The relationship between "permanent sovereignty" and the obligation not to cause transboundary environmental damage.

     I. Introduction                                          1188
    II. Permanent Sovereignty over Natural Resources          1190
        A. Conception and Development of the Principle        1190
        B. The Principle of Permanent Sovereignty over
           Natural Resources                                  1191
        C. Resolution 1803 (XVII) as Restatement of Customary
           International Law                                  1194
   III. Obligation Not to Cause Transboundary Environmental
        Damages                                               1197
        A. Conception and Development of the Principle        1197
        B. Principle 21 of the Stockholm Declaration          1200
        C. Principle 2 of the Rio Declaration                 1203
    IV. Relationship Between the Two Principles               1204
        A. Permanent Sovereignty over Natural Resources
           Is an Economic Concept                             1204
        B. Permanent Sovereignty over Natural Resources Is
           Inherently Limited                                 1207
        C. U.N. Resolutions and the Limitation of Permanent
           Sovereignty over Natural Resources by Other
           Rules of International Law                         1210
     V. Conclusions                                           1212

I. Introduction

The sovereignty of states is considered to be one of the basic and fundamental principles of public international law.(1) Not only is a state supposed to be sovereign within its border, furthermore, international law is based on the sovereignty of states. Sovereign states have accepted the necessity of international law and submitted themselves to the authority of international institutions.(2) It therefore can be said that it is sovereignty that creates international law.(3) Thus, a rule of international law generally becomes binding upon a state only if the state freely accepts that rule and submits its sovereignty under the rule.(4) States principally determine for themselves what they must or may do.(5) Moreover, while sovereignty is accepted as a basic notion, its precise meaning is debated, and there is a "trend toward using sovereignty with varying definition."(6)

The principle of state sovereignty is not absolute.(7) The international doctrine of state sovereignty bears an obvious resemblance to the domestic-liberal doctrine of individual liberty(8) -- where a limitation is generally accepted. As an individual's sphere of liberty must, by definition, be delimited by the spheres of liberty of the other members of society, so must a state's sphere of liberty be capable of determination from a perspective that is external to it.(9) As such, sovereignty inherently includes a duty of nonintervention into the sovereign realm of other states.(10) Recognizing that duty, it follows that limits are inherent in the notion of state sovereignty.

This Article will focus on these notions of sovereignty and limitations on sovereignty. Specifically, while each state has permanent sovereignty over its natural resources, each state also has an obligation not to cause transboundary environmental damage. These principles seem to represent "two fundamental objectives pulling in opposing directions."(11) However, both are set out in Principle 21 of the United Nations Stockholm Declaration.(12)

This Article will examine whether there is indeed a conflict between these two principles or whether they can be reconciled. Part II analyzes the principle of permanent sovereignty over natural resources and the context in which the principle was formulated. Part III focuses on the obligation not to cause transboundary environmental damage. Part IV concludes that these two principles are not only not contradictory; they are inherent in each other. Like the notions of sovereignty and a state's right of self-determination, the principle of permanent sovereignty over natural resources is limited by the obligation to respect the sovereignty of other states over their natural resources.

II. Permanent Sovereignty over Natural Resources

A. Conception and Development of the Principle

The principle of permanent sovereignty over natural resources is "a fundamental principle of contemporary international law."(13) It emerged in the 1950s(14) during the process of decolonization(15) as "a basic constituent of the right to self-determination(16) and an essential and inherent element of state sovereignty."(17) The concept originated in negotiations over natural resource development agreements(18) because developing nations wished to avoid the inequitable and onerous arrangements imposed upon their unwary and vulnerable governments during the colonial period.(19) The typical context where permanent sovereignty is invoked concerns the relationship between host states rich with natural resources and transnational or multinational corporations which are engaged in or wish to begin the exploitation of such resources(20) -- especially with regard to the nationalization of such foreign enterprises and the question of compensation.(21) The discussions on the principle of permanent sovereignty over natural resources are thus characterized by a conflict of interest between capital exporting and capital importing nations.(22)

B. The Principle of Permanent Sovereignty over Natural Resources

The most significant statement regarding permanent sovereignty over natural resources(23) is recorded in United Nations (U.N.) General Assembly Resolution 1803 (XVIII).(24) That resolution declares that the "right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned."(125) Moreover, "[t]he exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable."(26) Thus, permanent sovereignty reflects the "inherent and overriding right" of a state to control the exploitation and the use of its natural resources.(27) However, a state has to exercise this right for the benefit of its citizens.(28)

The principle of permanent sovereignty over natural resources was a central issue in the debate over the legality of nationalizing foreign enterprises.(29) The foreign industrial enterprises insisted that their right to exploit another nation's natural resources, already acquired during the colonial period, continued after the new independence of the formerly colonized nations.(30) In opposition, the developing nations argued that permanent sovereignty over natural resources is necessary to protect their economic sovereignty.(31) Further, developing nations claimed that permanent sovereignty includes the right to expropriate foreign enterprises.(32)

Today it is generally accepted that permanent sovereignty over natural resources is a prerequisite for economic development(33) and, therefore, is a fundamental principle of contemporary international law.(34) Nevertheless, it is subject to criticism for trying to use legal rules to resolve eminently political and economic disputes.(35) The law in this way only repeats the political problem and declines to solve it.(36) The fact that development of natural resources finally is a political and not a legal problem(37) is probably a major reason why until now agreements on the precise content and parameters of this fundamental principle have not been reached.(38)

Recently, the International Court of Justice (ICJ) ruled upon a claim raising the question of permanent sovereignty over natural resources.(39) Australia had negotiated a treaty with Indonesia that created a "zone of cooperation" in the Timor Gap, a portion of the continental shelf near East Timor.(40) East Timor was an incorporated Indonesian territory, but also was a non-self-governing territory under the "administering power" of Portugal, its long-time colonial parent.(41) Portugal asserted that Australia had no right to enter into treaties that contravened East Timor's right to its resources.(42) Specifically, Portugal alleged that Australia had violated its obligation to respect East Timor's rights to self-determination and permanent sovereignty over its natural resources.(43)

However, the majority accepted Australia's argument that resolution of Portugal's claims demanded that the court address the issues of the lawfulness of Indonesia's presence in East Timor, the validity of the Australia-Indonesia treaty, and Indonesia's rights under that treaty.(44) Thus, because Indonesia was a vital party to the case and had never consented to ICJ jurisdiction, the court lacked jurisdiction to hear the case.(45)

Two dissenting opinions, however, addressed the principle of permanent sovereignty over natural resources.(46) Because the majority issued its opinion without reaching the substance of that principle, the arguments of the two dissenting opinions have to be given considerable weight. Most notably, the two opinions embraced the principle of permanent sovereignty over natural resources as an important right of contemporary international law(47) with erga omnes character.(48)

However, while the validity of the principle is not disputed,(49) the precise legal status of the principle is unclear.(50) While some authors note that the principle is inalienable,(51) or that it has jus cogens status,(52) other authors reject this view.(53) Moreover, the fact that a rule has jus cogens status would only imply that all states have to respect that rule, but would not determine the rule's content.(54) Therefore, the precise legal status of the principle is not as relevant once it is accepted that the content of permanent sovereignty is limited, as demonstrated below.(55)

C. Resolution 1803 (X-VII) as Restatement of Customary

International Law

A number of U.N. General Assembly resolutions concern and develop the principle of permanent sovereignty over natural resources.(56) One basic difference divides these resolutions: when dealing with the problem of nationalization, some resolutions refer to other rules of international law while other resolutions do not.(57) This subpart win focus on two resolutions: Resolution 1803 (XVII) of 14 December 1962,(58) which includes a reference to international law, and Resolution 3281 (XXIX) of 12 December 1974,(59) which omits such reference.(60) Today only Resolution 1803 (XVII) is accepted as a restatement of customary international law.(61)

Resolution 1803 (XVII) proclaims "the right of peoples and nations to permanent sovereignty over their natural wealth and resources."(62) At the same time, it states that "foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith."(63) Moreover, in cases of nationalization, "the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law."(64)

Furthermore, "the free and beneficial exercise of the sovereignty of peoples and nations over their national resources must be furthered by the mutual respect of States based on their sovereign equality."(65) Violation of national sovereignty over natural resources is "contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace."(66) Thus, Resolution 1803 (XVII) recognizes an important and basic limitation on the notion of relative sovereignty:(67) A state's sovereignty over its natural resources is subordinate to international law.(68) Developing countries, principally, have criticized the resolution as "conservative in character"(69) and "not going far enough."(70) Later resolutions in this field go further. General Assembly Resolution 3281 (XXIX) declares that every state has permanent sovereignty over its wealth, natural resources, and economic activities.(71) Resolution 3281 (XXIX) recognizes that "each State enjoys a sovereign right to nationalize, in which case appropriate compensation should be determined according to its own law and by its own courts."(72) However, this statement appears to be incompatible with the notion of relative sovereignty and "[i]ts radical formulations also go beyond actual practice."(73) Moreover, this resolution fails to reference the rules of international law and good faith.(74)

