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In modern international law, permanent sovereignty over
natural resources has come to entail duties as well as rights.
This study analyses the evolution of permanent sovereignty
from a political claim to a principle of international law,
and examines its significance for a number of controversial
issues such as peoples' rights, nationalization and
environmental conservation. Although political discussion
has long focused on the rights arising from permanent
sovereignty, Dr Schrijver argues that this has been at the
expense of the consideration of the corollary obligations it
also entails. His book thus identifies new directions
sovereignty over natural resources has taken in an
increasingly interdependent world and demonstrates its
relevance to current debate on foreign-investment
regulation, the environment and sustainable development.
Sovereignty over
natural resources
CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht

and McNair) is a forum for studies of high quality in the fields of public and
private international law and comparative law. Although these are distinct
legal sub-disciplines, developments since 1946 confirm their interrelationship.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is
increasingly affected by international conventions, and the issues faced by
classical conflicts rules are increasingly dealt with by substantive
harmonisation of law under international auspices. Mixed international
arbitrations, especially those involving state economic activity, raise questions
of public and private international law. In many fields (such as the protection
of human rights and democratic standards, investment guarantees, and
international criminal law) international and national systems interact.
National constitutional arrangements relating to 'foreign affairs' and to the
implementation of international norms are a focus of attention.
Professor Sir Robert Jennings edited the series from 1981. Following his
retirement as General Editor, an editorial board has been created and
Cambridge University Press has recommitted itself to the series, affirming
its broad scope.
The Board welcomes works of a theoretical or interdisciplinary character,
and those focusing on new approaches to international or comparative law
or conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.
General Editors James Crawford
Whewell Professor of International law, University of Cambridge
David Johnston
Regius Professor of Civil Law, University of Cambridge
Editorial Board Professor Hilary Charlesworth University of Adelaide
Mr John Collier Trinity Hall, Cambridge
Professor Lori Damrosch Columbia University Law School
Professor John Dugard Director, Research Centre for International
Law, University of Cambridge
Professor Mary-Ann Glendon Harvard Law School
Professor Christopher Greenwood London School of Economics
Professor Hein Kotz Max-Planck-Institut, Hamburg
Dr Vaughan Lowe Corpus Christi College, Cambridge
Professor D. M. McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Advisory Committee Professor D. W. Bowett QC
Judge Rosalyn Higgins QC
Professor Sir Robert Jennings QC
Professor J. A. Jolowicz QC
Professor Eli Lauterpacht QC
Professor Kurt Iipstein
Judge Stephen Schwebel
Sovereignty over
natural resources

Balancing rights and duties

Nico Schrijver
Institute of Social Studies, The Hague

vim CAMBRIDGE
UNIVERSITY PRESS
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521562690
© Cambridge University Press 1997

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 1997

This digitally printed version 2008

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Schrijver, Nico, 1954-

Sovereignty over natural resources / Nico Schrijver.
p. cm.
Includes bibliographical references.
ISBN 0 521 56269 4 (hardback)
1. Natural resources - Law and legislation. 2. Sovereignty.
3. Government ownership - Law and legislation. I. Title.
K3478.S37 1997
341.7'62-dc20 96-33595 CIP
ISBN 978-0-521-56269-0 hardback
ISBN 978-0-521-04744-9 paperback
To the memory of
Cornells Schrijver, B. V. A. Roling and Subrata Roy Chowdhury
The fact that the Rio Grande lacks sufficient water to permit its use by the
inhabitants of both countries does not entitle Mexico to impose restrictions on the
United States which would hamper the development of the latterfs territory or
deprive its inhabitants of an advantage with which nature had endowed it and
which is situated entirely within its territory. To admit such a principle would be
completely contrary to the principle that the United States exercises full
sovereignty over its national territory.
US Attorney-General Harmon, in 21 Opinions of the Attorney-General of
the United States (1895), p. 283
[T]he emphasis on national sovereignty is partly a transitional problem
which has to be experienced but which will pass by. But it is also
undoubtedly the expression of the new state's weakness, of its need for
protection against external influences. In the Charter of the UN, this
protective law is expressed in the principles of 'sovereign equality* and
of self-determination.
B. V. A. Roling, International law in an Expanded World
(Djambatan: Amsterdam, 1960), p. 78
It would . . . be a mistake to consider the idea of permanent sovereignty
over resources as anachronistic nationalistic rhetoric. It should be
viewed as a fresh manifestation of present aspirations for self-rule and
greater equality.
O. Schachter, Sharing the World's Resources
(Columbia University Press: New York, 1977), p. 126
The sovereignty, territorial integrity and independence of States within
the established international system, and the principle of
self-determination for peoples, both of great value and importance,
must not be permitted to work against each other in the period ahead.
Respect for democratic principles at all levels of social existence is
crucial: in communities, within States and within the community of
States. Our constant duty should be to maintain the integrity of each
while finding a balanced design for all.
UN Secretary-General Boutros-Ghali, An Agenda for Peace
(United Nations, New York, 1992), p. 10
 Contents

