CHAPTER 5

Self-determination of peoples
and sovereignty over natural wealth
and resources
Nicolaas Schrijver*

In no case may a people be deprived of its to the right to development and discusses their contin-
means of subsistence.1 ued relevance in an interdependent world.

I. Introduction II. G
 enesis of sovereignty over
natural resources as a principle
This chapter addresses the interrelationship
between resource sovereignty, self-determination and of international law
the right to development, as defined in the Declara-
In the post-1945 period, permanent sovereignty
tion on the Right to Development. After discussing the
over natural resources emerged as a new principle of
genesis of sovereignty over natural resources as a
international law. Although its birth was far from easy,
principle of international law, reference will be made
its status in international law has now been clearly
to the development-related articles in the Charter of
affirmed in a variety of international legal instruments,
the United Nations and the evolution of the princi-
as well as by the International Court of Justice in its
ples of self-determination and resource sovereignty
Judgment of 19 December 2005 in the Case concern-
in the United Nations, devoting particular attention
ing armed activities on the territory of the Congo.2
to the General Assembly resolution 1803 (XVII) of
The principle has its roots in two main concerns of
14 December 1962 entitled “Permanent sovereignty
the United Nations, namely, economic development
over natural resources” (hereafter “Declaration on
of developing countries and self-determination of
Permanent Sovereignty over Natural Resources”)
colonized peoples. Since the early 1950s, newly
and the United Nations Declaration on the Rights of
independent States supported through this principle
Indigenous Peoples, adopted by the General Assem-
an effort to secure, for those peoples still living under
bly in 2007 and annexed to its resolution 61/295.
colonial rule, the benefits arising from the exploita-
The chapter concludes with an assessment of the per-
tion of natural resources. They also sought to provide
tinence of self-determination and resource sovereignty
these developing countries with a legal shield against
infringements of their economic sovereignty as a
* Member of the Senate of the Netherlands; Chair, Public International Law result of property rights or contractual rights claimed
and Academic Director, Grotius Centre for International Legal Studies, Leiden
University; Vice-Chair, United Nations Committee on Economic, Social and by other States (often the former colonial Powers) or
Cultural Rights; President, International Law Association; former member of
the United Nations high-level task force on the implementation of the right to
development. 2
 Armed Activities on the Territory of the Congo (Democratic Republic of the
1
 Common article 1, paragraph 2, of the International Covenants on Human Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168, paras. 243-
Rights. 246.
96 REALIZING THE RIGHT TO DEVELOPMENT | Understanding the right to development