The contemporary view of international law accepts that multilateral forums like the U.N. General Assembly, where representatives of states and other interested groups come together to address important international problems, often play a central role in the creation and shaping of international law.(75) Although the amount of support displayed toward a rule under consideration in such a forum is of crucial importance, unanimous support may not be required to create and shape new law.(76) A small number of objecting states may not stop the movement of a proposed rule towards law.(77) It therefore could be argued that Resolution 3281 (XXIX), which was accepted by a large majority of votes,(78) formulates legally binding rules of international law imposing rights and obligations on states.(79)

The effect of the discussion and adoption of a General Assembly rule "depends upon the number of objecting states, the nature of their objections, the importance of the interests they seek to protect . . . , their geopolitical standing," and whether their objections go to the essence of the rule under consideration.(80) Using this analysis, the Arbitral Tribunal in Texaco Overseas Petroleum Co./California Asiatic Oil Co. v. Libyan Arab Republic(81) addressed the issue of whether Resolution 3281 (XXIX) -- or any other resolution that omits reference to general rules -- can become international law.(82)

The Arbitrator in Texaco Overseas Petroleum considered the legal force of the U.N. resolutions when he examined Assembly voting conditions and analyzed the relevant provisions of the resolutions.(83) While a great number of states, representing not only all geographical areas, but also all economic systems, assented to the principles stated in Resolution 1803 (XVII),(84) the subsequent resolutions, including Resolution 3281 (XXIX), were adopted without the assent of the most prominent Western countries and without general consensus among the states with respect to the most important provisions, particularly those concerning nationalization.(85) The reference to international law, particularly the field of nationalization, was an essential factor in the support given by several Western countries to Resolution 1803 (XVII).(86) Therefore, Resolution 1803 (XVII) seems "to reflect the state of customary law existing in this field."(87) Conversely, Resolution 3281 (XXIX) (Article 2 of the Charter of Economic Rights and Duties of States) "must be analyzed as a political rather than as a legal declaration concerned with the ideological strategy of development and, as such, supported only by non-industrialized States."(88)

Today, the international community generally accepts that Resolution 1803 (XVII) -- sometimes referred to as a "carefully worked out compromise"(89) -- is a "restatement of present-day customary international law."(90) In contrast, Resolution 3281 (XXIX) represents a process of change and outlines principles that some, industrialized nations perceive as a "fundamental departure from the traditional rules of contemporary international law."(91) However, developing countries do recognize Resolution 3281 (XXIX) as "a legally binding instrument imposing rights and obligations on states."(92)

III. Obligation Not to Cause Transboundary Environmental Damages

A. Conception and Development of the Principle

The emergence and evolution of international environmental law can be divided into four distinct periods.(93) The first period stretched from a series of bilateral fisheries treaties in the nineteenth century through the creation of the new international organizations in 1945.(94) During that period, people and nations began to understand the necessity of limiting the exploitation of certain natural resources.(95) The second period endured between the creation of the United Nations (U.N.) in 1945 and the 1962 Stockholm Conference on the Human Environment.(96) This period was shaped by the creation of international organizations with competence in environmental matters and the adoption of legal instruments to address environmental problems.(97) The third period occurred between the 1972 Stockholm Conference and the 1992 Rio Conference on Environment and Development (UNCED).(98) During that period the U.N. sought to coordinate responses to international environmental problems.(99) Finally, the post-UNCED period has sought to integrate environmental concerns into all international activities.(100)

The obligation not to cause transboundary pollution reflects the obligation of all states to protect within their territory the rights of other states, especially the rights to national integrity and inviolability during peace and way.(101) This obligation was already recognized during the first period in the Trail Smelter case.(102) The Arbitral Tribunal concluded:

[u]nder the principles of international law, as well as of the law of the

United

States, no State has the right to use or permit the use of its territory in

such a

manner as to cause injury by fumes in or to the territory of another or the

properties or persons therein, when the case is of serious consequence and

the

injury is established by clear and convincing evidence.(103)

The Trail Smelter award is frequently cited for its role in laying down basic principles,(104) and its formulation concerning transfrontier pollution is accepted by the most qualified authors as a rule of international law.(105)

However, the rule laid down in this award does not forbid every kind of interference with the territory of other states.(106) Rather, its restriction is limited to cases of serious consequence.(107) As such, it is patterned after common law nuisance liability for unreasonable interference with the enjoyment of land.(108) Because the rule is only effective when transfrontier damage reaches a certain level of harm, it implies a rejection of two important principles:(109) 1) the principle of absolute territorial sovereignty, which would otherwise allow a state to dispose of its territory without considering neighborly interests,(110) and 2) the principle of absolute territorial integrity, which would otherwise prohibit all external interference on state territory.(111)

The rule of the Trail Smelter case derives from an extension of the principle of good-neighborliness affirmed in the Corfu Channel case.(112) There the International Court of Justice noted that the principle of sovereignty embodies the obligation on a state "not to allow knowingly its territory to be used for acts contrary to the rights of other States."(113) Furthermore, the Arbitral Tribunal in the Lac Lanoux arbitration(114) reaffirmed that a state has an obligation, when exercising its rights, to consider the interests and respect the rights of another state.(115) Moreover, in dicta, the opinion suggested that transboundary water pollution may be prohibited.(116)

Today, the prohibition of transboundary pollution likely to cause significant harm to the environment of other states or to areas beyond the limits of national jurisdiction is accepted as an obligation upon all States(117) and may be considered as a rule of customary international law.(118) A majority of international law scholars agree on the validity of this rule.(119) Moreover, state practice regularly confirms its acceptance.(120)

B. Principle 21 of the Stockholm Declaration

In 1972 the U.N. held the Stockholm Conference on the Human Environment.(121) The Conference form enacted three nonbinding instruments: a resolution on institutional and financial arrangements, a Declaration on the Human Environment listing 26 Principles, and an Action Plan with 109 recommendations.(122) A great success,(123) the Conference was pivotal in the development of international environmental law.(124) Indeed, the rise of modern international environmental law is due in large pan to the Stockholm Declaration.(125) Although the Stockholm Declaration did not seek to formulate legally binding provisions,(126) but to provide inspiration and guidelines for the governments and peoples of the world,(127) it was regarded as a "first step" in establishing the basic rules of international environmental law.(128) This paper will focus on Principle 21 of the Stockholm Declaration, which formally recognizes the relationship between permanent sovereignty over natural resources and responsibilities for the environment.(129)

In demonstration of that relationship between sovereignty and responsibility, Principle 21 dictates that

States have, in accordance with the Charter of the United Nations and the

principles

of international law, the sovereign right to exploit their own resources

pursuant to their own environmental policies, and the responsibility to

ensure

that activities within their jurisdiction or control do not cause damage to

the

environment of other States or of areas beyond the firsts of national

jurisdiction.(130)

Thus, even the "environment-supporting" 1972 Stockholm Declaration recognizes each nation's sovereign right to exploit its own resources pursuant to its own environmental policies.(131) Because of the several U.N. resolutions accepting the principle of permanent sovereignty over natural resources,(132) the Conference intended from the outset that the Stockholm Declaration should include this principle.(133)

However, Principle 21 linked a state's right to exploit its natural resources to its obligation to ensure that activities within its jurisdiction or control do not cause damage to the environment of other states.(134) As such, it reformulates the traditional principle sic utere tuo ut alienum non laedas (use your own property so as not to injure that of another).(135) By acknowledging "[t]he right of a state to exploit its own natural resources and its duty not to cause harm to others or to places outside of its territory" in the process,(136) Principle 21 attempts to balance a state's rights and responsibilities.(137)

It is noteworthy that proposals to delete the language imposing an obligation to preserve the environment were rejected.(138) Those proposals were based on the argument that the exercise of sovereignty cannot be subject to qualification or limitation.(139) Thus, Principle 21 not only accepts the principle of permanent sovereignty over natural resources,(140) it also recognizes a limitation on that right in order to prevent transbound environment harm.(141)

Although the wording of Principle 21 does not explicitly limit the obligation not to cause transboundary pollution to cases of serious consequence, such a limitation is implicit in the balance between a state's right to use its natural resources and its responsibility not to cause damage outside its territory.(142) As a result, not all detrimental transboundary effects arising from the use of natural resources should be prohibited.(143) At least four conditions must exist to prohibit transboundary pollution: The harm from the pollution 1) "must result from human activity"; 2) "must result from a physical consequence of the causal human activity"; 3) "must cross national boundaries"; and 4) "must be significant or substantial."(144)