List of boxes,figuresand tables xiv

Preface xvi
Acknowledgments xviii
List of abbreviations xx
List of main symbols used in UN documents xxiv
Glossary xxvi
Table of cases xxviii

1 Introduction 1
Objectives of the study 1
Genesis of permanent sovereignty as a principle of international
law 3
The international context 4
The subjects: a widening and a contracting circle 7
The objects to which permanent sovereignty applies 11
Goals and objectives for the exercise of permanent sovereignty 20
Scope and orientation of the study 25

PART I
The birth and development of the principle: the UN General
Assembly as midwife

Introductory remarks to Part I 33

2 The formative years (1945-1962) 36

The early years (1945-1951): balancing national and global
interests 37

ix
 CONTENTS

The 1952 'nationalization' resolution: the demand for economic

independence 41
Linking human rights, self-determination and natural resources
(1952-1955) 49
From self-determination of peoples to sovereignty of States: the UN
Commission on Permanent Sovereignty over Natural Resources
(1958-1961) 57
Bridging the gap: the near<onsensus on the Declaration on
Permanent Sovereignty over Natural Resources (1962) 70

3 Promoting economic development by the exercise of

permanent sovereignty: the period after 1962 82
Reaffirming and elaborating the 1962 Declaration (1963-1970) 84
Permanent sovereignty over marine resources (1970-1972) 90
Towards the NIEO resolutions: renewed debate on
nationalization (1972-1973) 92
Steamrollering it through: the NIEO Declaration and Action
Programme (1974) 96
The Charter of Economic Rights and Duties of States (1974) 100
Towards pragmatism: international co-operation in
natural-resource policy 113

4 Permanent sovereignty, environmental protection and

sustainable development 120
Growing international awareness of environmental degradation 120
Early UN resolutions on the conservation of nature 121
Protecting the human environment: Stockholm 1972 122
Follow-up to the Stockholm Declaration with respect to
permanent sovereignty 127
The UN and the issue of shared resources: the UNEP Guidelines of
1978 129
The Brundtland Experts Group on Environmental Law 133
Permanent sovereignty in an environmental and developmental
context: Rio 1992 134
Comparing the Stockholm and the Rio Declarations 139
 CONTENTS XI

5 Permanent sovereignty over natural resources in

territories under occupation or foreign administration 143
The status of Namibia and its natural resources before
independence in 1990 144
Permanent sovereignty over 'national' resources in
Israeli-occupied territories 152
Sovereignty over the Panama Canal and Zone 156
Summary and appraisal of Part I 164

PART II
Natural-resource law in practice: from creeping national
jurisdiction towards international co-operation

Introductory remarks to Part II 171

6 International investment law: from nationalism to
pragmatism 173
'National standard' versus 'international minimum standard' 173
Multilateral codes of conduct on foreign investment 181
Multilateral instruments for promotion and protection of
foreign investment 184
Increasing popularity of bilateral investment treaties 190
International settlement of investment disputes 194
Trend towards pragmatism 195

7 The law of the sea: extension of control over marine

resources 202
'Planet Ocean' 202
Classical law on the territorial sea: from 'cannonshoV to 'fixed
distance' 203
Extension of territorial sovereignty over maritime areas 205
Extension of exclusive economic jurisdiction over marine
resources 207
A halt to the seaward rush: the common heritage of mankind 214
International dispute settlement under the law of the sea 222
Permanent sovereignty versus common heritage of humankind? 228
Xll CONTENTS

8 International environmental law: sovereignty versus the

environment? 231
The concept of international environmental law 231
Codifying international environmental law 233
Territorial sovereignty in international case law: 'bending
before all international obligations'? 236
Principles of international environmental law and state
sovereignty 240
Sovereignty versus the environment? 249

Appraisal of Part II 251

PART III

Balancing rights and duties in an increasingly

interdependent world

Introductory remarks to Part III 255

9 Rights and claims: seeking evidence of recognition in

international law 258
The grammar of rights 2 58
The right to dispose freely of natural resources 260
The right to explore and exploit natural resources freely 264
The right to regain effective control and to compensation for
damage 266
The right to use natural resources for national development 269
The right to manage natural resources pursuant to national
environmental policy 274
The right to an equitable share in benefits of transboundary
natural resources 276
The right to regulate foreign investment 278
The right to expropriate or nationalize foreign investment 285
The right to settle disputes on the basis of national law 298

