In the current international system, sovereign states hold extensive rights over the natural resources in their territories. How are these sovereign rights in natural resources justified vis avis the sustainable development of our environment? What are the implications of these rights for the demands of climate justice, which pertain to the use and management of natural resources? This paper reviews and examines in details the territorial rights, in justifications that they provide for territorial jurisdiction over natural resources. It is argued that insofar as the philosophical‐normative perspectives justify sovereigns’ jurisdiction over natural resources within their borders, they also give rise to limits on the legitimate and permissible exercise of the jurisdictional prerogative especially considering the rights of other states.1 This theoretical proposition is then illustrated in the case of international climate‐justice obligation.
NATIONAL SOVEREIGNTY OVER NATURAL RESOURCES: THE ENVIRONMENTAL CHALLENGES AND SUSTAINABLE DEVELOPMENT
The principle of permanent sovereignty over natural resources, and the freedom endowed to the States to exploit such resources located on their territory as they see fit, may seem irreconcilable with a general duty of nature preservation which restricts the State’s right to exploit national resources.2 The evolution of both environmental law and the law of development at the turn of the twenty-first century, however, has opened the door to a renewed relationship between national sovereignty and resource protection.
1. Commission on Permanent Sovereignty over Natural Resources, Note by the Secretary-General, “Historical Summary of Discussions Relating to the Question of Permanent Sovereignty of Peoples and Nations over their Natural Wealth and Resources” (A/AC.97/1, 12 May 1959)
2. ibid, 78.
Grassroots and deep ecology movements, which significantly contributed to bringing environmental awareness to the fore of the international agenda in the 1960s, were quite notably inspired by ‘Arcadian’ conceptions of ecology.3
Arcadian ecologists are wary of the destructive power of industrialization and advocate a return to a more harmonious relationship with nature.
At the core of Arcadian ecology is nature preservation for its own sake and its own value. Preservationists thus favor an eco-centric form of environmentalism. In contrast, conservationists adopt a much more anthropocentric approach to environmental protection.
If nature is to be protected, it is for the benefit of humans. In that sense, conservationists favor a clearly utilitarian vision of ecology, arguing for the wise use of nature to allow for economic development.4 In other words, conservationists advocate a sustainable approach to natural resources use.
However, the international environmental movement never embraced a fully preservationist approach to nature protection. It is instead rooted in conservationist.
INTERDEPENDENCIES AND CHALLENGES TO SOVEREIGNTY
If most of the Earth is divided into portions of territories allocated to States purporting to exercise their sovereignty therein, classic international law has long recognized the limits to this configuration. Indeed, there are still portions of the Earth that have not been appropriated, that are hence beyond national jurisdiction, and whose regimes have instead been devised by international law. Two such regimes inherently challenge the traditional notion of sovereignty. Common spaces, including the high seas, may be exploited by States individually but cannot be appropriated to the exclusive sovereignty of any one State.
3. Arcadian ecologyis a school of thought that advocates for a harmonious relationship between humans and nature.
4. Worster, Donald. Nature’s Economy: A History of Ecological Ideas. Cambridge: Cambridge University Press, 1994.
Other areas, however, such as the deep seabed and outer space, have been further internationalized, and individual States may not exploit their resources for their own benefit as these are seen as the common heritage of mankind. In both contexts, the limits placed on sovereignty arise out of the common interest of States in a resource beyond domestic jurisdiction. But States may also have a common interest in resources located within the confines of domestic jurisdiction. This is the case where a resource is shared between two or more States, or where mankind shares a common concern in the impact and exercise of national sovereignty over resources such as biodiversity or the atmosphere. This section will first explore the relationship
between the notions of sovereignty and those of common property and common heritage of mankind. It will then investigate the extent to which the legal characterization of shared resources and of common concern of mankind challenges the exercise of State sovereignty or leads to a renewed conception of it.
SOVEREIGNTY AND INTERNATIONALIZED REGIMES: COMMON PROPERTY AND COMMON HERITAGE5
Common spaces beyond national jurisdiction, most notably the high seas, are governed by a regime of common property.
5. Anand, R.P. (1997). Common Heritage of Mankind: Mutilation of an Ideal, in 37 Indian Journal of International Law, 1.
According to this regime, common spaces are insusceptible of appropriation, although the (biological) resources they contain may be appropriated by individual States. In other words, even though States may exploit the natural resources located in the common spaces, they cannot exercise their exclusive jurisdiction therein. Common property thus reflects the common interest of all States in the exploitation of these resources, thereby justifying a regime of open access. Such open access is, however, now being increasingly regulated by a number of international, regional or bilateral fisheries or resource protection conventions.
