forward and created set of limitations and the exercise of rights. The extensive legal framework involving the states gives duty of a state to exercise its PSNR in the interest of well-being of the people and national development. The UNGA Resolutions 1803 (XVII) explicitly declares that PSNR should be exercised in the interests of national development and the well-being of people of concerned state. This means that even though the state has all the rights to freely exploit, dispose and use the natural resources, and regulate its economy, it is also in practice to occur further for their national development, benefitting the well-being of its people. Since one of its principles is to eliminate previous injustices creating equal players, the rights of people and states as bearers are used in accordance. As Barbour, (2009) identifies, the second part of the duty is to respect environments norms. As development of environmental law ensued, there was a need for international co-operation in the field. This is because; environmental pollution may originate in one state but ends u having effects in another. Thus, the sovereignty concerning the policies and conduct experience a confrontation by evolving environmental principles. There is an obligation for state not to cause damage to other nation’s territory. No state has a right to use and permit use of its territory in a manner that causes injury in and to the territory of the other. A nation must chose measures, procedures that are necessary to avoid damage or else its remediation. A condition applies for sustainable development. The development must meet the needs of the present and not compromise the ability for future generations to meet their needs. This applies for the three sectors, the economic, environmental and social functions. The principle of the common but differentiated responsibilities takes account of historic injustices for certain nations to be more involved and cover more extent as compared to the other. Inter- and intergenerational equity principle ensures equitable distribution of the resources and responsibilities among world population, in the present and in future. To eradicate poverty, the peoples shall access fairly and be entitled to available natural resources. The principle of sustainable use also applies as a condition (Hofbauer, 2009). 2.0 What is the status of PSNR in international law? The principle of PNSR emerged shortly and then developed after the end of WW II as a rule in international law with objectives of affirming and asserting the sovereignty of the developing countries over their natural resources. It is a fundamental principle, as it is seen of the New International Economic Order (NIEO) and the contemporary international law. Furthermore, it have the same status of peremptory norm or jus cogens similar to the right of self-determination in present international order (Baslar, 1998).The status of PSNR in international law can be realized through the many instances which UNGA Resolutions considerably have contributed to formation of customary and international law in many ways. This has also been evidenced in several judgments in the International Court of Justice (ICJ), and other judicial bodies. The common recitation and repetition of previous resolutions has and now serve as a proof of a strong opinion agreement that the PSNR principle has been accepted to be a norm in customary international law. To understand its status in international law, the numerous resolutions of the law-making GA Resolution1803 (XVII) was significant and was generated after long studies on this topic, conducted by Economic and Social Council, the Commission on PSNR and the UN Secretariat. This were established through UNGA Resolution 1314 (XIII) with the task to determine the extent of PSNR in the notion of self-determination (Atapattu, 2001). More precisely PSNR is a role under international law that has promoted and developed intrastate natural resources allocation. This is by precise definition of sovereignty; peoples based development and human rights. State natural resources and development projects in most times have been sites of an intense political, cultural and social contestation among the diverse actors. In most cases, such projects may often lead to detrimental consequences. This adversely affects the empowerment, cultural, livelihood and economic development of the historically marginalized communities (Anghie, 2007). According to Al-Rfouh & Jobar,(2006), PSNR filled the gap as an approach used by international law to impact on intrastate allocation of natural resources and land to such communities and thereby meditates on states top to down decision making authorities over development. While international law was originally concerned with allocation of natural resources and land in interstate context, its permanent sovereignty over natural resources plays a distributive role in today’s intrastate context. The emerging human rights and approaches to allocation of natural resources and land, support people’s based development and a model which is potentially capable and more readily operational in states allocation processes. The evolution of international law was not itself enough; permanent sovereignty over natural resources was an infiltration into sacred prerogative of states. This thereby, gave them ultimate decision making and authority in regard to the course of their development. However, PSNR was strategic for identification, analysis and evaluation of emerging international law. Today the international law plays a major and critical role in the debates regarding the proper interstate allocation. The emerging approaches which are under international law which implicate intrastate allocation of the land and natural resources sets challenges to traditional state based models of development. Its ultimate proposal is emerging human rights based on substantive resource and land rights of peoples support. Peoples-based model in development is potentially capable to readily alleviate conditions of inequity and continue the subordination for the historically marginalized communities. As Atapattu, (2001) discusses, one approach under the international law in resolving debates that regards allocation of land and the natural resources is based in the principle of sovereignty. This reveals its potential applicability in debates that regards land and resources allocation in the present day and intrastate natural resource and development projects. The doctrine of PSNR arose during decolonization context developing in subsequent debates that regarded human right and people self-determination, the right of the developing state in exercising control over their goals and means of economic growth of their country. There are three historical processes that shaped the original outline of the doctrine of PSNR. One was the decolonization of the overseas territories, the recognition of the people’s human right for self-determination and recognition of claims of developing