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

from the exploitation of resources and the related development of the country. Subsequent resolutions containing references to permanent sovereignty took into account only very general guidelines, such as promoting the country’s development, or even did not provide any guidelines in this respect, imposing only a general duty to exercise permanent sovereignty freely and fully.¹⁷⁸

Multilateral treaties impose this obligation indirectly. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights provide that under no circumstances may nations be deprived of their own means of subsistence.¹⁷⁹ In addition, both pacts contain a statement that their provisions cannot be interpreted as violating the inherent right of all nations, that they would enjoy their wealth and resources and use them fully and freely.¹⁸⁰ The African Charter on Human and People’s Rights provides for the right to permanent sovereignty over natural resources to be exercised in the exclusive interest of the people and affirms that in no circumstances can a nation be deprived of it.¹⁸¹

The African Convention for the Conservation of Nature and Natural Resources¹⁸² emphasizes the need to manage and use resources in a manner that takes into account the social and economic needs of nations or states, obliging states to adopt scientifically-based plans for forest and pasture management, taking into account the social and economic needs of the country.¹⁸³ Similarly, the Treaty for Amazonian Cooperation¹⁸⁴ establishes socio-economic development as one of its goals and indicates that responsibility for this development lies with the state as a sovereign. This goal was then repeated in the Amazonian Declaration.¹⁸⁵ In the preamble to the Association of Southeast Asian Nations (ASEAN) on nature conservation and natural resources, states-parties have recognized the importance of natural resources and the importance of developing their forest management plans to maintain optimal efficiency and avoid a permanent capital shortfall in resources.¹⁸⁶

In international jurisprudence and arbitration, national obligations to use natural resources for the development and well-being of nations have not yet been directly taken into account. However, there are references to the interest of local communities and their dependence on natural resources located in places perceived as land territory and waters belonging to these communities.¹⁸⁷

3.2.3 The duty to respect the rights and interests of indigenous peoples

Increased awareness that the population living in a given territory is not always a homogeneous community but may consist of different nations and minorities, including indigenous peoples, led to the introduction of actions to protect the rights of indigenous peoples. In the initial period, the protection of indigenous peoples was understood in a general way as protection of national minorities.¹⁸⁸ On the recommendation of the UN Subcommittee on Prevention of Discrimination and Protection of Minorities,¹⁸⁹ the UN Economic and Social Council initiated in 1971 a study into the problem of indigenous discrimination. The Special Report of 1982¹⁹⁰ proposed the following definition of indigenous peoples:

      Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

Founded in 1982, the Working Group on indigenous peoples¹⁹¹ was given a mandate to review human rights concerning specifically indigenous peoples and to develop standards to protect these rights. Serving as an important forum for discussing the plight of indigenous peoples, the Working Group focused its efforts on developing a Draft Declaration on the Rights of Indigenous Peoples, which in 1994 was adopted by the UN Subcommittee on Prevention of Discrimination and Protection of Minorities and sent to the UN Human Rights Commission.¹⁹² The Draft Declaration on the Rights of Indigenous Peoples also refers to the rights of this population in the scope of managing their natural resources. The preamble expressed the fear that indigenous people were deprived of human rights and fundamental freedoms, including as a result of their colonization and plundering of their lands, territories and resources. It also expressed the belief that exercising control by indigenous peoples over their land, territory and resources would enable their development to be promoted in accordance with their aspirations and needs.

The Declaration creates a number of rights of indigenous peoples to land and resources, which correspond to either the prohibitions on acting or the obligations of States to take action in order to implement these rights. The rights included in the Draft Declaration are considered to be the minimum standards for the survival, dignity and prosperity of indigenous peoples in the world. They include the state’s obligation that covers, inter alia, the prohibition to take any action against indigenous peoples aimed at or involving the deprivation of their lands, territories or their wealth;¹⁹³ the prohibition to relocate indigenous peoples from land or territories without their prior voluntary consent;¹⁹⁴ the duty to legally grant and protect the lands, territories, and wealth that traditionally belonged to the indigenous peoples who occupied them, used them or otherwise acquired them;¹⁹⁵ the injunction to provide redress, including restitution, or, where impossible, fair, proper and just compensation for the lands, territories and natural resources that were traditionally owned or occupied or otherwise used by the indigenous peoples, and which were confiscated, taken, occupied, used or destroyed without their voluntary, prior and informed consent;¹⁹⁶ the duty to introduce and implement assistance programmes for indigenous peoples in the field of conservation and protection of the environment and the production capacity of their lands, territories and natural resources;¹⁹⁷ the duty to consult and cooperate in good faith with indigenous peoples through the institutions representing them in order to obtain their voluntary, prior, and informed consent before approving any project affecting their lands or territories or natural resources, in particular as regards the development, use, or exploitation of minerals, waters, or other natural resources.¹⁹⁸

The Draft Declaration was not adopted by the UN General Assembly until 2007¹⁹⁹ due to the fact that the definition of the indigenous peoples and the extent of their alleged right to political self-determination were considered controversial.²⁰⁰