A common interest in exploitation indeed necessarily leads to a common interest in conservation of resources for the benefit of all, as recognized by the International Court of Justice.
SOVEREIGNTY AND SHARED RESOURCES6
Natural resources such as migratory birds or fish, wild animals, river and lake ecosystems, forests or mountain ranges do not neatly fit within artificial territorial boundaries and often straddle over two or more sovereign States, raising issues of control powers allocation. Adjustments to national sovereignty are, in such circumstances, in order, and international law offers examples if not of shared sovereignty proper, at least of joint management regimes. The 1970s saw an attempt at the development of a regime of shared natural resources under the auspices of the UN Environment Programme (UNEP), which received a lukewarm response from States due to controversies notably surrounding the use and meaning of the term ‘shared resources’.
6. Armstrong, Chris. 2015. Against permanent sovereignty over natural resources. Politics, Philosophy & Economics, 14: 129–151
These led to the discontinuance of related topics at the International Law Commission (ILC)7,8 and the removal of references to such terminology in the codification of the law of international watercourses.
The rules contained in UNEP’s document, however, were far from displacing the notion of sovereignty altogether and referred to duties of transboundary cooperation, equitable utilization, diligence, information and consultation when a State plans to use the shared resource in a way that might affect the other riparian States. Crucially, despite controversies surrounding UNEP’s guidelines, all these principles are now increasingly recognized as reflecting customary international law.
SOVEREIGNTY AND COMMON ENVIRONMENTAL CONCERNS
Yet another innovative legal category requiring adjustments to sovereignty has emerged in response to growing environmental interdependence: the common concern of mankind. Its emergence is the result of a double phenomenon. It was prompted, on the one hand, by the increasingly suspicious attitude of the international community, or at least part of it, vis-à-vis the notion of common heritage, which presupposes significant transfers and redistribution of sovereignty in favor of humanity. But, it was also facilitated by a renewed international context: the paradigm shift towards sustainable development.
7. The International Law Commission was established by the United Nations General Assembly in 1948 for the “promotion of the progressive development of international law and its codification.
8. United Nations General Assembly Resolution A/RES/174(II) 21 November 1947. Retrieved 2007-09-28.
The 1992 Rio Conference9, by setting this new objective for the international community, acknowledged the latter’s global environmental responsibility.
The Earth Summit acknowledged both the existence of global environmental concerns and the global demand for such concerns to be adequately addressed. The atmosphere came to be seen as a global unity irrespective of territorial boundaries and its climate-change-induced deterioration a common concern of mankind.
Equally, despite their location within the confines of domestic jurisdictions, the international community’s realization that the benefits of biological resources accrue to humanity as a whole led to the recognition of biodiversity’s conservation as a common concern to humankind. And so a new concept challenging sovereignty was born.
The fact that it is climate change and the conservation of biodiversity that are recognized as common concerns, rather than the atmosphere or biodiversity per se, has particular implications: it is not a spatial entity or a resource that is the subject of common concern but rather environmental processes and the responses they require. Hence, unlike for common heritage resources or those of the global commons, common concern does not seek to establish common ownership or management.
In that sense, it preserves States’ territorial sovereignty. State sovereignty is not, however, left completely intact. Recognition of an issue as a common concern of mankind indeed limits the State’s freedom of action as it ‘does not fall solely within the domestic jurisdiction of States, owing to its global importance and consequences for all’.
9. The Rio Earth Summit Summary Of The United Nations Conference On Environment And Development Prepared by Stephanie Meakin Science and Technology Division November 1992.
Thus the State’s freedom of action may well be limited concerning resources wholly located within their territory, even in the absence of transboundary damage to another State’s rights, so long as their conservation is of concern to all. Significantly, the reference to mankind rather than the international community of States furthers the conceptual shift already started by the notion of common heritage. It ‘implies values that are above and beyond the calculated interests of states’ and ‘its long-term view, bridging
generations also implicitly runs longer than the actual term of sovereignty of a typical form of government. Thus,10
“common concern” marks a transition from a community of self-interested and autonomous states with absolute territorial sovereignty to a mixed global community with restraints on sovereignty’.
At a more practical level, the concept of common concern has a direct legal consequences. Mostly, if an issue is recognized as of common concern, then any legal obligation aimed at addressing this issue will be an obligation owed.
