On 17 March, Professor Cordonier Seggar and Professor Ilaria Espa draw attention to the recently agreed ILA guide on the Leverhulme Lecture and Distinguished Experts Dialogue.
Tempering Sovereign Rights with Responsibilities for Sustainable Natural Resources Governance through International Law
MC Cordonier Segger & I Espa[1]
1. Global, Transboundary and National Stewardship of Natural Resources
The United Nations General Assembly famously adopted Resolution 1803 in 1962, affirming the permanent sovereignty of peoples and nations over natural resources.[2] Ideas of sovereignty, however, are often described as shields but also swords, founded on notions of both permanence and inalienability, but also non-interference. This places sovereignty within the realm of domestic jurisdiction and discretion in the legal sphere, creating the illusion of unlimited and unqualified rights of State.[3] In the recent past, however, these notions are facing reassessments on many fronts. Against the backdrop of human rights abuses, as well as rapid degradation of precious natural resources that are recognised as common concerns or heritage of humankind, questions have emerged about whether with sovereign authority, come important responsibilities.[4] The balancing of respnosiblities and rights finds its clearest expression in global, transboundary and even national imperatives for sustainable natural resource management.
The sound stewardship of our world’s common heritage, especially our increasingly degraded natural resources, has become a crucial matter of global, regional and transboundary concern. As our scientific knowledge advances and the complex interdependence of natural systems is better understood, the challenges for international law are intensified by the need to provide more coherent, effective cooperative regimes for sustainable management of natural resources of global importance. Tensions are rising as our environment is increasingly mismanaged leading to depletion of crucial non-renewable resources, as well as unsustainable paces of renewable resources exploitation. Rising to these inter-linked challenges, new Guidelines have been adopted by the International Law Association (ILA) on the Role of International Law in Sustainable Management of Natural Resources for Development (ILA Sustainable Natural Resources Guidelines). The ILA Sustainable Natural Resources Guidelines highlight the myriad rules and standards which now define, guide and direct State practice, and provide a roadmap for the progressive development of international law on the sustainable management of natural resources for development.[5]
Drafted by leading international legal experts and specialists appointed by the ILA from nearly 40 countries over the course of nine years of intensive collaboration, the new ILA Sustainable Natural Resources Guidelines provide a crucial framework to cobble collaboration and compliance out of the current crises.
Biodiversity provides pivotal natural resources for the life-sustaining systems of the biosphere, and its the global conservation is a common concern of humankind. However, species and ecosystems have been declining more rapidly than any other moment in human history, with one million animal and plant species now threatened with extinction.[6] Three-quarters of the land-based environment and about 66 per cent of the marine environment have been significantly altered by human actions, both environments in which most of our vital natural resources are found.[7] A stable climate system is another crucial resource and common concern of humankind. Greenhouse gas emissions have doubled since 1980 and average global temperature is already 0.7 degrees Celsius higher than pre-industrial times, with the hottest years on record this decade - a stable climate system is a crucial natural resource of global common concern both for humanity and all other species.[8] Further, in spite of global recognition that the resources of the oceans are common heritage of humankind, over 60 billion tons of mineral and other resources are extracted globally every year, while more 300 millions tons of hazardous waste are entering the world’s waters, poisoning the blue planet upon which all live on Earth depends for survival.[9]
2. Innovative International Instruments Highlighted by the ILA Sustainable Natural Resources Guidelines
With regards to global resources, international law has rapidly evolved in promotion of a more sustainable management of the atmosphere and the mitigation of anthropocentric climate change. Under the United Nations Framework Convention on Climate Change (UNFCCC), States have committed to stabilize the concentration of atmospheric GHGs at a level that would prevent dangerous interference with the climatic system.[10] Specifically, under the Paris Agreement, States have committed to hold temperature increases to well below 2ºC above pre-industrial levels, to pursue efforts to limit temperature increases to 1.5ºC above pre-industrial levels,[11] and to put forward progressive Nationally Determined Contributions (NDCs) every five years to reflect their highest possible ambition[12] in reducing GHGs. Achieving these targets requires redoubled efforts towards sustainable management of natural resources, including the conservation and enhancement of terrestrial, coastal and marine sinks and reservoirs of GHGs, which play a vital role in determining GHG concentrations in the atmosphere, and pose risks of releasing emissions on a significant scale when disturbed.[13]
International law also seeks to promote the conservation and sustainable use of biodiversity. In treaties such as the Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Flora and Fauna and the Convention on Migratory Species[14] States have committed to conserve and sustainably use biological diversity and ecological systems, taking active regulatory and protective measures, both through national plans, programmes and policies and international cooperation.[15]
Further, international law is increasingly shaping the governance of the global ocean and its mineral and living resources, as noted in the ILA Sustainable Natural Resources Guidelines. Marine biodiversity conservation is recognized as a common concern of humankind, and States are bound to duties of cooperation, conservation, due diligence, precaution and environmental impact assessment, especially with respect to areas beyond national jurisdiction (ABNJ).[16] The main international instrument in which those considerations are enshrined is the United Nations Convention on the Law of the Sea.[17]
Among the regional and transboundary natural resources of global relevance, an evolving body of international law promotes the sustainable management of forests and landscape ecosystems, including, but not limited to, the Convention on Biological Diversity, the UNFCCC, the Paris Agreement and the International Tropical Timber Agreement.[18] Taken together, this body of international law establishes several key norms. States should create and implement national forestry management policies, strategies and practices which recognize the varied nature of interests encompassed in forests and land management, including applying the ecosystem approach, and addressing GHG emissions and removals from land use, land-use change, and forestry. States should also prevent, and restore, land and forest degradation through sustainable management practices. Further, States should ensure that regulatory actions related to forestry and land use also cover private and industry actors involved in extraction, harvesting and use of these resources and associated value chains. Additionally, States may enter into voluntary agreements on forests which further collaboration with other States, international organizations and private actors in order to undertake actions to reduce emissions from deforestation and forest degradation, conserve forest carbon stocks, sustainably manage forests, and enhance forest carbon stocks.
