Permanent Sovereignty Research Articles

The WTO, Natural Resources, Trade, and Sustainable Development: Commentaries on Recent Trends in International Economic Law

The principle of permanent sovereignty over natural resources (PSNR) has been fundamental for developing nations to realize their political and economic independence. Increasingly the principle of PSNR has been subjected to pressures which limit the rights granted to states over their natural resources. Principles such as 'common concern of humankind' and 'sustainable development' are adding new goals and limitations to PSNR. The recent case-law of the World Trade Organization (WTO) has been the main forum where the principle of PSNR, sustainable development, protection of the environment, and sovereignty have been discussed and yet their repercussions remain unexplored. This research will analyze the current direction of PSNR in WTO case-law; it will identify the current developments in public international law, and it will suggest how the WTO is to develop its treatment of PSNR, bearing in mind the historical calling for PSNR to further economic development.

El Frente Polisario, las normas del derecho internacional y el derecho de la Unión Europea. Apuntes en torno a la sentencia del Tribunal General, de 10 de diciembre de 2015, T-512/12, Frente Polisario/Consejo

The judgment of the General Court of 10 December 2015 is extraordinary for several reasons. First, the judgment raises important legal questions in the field of the relationship between European Union law and international law. Secondly, the General Court, invoking reasons of doubtful legality, admits the capacity of the Polisario Front to institute proceedings as a legal person directly and individually concerned, under article 263 TFEU, by the Decision of 8 March 2012 on the conclusion of an agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco. Thirdly, for the first time ever an individual applicant has been able to bring an action for annulment and has obtained the annulment of a decision of conclusion of an international agreement between the European Union and a third State. Fourthly, for the first time the European Union judge has laid down a duty, for the Council of the European Union, to examine carefully and impartially, prior to the conclusion of an international agreement, all the relevant elements to ensure that the potential implementation of such agreement does not lead to, or indirectly encourages, the violation of the fundamental rights of the people of a controversial territory, or benefits therefrom, and in particular the rights derived from the principle of permanent sovereignty over natural resources as a corollary of the principle of self-determination. Fifthly, the General Court omits in its judgment to consider the legal consequences, under international law, of the annulment of a domestic decision that expresses the consent of the European Union to be bound by an international treaty. Sixthly, the judgment of the General Court does not set any limitation ratione temporis on the effects of the judgment and, therefore, fails to ensure the necessary legal certainty, in particular for the economic operators, as regards the applicability of the international commitments entered into by the European Union within the Union’s legal order.

Shared Sovereignty over Migratory Natural Resources

With growing vigor, political philosophers have started questioning the Westphalian system of states as the main actors in the international arena and, within it, the doctrine of Permanent Sovereignty over Natural Resources. In this article I add to these questionings by showing that, when it comes to migratory natural resources, i.e., migratory species, a plausible theory of territorial rights should advocate a regime of shared sovereignty among states. This means that one single entity should represent their interests and maybe also those of third parties, managing and making decisions over the resource as a whole. Although such a regime might be the tacit goal of existing international conventions regarding wildlife, it remains untheorized in political philosophy and largely under-theorized in international law. By presenting the critical situation of the monarch butterfly in North America, I point to the inadequacy of the compartmentalized current regime, which generates injustice in migration; namely, the phenomenon whereby range states of a given species may neglect or over-exploit it while in their territory, to the detriment of others. I suggest that more flexible and imaginative governance arrangements are needed to deal in a better way with these and similar natural resources.