THE RISE OF ENVIRONMENTAL STANDARDS AND SOVEREIGNTY CONSTRAINTS
If the current structure of the international legal system is premised upon the fundamental principle of sovereign equality and the correlative exclusive territorial jurisdiction which flows from State sovereignty, this same international system has long recognized that such national sovereignty can be, at least voluntarily, fettered. Indeed, as recognized by the arbitral tribunal in the Lac Lanoux case11, This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees. The French Government proposed to carry out certain works for the utilization of the waters of the lake and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne12 between France and Spain. If territorial sovereignty plays the part of a presumption, it must nevertheless bend before all international obligations, whatever their origin.
Thus, irrespective of the conceptual umbrella under which they are developed – be it common property, common heritage, common concern or shared resources – sovereignty remains increasingly limited by the environmental standards with which States voluntarily comply, or perhaps out of necessity in view of the urgency of the threat posed.
This section will map the range of environmental standards that constrain State sovereignty, be it on the basis of the protection of other States’ rights, because of the existence of an international interest in resource protection, or even in the absence of any such immediate international interest. Incidentally, environmental limitations on sovereignty may no longer emanate from exclusively international standards: the absence or weakness of international standards may prompt certain States to apply their own more stringent environmental regulations extra-territorially. While international law discourages the use of extra-territorial unilateral measures, it does not specifically prohibit it.
10. R.S. Pathak, Environmental Change and International Law: New Challenges and Dimensions (United Nations University, 1992, 493 p.
11. LAKE LANOUX ARBITRATION (FRANCE v. SPAIN). (1957) 12 R.I.A.A. 281; 24 I.L.R. 101. Arbitral Tribunal November 16, I957.
12. May 26, 1866,
CONSTRAINTS ON SOVEREIGNTY FOR ACTIVITIES INVOLVING TRANSBOUNDARY DAMAGE AND BEYOND
A core international environmental standard constraining States’ sovereignty over natural resources flows directly from the central principle of sovereign equality. The obligation not to cause damage to the environment of other States derives from the duty to respect the territorial integrity of other States, an expression of their sovereignty.
This has its origin in the principles sic utere tuo ut alienum non laedas13 and of good neighborliness. Early jurisprudential expressions of this rule are found in the Corfu Channel case, where the ICJ noted that a State has an ‘obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’, while the Trail Smelter14 and Lac Lanoux15 arbitrations underlined its specifically environmental dimension.
In the Trail Smelter case, in particular, the Tribunal stated that no State has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory or the properties therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.
Essentially, this principle, also known as the ‘no harm rule’, translates the concern that the way in which a State exercises sovereignty over its natural resources – how it will extract, transform and exploit them – may have consequences for the environment of other States. It thus places restraints on the use of sovereignty over natural resources to avoid such harm. The fact that the no harm rule places a limit on the permanent sovereignty principle is clearly expressed in the Stockholm and Rio Declarations where these two principles are inextricably linked.
13. Sic Utere Tuo Ut Alienum Non Laedas. Definition. One must use his property so as not to injure the lawful rights of another.
14. Wirth, John D. (1996). “The Trail Smelter Dispute: Canadians and Americans Confront Transboundary Pollution, 1927-41”. Environmental History. 1(2).
15. ibid, 5
The obligation not to cause damage to the environment of other States or to areas beyond national jurisdiction thus acts as a balance on the right to freely exploit natural resources and thereby constrains sovereignty. The customary status of this principle is today unquestioned.
Technically, the obligation not to cause damage to the environment of other States translates into a duty of prevention, itself requiring due diligence on the part of the State exercising its sovereignty over natural resources.
The principle of prevention that the ‘no harm rule’ entails, as far as it can be distinguished from the latter, also reflects a customary rule. The no harm rule poses not an absolute, but a relative obligation on States – an obligation to deploy the means necessary to avoid harm without requiring that they achieve this result. It is thus known as an obligation of means or conduct: what is expected of the State is ‘not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators.
If the constraint on sovereignty derived by the application of the no harm rule flows itself from the principle of territorial integrity, arguably, as formulated in the Stockholm and Rio Declarations and as understood by international courts and tribunals, it has moved beyond this application as an extension of the principle of sovereignty. The general obligation of the State is indeed not only to refrain from causing harm to the environment of other States, but also to areas beyond national jurisdiction.
CONSTRAINTS ON SOVEREIGNTY IN CASES OF INTERNATIONAL INTEREST IN RESOURCE PROTECTION
Sustainable use is understood to require resource management which yields the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations.