A number of international law instruments also contribute to promoting a more sustainable management of transboundary rivers and freshwater ecosystems as a transboundary natural resource of global importance, including, but not limited to, the New York Convention, the Helsinki Convention and the Ramsar Convention.[19] Based on this body of international law, several key norms are either established or emerging. States should ensure that there is harmonization in the legal and governance systems relating to transboundary and regional watercourses, including obligations to work together to ensure this harmonization. As part of this, States must include the duty to notify and to consult neighbouring states in their management of watercourse resources. Additionally, in managing transboundary and regional watercourses, States should include key sustainable development law principles, such as the no significant harm principle, the polluter pays principle and the precautionary principle. When addressing the development of watercourses or wetlands, directly or indirectly, States should adopt the ecosystem approach and use Environmental Impact Assessments (EIAs) or Sustainability Impact Assessments (SIAs) as tools to ensure that there is a full assessment of likely impacts, taking into account public concerns and contributions. Further, States should cooperate to create guidelines for the management of shared rivers and freshwater ecosystems.
International law also shapes management of regional and transboundary natural resources, for instance with regards to migratory species. Many species are highly migratory as a matter of standard course and cross boundaries and regions, making them a legal and societal resource of more than a particular State.[20] Therefore, as provided, for instance, by the Convention on the Conservation of Migratory Species of Wild Animals[21], states are required to protect, conserve and manage migratory species that traverse their territories, working together to establish agreements for the sustainable management of these species at national and regional level.[22]
With respect to national natural resources of global importance, international law increasingly complements national instruments in promoting more sustainable natural resources management. This mainly occurs via shaping the regulatory space left to States to introduce and/or maintain national laws, regulations and standards. For instance, international law instruments such as the Minamata Convention have focused on governing the risks entailed in the extraction and trade of minerals,[23] requiring States reduce and eliminate the extraction and use of these minerals when it poses serious health and environmental threats (including in relation to GHG emissions). Similarly, as the ILA Sustainable Natural Resources Guidelines explain, a range of carefully crafted standards are increasingly shaping private sector practice, seeking to increase transparency, accountability and public participation by ensuring inter alia fiscal transparency, penalties for bribery, corruption and money laundering, measures to combat tax avoidance and evasion, and indeed, rules for climate risk disclosure and sustainability reporting. Indeed, regulations targeting the private sector are also helping to prevent and mitigate human rights abuses and violations of Indigenous rights by extracting industries (especially in relation to conflict minerals).[24] Instruments such as the Minamata Convention can help to reorient mineral extraction and related industries in less harmful directions, even as resource efficiency and full life cycle management offers new opportunities for reduction, re-use and recycling of key resources.
3. Guidelines for a More Sustainable World Economic Recovery
International law on natural resources management has been steadily evolving to better promote more sustainable use of natural resources at the global, regional and transboundary, and national levels, particularly with regards common concerns and common heritage of humankind. While innovative, inter-actional development of cooperative international regimes may hold real potential to support the seventeen global Sustainable Development Goals (SDGs), actual progress in achieving the 169 targets, and compliance with the international legal instruments that support them, still falls far short. International courts and tribunals are, on key occasions, offered the opportunity to strengthen the international system, building on the foundations laid by careful conservation science, and by the emerging rules of international law. New post-pandemic economic stimulus measures may represent “the global investment opportunity of a millennium” for sustainable development,[25] but more can and must be done to ensure a more sustainable recovery and re-opening of the world economy. Great progress is possible by States in implementing their treaty obligations, and by courts and tribunals in peacefully resolving international disputes, but also there is also an important role for the research and educational institutions. It is important not just to re-open the world economy, but to build back better or indeed, to ‘build forward’ – and for this, by advancing knowledge and respect for the ILA Sustainable Natural Resources Guidelines, we contribute an important strand in the tapestry of solving these crucial global challenges. Qualifying sovereign discretion in natural resource management and coordinating responses to environmental threats provides hope that the world can emerge, sustainably.
