Indigenous peoples and their right to permanent sovereignty over natural resources

The concept of permanent sovereignty over natural resources (PSNR) arose in the context of the
territorial decolonization process during the second half of the 20th century and refers to the right of all
peoples, especially those historically subjugated by colonial powers, to exercise control over the natural
resources present in their territory. Although eventually the juridical-political discourse focused on the
needs of "developing countries" as opposed to the interests of industrialized countries and transnational
corporations, this in no way means that peoples have been displaced as subjects of law.

Indeed, as Enyew (2017) points out, both "developing countries" and peoples under colonial rule still
resist the prevalent economic colonization and the impact of concessions granted through
colonial/neocolonial mechanisms. The difference, in any case, is that while the "developing countries"
have been able to use legal institutions such as nationalization and expropriation to regain control of
their natural resources, the peoples under colonial rule are still fighting for the recognition of their right
to a fair share of the benefits derived from the exploitation of natural resources. We speak then of an
operative difference derived from historical-political processes and not of an axiological difference.

It is important to point out that the debate on who holds the legal subjectivity of the right to PSNR has
already been settled by the UN Rights System. As noted in the Resolution 1803 adopted by the UNGA in
1962, it’s clear that, although statehood makes it possible to operationalize the right to PSNR, it’s a birth
right of the peoples and nations.
1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources
must be exercised in the interest of national development and the well-being of the people of the
respective State.

Likewise, article 1 of the International Covenants on Human Rights recognizes the right of peoples to
freely dispose of the natural resources present in their territory
All peoples may freely dispose, for their own ends, of their natural wealth and resources, without
prejudice to any obligations arising out of international economic co-operation, based on the principle of
mutual benefit, and international law. In no case may a people be deprived of its own means of
subsistence.

This article in particular draws a clear connective between the right to self-determination of peoples and
the permanent sovereignty over natural resources. This connection is reaffirmed in both articles 47 of
the ICCPR and 25 of the ICESCR
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to fully
and freely enjoy and utilize their natural wealth and resources.

While the power disputes that framed its crystallization and development have shaped its content, it is
beyond dispute that the legal subjects of the aforementioned right are "all peoples", especially "peoples
under colonial rule".
It is important to underscore that terms such as "peoples under colonial rule" or "colonized peoples"
lack a specific legal definition. In a broader context, these designations encompass communities that
were subjugated by the empires of the Global North, exhibiting cultural distinctions from the metropolis
and persisting under the enduring influence of colonial dynamics (Bonfil, 2004, p. 133). Despite the
intricate and varied nature of these dynamics, Barnes's (2019) definition offers valuable insights into the
matter. According to Barnes, colonized peoples are those who have been subjected by the metropolis to
levels of economic dependence that shape the exercise of their civil and political rights. This, in turn,
may result in instances of police and judicial persecution, invoking charges such as "sedition" for their
members.

Hence, the inclusion of indigenous peoples within the classification of "peoples under colonial rule" or
"colonized peoples" in the legal framework on Permanent Sovereignty over Natural Resources (PSNR) is
entirely feasible. As the Final Report of the former Special Rapporteur of the United Nations Working
Group on Indigenous Populations Erica-Irene Daes on Permanent Sovereignty over Natural Resources
(2004) rightly points out, "indigenous peoples are colonized peoples in the economic, political and
historical sense. Indigenous peoples are subjected to unfair and unequal economic conditions,
characteristic of other colonized peoples" (p. 17). Miranda (2012) concurs with this perspective,
asserting that indigenous peoples are subject to the same dynamics as other "colonized" groups and
merit an equitable share of the benefits derived from the exploitation of natural resources within their
territories. Additionally, Alam and Al Faruque (2019) posit a compelling argument supporting the
consideration of indigenous peoples in the legal category "peoples under colonial rule" or "colonized
peoples" and advocate for an approach to PSNR through a restorative lens (p. 72).

It is true that some scholars resist the incorporation of indigenous peoples into this category. Duruigbo
(2006) contends that such an interpretation is anachronistic, asserting that the term "people" exclusively
pertains to the populations of independent states (p. 52). Moreover, he posits that granting specific
segments of the population, such as indigenous peoples, the right to Permanent Sovereignty over
Natural Resources (PSNR) could potentially fuel secessionist tendencies (p. 56). In contrast, Armstrong
(2017) expresses apprehension that this inclusion might lead to a significant dispersal of natural resource
rights, thereby jeopardizing the interests and negotiating leverage of the nation-state. While both
perspectives resonate within the internationalist academic discourse, it is crucial to emphasize that these
stances lack a foundation in the international normative framework. Instead, they are rooted in concerns
about the potential erosion of the nation-state's absolute control over what is perceived as the main
source of its authority. We can argue that such an approach disregards the historical-political context
underpinning this right, its inherently transformative nature, the legal framework supporting it, and the
existing power imbalance experienced by indigenous peoples today.