This objective thus implies an inter-generational perspective and the adoption of holistic and integrated management strategies based on the precautionary and ecosystem approach ‘that account for scientific, economic, social, and political uncertainties and that recognize the importance of both consumptive and non-consumptive uses’.
The principle of sustainable use is a prolongation of the concepts of resource protection, resource preservation and resource conservation as well as of those of wise use, rational use or optimum sustainable yield – all of which feature in a range of international instruments concerning biological resources, or wild fauna and flora protection predating the Rio Conference. By the time of the Rio Conference, however, ‘sustainable use had been universally accepted as the basis upon which all living resources should be managed’.
Sustainable use is closely related to, and an essential measure for, the achievement of the objective of sustainable development and, as such, constitutes an acceptable limitation on State sovereignty as it in fact allows reconciliation between permanent sovereignty and resources protection. Indeed, according to this principle, the use of natural resources, rather than being prohibited, must be exercised in a manner that ensures its long-term use and the resource’s capacity for regeneration. As such, it works in favor of a continued exploitation of the resource and allows for the attainment of the objective of permanent sovereignty: ensuring the well-being of the people of the State.
By guarding against resource depletion, it preserves and furthers the economic, social and potentially cultural well-being which the people accrue from the exploitation of the resource, who conversely would suffer from its depletion and extinction. By integrating the objectives of permanent sovereignty and resource protection, sustainable use thus contributes to achieving a development that is sustainable.
As a principle of resource management, sustainable use has thus generalized into an international environmental standard capable of constraining the State’s sovereignty to exploit resources located within its own territory. The legitimacy of such a constraint stems from the commonality of interests that States or humankind share in the conservation of such resources, even in the absence of a transboundary damage to another State.
The principle of sustainable use as embedded in the Conservation of Biological Diversity16 (CBD) is a salient example of domestic limitation of sovereignty for resources located within the jurisdiction of the State, which finds its legitimacy in the common concern that humankind shares in the conservation of biodiversity.
Potentially because both the ‘concern’ and those concerned are more diffuse than in a case of common or shared property over a resource, the formulation of the obligations of sustainable use have a softer character in the Conservative Biological Diversity regime than in other global regulatory regimes, such as UNCLOS. The strength of the legal commitments to restrict national sovereignty also increases in a regional or local context, when the common interest of States is more immediately felt.
16. is a multilateral treaty known informally as the Biodiversity Convention,.
SUSTAINABLE USE AND GLOBAL REGULATORY REGIMES
Under the Conservative Biological Diversity, the principle of sustainable use, particularly the sustainable use of the components of biodiversity, is at the heart of the convention.
It is defined as the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations. This imposes on States obligations to cooperate; adopt strategies for the conservation and sustainable use of biological resources; identify and monitor important components of biodiversity; establish systems of protected areas for in situ conservation; and complementary measures of ex situ conservation.
CBD Article 10 requires the integration of conservation and sustainable use into national decision-making and the adoption of measures of resource use to avoid adverse impacts on biodiversity. Despite the mandatory language throughout, these are admittedly weak commitments. The Convention does not set a clear and straightforward general obligation to use the components of biodiversity in a sustainable manner, and the provisions are further tempered by qualifications such as ‘as far as possible and appropriate’ or ‘in accordance with particular conditions and capabilities’. Sustainable use thus struggles to constrain State sovereignty in a strict way. The balance seems all the more set in favor of State sovereignty since CBD Article 3 reiterates Stockholm Principle 2117; and CBD Article 15 subject access to genetic resources to the authorization of the State where these are located. Arguably, however, this bolstering of national sovereignty may ultimately work in favor of resource protection. By laying out the conditions under which access to the exploitation of genetic resources is going to be granted (to other States), the State of origin may well set up a system ensuring their conservation and sustainable use, even if originally in its purely domestic interest.
In that sense, the subjection of resource access to the principle of national sovereignty empowers the State of origin to design sustainable resource management regimes.
Beyond the universal scope of the Convention, the softness of States’ commitments to use components of biodiversity sustainably may well be a consequence of the diffuse nature of the interest that mankind shares in biodiversity and its components. The economic value of biological resources is not always apparent, and, consequently, the immediacy of the benefits that States can derive from them or the necessity of their conservation may be less intensely felt.