Principle 21 does not solve the problem of transboundary pollution because it does not define when a certain damage reaches the threshold of significance.(145) Furthermore, Principle 21 will be insufficient to solve a dispute over an environmental harm that reaches a certain degree of complexity.(146) Therefore, Principle 21 does not constitute an "ideal normative yardstick."(147) To effectively diminish and prevent transboundary pollution, "more detailed rules have to be worked out and mechanisms for their implementation have to be created."(148) However, the principle of departure is certainly not void of any legal meaning, as it at least sets some ultimate limits beyond which a state causing transboundary pollution cannot cross.(149) Furthermore, the more egregious the external environmental effect, the less persuasive is the polluting state's invocation of its right to freely use its natural resources.(150)

Nonetheless, the Stockholm Conference succeeded in establishing the basic rules of international environmental law.(151) Soon after the Stockholm Conference, Principles 21 and 22 of the Stockholm Declaration were expressly adopted in U.N. General Assembly Resolution 2996 (XXVII).(152) The General Assembly recognized those principles as the basic rules governing the international responsibility of states with regard to the environment.(153) Principle 21 now reflects a general rule of customary international law.(154) The potential significance of Principle 21 in the environmental field has even been compared with the significance that the Universal Declaration on Human Rights has come to have with respect to human rights.(155)

C. Principle 2 of the Rio Declaration

In 1992, twenty years after the Stockholm Conference on the Human Environment, the United Nations convened the Conference on Environment and Development in Rio de Janeiro.(156) This conference produced the Rio Declaration on Environment and Development,(157) widely seen as a successor instrument to the earlier Stockholm Declaration.(158) The Rio Declaration, which is a statement of principles or goals,(159) reaffirmed Principle 21 of the Stockholm Declaration with one addition: Principle 2 of the Rio Declaration declares, while reaffirming the responsibility not to cause damage to the environment of other states or areas beyond the limits of national jurisdiction, that the states have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies."(160) This reference to developmental policies is a consequence of the "Rio paradok": The challenge to My and indissolubly integrat[e] environment and development because development and environment must be one."(161)

The addition of the phrase "and developmental" is interpreted in different ways. Some authors understand it as a purposeful shift ... in the direction of the development side of the environment/development debate."(162) A lost sense of urgency regarding environmental considerations flows from the entire Declaration's emphasis on equity, distributional justice, and the resolution of competing policy concern arising out of North-South tensions.(163) Others criticize Principle 2 as "turn[ing] the clock back from Stockholm" because "the right to a wholesome environment embodied in the Stockholm Declaration was abandoned in favor of a right to development."(164) The Conference thereby weakened the obligation not to cause transfrontier damage.(165) Moreover, some suggest that the addition of these two words reveals a "skillfully masked step backwards," which by its stronger emphasis on development, upsets the delicate balance struck in Stockholm between the sovereign use of natural resources and the duty of care for the environment."(166)

On the other hand, the inclusion of the developmental policies in the definition of a state's right to use its natural resources may also be seen as an extension of the scope of the obligation not to cause transfrontier damage.(167) This parallels the preserved responsibility not to cause damage outside a state's own territory.(168) Under this interpretation, not only national environmental policies, but also national development policies are subject to the duty not to cause transboundary pollution. This seems to be closer to the wording and aim of Principle 2-that sovereign rights and duties are two sides of the same coin and "cannot be analyzed separately."(169) Even if the Rio Declaration does not represent a bold advance, it still is an important step forward and a "careful and incremental improvement on the Stockholm Declaration."(170)

Thus, the principle that a state has an obligation not to cause significant transboundary environmental damage is accepted as a rule of international law. Both Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, while recognizing a state's sovereign right over its natural resources, reaffirm this obligation. However, the second part of Principle 21 does not reflect a new obligation on states' sovereign right to exploit domestic natural resources. Rather, as shown below, it has always been accepted that a limitation is inherently included in the notion of sovereignty.(171)

IV. Relationship Between the Two Principles

A. Permanent Sovereignty over Natural Resources Is an

Economic Concept

As shown above, the concept of permanent sovereignty over natural resources was originally articulated during the colonial period in response to the perception that inequitable and onerous arrangements had been imposed upon unwary and vulnerable governments.(172) Formerly colonized states invoked the concept to support the nationalization of foreign enterprises engaged in the exploitation of natural resources and to resolve the question of compensation.(173) Consequently, "discussions on the principle of permanent sovereignty over natural resources were marked by a sharpening conflict of interest between capital exporting and capital importing countries."(174)

Recognizing that the trend towards economic interdependence might have resulted in new forms of subordination and dependence,(175) developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development.(176) They argued that sovereignty over natural resources is an essential prerequisite for economic independence and development and therefore a cardinal component of state sovereignty.(177)

Thus, in order to safeguard their economic sovereignty, the developing countries extended the principle of non-intervention to the economic field by claiming the right to possess arid freely dispose of their natural resources.(178) Emerging from this "economical decolonization,"(179) the notion of permanent sovereignty over natural resources is aimed against the freedom of treaty and the principle pacta sunt servanda ("contracts (treaties) are to be kept).(180) The notion is "opposed to the structures of economic domination of the present international system ... and it aims to combat the egoism of a group of (developed) States."(181) Its essence is the promotion of national independence and economic self-determination.(182) These characteristics especially make the principle "initially acceptable."(183) Permanent sovereignty is an economic concept dealing with the economic rights of sovereign nations in their natural resources, with the goal to establish a new international economic order,(184) and may be called "economic sovereignty."(185)

The understanding of permanent sovereignty over natural resources as an economic concept is underlined by the fact that the U.N. study, The Status of Permanent Sovereignty over Natural Wealth and Resources,(186) deals only with questions concerning economic rights, concessions, and nationalization.(187) The content of the U.N. study shows that discussion regarding this principle focused, as does much of the relevant legal literature,(188) on economic aspects, on the relation between capital exporting and capital importing countries, and mainly on questions concerning foreign-owned properties, such as compensation.(189) Chapter One of the study analyzes national measures affecting the ownership or use of natural resources by foreign nationals or enterprises.190 Chapter Two addresses international agreements affecting the foreign exploitation of natural resources.(191) Chapter Three considers the responsibility of states in regard to the property and contracts of aliens.(192) Chapter Four discusses the status of permanent sovereignty over natural wealth and resources in newly independent states and in non-self-governing and trust territories.(193) Finally, Chapter Five gives a survey of economic data regarding the status of sovereignty over natural wealth and resources in various countries.(194)

With regard to interstate relations, permanent sovereignty over natural resources is a "legal expression of the economic aspect of political sovereignty of states."(195) It is an economic concept dealing with the question of economic rights over natural resources.(196) It emphasizes a state's domestic jurisdiction over the natural resources within its national boundaries, without exempting it from other rules or principles of international law.(197)

It can be concluded that the principle of permanent sovereignty over natural resources is essentially intended to deal only with economic questions. Thus, it does not interfere with duties and obligations under general international law. Most notably, there is no conflict with the obligation not to cause transboundary pollution.

B. Permanent Sovereignty over Natural Resources Is

Inherently Limited

The concept of permanent sovereignty over natural resources emerged as "a basic constituent of the right to self-determination"(198) as well as "an essential and inherent element of state sovereignty."(199) Because an element of sovereignty cannot give more rights and liberties than sovereignty itself, permanent sovereignty over natural resources -- as an element of both the right of self-determination and the right of state sovereignty -- is subject to the same limitations as these two basic principles.(200)

The principle of state sovereignty, as developed by its architects, is not absolute or without limits.(201) Jean Bodin, a main architect of the modern theory of state sovereignty, subjected sovereignty to the law of God and the law of nature.(202) Grotius rejected the "reason of state" principle,(203) subjected the totality of international relations to the rule of law,(204) and concluded that sovereignty is limited by natural law and positive international law.(205) Oppenheim noted that independence is not boundless liberty for a state to do what it likes without any restriction whatsoever.(206) The fact that a state is a member of the family of nations restricts its liberty to act with regard to other states because it is bound not to intervene in the affairs of other states.(207) Thus, Sovereignty does not mean unlimited freedom.(208)

Professor Ian Brownlie enumerates three corollaries to the principles of sovereignty and equality of states: 1) a state has prima facie exclusive jurisdiction over a territory and the permanent population living there; 2) a state has a duty of non-intervention in another state's area of exclusive jurisdiction; and 3) a state has further obligations, subject to "the dependence of obligations arising from customary law and treaties on the consent of the obligor."(209) The second corollary clearly indicates the duty of every state not to commit any act that constitutes a violation of another state's independence, or territory or personal supremacy -- a duty that is "correlative to the corresponding right possessed by the other State."(210)

The concept of sovereignty not only gives rights, but also includes the duty to respect the sovereignty of other states. Thus, the concept of sovereignty acts as an instrument to protect the weak from more powerful aggressors, thereby contributing to international order.(211) It is even suggested that sovereignty's most useful and prominent function is delineation and that it is a cardinal virtue of the concept to allocate not only authority, but also responsibility.(212) Thus, the sovereignty of the state itself limits a state's ability to infringe upon the sovereignty of another state.(213) The same can be said about the right of self-determination, which also must be respected by all states.(214) Thus, both the principle of sovereignty and the right of self-determination inherently assign not only rights, but also obligations.