states for New International Economic Order. The doctrine continued to evolve as two interrelated concerns which were under international law. This included the recognition of the peoples’ human right for self-determination and recognition of the rights of developing states in exercising control over the means and goals of economic growth. The document was enshrined in the two foundational documents of human rights which recognizes the people’s rights to self-determination under the International Covenant on Social, Economic and Cultural Rights and International Covenant on Political and Civil Rights. The doctrine continued development outside the human right context resurfaced as the right of developing state own and control of natural resource wealth and incorporating actors of developed world (Atapattu, 2001). It has recently developed to debate some more applicability so as to mediate the capture of natural resource and wealth by state elites which endure detrimental consequences for the whole nation. The state development on those lands and resource that particular communities claim as they rely on it for survival and subsistence may be covered under PSNR. Building on the two issues; the state elites dominance and the rights of communities on their land and resource, recent arguments suggest the relevance of the doctrine of PSNR to a fourth-world debates that regard intrastate allocation of natural resources and land. The right of PSNR is argued to rest in the peoples of a state. This simply is a critical shift of the locus of this doctrine to intrastate level as nationals of a particular state are sovereign rights bearers together with the state. The right to PSNR is inherited by indigenous peoples who exist within the territorial boundaries in a state. The interpretation therefore shift applicability of this doctrine to intrastate level as it posit indigenous peoples as the bearers of sovereign rights vis-à-vis the state (Duruigbo, 2006). These two arguments have critical relevance in analyzing the role of the international law in domestic allocation of natural resources and land to historically marginalized communities. Its core shows the ability of a state in translating absolute sovereign right in owning and developing the natural resource to equitable gains for national polity and specific communities within its borders. This ultimately challenge a state’s open claim to ownership of natural resources and this chart the means and goals and development that aims at distributing economic gains. It is thus possible to conclude that the principle of PSNR became inextricably tied to human right human right and people’s self-determination. In the other, it retained emphasis on sovereignty; the state sovereignty. According to Barbour, (2009), international law was very significant in decolonization process. The then colonization produced unequal power and wealth distribution. The international system reformed in part through granting political self-determination to colonial territories as a whole. However, the genesis of PSNR is traced to GA Resolution 626 (VII) in December 1952 which was entitled the Right to Freely Exploit Natural Resources and Wealth. This therefore, gave the nationals the benefits from exploiting natural resources and discouraged encroachment by foreign states and business actors. It was therefore, a potential part of international law to effectuate significant redistribution of the economic capital. Its primary issue that are debated are delineated as; elements of sovereignty, the legal entity which is capable of exercising sovereignty of natural resources and a scope of the natural resources to sovereign disposal. It can be seen that, the principle of PSNR emerged to guide proper allocation of wealth and natural resources at international level between colonizers and newly independent states. This was tied to the exercise of economic and political power for post-colonial international legal order. 3.0 ‘Sustainable development’ and its status in international law As Schrijver, (2008) notes, the notion sustainable development has had various definition, however the original version is largely unchanged as it is more compelling. Sustainable development is therefore development that enables the present society to meet its needs and does not compromise the ability of the future generations’ capabilities of meeting their own need. There is a more recent and expansive definition in ILA NEW Delhi Declaration. It states the objective of sustainable development as a comprehensive, integrated approach towards economic, political and social processes that aims at sustainable use of the natural resources in the Earth and protect the environment where nature and human life, social and economic development depends on and seek to realize all human beings rights to adequate living standard through their active, meaningful and free participation in development and a fair distribution of the benefits resulting there from and with due regard to the interests and needs of future generations. On the other hand international sustainable development law comes at the intersection of three international principles; international economic, environmental and social law. Sustainable development law involves the substantive body of legal norms, instruments and treaties which are supported by distinctive procedural elements. Many international treaties agree on the objective of sustainable development both at regional and global levels (Schrijver & Weiss, 2004). Sustainable development is the turning point of understanding the interconnections between the environment, the economy and the social well-being. Many milestones have been used to mark the journey towards it. Particularly, all the definitions require that people see the world as a system which connects space and time. Having such an understanding, it is possible to grow in knowing that air pollution from one part of continent affects the other thousands miles away. This applies also to pesticides use and disposal of waste. Thinking of a world as system over time it is possible to realize that the actions and decision of the past to farm continue to affect today’s agriculture. The economic policies endorsee today will impact on urban poverty as current children become adults. The quality of life is also understood on access to education, air quality and feed the families. The concept of sustainable development is thus rooted in such sort of thinking of systems. This helps human understand themselves in their world (Agyeman, Bullard & Evans, 2003). The problems faced are serious and complex and cannot be addressed the same way they were created. Economics is one of its domain and fundamental to considerations of SD. It consists of practices with associated meanings with production, management and use of resources with the concept used in broadest sense of the world. However it is challenged as it puts economic as a master domain when included with environment and the social. Ecology domain is