[1] Prof Marie-Claire Cordonier Segger, Leverhulme Trust Visiting Professor, University of Camb
ridge, C-EENRG Fellow and Full Professor of Law, University of Waterloo & Prof Ilaria Espa, Senior Lecturer, Swiss Italian University and CISDL Lead Counsel for Natural Sources. Warmest thanks are due to Tejas Rao, LLM Candidate; David Gayle, MPhil Candidate; Fabiana Piccoli Araújo Santos, LLM Candidate; and Freedom-Kai Phillips, PhD Candidate, at the University of Cambridge for their invaluable insights, research and drafting assistance at different stages in the process. [2] UN General Assembly, Permanent sovereignty over natural resources, 17 December 1973, A/RES/3171 [3] Nico Schrijver, Sovereignty over natural resources 2 (CUP 1997) [4] James Crawford, Brownlie’s Principles of Public International Law 436 (OUP 2019) [5] Committee on the Role of International Law in Sustainable Natural Resources Management for Development International Law Association, ‘The role of international law in sustainable natural resources management for development’ in International Law Association Final Report of the 79th Biennial Conference (Kyoto 2020) (International Law Association Kyoto 2020) <https://www.ila-hq.org/images/ILA/docs/kyoto/Draft%20Resolution%204%20&%20Guidelines%20Int%20Law%20Sustainable%20Natural%20Resources%20Kyoto%202020.pdf>. [6] 'UN Report: Nature's Dangerous Decline 'Unprecedented'; Species Extinction Rates 'Accelerating' (United Nations Sustainable Development) <https://www.un.org/sustainabledevelopment/blog/2019/05/nature-decline-unprecedented-report/#:~:text=The%20Report%20finds%20that%20around,20%25%2C%20mostly%20since%201900.> accessed 24 January 2021. [7] See Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (2019), Global Assessment Report on Biodiversity and Ecosystem Services, <https://ipbes.net/global-assessment> [8] Intergovernmental Panel on Climate Change (IPCC), 'Climate Change 2014 Synthesis Report Summary For Policymakers' (2014) <https://www.ipcc.ch/site/assets/uploads/2018/02/AR5_SYR_FINAL_SPM.pdf> accessed 24 January 2021. [9] Supra note 2 [10] United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), art 2. [11] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UN Doc FCCC/CP/2015/L.9/Rev.1, 55 ILM 743 (Paris Agreement), arts 2.1 and 4.1. [12] Ibid, art. 4.2-4.7. [13] Ibid., art. 15. [14] Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD); Convention on the International Trade in Endangered Species of Wild Fauna and Flora (adopted 2 March 1973, entered into force 1 July 1975) 993 UNTS 243 (CITES); Convention on the Conservation of Migratory Species of Wild Animals (signed 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS). [15] Supra note 1 p 6. [16] Ibid p 19. [17] United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 [18] Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD) arts 5 and 6; UNFCCCC art 4; Paris Agreement art 5; International Tropical Timber Agreement (adopted 27 January 2006, entered into force 7 December 2011) UN Doc TD/TIMBER.3/12 (ITTA 2006). [19] Convention on the Law of the Non-Navigational Uses of International Watercourses (signed 21 May 1997, entered into force 17 August 2014) (2017) 36 ILM 700 (New York Convention); Convention on the Protection and Use of Transboundary Watercourses and International Lakes (signed 17 March 1992, entered into force 6 October 1996) 1936 UNTS 269 (Helsinki Convention); Convention on Wetlands of International Importance especially as Waterfowl Habitat (signed 2 February 1971, entered into force 21 December 1975) 996 UNTS 245 (Ramsar Convention) art 5. [20] Supra note 1 p 22. [21] Convention on the Conservation of Migratory Species of Wild Animals (signed 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS). [22] Ibid p 23. [23] Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16 August 2017) 55 ILM 582 (Minamata Convention). [24] See, among others, the United Nations Guiding Principles on Business and Human Rights, the OECD Due Diligence Guidance for Responsible Mineral Supply Chains of Minerals from Conflict Affected and High-Risk Areas, the Kimberley Process Certification Scheme for Rough Diamonds, the Extractive Industries Transparency Initiative (EITI). [25] M-C Cordonier Segger, supra note 3.