17. Principle 21 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
SUSTAINABLE USE AND REGIONAL OR LOCAL REGULATORY REGIMES
Sustainable use obligations are also widespread in regional or local natural resources regulatory regimes where the common or shared interest is more vividly felt by States, with post-UNCED18 agreements being increasingly premised upon the objective of sustainable use as a basis for constraining State sovereignty domestically. At the regional level, for example, the African Convention on the Conservation of Nature and Natural Resources, in its 2003 revised version, requires States to adopt and implement all measures necessary to achieve the objective of fostering the conservation and sustainable use of natural resources.
Interestingly, the revision was also intended to expand elements related to sustainable development and the language of sustainable use now replaces that of wise use.
Among regional seas conventions, the 2008 Protocol on Integrated Coastal Zone Management of the Mediterranean19 provides that ‘Parties shall endeavor to ensure the sustainable use and management of coastal zones in order to preserve the coastal natural habitats, landscapes, natural resources and eco-systems.
SUSTAINABLE USE AND CUSTOMARY INTERNATIONAL LAW:
According to the ILA20, as a matter of common concern, the sustainable use of all natural resources represents an emerging rule of general customary international law, with particular normative precision identifiable with respect to shared and common natural resources.
A recent arbitral decision has also found that ‘since the time of Trail Smelter, a series of international conventions, and judicial and arbitral decisions have addressed the need to manage natural resources in a sustainable manner’. These assertions find support in the provisions relating to sustainable use incorporated in the regimes discussed above. Birnie, Boyle and Redgwell21 also admit that “the evidence of treaty commitments, coupled with indications of supporting State practice, might be sufficient to crystallize conservation and sustainable use of natural resources into an independent normative standard of international law.’
18. Free Oceans Law And Policy In The Post UNCED Era Australian And Canadian Perspectives International Environmental Law And Policy No 38
19. Protocol on Integrated Coastal Zone Management in the Mediterranean Official Journal L 034 , 04/02/2009 P. 0019 – 0028
20. The International LawAssociation (ILA) is a non-profit organisation that promotes “the study, clarification and development of international law” and “the furtherance of international understanding and respect for international law”
They warn, however, ‘It is clear that States retain substantial discretion in giving effect to the alleged principle, unless specific international action has been agreed’.
As reflected in the regimes reviewed above, with some rare exceptions, where the principle of sustainable use constrains State sovereignty, it does so as an objective to be achieved, leaving the State some room for maneuver as to how much effort to put into it. This flexibility, together with the clear anthropocentric nature of the principle, make it for States a more acceptable constraint on sovereignty than a general obligation to protect their own environment. It constitutes in this sense a useful tool to limit national sovereignty, even in the absence of any transboundary damage.
Its appeal, however, has its own boundaries. Firstly, the management of tropical forests, in which humanity’s interest is undisputed, is a dire example of the failure of the principle of sustainable use to trump national sovereignty: the ‘polarization and sensitivity over sovereignty issues still inhibits the conclusion of a comprehensive global convention despite the accelerating destruction of tropical forests’.
21. International Law and the Environment. Third Edition. Patricia Birnie, Alan Boyle, and Catherine Redgwell.
Secondly, where the principle of sustainable use of natural resources constrains the State’s sovereignty over resources located within its own territory, this is because the State shares an interest with others in this resource, either as a shared resource or because its conservation constitutes a common concern of mankind. Either way, there is an international or common interest in resource conservation
The growing realization of global interdependencies coupled with the rise of inter-national environmental standards and new legal categories has put the concept of national sovereignty over natural resources under attack. Limitations on national sovereignty thus flow from innovative legal categories such as common heritage, humanity, intergenerational equity or common concern of mankind. Other constraints are derived from the generalization of international rules such as the no harm and prevention principles, as well as the principle of sustainable use. Though unsurprisingly, the more diffuse the commonality of interests or the international element, the weaker the resulting limitation on State powers. Human rights law may offer an alternative model for constraining State sovereignty in relation to the conservation of natural resources even in a purely domestic context. Yet this approach remains premised on anthropocentric considerations. Ultimately, sovereignty limitations grounded in intrinsically ecocentric concerns are as yet unlikely to break ground.
If the environment is to be protected, it is for the benefit of the economic and social well-being of individuals, peoples and States. It is under the sustainable development umbrella that sovereignty and resource conservation can be reconciled: there they have found their common and
mutual interest. The parameters of such reconciliation, however, have yet to be specified in a number of areas. Is the trend in international law to seek for an accommodation of these two principles, or is the principle of equitable use in fact being subsumed into that of sustainable development.