defined with social dimension, environment and culture. Different emphasis argues that the fourth dimension should be added to reflect complexity of the contemporary society. Political concepts and views fall also under its umbrella. This goes beyond governance and states. Environmental sustainability process makes sure that the current processes and interaction with environment is pursued keeping the environment as naturally possible through ideal-seeking behavior. The society is required therefore to design activities, meet human needs and preserving life support systems in the planet. This entails use of water sustainably, utilizing the renewable energy and other sustainable material supplies. As Miranda, (2012) argues, the legal status and implementation of sustainable development includes principles and rules and the assessment of practices of international organizations and states in this field. The status of sustainable development in international law is recognizable under the set principles. The core principles includes states duty in ensuring sustainable use of their natural resources, the principle of equity and poverty eradication, common but differentiated responsibilities principle, precautionary approach to natural resources, human health and the ecosystems. There are also the principles of participation and access to justice and information, good governance and integration and interrelationship. This in particular relates to human rights, environmental, social and economic objectives. The last principle pertaining to integration and inter-relationship is of significant importance. It is the most operationally-significant and equally fundamental. This calls for interdependence of the social, financial, economic, and environmental and human rights principles and aspects. The rule of international law that relate to sustainable development is founded under this principle, which aims at the needs of current and future generations. The principle of integration arguably holds together the overloaded political objective and in more important terms an unmanageable project. It is therefore intended for the principle of integration to become a key focus of future committees and intergovernmental discussions. As a central reference point, the principle of integration hopes for internal coherency retention which perhaps would be lost when studying broad issues and challenges. International law realization of international bill of rights comprises the economic, social, and cultural rights. It has further acknowledged the role of civil and political rights, peoples’ rights as central to pursue sustainable development. The support of the relationship between human rights and sustainable development by the UN Commission on Human Rights reaffirmed in 2003 that peace, security, respect for human, stability and fundamental freedoms included respect for cultural diversity and the right to development as essential frameworks of attaining sustainable development. This also ensures that sustainable development benefits al. The Plan of Implementation of the World Summit for Sustainable Development set forth these notions. According to Schrijver & Weiss, (2004), a paradigmatic shift of international relations affirms that there should be considerations done to interacting States, intergovernmental organizations, industrial concerns, individuals as well as peoples and non-governmental participants. This is to include a common and holistic sustainable multilateral co-operation and emphasizing on the role of regional development. However, it recognizes the role of state in ensuring sustainable use of its natural resources. The principle of a common but differentiated responsibilities maintains that a state take maximum responsibilities in regard to its actions. As much as the benchmark is set for all nations to adjust and to work towards, other capable nations can work further or be more reliable under the international law to increase their activities and meet the desirable and possible development goals. This does not take away nations primacy as foremost actor in the international affairs, but serves as the best mechanisms through which the global and local are synthesized. The recognition of responsibilities has broader range of participants so as to secure sustainable development. Sustainable development raises most of fundamental issues that currently face the international community. ILA notes that it is a matter of demanding common concern both to industrialize and developing countries. The role of international legal system has been central in promoting sustainable development. In particular, he law aims at strengthening and extending application of the existing laws and reformulating them to keep the human activities in harmony with unchanging universal laws of nature. This brings international agreements to the support of sustainable development. Institutional reforms are recognized as equally pivotal in improving conditions for sustainable development. Intergovernmental discussions have taken the role of international law to achieving sustainable development as the theme throughout. However, precise modalities have not truly been completely agreed and therefore the progress remains patchy and slow. International law plays a proactive role within political system and is mainly concerned with growing social and economic inequalities between States and about the ability of developing countries, specifically least developed countries in participating in global economy. The critical importance of the sustainable development is its integrationist principle. This provides the relative weighting of environmental, economic and human rights norms by making them complex. A number of decisions in international tribunals have also supported the principle of sustainable development. International law is incredibly rich for setting both specific regulations and general norms through which international community can operate. The political structure which is supported by international law is capable of systematizing a great deal of social, environmental and economic inequalities (Schrijver, 2008). 