Natural Resources Law

Introduction
 What are Natural Resources
 They are naturally occurring materials that are

useful to man or could be useful under

conceivable technological economic or social
circumstances.

 They are the supplies drawn from the earth.

 Whilst environmental law deals largely with

renewable natural resources, natural resources law
will focus on the non renewable
Natural resources can be renewable or non
renewable. Non renewable resources are fixed
resources and renewable resources are naturally
regenerated to provide new supply units within at
least one human generation.

Article 5 of the 2003 African Convention on

Conservation of nature and Natural Resources
defines natural resources as renewable resources,
tangible and non tangible including soil, water,
flora and fauna and non renewable resources.
Permanent Sovereignty over Natural
Resources
It is a controversial principle of international
law.
 Developed subsequent to decolonization
 Newly independent states sought to develop

new principles and rules of international law

in order to assert and strengthen their
positions in international relations and
promote social and economic development.
 Introduced into the United Nations debate by developing
countries in order to underscore the claim of colonial
peoples and developing countries to the right to enjoy
the benefits of resource exploitation and in order to
clear inequitable legal arrangements under which
foreign investors had obtained title to exploit resources
in the past to be altered or cancelled ab initio.
 Championed by Latin American countries especially

Chile.
 They used the United Nations as a forum to express

their uneasiness about their relationship with the US

which they perceived as unequal.
 They emphasised principles such as national

sovereignty, sovereign equality and non intervention,

primacy of national law and domestic courts.
 After World War II, Developed countries became
aware of the need to maintain uninterrupted flow
of raw materials for their industries from
developing countries.

 The dependence of western powers on overseas

raw materials and of the vulnerability of their
supply lines so they promoted natural resources
development and proposed states take account of
the interest of the world economy as a whole

 Developed Countries attempted to advocate

common regimes for the management of these
resources .
 Developing countries on the other hand started to
champion ideas about self determination.

 Political self determination and economic self

determination
 An attempt was also made by resolution 545(VI) of
5 February 1952 to include in the covenant for a bill
of rights the right of self determination by peoples.

 The rights of peoples and nations to sovereignty

over their natural wealth and resources is a
corollary to the maintenance of peace and a ‘human
right’.
 In 1951 Anglo Iranian oil company was nationalised
and this set the stage for the first north south clash.
 The British owned Anglo Iranian Co by an agreement
they concluded in 1933.
 In 1951 when Iran's prime minister annulled the 1933
concession and established national Iranian oil
company which jeopardized the free flow of oil to the
UK.
 The Iranians refused to attend arbitration on the
matter.
 The British filed an application at the ICJ requesting
the courts to declare that the Iranian government was
under an obligation to submit the dispute to
arbitration or in the alternative that the were acting
contrary to international law.
• The court prescribed some interim measures which
included the continuation of the concession pending the
determination of the matter.
• Iran disagreed and the British government requested the
security council in 1951 to order Iran to obey the courts
provisional order by Article 94(2) of the UN charter.
• Discussions at the security council was adjourned until
the court had ruled in 1952 .
•
• the International Court of Justice declined
jurisdiction over the matter as the concession
agreement did not fall within the meaning of
Article 38(1) of the ICJ Treaty as it was not a
convention but a contract between a
government and foreign company.

• In 1953 a coup was carried out and a new

government installed under the Shah with the
support of British and US secret service and
these government signed a new agreement with
an international oil consortium of British, Dutch
Americans and French.
 UNGA Res 1720(XVI) of 1961 and Res 1803(XVII)
1962 the text of the resolution submitted by the
commission on permanent sovereignty over
natural resources. Declares that
 It is the right of peoples and nations to permanent

sovereignty over their natural wealth and

resources must be exercised in the interest of the
well being of the people of the state concerned
 Nationalization, expropriation or requisitioning

shall be based on grounds or reasons of public

utility security or the national interest which are
recognised as overriding purely individual or
private interest domestic and foreign.
In such cases the owner shall be paid appropriate
compensation in accordance with the rules in
force in the state taking such measures in the
exercise of its sovereignty and in accordance with
international law.

In any case where the question of compensation

gives rise to a controversy national jurisdiction
shall be resorted to upon agreement by the
parties concerned settlement of dispute may be
through arbitration or international adjudication.
 From1963-1970 the emphasis was on implementing
permanent sovereignty over natural resources.
 In 1973-74 New International Economic Order (NIEO)
was adopted in the wake of the first oil crises.
 NIEO sought to promote a redistribution of wealth and a
narrowing of the gap between rich and poor countries.
 It sought to advance an alternative to the mainstream
international economic system, emphasising equity in the
distribution of the world’s wealth.
 It emphasized the: sovereignty of developing States over
their natural resources; greater participation of
developing States in international economic decision-
making; greater access of developing countries’ exports
to world market; and improved terms of trade for primary
commodities.
 The New Partnership for Africa’s Development (NEPAD)
adopted 2001.
 The NEPAD idea springs from the understanding that

international trade and investment which are important

engines for growth, will also increasingly play a major role in
any meaningful effort that seeks to bring about faster
development in Africa.
 NEPAD adopts a conciliatory stance. It recognizes that

partnerships within and between African countries including

the international community are key elements of a shared
vision to the eradication of poverty. Its aim is also to place
African countries individually and collectively on a path of
sustained economic growth/ development, therefore touted as
a framework for sustainable development on the continent.
 Does Globalisation and the Current World Trade System aid

the development of Africa?