foreign companies. Thus, the principle reflects the for the principle of equal rights and self-determina-
tension between classical principles, such as pacta tion of peoples” and Article 2, paragraph 1, recalls
sunt servanda (agreements have to be observed) and that the ”Organization is based on the principle of the
respect for acquired rights, on the one hand, and sovereign equality of all its Members”. In addition,
modern international law principles, such as self-de- Article 55 states, inter alia, that the United Nations
termination, the duty to cooperate for development shall promote “economic and social progress and
and the right to development, on the other. development” as well as respect for human rights and
fundamental freedoms “[w]ith a view to the creation
The principle of sovereignty over natural of conditions of stability and well-being … based on
resources embodies the right of States and peoples respect for the principle of equal rights and self-de-
to dispose freely of their natural resources. Over the termination of peoples”. Hence, Article 55 is the first
years the debate on resource sovereignty has both article in the Charter which makes explicit reference
broadened and deepened. It broadened by extend- to the objective of development. It is not the only one.
ing its scope to include natural wealth and marine
resources. It deepened by increasing the number of Specific provisions on non-self-governing terri­
resource-related rights, including those relating to for- tories in Article 73 include the obligation as “a sacred
eign investment, and subsequently—and obviously trust” of States with responsibilities for the administra-
more hesitantly—by identifying duties emanating from tion of non-self-governing territories to ensure “their
the principle.3 These duties include respect for the political, economic, social, and educational advance-
right to development of all peoples, including indig­ ment, their just treatment, and their protection against
enous peoples. In this way, and under the influence abuses” as well as “to develop self-government” for
of the right to self-determination and the right to devel- these peoples. Also, the Charter defines in Article 76
opment, the emphasis of the principle of sovereignty (b) as a basic objective of the trusteeship system “to
over natural resources gradually shifted from a pri- promote the political, economic, social, and educa-
marily rights-based principle to one based on duties tional advancement of the inhabitants of the trust ter-
as well, and with specific content. ritories, and their progressive development towards
self-government or independence”. It may well be
said that both these general references and specific
III. B
 uilding on the Charter of the provisions in the Charter lay the foundations for
United Nations the principle of permanent sovereignty over natural
resources as formulated in subsequent United Nations
Although the principle of sovereignty over natu­ resolutions on self-determination, economic develop-
ral resources may well be said to have its roots in ment of developing countries and the right to develop-
traditional principles of international law, such as sov- ment. Thus, development as an objective and self-de-
ereignty and territorial jurisdiction, its provenance lies termination as a principle were already included in
clearly in the Charter of the United Nations. The Char- the Charter. Only in subsequent decades and along
ter does not refer to it explicitly but contains several very different trajectories were both these concepts
general references to notions inherent to the principle upgraded into fully fledged rights.
of sovereignty over natural resources and specific
provisions concerning non-self-governing territories.
General references to principles such as the equal-
IV. E
 volution of the principles of self-
ity of States and non-intervention as well as self-de- determination and sovereignty
termination of peoples can be found throughout the over natural resources
Charter. For example, the second paragraph of the
Preamble reaffirms “faith … in the equal rights … of The principles of self-determination and sover-
nations large and small”, while the fourth paragraph eignty over natural resources have evolved along par-
allel lines and notably through normative resolutions
refers to the promotion of “social progress and better
originating from a variety of United Nations organs,
standards of life in larger freedom”. Furthermore, Arti-
including resolutions of the General Assembly, the
cle 1, paragraph 2, of the Charter includes among
Economic and Social Council, the former Commission
the purposes of the United Nations “[t]o develop
on Human Rights and the United Nations Conference
friendly relations among nations based on respect
on Trade and Development (UNCTAD). From the
3
 See N.J. Schrijver, Sovereignty over Natural Resources: Balancing Rights perspective of the right to development two specific
and Duties (Cambridge, United Kingdom, Cambridge University Press,
1997), chap. 10. phases in their evolution are of particular relevance:
 Self-determination of peoples and sovereignty over natural wealth and resources | PART TWO 97

firstly, in the 1950s, the debate on economic as well B. Economic development of developing
as political decolonization and, secondly, the contro- States
versy over developing countries’ economic progress
by means of the exercise of their sovereign rights over Building upon the work for the two International
natural resources. Covenants, the General Assembly, in resolution 1314
(XIII), set up a nine-member Commission on Perma-
nent Sovereignty over Natural Resources “to conduct
A. Economic as well as political a full survey of the status of this basic constituent of
decolonization the right to self-determination, with recommendations,
where necessary, for its strengthening”. The work of
The 1950s were characterized by two related
the Commission resulted in the adoption of the land-
struggles. The first was that of colonial peoples for
self-determination, including the right to political mark Declaration on Permanent Sovereignty over Nat-
self-determination and the right to dispose freely of ural Resources in General Assembly resolution 1803
their natural resources. The second was the struggle (XVII), reviewed in the next section.
of newly independent countries and other develop-
ing States, especially in Latin America, for economic V. D
 eclaration on Permanent
independence. In its resolution 523 (VI) on integrated
Sovereignty over Natural
economic development and commercial agreements
the General Assembly considered that “the under-­ Resources
developed countries have the right to determine freely
The Declaration comprises eight paragraphs,
the use of their natural resources and that they must
laying down the basic principles for the exercise of
utilize such resources in order to be in a better position
permanent sovereignty over natural resources with a
to further the realization of their plans of devel­opment
view to promoting development. Paragraph 1 attrib-
in accordance with their national interests, and to
utes the right to permanent sovereignty to both peo-
further the expansion of the world economy”. It also
ples and nations. It also asserts that this right “must
expressly considered that “commercial agreements
be exercised in the interest of their national develop-
shall not contain economic or political conditions
ment and of the well-being of the people of the State
violating the sovereign rights of the underdeveloped
concerned”. Paragraph 2 determines that the “explo-
countries, including the right to determine their own
ration, development and disposition” of such natural
plans for economic development”. Assembly resolu-
resources, “as well as the import of the foreign capital
tion 626 (VII), adopted upon the initiative of Uruguay,
required for these purposes, should be in conformity
recognized the right of each country “freely to use
with the rules and conditions which the peoples and
and exploit” its natural resources.4
nations freely consider to be necessary or desirable
with regard to the authorization, restriction or prohibi-
Meanwhile, the issue of free exploitation of natu-
tion of such activities”.
ral resources also entered the debates concerning the
formulation of human rights. In resolution 545 (VI),
Paragraphs 3 and 4 contain rules for the treat-
the General Assembly decided to include in the draft
ment of foreign investors. Paragraph 3 determines that
International Covenant(s) an article on the right of
when authorization is granted, the imported capital
peoples to political and economic self-determination.
and the earnings on it shall be governed by national
Upon a proposal by Chile submitted in 1952, com-
legislation and international law. It also lays down the
mon article 1 of both Covenants (finally adopted in
principle that the “profits derived must be shared in
1966) affirms, in paragraph 2, “All peoples may, for
the proportions freely agreed upon” with due care
their own ends, freely dispose of their natural wealth
for the State’s sovereignty over its natural resources.
and resources without prejudice to any obligations
Paragraph 4 deals with the hotly debated issue of
arising out of international economic cooperation,
nationalization, expropriation or requisition. Its text
based upon the principle of mutual benefit, and inter-
provides that public utility, security or national interest
national law. In no case may a people be deprived of
can serve as the grounds for such taking of property,
its own means of subsistence.”
subject to payment of “appropriate” compensation.
With regard to the settlement of disputes on compen-
sation, the paragraph recognizes the “exhaustion of
4
 See also J.N. Hyde, “Permanent sovereignty over natural wealth and re-
sources”, American Journal of International Law, vol. 50 (1956), pp. 854-
local remedies” rule, but provides for international
867. adjudication and arbitration upon agreement by the
98 REALIZING THE RIGHT TO DEVELOPMENT | Understanding the right to development