4.0 What is the relationship between PSNR and SD? The relationship between permanent sovereignty over natural resources (PSNR) and sustainable development can be seen from fundamental principle that composes each term. Most of sustainable development principles intersect with those of PSNR under the duty of the state in the exercise of permanent sovereignty over their natural resources in the interest related to national development and the well-being of its people. Under the duties of PSNR, the duties that concern the interconnected world rights, seldom come without those rights given over the use of natural resources. Though the PSNR principle aimed to be an instrument used by developing states for strengthening their position in respect towards the former world, its developments began to put borders towards the exercise of that right. The obligations derived from various law sectors are directed towards every state through its extensive legal framework which limits the conduct of the states (Banerjee, 2008). The principles discussed here relate to greater extent PSNR and sustainable development. The states are mandated with the duty to protect the environmental norms. This is because; as environmental law developed international co-operation in the field became apparent. This was to mitigate environmental degradation and pollution which originates from one country and affect the other. The newly and evolving environmental principles was a confrontation to sovereignty of stats concerned with their conduct and policies. PSNR is ultimately under the obligation not to cause any damage. No state is given any right to use or permit other to use its territory in a manner that cause injury in and to the territory of the other more so when a case of serious consequence and injury is convincing and established with clear evidence. No states were therefore allowed to allow acts that infringed the rights of the other states. The obligation has direct effect on the states exercise of PSNR. This is congruent to the principle of precautionary approach to national resources, human health and eco-systems in sustainable development (Miranda, 2012). In both PSNR and SD the principle of common but differentiated responsibilities applies. The essence of it is that despite all states having a common responsibility in protecting their environment, their responsibilities must be viewed differentiated. Developed world carry a bigger responsibility for current state of the environment when historical injustices are taken into account. They thus also take larger share in restitution. According to Aggarwal, (2006), the overall objective involved with this, encourage universal participation of nationals in environmental treaties in regard to economic capabilities of the state. The different legal standards and obligations are applicable and grant either less stringent commitments or longer transition periods. Furthermore, in order to decrease the gap in development, the developed states shall assist to their capabilities the developing states though financial aid and consult on and transfer of sound technology. To concretize the aim, there is special emphasis on environment which is based on environment with the goal of eradicating poverty. The other common principle involves inter- and intergenerational equity. This applies to both PSNR and SD. This ensures equitable distribution of resources and responsibilities among world population for both present and future generation. Together with poverty eradication, the peoples’ in one generation shall enjoy the fair access to entitlement of available natural resources and in the process of utilizing the resources they have to consider the long-term effects involved with their conduct. The use of components in biological diversity should be in away and rate that does not lead to long-term decline in biological diversity and thereby maintain it’s potential to meet the aspirations and needs of present and the future generations. This reflects on the minimum requirements to install rational management plans for long-term natural resource planning which cooperate to create joint international monitoring systems (French, 2002). Numerous conventions include states obligation with a ratified document to establish protection and conservation measures. Their choice of conduct and policies are limited to transboundary context and their national resources. This calls on every government to integrate measure for environmental protection and resource management. The principle of equitable utilization greatly applies to PSNR and SD. In regard to the trans-border natural resources such as water allocation and resources this principle has crystallized. In particular instance where a state utilizes and share its resources with the other, it will take care of utilization so that the other state can still enjoy equitable share and cooperate and coordinate these efforts in this regard. A process therefore of prior consultation and negotiation will take and the parties reach an agreement on the basis of equitable terms to create fairness. Equity may be taken to mean shared resource units by fifty-fifty allocation, location, prior usage and the special needs of people using the resource (French, 2002). For instance UN Watercourses Convention 1997 proposed non-exhaustively of natural character of international watercourse, social economic needs of a state, dependency on population, existing potential use, protection, conservation, development and economic use. The role of parties in determining the weight of every deliberation is significant in the deliberation. This is common with the principle of interrelationship and integration interrelation to human rights, social, economic and environmental objectives and that of equity (Banerjee, 2008). According to Osofsky, (2003), the precautionary principle is founded on scientific evidence and possibility to predict possible consequences of the human action. It might be that this is inconclusive and insufficient to state to give certainty that any environmental damage will occur. However, in order to compensate such shortcomings, the precautionary principle developed and which declares that the state must not wait for full scientific certainty but should instead take necessary action when there is a possible threat of serious and irreversible damage. This constitutes customary international law. A comprehensive evaluation should be followed and the risk connected with certain substances and activity based of recent scientific information should view the probability of occurrence and then the consequences following the setting of restrictions to any other actions. This to an extent also relates to the principle of access to information and justices in sustainable development. As Aggarwal, (2006) argues, one of the characteristic of PSNR principle however incorporates newly evolving developments of the international law. This means the environmental norm have found their reflection in obligations of PSNR. However significant restrictions are exercised regarding the sovereignty of resource use base on integrated system and intergovernmental agreements. There is however an urgent need to environmental deterioration problem response. The agreements of UN Conference on Environmental and Development which was held in Rio de Janeiro agreed to protection of environment, the social and economic development which are fundamental to SD. Whilst the sustainable development scope has broadened, international community seek to identify the key prerequisites for more sustainable global society. As much as PSNR secures its sovereignty, it is bound to take into account eradication of poverty, change unsuitable production patterns and consumption, protection and management of natural resource are among the overarching objectives that SD incorporates to PSNR. References Read More