Sovereignty includes a correlative duty to respect other states' territorial sovereignty and supremacy.(215) The duty to respect another state's territorial supremacy prohibits a state from violating the territorial supremacy of foreign states.(216) Territorial supremacy, like independence, may not give an unlimited freedom of action.(217) No state is allowed to change the natural conditions of its own territory if that change would harm the natural conditions of a neighboring state.(218) The duty to respect another state's territorial supremacy therefore prohibits a state from acting in violation of another state's territorial supremacy even if such actions normally would be within its competence.(219) Thus, even a state having exclusive use of a particular natural resource is obliged not to misuse or overuse that resource in a manner that would damage the environment of other states.(220) This principle of good neighborliness, which can be traced to the Roman law maxim of sic utere tuo ut alienum non laedas(221) (use your own property so as not to injure that of another), underlies the formulation of the International Court of Justice that the principle of sovereignty embodies "the obligation of every state not to allow its territory to be used for acts contrary to the rights of other states."(222)

This inherent limitation should be recognized as a factor limiting the permanent sovereignty over natural resources as well. Permanent sovereignty over natural resources generates a corresponding duty to recognize and respect other states' sovereignty over their natural resources(223) and it thus includes the duty to avoid actions which are contrary to the similar rights of other states.(224) Therefore, permanent sovereignty cannot be an absolute or boundless right.(225) Rather, it is a legal response created by the progress of international law to frame the necessary replacement of arrangements for the exploitation of natural resources which were adopted during colonization by more equitable arrangements.(226) Therefore, permanent sovereignty over natural resources not only gives to each state the right to use its natural resources in the interest of its development and of the well-being of its people,(227) it also requires observance of this right by all other states.(228) Thus, the principle of permanent sovereignty over natural resources is not only consistent with the obligation to avoid causing harm to the resources of other states, but this obligation is also an important element of the principle.

C. U.N. Resolutions and the Limitation of Permanent Sovereignty over

Natural Resources by Other Rules of International Law

The preceding subparts have shown that the principle of permanent sovereignty over natural resources is an economic concept that does not limit obligations established by the rules of general international law and that every sovereignty inherently includes a limitation. This subpart will examine several U.N. General Assembly Resolutions and show that those resolutions that establish or reaffirm the principle of permanent sovereignty over natural resources include specific formulations indicating that the principle is not an absolute concept but is limited by the duty to respect the interests of other states.

United Nations General Assembly Resolution 626 (VII),(229) one of the earliest resolutions on the subject,(230) recognizes that "the right of people freely to use and exploit their natural wealth and resources is inherent in their sovereignty," and includes a limiting duty on states "to refrain from acts, direct or indirect, designed to impede the exercise of the sovereignty of any State over its natural resources."(231) This formulation not only underlines the right of a state to exercise sovereignty over its natural resources, but also indicates that U& right inherently bears upon the correlative duty to respect the sovereignty of the other states over their natural resources.

Later, United Nations General Assembly Resolution 1515 (XV)(232) again declares that "the sovereign right of every State to dispose of its wealth and its natural resources should be respected in conformity with the rights and duties of States under international law."(233) It thereby explicitly links the rights emanating from this principle and the corresponding duties under general international law.

General Assembly Resolution 1803 (XVII), often considered a restatement of present-day customary international law,(234) clearly indicates that permanent sovereignty does not give an unlimited right.(235) Instead, it declares that "[t]he free and beneficial exercise of the sovereignty of peoples and nations over their national resources must be furthered by the mutual respect of States based on their sovereign equality"(236) and violation of the sovereignty over natural resources is "contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace."(237)

Even the Charter of Economic Rights and Duties of States, proclaimed by U.N. General Assembly Resolution 3281 (XXIX),(238) includes several limits to the principle of permanent sovereignty over natural resources. The Charter underscores the aim to protect, preserve, and enhance the environment.(239) It subjects economic, political, and other relations among states to the principles of sovereignty and territorial integrity.(240) Furthermore, it cars on states to use and exploit those natural resources shared by two or more countries in a manner that avoids damage to the legitimate interests of others.(241) Finally, it explicitly declares that all states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.(242) Thus, even this Charter, often criticized as favoring the interests of the developing countries,(243) includes in the principle of permanent sovereignty over natural resources the duty to respect the interests of other States and the obligation not to cause transboundary pollution.

This short overview of U.N. resolutions establishing and reaffirming the principle of permanent sovereignty over natural resources shows how these instruments refer to other rules of international law.(244) Permanent sovereignty over natural resources supports the domestic jurisdiction of states with regard to the natural resources within their boundaries, while not exempting it from the application of other rules or principles of international law.(245)

V. Conclusion

This Article commenced by positing whether a conflict exists between the principle of permanent sovereignty over natural resources and the obligation not to cause transboundary environmental damage. These two concepts, both accepted as basic rules of international law, seem to represent two fundamental objectives pulling in opposite directions. Despite that appearance, however, this Article has demonstrated that the two principles are not contradictory; in fact, the obligation to prevent transboundary environmental damage is inherently included in the idea of sovereignty.

The principle of permanent sovereignty is limited in three respects: First, the principle of permanent sovereignty over natural resources is an economic concept because it expressly deals with economic rights over natural resources. That economic character, however, limits the principle because it must yield to the duties and obligations established under general and, in particular, environmental, international law.

Second, permanent sovereignty over natural resources is based on the notion of sovereignty and the right of self-determination. Both principles inherently include a limitation to respect other states' rights to sovereignty and self-determination. Permanent sovereignty over natural resources includes the same limitation. One element of this limitation is the obligation not to cause transboundary environmental damage.

Finally, those United Nations General Assembly resolutions that establish or reaffirm the principle of permanent sovereignty over natural resources indicate that the principle is not an absolute concept. Rather, it is limited by the duty to respect the interests of other states.

Thus, neither the principle of permanent sovereignty over natural resources nor traditional principles of state sovereignty condition environmental rights and the obligation not to cause transboundary pollution. However, the obligation not to pollute across political borders inherently conditions and limits permanent sovereignty over natural resources. Every country not only has the right to permanent sovereignty over its natural resources, it also has the duty to recognize and respect the rights of other states. Implicit in such recognition is the corresponding duty not to act in any manner that would deny those rights or impair their exercise.(246) In other words: The principle of permanent sovereignty over natural resources requires each state to respect all other states in the use of their natural resources, which inherently includes the obligation not to cause transboundary pollution.

(1) Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928) (proclaiming that sovereignty is the "point of departure" for international relations and law); Ian Brownlie, Principles of Public International Law 287 (4th ed. 1990); Louis Henkin et al., International Law: Cases and Materials 93 (3d 3d. 1993); Georg Schwarzenberger & E.D. Brown, A Manual of International Law 35-36 (6th ed. 1976); Georg Schwarzenberger, International Law 44 (1945) (concluding that both the Permanent Court of Arbitration (Island of Palmas (U.S. v. Neth), 2 R.I.A.A. 829, 838-39 "Perm. Ct Arb. 1928)) and the Permanent Court of International Justice (Status of Eastern Carelia (Fin. v. Sov. Un.), 1923 P.C.I.J. (ser. A) No. 5, at 27-28 (July 23) (advisory opinion)) have regarded the independence of the sovereign state as one of the cornerstones of the existing system of international law); R.P. Anand, Sovereign Equality of States in International Law, 197 Recueil des Cours 9, 22, 49 (1986-II); Georges Andrassy, La souverainete et la societe des nations [Sovereignty and the Society of Nations], 61 Recueil des Cours 641, 657 (1937-III) (noting that sovereignty is an indispensable element in international law and referring to Immanuel Kant, who remarked that the idea of international law presupposes the individual existence of many neighboring states that are independent inter se); C. Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours 195, 237, 292 (1993-IV) (stating that sovereignty, qualified by the word "equal," "constitutes the basis from which the current international system began its historical course centuries ago").

But see Martti Koskenniemi, Sovereignty: Prolegomena to a Study of the Structure of International Law as Discourse, 4 Kansainoikeus Ius Gentium 71, 71-72, 106 (Nos. 1/2, 1987), reprinted in Henkin et al., supra, at 49 ("The idea of sovereignty is incoherent inasmuch as it expresses the State's subjective freedom as well as its objective submission to an international normative order."); Hans Kelsen, Das Problem der Souveranitat und die Theorie des Volkerrechts [The Problem of Sovereignty and thee Theory of Public International Law] 53 (1928) (arguing that international law is incompatible with the sovereignty of states).

It is beyond the scope of this Article to analyze the precise meaning of sovereignty and the ambiguity between sovereignty and international law.

(2) Henkin et al., supra note 1, at 18.

