Global Governance of Oil and Gas Resources in the International Legal Perspective. Joanna Osiejewicz

rel="nofollow" href="#ulink_457d3f5e-90a4-50f6-991e-6530515510ac">⁵⁵ The last document contains a catalogue of rules of conduct, among which the key principle is putting humanmankind at the centre of the process of sustainable development (No. 1). This process itself must take into account the needs of present and future generations (No. 3). Finally, environmental protection must be linked to economic development (No. 4). The Rio Declaration on Environment and Development aims to strike a balance between environmental protection and economic development in developing countries. Although the document is based on the Stockholm Declaration of 1972, it more explicitly refers to the exercise of sovereignty over resources both in the context of development and environmental protection. While No. 21 of the Stockholm Declaration declares that states have a sovereign right to exploit their own resources in accordance with their own environmental policy, Rule 2 of the Rio Declaration adds: “and (policy) of development”. Article 2 of the Convention on Biological Diversity introduces the term “sustainable use”, defined as using elements of biological diversity in such a way and with such intensity that it does not lead to long-term decline of biodiversity, by maintaining its potential in the way that meets the needs and aspirations of present and future generations.⁵⁶ The United Nations Framework Convention on Climate Change and the Convention on the Conservation of Biological Diversity were open for signature at the Rio conference. Further global conferences, in particular the World Summit in Johannesburg in 2002 and the Rio+20 Sustainable Development Conference in 2012, continued global engagement in sustainable development and confirmed sovereignty over natural resources, along with state commitments for environmental protection and development as one of their essential elements.

The principle of permanent sovereignty over natural resources is also associated with the increased attention to the rights of indigenous peoples, in particular with regard to their native lands and natural resources. Regulations establishing the rights of indigenous peoples and setting standards for the protection of these rights⁵⁷ are included in the United Nations General Assembly Declaration on the Rights of Indigenous Peoples,⁵⁸ and in the International Labour Organization Convention No. 169 on indigenous and tribal peoples (1989),⁵⁹ in the International Covenant on Civil and Political Rights,⁶⁰ as well as the African Charter on Human and Peoples’ Rights.⁶¹ All of the above acts establish the duty of states to take measures, in cooperation with the peoples concerned, to protect and preserve the natural environment of the territories inhabited by these peoples.⁶² States not only have the duty to respect these rights, but also have a positive obligation to pursue policies that both respect and protect the rights of indigenous peoples. In addition, the implementation and protection of indigenous peoples’ rights should proceed through a fair, independent, open and impartial process in which indigenous peoples are to have the full right to participate in matters that may affect their rights to their land, territories, and natural resources.⁶³

The principle of permanent sovereignty over natural resources has been included in treaty law, mainly concerning the protection of investment and the natural environment. The Treaty on the International Energy Charter⁶⁴ provides a multilateral framework for cooperation in the field of energy and aims to promote energy security through the interaction of open and competitive energy markets, while respecting the principles of sustainable development and sovereignty over energy resources. This document, initially treated as a future basis for relations with oil and gas-rich former Soviet republics, underlines the recognition of the sovereignty of states over their energy resources, constituting a legal and political foundation for creating an open international energy market. The following conventions can be referred to in the field of environment: the Framework Convention on Climate Change⁶⁵ and the Convention on Biological Diversity.⁶⁶ Regional solutions include the Protocol Against the Illicit Exploitation of Natural Resources, adopted in 2006 by the International Conference in the Great Lakes Region.⁶⁷ The protocol defines the concept of illegal exploitation, understood as any exploration, development, acquisition, and disposal of natural resources in violation of the law, customs, practices, or the principle of permanent sovereignty over natural resources (Article 1). It also confirms that members of this conference of states from the Great Lakes Region are free to dispose of their natural resources (Article 3). The principle of permanent sovereignty over natural resources has also been incorporated into the Vienna Convention of 1978 State Succession to Treaties⁶⁸ and the Vienna Convention of 1983 on Succession of States in Respect of State Property, Archives and Debts⁶⁹.

The principle of permanent sovereignty over natural resources has also been repeatedly invoked in the jurisprudence of international courts and tribunals, as well as in quasi-judicial verdicts of treaty institutions, especially those concerning human rights. With regard to international arbitration awards, reference should be made to the 1954 Texaco⁷⁰ ruling and the Liamco⁷¹ ruling of 1981 on the nationalization of oil companies in Libya. Both of these rulings refer to the principle of permanent sovereignty over natural resources and its formulation in Resolution No. 1803 (XVII) regarding permanent sovereignty over natural resources.⁷² The International Court of Justice ruled on fisheries jurisdiction as well as the delimitation of the continental shelf: the principle of permanent sovereignty over natural resources was explicitly mentioned in the judgment in Democratic Republic of Congo v. Uganda, in which the Court stated that this principle is part of customary international law.⁷³ In addition, elements of this principle arose from certain consultative opinions, such as the Namibia case (1971),⁷⁴ the Western Sahara case (1975)⁷⁵ and the legal consequences of the construction of a wall in the Occupied Palestinian Territories (2004).⁷⁶ The principle of permanent sovereignty over natural resources is also present in the case law in the field of human rights. The Inter-American Commission and the Inter-American Court of Human Rights ruled on indigenous cases brought, including against Guatemala (Bamaca-Velasquez, 2000)⁷⁷, Suriname (Saramaka indigenous people, 2007),⁷⁸ and Ecuador (Kichwa indigenous people of Sarayaku, 2012).⁷⁹ The African Commission expressed an opinion in the context of the principle of permanent sovereignty over natural resources in the matter concerning the right to self-determination of the Ogoni indigenous people in the Niger Delta (2001)⁸⁰ and on the local communities of the ethnic group Endorois indigenous people against Kenya (2003).⁸¹

The availability of natural resources sometimes