Beyond doctrinal perspectives, we assert that there exist ample legal grounds to designate indigenous
peoples as subjects entitled to the right of permanent sovereignty over natural resources. The
overarching normative framework unequivocally asserts that the right to PSNR secures the material
prerequisites for the realization of the right to self-determination. Indigenous peoples are explicitly
identified as "peoples," thereby holding the right to internal self-determination within the parameters
outlined by the International Covenants on Human Rights and the Resolutions of the United Nations
General Assembly. Consequently, indigenous peoples emerge as rightful claimants to the right of
permanent sovereignty over natural resources.
This point is reinforced by the current indigenous peoples legal framework. While instruments such as
ILO Convention 169, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the
American Declaration on the Rights of Indigenous Peoples may not explicitly mention the right to PSNR,
they recognize that indigenous peoples have rights to the natural resources within the territories where
they exercise various forms of tenure. Specifically, ILO Convention 169 acknowledges the
multidimensional connection of indigenous peoples to land and territory, emphasizing the state's
obligation to ensure their right to manage these resources.

Article 13.
1. In applying the provisions of this Part of this Convention, governments shall respect the special
importance for the cultures and spiritual values of the peoples concerned of their relationship with
the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular
the collective aspects of this relationship (...).
Article 15.
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be
specially protected. These rights include the right of these peoples to participate in the utilization,
management and conservation of these resources.

The UNDRIP, in its own right, acknowledges that indigenous peoples have rights to the natural resources
that traditionally pertain to them.
Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with
the lands, territories, waters, coastal seas and other resources which they have traditionally owned or
otherwise occupied and used, and to uphold their responsibilities to future generations in this regard.

Similarly, the 2016 American Declaration on the Rights of Indigenous Peoples acknowledges the
connection between indigenous peoples and their natural resources, highlighting their crucial role in the
preservation and conservation.
Article XXV. Traditional forms of ownership and cultural survival.
1. Indigenous peoples have the right to maintain and strengthen their own spiritual, cultural and
material relationship with their lands, territories and resources, and to assume their responsibilities to
conserve them for themselves and for future generations.

Therefore, while the indigenous peoples legal framework does not explicitly refer to the right to PSNR,
this right is unequivocally endorsed by the international framework that upholds rights such as property,
land and territory ownership, self-determination of peoples, indigenous autonomy, prior consultation,
development, and others.

The practice of the organs of the Universal Human Rights System supports this affirmation. The Human
Rights Committee (OHCHR) has pointed out that ensuring the self-determination right of indigenous
peoples requires for them to freely dispose of their resources. States, according to the Committee,
should assess constitutional modifications to ensure the participation of these peoples in decision-
making processes. The OHCHR has further urged States to provide information on measures taken to
secure the indigenous peoples' right to freely dispose of natural resources, expressing concern over their
limited involvement in decisions impacting their ecosystems and livelihoods. Concrete measures, in
accordance with Article 1 of the ICCPR, have been encouraged by the OHCHR for the full realization of
this right. The Committee on Economic, Social and Cultural Rights (CESCR) has echoed these sentiments,
condemning states that have not legally recognized the indigenous peoples' right to resource disposal,
demanding the implementation of specific measures to enable indigenous peoples to legally manage
their lands, territories, and resources.

With the international legal framework and doctrine conclusively supporting the premise that
indigenous peoples are entitled to the right of permanent sovereignty over natural resources, our focus
now shifts to an examination of the various dimensions of this right.

To delineate the scope of the indigenous peoples' right to permanent sovereignty over natural resources
within their territory, we need to understand how this right aligns with this subject. As stated, peoples
under colonial rule are recognized as bearers of the right to PSNR. In principle, state institutions are
tasked with operationalizing this right through political, economic, and legal mechanisms that make it
possible to regain control over natural resources for the benefit of these entities. However, in practice,
the needs and aspirations of indigenous peoples often take a backseat to the interests of the central
government and the global market. The glaring disjunction between theory and practice underscores the
necessity for a deeper examination of the dimensions of this right.

The first question that arises when approaching the right to PSNR revolves around the nature of the
sovereignty accorded to indigenous peoples. In the Final Report on PSNR, Daes acknowledges that the
use of the term "sovereignty" raises concerns not only for independent States but also for indigenous
peoples. The term prompts doubts about the feasibility of multiple sovereign entities establishing
themselves within the boundaries of a State and contending for the resources within the territory. Daes
clarifies that, in the context of the principle of permanent sovereignty over natural resources,
"sovereignty" can be broadly described as the legal control, use, and governance of natural resources,
along with administrative authority over them—a facet of the exercise of the right to self-determination
(p. 11). In essence, the use of "sovereignty" in this context alludes to the capacity to exert control over
and freely dispose of natural resources in alignment with the right to self-determination held by
indigenous peoples. Accordingly, if the current normative framework designates indigenous peoples as
holders of the right to internal self-determination—understood as the right to choose their own political,
economic, and social configuration within the limits of the State—the ability to exercise sovereignty over
natural resources is constrained within the limits of this right.

So how to understand this meaning of "sovereignty" in practical terms? For Enyew (2017) the key is
understanding the link between the right to PSNR and the right to self-determination. As mentioned
earlier, the capacity to freely dispose of natural wealth and resources is a fundamental prerequisite for
the comprehensive exercise of self-determination. Therefore, the right to PSNR becomes the safeguard
for the material dimension of the right to self-determination, offering remedies to address the ongoing
processes of dispossession and concentration of resources in indigenous territories.