THE TRANSNATIONAL INSTITUTIONAL DIALOGUE IN BELO MONTE CASE

This article aims to discuss the relationship between the Supreme Court of Brazil and the Inter-American Commission on Human Rights, especially in Belo Monte Dam Case, bearing in mind that whendisagreements occur States must cooperate to avoid transboundary or global environmental problems. The classic concepts of nation-state sovereignty resulted from the Peace of Westphalia in 1648 and the permanent Sovereignty over Natural Resources based on territorial integrity and the right to self-determination and non-intervention of theStates is guaranteed by the main international instruments. Similarly, the International Environmental Law, structured on the unquestionableright of an ecological balance, is a standard to be followed by the international community to guarantee that environmental damages do not cause harm to areas beyond the limits of the State. Thus theStates have the sovereign right over it owns resources, but have also the responsibility to ensure the environment protection. Therefore, this essay intends to demonstrate, particularly under the influence of Jeremy Waldron, Rosalind Dixon, John Rawls and Ju?rgen Habermas conceptions, that in the Belo Monte Dam Case, the dialogue betweenDomestic and International institutions according to the international cooperation is mandatory to guarantee coherence and unity to the new millennium international system.

RECONCILING ENVIRONMENTAL PROTECTION WITH NATURAL RESOURCES TRADE IN INTERNATIONAL LAW: A PERSPECTIVE FROM CHINA — RARE EARTHS

This article intends to shed light on key legal issues that emerged from the recently released WTO Appellate Body’s adjudication over China — Rare Earths dispute, exploring possible policy options for China to reach its environmental goals on natural resources in a WTO-consistent manner. The article first spotlights positive variations in the Appellate Body’s interpretative approach regarding the applicability of GATT general exceptions to defend the violation of WTO-Plus commitments under China’s Accession Protocol; second, given the fact that the Appellate Body, pursuant to the elements inscribed in GATT Article XX(g), confirmed the Panel’s objective assessment based on the design and structure of the challenged measures of GATT, this paper provides reflections and recommendations on China’s domestic environmental legislation. The third part probes into the interface between the principle of permanent sovereignty over natural resources and the WTO legal regime, with an attempt to offer thought-provoking ideas on how to reconcile potential conflicts between the two.

Peoples-Based Permanent Sovereignty over Natural Resources: Toward Functional Distributive Justice?

The international law principle of permanent sovereignty over natural resources posits that governments bear the sovereign rights to manage natural resources on behalf of citizens. That citizens have rights over natural resources at all however detaches from governance realities showcasing citizen marginalization. This necessitates revisiting the issue of what rights citizens actually have over natural resources. Qualitatively investigating this issue reveals rights of citizens over natural resources now embedded in the doctrine of peoples-based permanent sovereignty over natural resources (PPSNR). However, this doctrine appears to be subject to international law limitations and might not be effective within domestic jurisdictions. Alternatively, PPSNR may be domestically driven by common ownership and environmental justice claims. These two drivers may be able to advance distributive justice rights of citizens to returns from natural resources exploitation within domestic jurisdictions. These rights could be actuated through rent distribution practices. This results in functional distributive justice.

WTO Law Aspects of Clean Trade

The Clean Trade project is designed to block the importation of natural resources that have been exploited in violation of the human right to permanent sovereignty over these natural resources (‘exploited resources’). To this end, the Clean Trade project envisages that states would impose a direct embargo on exploited resources, and would impose duties on products from intermediate states that import exploited resources. This note, written in the context of the Clean Trade Project, examines the WTO legality of these two mechanisms. It concludes that, most likely, these mechanisms are WTO-legal. In the event that they are not, this note also considers a third option, namely, a waiver from WTO obligations, along the lines of the waiver for the Kimberley Process for ‘conflict diamonds’.

'We Have Met The Enemy And He Is US!' Is the industrialized North 'Going South' on investor-State arbitration?

This article examines the recent trend among some states to denounce the ICSID Convention or terminate or critically review their bilateral investment promotion and protection treaties against the backdrop of the 1970s New International Economic Order (NIEO). After providing an overview of the original NIEO, an idea many considered defeated with the rise of bilateral and multilateral investment treaties, the authors explain why the international community should be concerned with the recent emergence of a ‘NEO-NIEO’, led in part by the original movement’s critics. Permanent sovereignty over natural resources, United Nations General Assembly Resolution 1803 (XVII) (1962) Declaration on the Establishment of a New International Economic Order, United Nations General Assembly Resolution 3201 (S-VI) (1974) Charter of Economic Rights and Duties of States, United Nations General Assembly Resolution 3281 (XXIX) (1974) US Model Bilateral Investment Treaty (2012)