(3) Anand, supra note 1, at 49 (stating that "[s]overeignty creates international law").

(4) "[R]ules of law binding upon States . . . emanate from their own free will." S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7). There are of course cases where a rule becomes binding upon a state even if such state did not accept that rule. For example, the jus cogens norm or certain rules of customary law may emerge independently of a single state. Thus, the role of state consent in establishing rules of international law, depending on the sources, is limited Jonathan I. Charney, Universal International Law, 87 Am. J. Int'l L. 529, 534 (1993).

(5) Charney, supra note 4, at 530.

(6) Michael Ross Fowler & Julie Marie Bunck, Law, Power, and the Sovereign State 7 (1996). The concept of sovereignty, from the moment it was introduced into political science until today, has never had a universally agreed upon meaning. 1 L. Oppenheim, International Law 137 (4th ed. 1928). For a summary of the multiple meanings of sovereignty, see Fowler & Bunck, supra, at 4-8. For a historical overview of the meaning of sovereignty since the sixteenth century, see Oppenheim, supra, at 138-42.

(7) See infra Part IV.B.

(8) Martti Koskenniemi, From Apology to Utopia 192( 1989).

(9) Id. at 193.

(10) Brownlie , supra not 1, at 287.

(11) I Philippe Sands, Principles of International Environmental Law 186 (1995).

(12) Id.; Report of the United Nations Conference on the Human Environment, Principle 21, U.N. Doc. A/CONF.48/14 (1972), revised by U.N. Doc. A/CONF.48/14/Corr. 1 (1973), reprinted in 11 Int'l Legal Materials 1416, 1420 (1972) [hereinafter Stockholm Declaration].

(13) Kamal Hossain, Introduction to Permanent Sovereignty over Natural Resources in International Law at ix (Kamal Hossain & Subrata Roy Chowdhury eds., 1984); see also Milan Bulajic, Principles of International Development Law 283 (2d ed. 1992); International Law Ass'n, Report of the Sixtieth Conference, Montreal 197 (1982) [hereinafter ILA Montreal Report]. The notion of permanent sovereignty over natural resources is a "valid norm of international law." Gerhard Brehme, Souveranitat der jungen National-staaten uber Naturreichtumer [Sovereignty of the Young Nation-States over Natural Resources] 71, 266 (1967).

(14) Bulajic, supra note 13, at 82; Hossain, supra note 13, at x. For a historic overview of the evolution and development of the principle, see Subrata Roy Chowdhury, Permanent Sovereignty over Natural Resources, in Permanent Sovereignty over Natural Resources in International Law, supra note 13, at 1, 3-6.

(15) Bulajic, supra note 13, at 287 (quoting Aureliu Cristescu, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments para. 279, U.N. Doc. E/CN.4/Sub.2/404/Rev.1, U.N. Sales No. E.80.XIV.3 (1981)); see also Antony Anghie, "The Heart of My Home". Colonialism, Environmental Damage, and the Nauru Case, 34 Harv. Int'l L.J. 445, 472-75 (1993).

(16) ILA Montreal Report, supra note 13, at 196; Bulajic, supra note 13, at 82, 263, 284; Ian Brownlie, Legal Status of Natural Resources in International Law, 162 Recueil des Cours 245, 255 (1979-I).

(17) Bulajic, supra note 13, at 284. In one of its earlier resolutions on the subject, the General Assembly recognized that "the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty." G.A. Res. 626, U.N. GAOR, 7th Sess., 411th plen. mtg., Supp. No. 20, at 18, U.N. Doc. A/2361 (1952), reprinted in 4 United Nations Resolutions: General Assembly 106 (Dusan J. Djononvich ed., 1973).

(18) Hossain, supra note 13, at x.

(19) Id. at ix.

(20) Id.

(21) Two controversial issues confront a host state seeking to exercise its right to nationalize foreign property: 1) compensation and 2) dispute settlement mechanisms. Chowdhury, supra note 14, at 9.

(22) Bulajic, supra note 13, at 269. However, influenced by the dramatic decline of communism and the world-wide shortage of capital, the importance of these differences between capital importing and capital exporting nations and between the social ideologies of nations favoring state control and those favoring a free market system has greatly diminished. Henkin et al., supra note 1, at 725-26.

(23) Anghie, supra note 15, at 473.

(24) G.A. Res. 1803, U.N. GAOR, 17th Sess., 1194th plen. mtg., Supp. No. 17, at 15, U.N. Doc. A/5217 (1962), reprinted in 9 United Nations Resolutions: General Assembly 107-08 (Dusan J. Djonovich ed., 1974).

Earlier U.N. General Assembly Resolutions support Resolution 1803 (XVII). First, they indicate that under-developed countries have the right to determine how to use their natural resources and that they may utilize such resources in order to further their economic development G.A. Res. 523, U.N. GAOR, 6th Sess., 360th plen. mtg., Supp. No. 20, at 20, U.N. Doc. A/2119 (1952), reprinted in 5 United Nations Resolutions: General Assembly 186 (Dusan J. Djonovich ed., 1973). Second, they highlight that the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty. G.A, Res. 626, supra note 17, at 18. Finally, they make a link between the right of self-determination and permanent sovereignty over natural resources. G.A. Res. 837, U.N. GAOR, 9th Sess., 512th plen. mtg., Supp. No. 21, at 21, U.N. Doc. A/2890 (1954), reprinted in 5 United Nations Resolutions: General Assembly 137 (Dusan J. Djonovich ed., 1973); G.A. Res. 1314, U.N. GAOR, 13th Sess., 788th plen. mtg., Supp. no. 18, at 27, U.N. Doc. A/4090 (1958), reprinted in 7 United Nations Resolutions: General Assembly 121 (Dusan J. Djonovich ed., 1974).

(25) G.A. Res. 1803, supra note 24, at 15.

(26) Id.

(27) Hossain, supra note 13, at xiii.

(28) Id.

(29) Anghie, supra note 15, at 474.

(30) Id. For a summary of the arguments asserted by the newly-independent states and the foreign enterprises, see id. at 474-75.

(31) Djura Nincic, The Problem of Sovereign in the Charter and in the Practice of the United Nations 267 n. 11 (1970).

(32) See Anghie, supra note 15, at 473-74.

(33) Nincic, supra note 31, at 262.

(34) Id. at 268-69.

(35) Koskenniemi, supra note 8, at 433.

(36) Id.

(37) Id. Koskenniemi concludes, "it is little wonder that many have become skeptical as to the possibilities of a legal realization of the NEIO [New International Economic Order]," which is an aim of the principle of permanent sovereignty over natural resources. Id.

(38) Anghie, supra note 15, at 476.

(39) East Timor (Port. v. Austl.), 1995 I.C.J. 90 (June 30).

(40) Id. at 98.

(41) Id. at 95-97.

(42) Id. at 94-95.

(43) Id. at 98.

(44) Id. at 100.

(45) Id. at 101, 105-06 (following the well-established international law principle that the court can only exercise jurisdiction over a state with its consent).

(46) Id. at 197-99 (Weeramantry, J., dissenting); Id. at 264, 270 (Skubiszewski, J., dissenting).

(47) Id. at 204 (Weeramantry, J., dissenting); Id. at 264 (Skubiszewski, J., dissenting).

(48) Id. at 142, 221 (Weeramantry, J., dissenting) (referring to paragraph 29 of the judgment); Id. at 276 (Skubiszewski, J., dissenting) (stating that all members of the United Nations shall observe another state's right to permanent sovereignty over natural resources).

Erga Omnes rights ("the concern of all") are those rights that have such import that all states have a legal interest in their protection. Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

It is interesting to note that the full court did not mention the principle of permanent sovereignty over natural resources in its judgment, even though Portugal claimed that Australia violated East Timor's permanent sovereignty over its natural resources. However, according to Judge Weeramantry, the full court seemed to accept that the right of peoples to self-determination has an erga omnes character and that this right is one of the essential principles of contemporary international law. East Timor (Port. v. Austl.), 1995 I.C.J. 90, 142, 221 June 30) (Weeramantry, J., dissenting). Judge Weeramantry concluded from this formulation that the full court also accepted the erga omnes character of the right to permanent sovereignty over natural resources. Id. (Weeramantry, J., dissenting).

(49) Chowdhury, supra note 14, at 1.

(50) Ila Montreal Report, supra note 13, at 197.

(51) Bulajic, supra note 13, at 270, 284. A state can never lose the right to permanent sovereignty over its natural resources. Eduardo Jimenez de Arechaga, International Law in the Past Third of a Century, 159 Recueil des Cours 297 (1978 -- I); Chowdhury, supra note 14, at 38.

(52) Chowdhury, supra note 14, at 38. A norm has jus cogens status when that norm is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention on the Law of Treaties, May 23, 1969, art 53, 1155 U.N.T.S. 332, 8 I.L.M. 679, reprinted in 8 Int'l Legal Materials 679, 698-99 (1969).