10 Duties: the other side of the coin 306

The concept of duties. 306
The exercise of permanent sovereignty for national development
and the well-being of the people 308
Respect for the rights and interests of indigenous peoples 311
 CONTENTS Xlll

Duty to co-operate for international development 319

Conservation and sustainable use of natural wealth and resources 324
The equitable sharing of transboundary natural resources 336
Respect for international law and fair treatment of foreign
investors 339
Obligations related to the right to take foreign property 344

II Sovereignty over natural resources as a basis for

sustainable development 368
The origin, development and legal status of the principle 369
Changing perceptions on sovereignty, foreign investment and the
role of international law 377
Permanent sovereignty in an interdependent world 387

Appendices

I United Nations resolutions and other decisions 399

II Table of multilateral treaties 402
III Survey of main cases 410

Bibliography 419
Index 447
 Boxes, figures and tables

Boxes
2.1 Text of the draft resolution submitted by the
Commission on Permanent Sovereignty over Natural
Resources, 25 May 1961 page 8o
5.1 Decree No. 1 for the Protection of the Natural
Resources of Namibia, 27 September 1974 162
6.1 Characteristic examples of Calvo-flavoured provisions
in legal instruments 197
6.2 Permanent-sovereignty-related provisions in the Draft
UN Code of Conduct on Transnational Corporations 199
6.3 Some illustrative provisions of the 1992 World Bank
Guidelines on the Treatment of Foreign Direct
Investment 200
10.1 Global significance of national management of tropical
rain forests 365
10.2 Examples of nationalization clauses in bilateral
investment treaties 366

Figure
7.1 National jurisdiction over marine resources 230

Tables
2.1 Drafting history of the provisions on permanent
sovereignty in the Human Rights Covenants 77
2.2 General Assembly resolutions on permanent sovereignty
over natural resources (1952-1962) 79

xiv
 LIST OF B O X E S , F I G U R E S A N D T A B L E S XV

3.1 General Assembly resolutions on permanent sovereignty

after 1962 119
4.1 General Assembly resolutions on sovereignty over
natural resources and the environment 141
5.1 General Assembly resolutions on permanent sovereignty
over national resources in occupied Palestinian and
other Arab territories 161
 Preface

My interest in natural-resource management has deep roots. Born into a

farming family in a small village in West Friesland, in the north of the
Netherlands, I have always cherished the products of nature, initially
because of the economic value they represent. We lived in a coastal region at
sea level, safely protected by three dikes which have served as lines of
defence againstfloodingsince the late fifteenth century. They were called De
Waker ("The Watchman'), De Dromer ('The Dreamer', to be awakened
whenever the water would reach its foot) and De Slaper ('The Sleeper'). Only
later was I to become aware of the beauty of these dikes and the
surrounding landscape and of the vulnerability of the natural environ-
ment.
My academic interest in the topic of this book first crystallized when I
took courses in international law, the sociology of international relations,
peace research and the economics of development at the University of
Groningen. I thus became acquainted with Third World efforts to establish a
New International Economic Order. These efforts included claims to full
permanent sovereignty over natural resources and demands for more
equitable commodity prices. The political organs of the United Nations
served as the forum of debate as well as a vehicle for letting off political
steam. But the issue was thrown into sharp relief as Arab petroleum-
exporting countries actively pursued a cartel policy and imposed an oil
embargo against the Netherlands and the USA as a reaction to those
countries' pro-Israeli stand in the aftermath of the Yom Kippur War in 1973.
Ever since this time, various developments such as the deterioration in the
terms of trade of many developing countries, the reshaping of the
international order, resource conflicts, as well as mounting concern about
environmental deterioration and how to achieve a sustainable use of the
natural resources, have made a deep impression on me. In the meantime,

xvi
 PREFACE XV11

North-South relations have changed considerably, with newly industrial-

izing countries in the South not being keen to join Group of 77 forces in
demanding higher commodity prices since they have become net importers
themselves. Simultaneously, awareness has arisen that preservation of the
world's environment and natural wealth is a 'common concern of human-
kind' and that sovereignty is not an unqualified concept behind which
governments can hide in claiming that matters within domestic jurisdic-
tion are 'no outsider's business'. Developments in human rights law, law of
the sea, international economic and environmental law, all have given rise
to the principle that States are increasingly accountable, both at an
international and domestic level, for the way they manage their natural
wealth and resources.
Although my work over the years has often followed different paths, I
have frequently returned to consider the successes and failures of the UN's
contribution to promoting development of developing countries, to
preserving the environment, and to developing and consolidating interna-
tional law.
 Acknowledgments