The Fundamental Rights of States in Neoliberal Times

This is a critical introduction to the symposium on “The Fundamental Rights of States”. Whether such rights exist, the bounds of their existence, or whether they ought to be striven towards are questions of considerable import in the wake of the Greek sovereign debt crisis or even given the ongoing Palestinian struggle for permanent sovereignty over their natural resources. I briefly outline how we might consider the question: is there any progressive political value in buttressing the state and its autonomy, through the doctrine of fundamental rights, in today's neoliberal world? First, I examine how we may progressively look at fundamental rights - as doctrine, narrative, memory or discourse. Second, I question the extent to which it is useful to see competing subjectivities, i.e. the maligned state against technocratic institutions, in a time where neoliberal logic has come to structure the workings of the state. It becomes quickly apparent that the discourse of fundamental rights may be used to both resist neoliberalism and enable it.

Differentiating between Sovereignty over Exclusive and Shared Resources in the Light of Future Discussions on the Law of Transboundary Aquifers

This article argues that sovereignty over exclusive resources and sovereignty over shared resources are different concepts constituting distinct legal regimes. First, it presents the controversy caused by applying the principle of permanent sovereignty over natural resources to shared resources. It then explores the main differences between sovereignty over exclusive and shared resources. The article suggests that increased awareness about these differences could facilitate negotiations on shared resource management, particularly in the light of discussions on the Draft Articles on the Law of Transboundary Aquifers at the United Nations General Assembly scheduled for 2016.

Against ‘permanent sovereignty’ over natural resources

The doctrine of permanent sovereignty over natural resources is a hugely consequential one in the contemporary world, appearing to grant nation-states both jurisdiction-type rights and rights of ownership over the resources to be found in their territories. But the normative justification for that doctrine is far from clear. This article elucidates the best arguments that might be made for permanent sovereignty, including claims from national improvement of or attachment to resources, as well as functionalist claims linking resource rights to key state functions. But it also shows that these defences are insufficient to justify permanent sovereignty and that in many cases they actually count against it as a practice. They turn out to be compatible, furthermore, with the dispersal of resource rights away from the nation-state which global justice appears to demand.

Land Grabbing as a Threat to the Right to Self-Determination: How Permanent Sovereignty over Natural Resources Limits States’ Involvement in Large-Scale Transfers of Land

This article examines the legal connections between the modern phenomenon of ‘land grabbing’ – large-scale acquisitions of land rights by foreign investors – and the human right to self-determination. It is argued that the right to self-determination and in particular the principle of permanent sovereignty over natural resources cannot only be invoked by one State against another, but also by the people against its own government, thus legally binding all States involved in the process. The basic premise shall not be that land grabbing is per se illegal; it depends on how it is performed. The right to self-determination and the principle of permanent sovereignty over natural resources bring along important restrictions that States have to honour. Governments should develop their foreign investment relations in a way that ensures the human rights of their populations, especially given the fact that in this respect business corporations are not bound by any hard international law. The regulation of the investment is an important factor: transparency and involvement of local authorities at the planning stage, as well as the participation in the investment’s benefits help to ensure that a people is not deprived of its own means of subsistence.

Intellectual Property Rights and the Conservation of Plant Biodiversity as a Common Concern of Humankind

AbstractThis article makes the case for the obligation to conserve plant biodiversity to be classified as a common concern of humankind, to justify and indeed prescribe limitations on private intellectual property rights over plants and related processes. Within the biodiversity regime, the notion of ‘common concern of humankind’ subjects the permanent sovereignty of states over natural resources to the interests of humanity. It shifts the obligations of states from managing their own plant biodiversity towards conserving it on behalf of humankind. In contrast, TRIPS requires states to protect private intellectual property rights with little discretion to adequately balance them with public interests. This creates a dichotomy. This article argues that rather than mobilizing state sovereignty as rhetoric to distract from addressing common concerns of humankind, it should be constructed as a concept capable of facilitating these very concerns.