(53) I. Seidl-Hohenveldern, International Economic Law: General Course on Public International Law, 198 Recueil des Cours 21, 58-59, 133 (1986 -- III).

(54) Id. at 58.

(55) See infra Part IV.B.

(56) Chowdhury, supra note 14, at 2 (listing the most important resolutions addressing the principle of permanent sovereignty over natural resources).

(57) Some General Assembly resolutions on permanent sovereignty over natural resources, while lacking a reference to international law, do cite to Resolution 1803 (XVII) in their preambles. Seidl-Hohenveldern, supra note 53, at 64-66. However, that citation does not create a duty to exercise permanent sovereignty in accordance with international law, but merely places the subsequent resolution in its historical context. Id. One may conclude from the lack of reference to other rules of international law that these resolutions do not contain the duty to exercise permanent sovereignty over natural resources in accordance with international law. See id. at 65.

(58) G.A. Res. 1803, supra note 24, at 15.

(59) G.A Res. 3281, U.N. GAOR, 29th Sess., 2315th plen. mtg., Supp. No. 31, at 50, U.N. Doc. A/9631 (1974), reprinted in 15 United Nations Resolutions: General Assembly 300 (Dusan J. Djonovich ed., 1984). Resolution 3281 (XXIX) is also known as the "Charter of Economic Rights and Duties of States." Seidl-Hohenveldern, supra note 53, at 50.

(60) However, even this resolution contains a limitation on the permanent sovereignty over natural resources. See infra Part IV.C.

(61) Seidl-Hohenveldern, supra note 53, at 50.

(62) G.A. Res. 1803, supra note 24, at 15.

(63) Id.

(64) Id. (paragraphs 1, 4, 8).

(65) Id. (paragraph 5).

(66) Id. (paragraph 7).

(67) Seidl-Hohenveldern, supra note 53, at 50.

(68) According to the notion of relative sovereignty, a state is said to be sovereign if its acts are not subject to any rules other than those of international law. Seidl-Hohenveldern, supra note 53, at 44.

(69) Chowdhury, supra note 14, at 3.

(70) Seidl-Hohenveldern, supra note 53, at 50; see also Brownlie, supra note 16, at 261 (explaining that the text of the resolution is more conservative than what those states wishing to promote the interests of hosts to foreign capital may have expected).

(71) G.A. Res. 3281, supra note 59, at 50.

(72) Id.

(73) Seidl-Hohenveldern, supra note 53, at 133.

(74) It is "a regrettable fact" that the General Assembly refused an amendment to Resolution 3281 (XXIX) that would have inserted a good faith clause into Article II. Seidl-Hohenveldern, supra note 53, at 51. However, in explaining their vote on this resolution, "a number of developing countries stated that they were willing to continue to respect international law rules on nationalization, in spite of the exclusion of any reference to `international law' in the relevant passage of the resolution." Id. at 133.

(75) Charney, supra note 4, at 543-44; see also Brownlie, supra note 16, at 260 noting that proceedings of the General Assembly are a vehicle for the formulation and expression of the practice of states in matters pertaining to international law, and thus, the proceedings and the resolutions themselves constitute evidence of the formation of rules of customary or general international law).

(76) Charney, supra note 4, at 544.

(77) Id.

(78) G.A. Res. 3281, supra note 59, at 50. Resolution 3281 (XXIX) passed with a majority of 120 votes in favor, 6 votes against, and 10 abstentions. Id.

(79) Bulajic, supra note 13, at 145 (noting that developing nations are the principal proponents of this argument).

(80) Charney, supra note 4, at 544-45.

(81) Reprinted in 17 Int'l Legal Materials 1, 28 (1978). The dispute arose in 1973 and 1974 when "Libya promulgated decrees purporting to nationalize all of the rights, interests, and property" of two international oil companies in Libya. Id. at 1 (introducing the facts of the case). The oil companies claimed such action violated the Deeds of Concession granted to them by Libya. Id. The Libyan government claimed that the U.N. resolutions on permanent sovereignty over natural wealth and resources confirmed its sovereign right to nationalize its natural resources. Id. at 21.

(82) Id. at 30.

(83) Id. at 28.

(84) Id.

(85) Id. at 29.

(86) Id.

(87) Id. at 30.

(88) Id.

(89) Bulajic, supra note 13, at 268. Although Resolution 1803 (XVII) was a compromise between developed and developing countries, it expressed the traditional consensus that international law is relevant to the protection of property. See Rudolf Dolzer, Eigentum, Enteignung und Entschadigung im geltenden Volkerrecht [Property, Expropriation, and Compensation in the Current Public International Law] 22, 303 (1985). The compromise character of Resolution 1803 (XVII) is doubtful. Instead, Resolution 1803 (XVII) reflects, particularly in the field of nationalization, the view of those developed states that successfully resisted the emerging doctrine of permanent sovereignty over natural resources as formulated by the developing world. See Brownlie, supra note 16, at 261-62; Anghie, supra note 15, at 476.

(90) Seidl-Hohenveldern, supra note 53, at 50. While Seidl-Hohenveldern rejects general attempts to bestow binding force on U.N. General Assembly resolutions, he does accept that "on rare occasions the content of a resolution may become binding as customary international law." Id. at 67. This would occur when a resolution demonstrate the establishment of opinio juris ("opinion of law") and when states show that they respect the principles embodied by the resolution as part of customary international law. Id.; see Black's Law Dictionary 853 (6th ed. 1990); see also Howard S. Schrader, Custom and General Principles as Sources of International Law in American Federal Courts, 82 Colum. L. Rev. 751, 755 (1982) (stating that opinio juris is the practice of a particular state when that state "believe[s] that its conduct is required by international law"). Resolution 1803 (XVII) apparently satisfies both conditions because Seidl-Hohenveldern accepts it as a restatement of present-day customary law. Seidl-Hohenveldern, supra note 53, at 50. Others disagree. They proclaim that Resolution 1803 (XVII) "cannot be regarded per se as declaratory of customary international law, nor can it be argued that it has gradually turned into a corpus of customary rules." Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal 100 (1995). However, Cassese admits that some of the general principles laid down in Resolution 1803 "have gradually led to the formation of corresponding legal rules or principles." Id. Finally, Judge Lagergren, for the Iran-United States Claims Tribunal, underlined that Resolution 1803 expresses international law. I.N.A. Corp. v. Islamic Republic of Iran (U.S. v. Iran), 8 Iran-U.S. Cl. Trib. Rep. 373, 386 (1985) (Lagergren, J., dissenting); see also Allahyar Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-U.S. Claims Tribunal 361 (1994). Additionally, Judge Allison, also for the Iran-United States Claims Tribunal, contended that Resolution 1803 (XVII) is declarative of customary international law. Ebrahimi v. Islamic Republic of Iran, Award No. 560-44/46/47-3, Iran-U.S. Cl. Trib. Rep. (Oct. 12, 1994) (Allison, J., concurring); see also Keith Highet & George Kahale III, International Decisions, 89 Am. J. Int'l Law 376, 386 (1995).

(91) Bulajic, supra note 13, at 145.

(92) Id.; see also Brownlie, supra note 16, at 268.

(93) Sands, supra note 11, at 25.

(94) Id.

(95) Id.

(96) Id.

(97) Id.

(98) Id.

(99) Id.

(100) Id. For an additional description of the development of international environmental law, see id. at 25-62.

(101) Id. at 191. (citing Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829, 839 (Perm. Ct. Arb. 1928).

(102) Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1911, 1965 (1941). The Trail Smelter case involved transboundary air pollution caused by sulphur dioxide fumes emmitted from a smelting plant in Canada. Id. at 1917. The air pollution caused damage in the United States. Id. The Arbitral Tribunal held Canada responsible for the damage, required indemnification, and directed the smelter plant to refrain from causing further damages. Id. at 1965-66.

(103) Id. at 1965.

(104) Henkin et al., supra note 1, at 1382. However, the principle cited was a priori applicable by virtue of the arbitral compromise between the United States and Canada. Sands, supra note 11, at 244. The case is probably of greater significance for its findings on the assessment and measure of the quantum of recoverable damage. Id.

(105) ILA Montreal Report, supra note 13, at 161; Sands, supra note 11, at 191. (106) ILA Montreal Report, supra note 13, at 161.

(107) Id.

(108) D.J. Harris, Cases and Materials on International Law 247 (4th ed. 1991).

(109) ILA Montreal Report, supra note 13, at 162 n.7.

(110) Georg Dahm et al., Band I/1 Volkerrecht [Public International Law] 445 (2d ed. 1989); ILA Moreal, supra note 13, at 162.

(111) ILA Montreal, Report, supra note 13, at 162; Dahm et al., supra note 110, at 445.

(112) Corfu Channel (U.K v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).

(113) Id. This decision concerned damage inflicted upon British ships passing through the Corfu Channel as a result of mines exploding in waters under Albania's jurisdiction. Id. at 10, 12-15. The court held Albania liable for failing to warn the British ships of the danger. Id. at 22-23.