I would like to record my deep appreciation to Professor W. D. Verwey of the

University of Groningen and to Professor P. J. I. M. de Waart of the 'Vrije
Universiteit' in Amsterdam for skilfully guiding me during the long march
of writing this book, often blocking my way when I was distracted by
attractive side-roads. Participants and staff at the Institute of Social Studies
(ISS) in The Hague, colleagues in the Evert Vermeer Foundation, the
National Advisory Council for International Development Co-operation, the
International Law Association and at the UN Secretariat in New York have
formed an inspiring multicultural and interdisciplinary community for me
which has profoundly influenced my perspective on the role of interna-
tional law in international as well as domestic affairs.
This study has also greatly benefited from the wise advice and valuable
comments of a number of colleagues and friends, particularly: Paul Peters, a
former legal adviser to companies of the Royal Dutch/Shell Group, who
graciously shared with me his wide knowledge and experience; Professor
James Crawford, general editor of Cambridge University Press's interna-
tional law series; Professor Arthur Westing, formerly with SIPRI and author
of books on environment and security; Professor Barbara Kwiatkowska,
Deputy Director of the Netherlands Institute for the Law of the Sea at
Utrecht University; Dr Johan Kaufmann, former Netherlands Ambassador
to the United Nations; Professor Hans Opschoor, Rector of the ISS; Jan van
Ettinger, a former Director ofJan Tinbergen's RIO Project and now with the
Geneva-based Independent World Commission on the Oceans; Professor
Peter Sand of the University of Munich; Professor Godried van Benthem van
den Bergh of the ISS; Marnix Krop, Netherlands Ministry of Foreign Affairs;
and my dear international law friends, Karin Arts and Ige Dekker.
Words of thanks are also due to the librarians of the Institute of Social
Studies, of the Peace Palace in The Hague and the Palais des Nations in

xviii
 ACKNOWLEDGMENTS xix

Geneva, of the documentation section of the Netherlands Ministry of

Foreign Affairs and of the T. M. C. Asser Institute; to my colleagues in the
International Studies Group of the ISS: Dr Jessica Byron, Dr Surya Subedi, Dr
Thamh-Dam Truong, Janna van der Meulen and Antoinette Hildering as
well as Professors Bas de Gaay Fortman, Jeffrey Harrod and Joop Syatauw;
and to Ank van den Berg, who assisted me after office hours in overcoming
my computer ineptitudes. I sincerely thank Gary Debus and Josephine
Bosman of the ISS publications department for skilfully editing this text;
Joy Misa and Koos van Wieringen of the ISS and Christopher Hart and other
staff at Cambridge University Press for preparing the text for publication.
My wife, Yuwen Li, is the author of a book which includes a thorough
examination of the common heritage of humankind, a principle upon
which a halt to State sovereignty over natural resources has been based.
Similarly, she was instrumental, in her own ever-stimulating and decisive
way, in making me realize that my own personal sovereignty is not
permanent and subject to duties as well as rights.
I regret that Cornelis Schrijver (my father), B. V. A. Roling (Professor of
International Law and Peace Research, Groningen) and Subrata Roy
Chowdhury (Senior Advocate, Calcutta High Court and Supreme Court of
India), all of whom in different phases of my life taught me a great deal
about the true meaning of equity, are no longer with us. In gratitude for
their contribution I dedicate this book to their memory.
While gratefully acknowledging the support of many, any errors and
shortcomings are my own responsibility.
 Abbreviations

AALCC Asian-African Legal Consultative Committee

ACP African, Caribbean and Pacific States (parties to the Lome
Conventiong approx. 70)
AFDI Annuaire Frangais de Droit International
AJICL African journal of International and Comparative Law
AJIL American Journal of International Law
ALI American Law Institute
APEC Asia-Pacific Economic Co-operation
Area Sea-bed and ocean floor and subsoil thereof beyond the
limits of national jurisdiction in accordance with the 1982
UN Convention on the Law of the Sea
ASEAN Association of South-East Asian Nations
ASIL American Society of International Law
BISD Basic Instruments and Selected Documents (of GATT)
BITs Bilateral investment treaties
BYIL British Yearbook of International Law
CERDS 1974 Charter of Economic Rights and Duties of States
CHM Common heritage of (hu)mankind
CIME OECD Committee on International Investment and
Multinational Enterprises
CIS Commonwealth of Independent States
CITES 1973 Convention on International Trade in Endangered
Species of Wild Fauna and Flora
CJTL Columbia Journal of Transnational Law
DD II/III/IV Development Decades II-IV (of the UN)
ECLAC Economic Commission for Latin America and the
Caribbean (of the UN)
ECOSOC Economic and Social Council (of the UN)

xx
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