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Excerpted From: Shawkat Alam and Abdullah Al Faruque, From Sovereignty to Self-determination: Emergence of Collective Rights of Indigenous Peoples in Natural Resources Management, 32 Georgetown Environmental Law Review 59 (Fall, 2019) (135 Footnotes) (Full Document)
The emergence of the principle of permanent sovereignty over natural resources ("[permanent sovereignty over natural resources ]") represents one of the great developments in international law in the second half of the twentieth century. [permanent sovereignty over natural resources ] is now firmly established and based on the widely accepted principle of state sovereignty itself. [permanent sovereignty over natural resources ] has assumed the character of customary international law, through opinio juris of multiple United Nations General Assembly Resolutions and resulting state practice, and this status was affirmed by the International Court of Justice in the Armed Activities on the Congo (Congo v. Uganda) case in 2005. The principle of [permanent sovereignty over natural resources ] has now been affirmed in judicial decisions and arbitral awards.
Over the decades of its formulation, the principle of [permanent sovereignty over natural resources ] has become a fundamental principle of international law. Before it reached this widely-accepted status, however, the principle of [permanent sovereignty over natural resources ] was articulated during the 1950s in response to the growing demand in newly emerged developing countries for claims of ownership over the natural resources found in their territories. [permanent sovereignty over natural resources ] was motivated by the concern among developing states that orthodox international foreign investment law undermined the effective exercise of their sovereignty in the economic realm by favoring the interests of capital-exporting states and their corporations. The development of [permanent sovereignty over natural resources ] therefore challenged many traditional principles of international law. The principle's emergence and increasing status encouraged developing countries to carry out development plans and realize their right to self-determination. During its formative stage, the principle provided a strong basis for developing countries to make a claim for the alteration of "inequitable" legal arrangements, under which foreign investors enjoyed rights to exploit natural resources found within the aggrieved states' territories. However, struggles exist between private foreign investment and the interests of capital-importing countries, and these have tempered developing countries' initial optimism that [permanent sovereignty over natural resources ] could bring about more fundamental reform and address issues of imbalance and inequity in the control and exploitation of their natural resources.
The demand for economic sovereignty in developing countries and the formulation of the right to self-determination are two important factors that drove the development of [permanent sovereignty over natural resources ]. Under the principle, developing countries asserted that states had an "inalienable", "absolute", and "permanent right" to dispose of their natural resources. [permanent sovereignty over natural resources ] derived from the right to self-determination, which brought about the end of the colonial empires after the Second World War. After attaining independence, most developing countries soon realized that such independence was meaningless if foreign control continued to prevail in their economic sectors. Subsequently, the [permanent sovereignty over natural resources ] principle has undergone many changes to accommodate the reality of international relations. It has been extended beyond the traditional state-centric approach to encompass a people-centric approach, with people in many countries now afforded rights over their country's natural resources. As outlined in this Article, an example of such change is reflected in how the principle of [permanent sovereignty over natural resources ] has come to recognize and accommodate the rights of indigenous people, including their right to self-determination.
A number of international instruments now recognize distinct rights of indigenous peoples as a separate entity. This has come about largely as a consequence of a more widespread recognition of the historical pre-existence of indigenous societies, the moral desirability of initiatives to address and restore what was lost to indigenous societies following colonization, and the corresponding expression of these ideas and aspirations in international instruments. Accordingly, recognition of the rights of indigenous peoples has found philosophical justification in at least some of the following arguments.
Firstly, indigenous peoples' rights are pre-existing rights in the sense that they are not derived from the legal systems of states but arise sui generis from the historical conditions of indigenous peoples as distinct societies with the aspiration to survive as such. In other words, indigenous peoples enjoyed nationhood prior to their subjugation by colonial powers or settlers, and their statehood and sovereignty predate the existence of the modern nation states that now assert sovereignty over them.
Secondly, indigenous peoples should be given preferential treatment, as compensation for historical suffering and prevailing conditions of inequality. This preferential treatment has been described as a "restorative paradigm," which suggests that despite variations in the specific political and historical circumstances surrounding them, nearly all indigenous groups share a common set of problems and their claims to land, group equality, culture, and development stem from the right to reparations for historical injustices committed against them. Restorative rights should be given to them as a form of reparation for their previous subjugation under European colonization. Indigenous peoples have typically been deprived of their independence, their land, and their right to choose their role in the modern state. An important dimension of the restorative paradigm is that indigenous peoples who have been persecuted should be acknowledged as a group and should be provided with appropriate compensation for the injustice and oppression inflicted upon them.
In recent decades, the rights of indigenous peoples have gained increasing prominence and strength in international law, culminating in the 2007 United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"). In particular, UNDRIP acknowledged indigenous peoples' right to self-determination and their right to the resources "which they have traditionally owned, occupied or otherwise used or acquired," within their existing nation state. These rights over property and resources have been affirmed in many regional human rights courts and domestic laws, highlighting the growing international acceptance of the need for indigenous peoples to control their own natural resources for their own political and economic self-determination. The links between [permanent sovereignty over natural resources ] and the rights of indigenous peoples are thus more pronounced than ever, as exemplified by the increasing number of international instruments that recognize the rights of indigenous peoples.
Against this background, the objectives of this Article are to:
(1) examine the evolution of [permanent sovereignty over natural resources ] in terms of its historical context,
(2) assess its current position, and
(3) situate the emergence of the rights of indigenous peoples in the broader context of the principle of [permanent sovereignty over natural resources ].
This Article argues that the [permanent sovereignty over natural resources ] principle has evolved to recognize the rights of indigenous peoples in ownership and management of natural resources and that this evolution has been reflected in many recent international instruments and regional human rights courts' decisions.
[. . .]
These emerging rights of the indigenous peoples envisaged under international instruments strongly affirm the view that states are obligated to protect and preserve natural resources and manage these resources for the benefit of the wider community, including indigenous peoples. Indigenous peoples' rights to [permanent sovereignty over natural resources ] and self-determination under international law define their degree of autonomy and provide an essential legal basis upon which forced assimilation may be challenged. State sovereignty under [permanent sovereignty over natural resources ] has been increasingly circumscribed in the interest of the wellbeing of the people, a development which signifies that the sovereignty of developing countries over their natural resources and indigenous self-determination share a common foundation. In particular, indigenous peoples' right to self-determination is based on control over natural resources and the right to participate in decisions affecting their resources and lands. The right of indigenous peoples to [permanent sovereignty over natural resources ] is the next significant stage in their continuing struggle against dispossession, forced integration and assimilation, and their efforts to gain recognition as actors with a legitimate interest in the protection, and use of, natural resources. As this Article has demonstrated, the principle of [permanent sovereignty over natural resources ] has enabled this recognition under international law and has facilitated its articulation in instruments dealing with both state exploitation of natural resources and indigenous peoples' rights to these resources.
Director, Centre for Environmental Law, Macquarie Law School. Rajshahi University, L.L.B. with Honors 1990; Dhaka University, L.L.M. 1992; Macquarie University, Ph.D. 2005. © 2019, Shawkat Alam, Abdullah Al Faruque. © 2019, Shawkat Alam and Abdullah Al Faruque.
Professor of Law, University of Chittagong. Dhaka University, L.L.B. with Honors 1994, L.L.M. 1995; University of Dundee, Ph.D. 2005.
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