(114) Affaire du Lac Lanoux [Lac Lanoux Arbitration] (Spain v. Fr.), 12 R.I.A.A. 281 (Nov. 16, 1957). The arbitration involved a French proposed diversion of an international river in order to construct a barrage to channel the water through a hydroelectric power plant. Id. The same amount of water would have been returned to the river at a point above the border between France and Spain. Id. Spain claimed that France was not allowed to execute the project without prior agreement of the two governments. Id. The Tribunal found that the rule that the states can use the hydroelectric power of international rivers only under condition that a preexisting agreement has been concluded between the states concerned cannot be established, neither under custom nor even less as a general principle of law. Id. at 308 ("La regle suivant laqueue les Etats ne peuvent utilizer la force hydraulique des cours d'eau internationaux qu'a la condition d'un accord prealable entre les Etats interesses ne peut etre etablie ni a titre de coutume, ni encore moins a titre de principle general du droit."). Therefore, France was not in breach of its obligation to take into account Spain's interests. Id. at 316-17.

(115) Affaire du Lac Lanoux, 12 R.I.A.A. at 316. France is entitled to exercise her rights, but she cannot ignore Spanish interests. Spain is entitled to require that her rights are respected and that her interests are taken into consideration. Id. ("La France peut user de ses droits, elle ne peut ignorer les interets espagnols. L'espagne peut exiger le respect de ses droits et la prise en consideration de ses interets."); see also Sands, supra note 11, at 192.

(116) Affaire du Lac Lanoux, 12 R.I.A.A. at 303. It could have been argued that the works would cause a definite pollution of the river Carol. Therefore, Spain could have invoked that her rights would be infringed. Id. ("On aurait pu soutenir que les travaux auraient pour consequence une pollution definitive des eaux du Carol. L'Espagne aurait alors pu pretendre qu'il etait porte atteinte ... a ses droits."). However, as Spain did not invoke a claim that her rights would be infringed because the proposed works would pollute the waters of the Carol, the tribunal did not decide that question. Id. It only suggested that Spain would have a right to prohibit transboundary pollution. Id.

(117) Sands, supra note 11, at 190.

(118) The general rule not to cause injury to another state by transfrontier pollution "is actually existing." ILA Montreal Report, supra note 13, at 2, 158-60.

(119) ILA Montreal Report, supra note 13, at 161.

(120) ILA Montreal Report, supra note 13, at 163. For a short list of example of state practice confirming this rule, see id. at 163-66.

(121) Stockholm Declaration, supra note 12, at 1, reprinted in 11 Int'l Legal Materials 1416 (1972).

(122) Sands, supra note 11, at 34 (citing Stockholm Declaration, supra note 116, at 2-65, reprinted in 11 Int'l Legal Materials 1416, 1416-69 (1972)).

(123) Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 Harv. Int'l L.J. 423, 423 (1973).

(124) Henkin et al., supra note 1, at 1375.

(125) Anghie, supra note 15, at 480.

(126) Sohn, supra note 123, at 426-27 (citing Report of the Preparatory Committee for the United Nations Conference on the Human Environment, at 27-32, U.N. Doc. A/CONF.48/PC/9 (1971)).

(127) Stockholm Declaration, supra note 12, at 1, reprinted in 11 Int'l Legal Materials 1416, 1416 (1972); see also Sohn, supra note 123, at 434.

(128) Sohn, supra note 123, at 515.

(129) Sands, supra note 11, at 187.

(130) Stockholm Declaration, supra note 12.

(131) Christopher D. Stone, The Gnat is Older Than Man 38-39 (1993).

(132) Anghie, supra note 15, at 473.

(133) Sohn, supra note 123, at 485-93 (providing an excellent overview of the negotiations leading up to the adopted formulation of Principle 21). The first part of Principle 21 was never questioned. Id.

(134) Seidl-Hohenveldern, supra note 53, at 135.

(135) Tomuschat, supra note 1, at 296; see also Ann Hooker, The International Law of Forests, 34 Nat. Resources J. 823, 839 (1994).

(136) Harris, supra note 108, at 243.

(137) Sohn, supra note 123, at 485-86.

(138) See Oscar Schachter, The Emergence of International Environmental Law, J. Int'l Affairs 457, 458 (1991) (concluding that the concerns of some governments, that emphasis on the environment would be used to limit their sovereignty, did not prevail).

(139) See generally Sohn, supra note 123, at 492 (discussing different proposals for Principle 21).

(140) Sohn, supra note 123, at 492 (stating that while Principle 21 "does not go as far as to assert that a state has unlimited sovereignty over its environment, it comes quite close to such an assertion").

(141) Sohn, supra note 123, at 490-92.

(142) Dahm et al, supra note 110, at 446.

(143) Schachter, supra note 138, at 463-64.

(144) Id.

(145) Seidl-Hohenveldern, supra note 53, at 135.

(146) Tomuschat, supra note 1, at 295.

(147) Id.

(148) Id. at 296.

(149) Id.

(150) Stone, supra note 131, at 50-51.

(151) Sohn, supra note 123, at 513.

(152) G.A. Res. 2996, U.N. GAOR, 27th Sess., 2112th plen. mtg., Supp. No. 30, at 42-43, U.N. Doc. A/8730 (1972), reprinted in 14 United Nations Resolutions: General Assembly 278-79 (Dusan J. Djonovich ed., 1978).

(153) Sands, supra note 11, at 193 (referring to U.N. General Assembly Resolution 2996).

(154) Sands, supra note 11, at 190, 194; Marc Pallemaerts, International Environmental Law from Stockholm to Rio: Back to the future?, in Greening International Law 5 (Philippe Sands ed, 1994).

(155) Harris, supra note 108, at 243.

(156) Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev. 1 (1992), reprinted in 31 lnt'l Legal Materials 874 (1992) [hereinafter Rio Declaration].

(157) Id.; see Henkin et al., supra note 1, at 1376.

(158) David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Fonward and One Back, or Vice Versa?, 29 Ga. L. Rev. 599, 599 (1995).

(159) Jeffry D. Kovar, A Short Guide to the Rio Declaration, 4 Colo. J. Int'l Envtl. L. & Pol'y 119, 119 (1993).

(160) Rio Declaration, supra note 156, reprinted in 31 Int'l Legal Materials 874, 876 (1992) (emphasis added); Sands, supra note 11, at 50.

(161) Ileana M. Porras, The Rio Declaration: A New Basis for International Cooperation, in Greening International Law Supra note 154, at 20, 21-22.

(162) Wirth, supra note 158, at 624.

(163) Id. at 650.

(164) Laksham Guruswamy, International Environmental Law: Boundaries, Landmarks and Realities, 10 Nat. Resources & Env't 43, 46 (1995).

(165) Id.; see also Pallemaerts, supra note 154, at 6 (stating that environmental policy obligations are now explicitly subordinated to the dictates of economic development policy).

(166) Pallemaerts, supra note 154, at 5. The Rio Declaration, however, is further criticized for its triumph of unrestrained anthropocentricity." Id. at 12; see also Porras, supra note 161, at 24.

(167) Sands, supra note 11, at 50.

(168) Id. at 50.

(169) Kovar, supra note 159, at 125.

(170) Id. at 139.

(171) See infra Part IV.B.

(172) See supra Part II.A-B.

(173) See supra Part II.A.

(174) Bulajic, supra note 13, at 269.

(175) Nincic, supra note 31, at 261.

(176) Id. at 267.

(177) Id. at 262.

(178) Id. at 270.

(179) Dolzer, supra note 89, at 25.

(180) Id. at 26.

(181) Koskenniemi, supra note 8, at 432.

(182) Id.

(183) Id.

(184) Mouri, supra note 90, at 359-60.

(185) However, some authors refuse to call permanent sovereignty over natural resources "economic sovereignty" because "the struggle against the power and control of foreign capital in developing nations is only one, but very important, part of the struggle for economic independence." Brehme Supra note 13, at 8, 8 n.9.

(186) U.N. Secretariat, U.N. Doc. A/AC.97/5(REV.2 (1962).

(187) Id. The study was established by the United Nations Secretariat in accordance with U.N. General Assembly Resolution 1314 (XIII), see supra note 24, and U.N. General Assembly Resolution 1720 (XVI), U.N. GAOR, 16th Sess., 1084th plen. mtg., Supp. No. 17, at 25, U.N. Doc. A/5100 (1961), reprinted in 8 United Nations Resolutions: General Assembly 256 (Dusan J. Djonovich ed., 1974).

(188) Bulajic, supra note 13, at 276.

(189) U.N. Secretariat, U.N. Doc. A/AC.97/5(REV.2 (1962).

