The Role of International Law in Intrastate Natural Resource Allocation

Abstract

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. In the period of colonial dissolution, international doctrines of natural resource allocation were developed, interpreted, and applied with respect to interstate disputes between colonizing states and newly independent colonies. Specifically, the doctrine of permanent sovereignty over natural resources developed, in part, with the aim of protecting newly independent states from economic re-colonization resulting from the appropriation of their natural resource base by foreign actors. (1) In more recent debates, the doctrine of permanent sovereignty over natural resources has been alluded to in the context of interstate disputes between developed and developing states pursuant to the same rationale: protecting a developing state's ability to seek economic growth through the economic benefits gained from an entitlement to commercialize its natural resource base. (2) Nevertheless, natural resource development projects have given rise to complex intrastate disputes involving the interests of multiple marginalized communities, including indigenous peoples, racial and ethnic minorities, and the rural poor. At the core of intrastate struggles for land and natural resources is a distributional concern regarding the potentially legitimate interests of multiple marginalized communities vis-a-vis each other, the broader national polity, and the state. How has international law evolved to address the allocation of land and natural resources to historically marginalized communities in the context of natural resource development projects? What are the consequences of this evolution? It appears that international law has infiltrated what has been deemed a sacred prerogative of states--sovereignty over their natural resources--and thereby ultimate decisionmaking authority regarding the course of development. Specifically, there are three emerging approaches under international law that impact the intrastate allocation of land and natural resources to historically marginalized communities, and thus, carve away at states' top-down decisionmaking authority over development. Each of the three emerging approaches--grounded in distinct discourses of sovereignty, human rights, and good governance--has distributional implications. They each address, from an international law perspective, who is vested with the authority to freely dispose of land and natural resources within the territorial boundaries of a state, and derivatively, who is entitled to decide upon a particular development strategy. One emerging approach is grounded in the discourse of permanent sovereignty over natural resources. This approach draws a distinction between the and the of a state. It interprets the doctrine of permanent sovereignty over natural resources as properly imbuing of a state with sovereignty to freely dispose of natural resources. (3) Nevertheless, this interpretation is more commensurate with the retention of ultimate decisionmaking power in the state alongside the imposition of government duties to execute such authority for the wellbeing of the national polity. A second approach is grounded in the discourse of human rights. This approach acknowledges the procedural and substantive land and resource rights of identity groups, such as indigenous peoples, who can demonstrate a cultural attachment to the land and resources at issue. Under human rights jurisprudence, indigenous peoples enjoy a procedural right to informed consultation or consent prior to the state's engagement in a natural resource or large-scale infrastructure project that may impact their way of life. (4) They also possess substantive rights to ownership, occupancy, use, and control of their ancestral land and resources. …