FROM NIEO TO NOW AND THE UNFINISHABLE STORY OF ECONOMIC JUSTICE

AbstractWhy have attempts to bring development aspirations to bear on international law over a period of 50 years come to far less than any reasonable person would hope? The early claims for a New International Economic Order and permanent sovereignty by developing countries over their natural resources, efforts to delineate a body of international development law, followed by the affirmation of a human right to development, were all attempts to have economic justice reflected in international law. Figures on world poverty and inequality suggest that international law accommodated no such restructuring. This article explores why it is international law has failed the poor of the world, and what interests it has served in their stead.

The International Law Principle of Permanent Sovereignty over Natural Resources as an Instrument for Development: The Case of Zimbabwean Diamonds

Abstract Extensive research has shown that revenue from the exploitation of natural resources can sustain development. Conversely, development research literature has shown that many developing countries have failed to use the natural resources to improve and sustain good living for their citizens. In most cases, those in political offices have squandered the resources and benefits that have accrued from the country’s natural endowments. This article explores how the international law principle of permanent sovereignty over natural resources (PSNR) could be used as a vehicle for development, particularly looking at the case of Zimbabwean diamonds. While the principle could be an instrument for development, this article argues that legislation governing mining in Zimbabwe is not facilitative of a people-centred interpretation of the principle. Mining legislation vests the custodial right over the country’s mineral resources in the President. This creates an opportunity for abuse, as it limits the extent to which the people, as beneficiaries of the principle, can lay claim to the content of the principle. It also effectively limits any say the people may have on how revenue from the sale of diamonds is utilised, and how they would want to benefit from the resource. The article concludes that there is a need for legislative reform that speaks to development that is people-centred without which the majority of the people will keep sinking into the doldrums of extreme poverty, despite the country’s resource endowment. The hope is that the new Zimbabwean constitution will provide the impetus in this regard.

Raw Materials, Race, and Legal Regimes: The Development of the Principle of Permanent Sovereignty over Natural Resources in the Americas

Raw Materials, Race, and Legal Regimes: The Development of the Principle of Permanent Sovereignty over Natural Resources in the Americas

Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection

The current World Trade Organization (WTO) regime on export restraints comprises two extremes: at one end is the near-complete freedom to levy export duties enjoyed by most Members, which renders the WTO discipline on export restrictions largely ineffective; at the other end, the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose. The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported. The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources. To rectify these problems, this article proposes integrating all stand-alone export concessions into General Agreement on Tariffs and Trade (GATT) schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties.

The applicability of GATT Article XX to China’s WTO Accession Protocol in the Appellate Body Report of the China-Raw Materials case: suggestions for a different interpretative approach

On 30 January 2012, the Appellate Body handed down a long awaited ruling in the dispute brought by the US, the EU and Mexico against several export restrictions imposed by China on raw materials. The three Appellate Members concluded inter alia that there is no basis in China’s Accession Protocol to allow the application of GATT Article XX to Paragraph 11.3, the WTO-plus provision of the Accession Protocol requiring Beijing to eliminate export duties. While such AB interpretative result seriously runs the risk of creating a highly controversial and irrational aspect of the multilateral trade system, also difficult to reconcile with the principle of permanent sovereignty over natural resources, the present essay proposes a different coordinated reading between Paragraph 11.3 of the China’s Accession Protocol and the GATT general exceptions’ clause, with the aim of indicating a hermeneutic outcome in harmony with the principle of sustainable development enshrined in the Preamble of the WTO Agreement.

Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection

The current WTO regime on export restraints comprises two extremes: at one end is the near complete freedom to levy export duties enjoyed by most Members, which renders the WTO discipline on export restrictions largely ineffective; at the other the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose. The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported. The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources. To rectify these problems, the article proposes integrating all stand-alone export concessions into GATT schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties.

The Role of International Law in Intrastate Natural Resource Allocation

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. …