(190) Id. at iii. This chapter focuses on the systems of concessions, leases, and licenses providing access for 1) the exploitation of natural resources; 2) the encouragement and control of entry of foreign capital; 3) measures relating to operations by foreign enterprises; 4) measures affecting the capital and profits of foreign companies exploiting natural resources; 5) measures of expropriation, nationalization, and other forms of taking; and 6) measures excluding foreign enterprises from certain sectors of the national economy. Id.

(191) Id. at v. This chapter focuses on rights and duties with regard to property and business activities of foreign nationals or their enterprises, treaty rights of states in foreign territory pertaining to natural resources, and multilateral agreements involving acceptance of restrictions on sovereign powers over certain natural resources with a view to the achievement of common economic ends. Id.

(192) Id. at vi.

(193) Id. at vii.

(194) Id. at x.

(195) Paul Peters et al., Permanent Sovereignty, Foreign Investment and State Practice, in Permanent Sovereignty over Natural Resources in International Law, supra note 13, at 88, 124; see ILA Montreal Report, supra note 13, at 97.

(196) ILA Montreal, supra note 13, at 197; Peters et al., supra note 195, at 124.

(197) ILA Montreal, supra note 13, at 197; Peters et al., supra note 195, at 124.

(198) Bulajic, supra note 13, at 82, 263, 284; see ILA Montreal Report, supra note 13, at 196; East Timor (Port. v. Austl.), 1995 I.C.J. 90, 193, 220 (June 30) (Weeramantry, J., dissenting); G.A. Res. 1314, supra note 24, at 106.

(199) Bulajic, supra note 13, at 284; see Nincic, supra note 31, at 262; G.A. Res. 626, supra note 17, at 18.

(200) Brehme, supra note 13, at 71, 266.

(201) Hooker, supra note 135, at 832. An absolutist conception of sovereignty "is inconsistent with a system of international law which is itself based on the principle of reciprocal rights and obligations." Anand, supra note 1, at 26, 48. "[I]f sovereignty means absolute independence, States are not sovereign." Id. Lauterpacht, referring to the judgments of the Permanent Court of International Justice in Interpretation of the Statute of the Memel Territory (U.K. v. Lith.), 1932 P.C.I.J. (ser. A/B) No. 49, at 313-14 (Aug. 11) and Lighthouses in Crete and Samos (Fr. v. Greece), 1937 P.C.I.J. (ser. A/B) No. 71, at 103 (Oct. 8), concludes "that sovereignty is not in the nature of an absolute and rigid category." Hersch Lauterpacht, The Development of International Law by the International Court 324 (1958).

Since its conception, the term "sovereignty" has been qualified by the word "equal," and "in their combination as sovereign equality the two elements have today become an inseparable unit" limiting sovereignty in interstate relationships. Tomuschat, supra note 1, at 237. An understanding of sovereignty as limited power would abolish international law. Dahm et al, supra note 110, at 215. "[I]nternational law controls sovereignty, in the sense that it sets a legal limit to a State's power." Anand, supra note 1, at 36. The growth of international law and organizations furthered the concept of an unlimited sovereignty, which makes it impossible to fully subordinate states to the law or control of any international authority. Humphrey Waldock, General Course on Public International Law, 106 Recueil Des Cours 5, 157, 159-60 (1962-II) (stating the subordination of states is "really untenable, since it is disproved by the facts of international regions to-day"). Further, international courts have "given full effect to rules of international law constituting restrictions upon sovereignty, even when these touch the most vital powers of the State." Id. at 159-60 (citing S.S. Wimbledon (Gr. Brit., Fr., Italy, Japan v. Ger.), 1923 P.C.I.J. (ser. A) No. 1, at 24-25 (Aug. 17) and Corfu Channel (U.K v. Alb.), 1949 I.C.J. 4 (Apr. 9)). "[A]s soon as there was more than one sovereign calling himself sovereign, the notion of sovereignty changed" and became limited. E.N. Van Kleffens, Sovereignty in International Law, 82 Recueil des Cours 5, 44, 127-28 (1953 -- I). Some reject the assumption of absolute sovereignty. Id.; Kelsen, supra note 1, at 43-44 (arguing that the notion that sovereignty negates all barriers on a state is nonsense because a state is not a power above the law).

The Permanent Court of International Justice declared that the "first and foremost restriction" imposed upon a state by international law is that in principle a state shall not exercise its power in the territory of another state. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7) (concluding from this formulation that other limitations on sovereignty, besides this "first and foremost restriction" have to exist).

(202) Hersch Lauterpacht, The Grotian tradition in International Law, 23 Brit. Y.B. Int'l L. 1 (1946); Van Kleffens, supra note 201, at 55 (citing Jean Bodin, Les six livres de la republique [The Six Books on the Republic] (Scientia Verlag reprint ed. 1961) (1576)).

(203) Lauterpacht supra note 202, at 30-35.

(204) Id. at 19-21.

(205) Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World 171 (1990).

(206) Oppenheim, supra note 6, at 252.

(207) Id. at 251.

(208) Anand, supra note 1, at 31.

(209) Brownlie, supra note 1, at 287.

(210) Oppenheim, supra note 6, at 251.

(211) Fowler & Bunck, supra note 6, at 142.

(212) Id. at 152.

(213) See Anand, supra note 1, at 27-28; Michel Virally, Panomma du droit international conterporain [Overview of Current International Law], 183 Recueil des Cours 9, 78 (1983 -- V).

(214) East Timor (Port v. Austl.), 1995 I.C.J. 90, 102 (June 30). Paragraph 29 of the judgment affirms that the right to self-determination has an erga omnes character. Id. Both dissenting opinions agree and conclude that all states have the duty to respect this right. Id. at 172-73, 193-204 (Weeramantry, J., dissenting); Id. at 179-82 (Skubiszewski, J., dissenting).

(215) Brownlie, supra note 1, at 289 (citing Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9) and U.N. Charter art. 2, para. 4).

(216) Oppenheim, supra note 6, at 255.

(217) Id. at 253-54.

(218) Id.

(219) Id. at 255.

(220) Hooker, supra note 135, at 823 (citing Evelyn Shirk, New Dimension in Ethics: Ethics and the Environment, 22 J. Value Inquiry 77 (1988)).

(221) Hooker, supra note 135, at 832 (quoting Marvin Soroos, The Evolution of Global Regulation of Atmospheric Pollution, 19 Pol'y Stud. J. 115 (1991) (quoting J. Schneider, The World Public Order of the Environment: Towards an International Ecological Law and Organization 142 (1979))).

(222) Sands, supra note 11, at 192 (quoting Corfu Channel (U.K. v. Alb.) 1949 I.C.J 4, 22 (Apr. 9)).

(223) East Timor (Port v. Austl.), 1995 I.C.J. 90, 221 (Weeramantry, J., dissenting); Id. at 264, 270 (Skubiszewski, J., dissenting).

(224) Id. at 204 (Weeramantry, J., dissenting).

(225) Hossain, supra note 13, at xi.

(226) Id.

(227) G.A. Res. 1803, supra note 24, at 15.

(228) Id.

(229) G.A. Res. 626, supra note 17, at 18.

(230) Chowdhury, supra note 14, at 1.

(231) G.A. Res. 626, supra note 17, at 18.

(232) G.A Res. 1515, U.N. GAOR, 15th Sess., 948th plen. mtg., Supp. No. 16, at 9, U.N. Doc. A/4648 (1960), reprinted in 8 United Nations Resolutions: General Assembly 134 (Dusan J. Djonovich ed., 1974).

(233) Id. (paragraph 5).

(234) See supra Part II.C.

(235) G.A. Res. 1803, supra note 24, at 15.

(236) Id. (paragraph 5).

(237) Id. (paragraph 7).

(238) G.A. Res. 3281, supra note 59, at 50.

(239) Id.

(240) Id.

(241) Id. It is interesting to note that Article 3, regarding shared resources, adopted on the initiative of Argentina met strong opposition from other Latin American countries. See Bulajic, supra note 13, at 137-38. For example, Brazil considered the free use and exploitation of its territorial natural resources to be an inherent-and unrestrictable right of a sovereign state. Id. Brazil argued that this right remains unalterable even in the case of natural resources that, by nature, are not static, but flow through the territory of more than one country. Id.

(242) G.A- Res. 3281, supra note 59, at 50.

(243) See supra notes 68-69 and accompanying text.

(244) It is sometimes suggested that citation of Resolution 1803 (XVII) in later resolutions no longer obligates states to use their permanent sovereignty over natural resources in accordance with international law. See Seidl-Hohenveldern, supra note 53, at 65. This refers only to the question of expropriation. As shown, later resolutions include a reference to the general international law, but they try to establish a state's right to expropriate and compensate according to the state's national law without obligating the state to follow other international rules. See supra notes 71-79 and accompanying text.

(245) ILA Montreal Report, supra note 13, at 197; Peters et al., supra note 195, at 124.

(246) East Timor (Port v. Austl.), 1995 I.C.J. 90, 221 (June 30) (Weeramantry, J., dissenting).