 The permanent sovereignty over natural resources
debate was underscored by the following
 Inferior terms of trade and sharp fluctuations in

the prices of raw materials which affected

developing economies
 Promotion and protection of foreign investment
 Post colonial states had the question whether to

start on a clean slate or not

 Cold war rivalry made for opposing views on

permanent sovereignty over natural resources

 The countries who did not want to get involved

became the non aligned movement

Sustainable Development

 Negotiations for United Nations Conference on the Human

Environment.
 Developing countries viewed the call to convene a conference on
the environment as an attempt by the developed countries to
hamper their development
 Part of the preparatory process for UNCHE was the Fournex report
 Fournex report attempted to draw a symbiotic relationship
between development and environment and concluded that
economic development was the answer to environmental problems
of developing countries.
 It recommended that in order to address the
environmental problems in these countries, it was
necessary to address the underlying causes of
underdevelopment and poverty integrating environmental
policies with development planning within the overall
framework of economic and social planning.
 Subsequent to UNCHE the World Commission on
Environment and Development in 1987 adopted ‘Our
Common Future’.
The Bruntland Commission was established in
1983 by the United Nations General Assembly to
‘recommend ways to encourage cooperation
among countries especially those at different
stages of economic and social development
leading to the achievement of common and
mutually supportive objectives that take account
of people, resources, environment, and
development’.
This report is widely regarded as the formal
beginnings of sustainable development.
 The Report recognises that meeting essential needs depends in
part on economic growth. But growth is not enough because
economic growth could exist side-by-side with poverty where
there is uneven access to benefits. Hence, sustainable
development is about “meeting human needs by increasing
productive potentials and also ensuring equitable access to all”.

 The pursuit of sustainable development requires: a political

system that secures effective participation in decision making; an
economic system that provides the solutions to the tensions
arising from disharmonious development; a production system
that respects the obligations to preserve the ecological base of
development; an international system that fosters sustainable
patterns of trade and finance; and an administrative system that is
flexible and has the capacity for self correction.
 Rio Conference provides a benchmark for defining sustainable development.

It includes:

 Sustainable utilization of natural resources: States should manage and

exploit their natural resources in a manner which is sustainable, prudent,

rational, or wise. It involves regulating production and the consumption of

natural resources as well as promoting appropriate demographic policies.

Principle 8

 The right to development: the right of States to exploit their resources

pursuant of the environmental and developmental policies needs of present

and future generations. Principle 3

 The integration of environmental protection into

economic development. The need to ensure that

environmental considerations are integral part of

economic and other developmental plans. Principle 4

 Intergenerational and intra-generational equity: The

pursuit of equity in the allocation of resources in the
present generation and between the present and
future generations. Principle 4
 Cooperation to eradicate poverty: This is linked to the principle of

intra-generational equity which is about fair access by all members of

a generation to resources in order to eradicate poverty. “All States

shall cooperate in the task of eradicating poverty because this is as an

indispensable requirement for sustainable development”. Principle 5

 Access to information and public participation in decision-making: It

requires effective protection of the human right of expression; the

right of access to information as well as access to effective judicial

and administrative procedures. Principle 10

  Sustainable development has been reiterated in many

Conventions and Agreements.

 Adopted by international institutions like the World Bank

and IMF.

 Invoked by international courts and tribunals.

 More than sixty countries across the world have

constitutional provisions guaranteeing the right to a healthy

environment or sustainable development.

 Article 24 of the African Charter on Human and Peoples Rights provides “all

peoples shall have the right to a general satisfactory environment favourable to

their development’.

It requires states to take reasonable and other measures to prevent

pollution and ecological degradation to promote conservation and to secure an

ecologically sustainable development and use of natural resources.

The article obligates governments to desist from directly threatening the

health and environment of their citizens. This entails largely non interventionist

conduct from the state for example not from carrying out sponsoring or

tolerating any practice policy or legal measures violating the integrity of the

individual.
Uncertainties about the nature of sustainable
development.
Is it a legal principle and if so, how is it to be
interpreted, applied, and achieved by
governments or how to enforce it nationally and
globally.

Is it a Principle of Customary International Law

 Due to its widespread adoption in legal documents, sustainable
development has attained the status of a principle of customary
international law as recognised in Article 38 ICJ treaty?
 Sustainable development is and cannot be a principle of
customary international law because it lacks by nature a certain
degree of the normative which prevents it from coalescing into
a binding international law?
 Birnie and Boyle: normative uncertainty coupled with the
absence of justiciable standards for review suggest that there is
no international legal obligation that development must be
sustainable and decisions on what is sustainable depends on
individual governments?
 Judge Weeramantry in Gabcikovo Nagymaros Dam case : sustainable

development provides the basis for reconciling potentially conflicting principles of

the right to development and right to environmental protection as mediating

principle which aids judicial decision and provides the scope for progressive legal

development. The law necessarily contains the principle of reconciliation. That

principle is the principle of sustainable development.

He argued that current international practice supports the concept, citing

several multilateral treaties, Declarations from international conferences, the

foundation documents of international organizations, regional declarations and

planning documents, and argued that there is a wide and general acceptance of the

concept by the global community.

 He concluded that ‘the principle of sustainable

development is a part of modern international law not only by

reason of its inescapable logical necessity but also of its wide

and general acceptance by the global community.’

. Lowe : sustainable development lacks a 'fundamental

norm-creating character,' and as such, it cannot constrain

action. Since it lacks normativity, it is incapable of evolving

into a customary rule that is binding on States and other

actors
 Sustainable development is a convenient if imprecise label for a general policy

goal which may be unilaterally or multilaterally adopted by States.

It is a body of international legal principles new and existing that are adapted

to new political values and principles that emerge specifically in the context of

sustainable development.

Sustainable development principles and practices can provide guidance to both

domestic and international law, helping to shape future directions for societies.

It can also provide much needed balance in economic globalization,

strengthening the social and environmental aspects of these processes.