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

In the doctrine of international law, there is still no established, uniform definition of indigenous peoples. When describing their features, attention is paid to their cultural continuation and their relationship with specific hereditary lands. Such a population should be characterized by at least a partial linguistic, cultural and social separation, distinguishing it from neighbouring groups and the dominant state culture. The self-identification of an individual as a member of the indigenous people and the recognition of such a member by a group of a given indigenous population group allows the individual to be included in the indigenous population.²⁰¹

Indigenous rights were also included in the final documents of the UN Conference in Rio (1992) and Vienna (1993). Principle 22 of the Rio Declaration on Environment and Development emphasizes the need to recognize and support the identity, culture and interests of indigenous peoples and other local communities, including by recognizing their important role in environmental management due to their knowledge and traditions.²⁰² The Vienna Declaration adopted at the World Conference on Human Rights in 1993 acknowledges the “inherent dignity” of indigenous peoples and calls on states to take positive steps, in line with international law, to ensure respect for human rights and fundamental freedoms of indigenous peoples.²⁰³

Regulations on the rights of indigenous peoples are also included in the International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989),²⁰⁴ in the International Covenant on Civil and Political Rights,²⁰⁵ as well as in the African Charter on Human and Peoples’ Rights.²⁰⁶ These acts set standards for the protection of these rights and establish the duty of governments to take measures, in cooperation with the peoples concerned, to protect and preserve the natural environment of the territories inhabited by these peoples.²⁰⁷ The Amazonian Declaration also combines the exercise of permanent sovereignty over natural resources with the duty of states to respect the rights and interests of indigenous peoples.²⁰⁸

In this respect, particular regulations were adopted. The Convention on Biological Diversity recognizes the contribution of indigenous peoples to the protection of biodiversity and the sustainable use of its elements, and calls on governments to respect, preserve and maintain knowledge of local communities and promote its wider use with their consent and participation, and to share benefits justly.²⁰⁹ The UN Convention to Combat Desertification in Those Countries Suffering from Severe Drought and/or Desertification, Particularly in Africa (UNCCD), is one of the most important instruments of the Rio de Janeiro Conference in 1992. It urges parties to ensure that decisions are taken and implementation of programmes to combat desertification and/or to mitigate the effects of drought with the participation of populations and local communities.²¹⁰ The International Tropical Timber Agreement (2006) encourages states to support and develop reforestation activities and tropical woods management, as well as reclamation of degraded forest areas, with due regard to the interests of local communities dependent on forest resources.²¹¹ In addition, the Energy Charter Treaty stipulates that its provisions shall not affect the right of the contracting parties to accept or exercise preferential measures against investors who are members of indigenous peoples or their investments.²¹²

The question of the rights of indigenous peoples was the subject of consideration by the ICJ in the case of Western Sahara (1975). The International Court of Justice ruled that territories inhabited by socially and politically organized tribes and peoples are not regarded as terra nullius, nor as land subject to occupation or appropriation. Therefore, some nomadic peoples had rights to the territories of Western Sahara. The International Court of Justice recognized that the Declaration of the General Assembly on decolonization (Resolution No. 1514 [XV])²¹³ applies to Western Sahara, and pointed out that the application of the principle of self-determination can be realized through a free and genuine expression of the will of the population of the given territory.²¹⁴

3.3 Environmental protection

3.3.1 The right to manage natural resources in accordance with the national environmental policy

In the 1970s, especially during the Stockholm conference and shortly thereafter, there was a debate on balancing sustainable sovereignty over natural resources with the responsibility of the state in the field of environmental protection. Although some state tasks and responsibilities in respect of environmental protection have been formulated in international legal acts, it is consistently recognized that each state has the right to pursue its own environmental policy. This was clearly indicated in Rule 21 of the Stockholm Declaration of 1972²¹⁵ and its almost identical counterpart in the Rio Declaration in 1992.²¹⁶ The treaty law expresses this regulation in art. 193 of the UN Convention of the Law of the Sea (UNCLOS) of 1982, where it was decided that states have the sovereign right to exploit their natural resources in accordance with their environmental policy and in accordance with their duty to protect and preserve the marine environment.²¹⁷ Similar provisions are also included in other conventions, namely the Vienna Convention for the Protection of the Ozone Layer (1985),²¹⁸ the UN Framework Convention on Climate Change,²¹⁹ the Convention on Biological Diversity,²²⁰ and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.²²¹

The Ramsar Convention²²² provides that the inclusion of national sites in the list of wetlands of international importance does not infringe on the exclusive sovereign rights of the party in whose territory they are located. The UNESCO World Convention on the Protection of Cultural and Natural Heritage (1972)²²³ contains a general reference to the sovereignty of the state over its natural heritage. Article 19.3 of the Energy Charter Treaty (1994)²²⁴ provides for the right of every state to regulate the conservation of resources and environmental and safety aspects related to the research and development of energy resources.

Clear references to the right of states to freely manage their natural resources in accordance with their own environmental policies are included in the Latin American conventions and regional declarations.²²⁵ The African Convention on Nature Conservation