“Calvo doctrine”, advocated by the developing coun- the rights of indigenous peoples. It addresses their
tries, with the international minimum standard sup- rights to self-determination, non-discrimination, life
ported by the industrialized countries.5 and integrity, cultural identity and heritage, an edu-
cational system and health services, as well as the
Moreover, paragraph 5 of the Declaration rights to their lands and resources. It also provides for
reaffirms the importance of the sovereign equality of consultation and participation in decision-making in
States for the exercise of the principle of sovereignty resource management. At several places, the Declara-
over natural resources. Paragraph 6 stipulates that tion explicitly uses the term “self-determination”, espe-
international development cooperation must be aimed cially in article 3. However, the Declaration endorses
at furthering the “independent national development” only a limited form of self-government, which is cir-
of developing countries and must “be based upon cumscribed within the framework of the State rather
respect for their sovereignty over their natural wealth than a full political independence. Article 4 specifies
and resources”. Further, paragraph 7 determines that that the autonomy or self-government of indigenous
violation of the principle of permanent sovereignty peoples relates to “their internal and local affairs”
over natural resources “is contrary to the spirit and and the final provision in article 46 (1) stipulates that
principles of the Charter of the United Nations and “[n]othing in this Declaration may be … construed as
hinders the development of international coopera- authorizing or encouraging any action which would
tion and the maintenance of peace”. Similarly, the dismember or impair, totally or in part, the territorial
last principle in the Declaration, enshrined in para- integrity or political unity of sovereign and independ-
graph 8, stipulates that foreign investment agreements ent States”.
shall be observed in good faith and that States and
international organizations shall respect the principle Unfortunately, the Declaration does not contain
of permanent sovereignty over natural resources “in a definition of indigenous peoples. Equally striking is
accordance with the Charter and the principles set that the Declaration refers merely once to the concept
forth in the present resolution”. of “sustainable development”, which by the time of the
adoption of the Declaration in 2007 featured highly
The Declaration on Permanent Sovereignty
on all natural resource-related agendas. ­Nevertheless,
over Natural Resources was adopted by 87 votes
in many respects the Declaration is quite a far-reach-
in favour to 2 against (France and South Africa),
ing and ambitious document relating to the right to
with 12 abstentions. It is now widely considered as
development of indigenous peoples.
embodying a proper balance between the interests of
capital-­exporting and capital-importing countries and
In various provisions, the Declaration touches
between permanent sovereignty of developing States
upon the economic rights of indigenous peoples
and the international legal duties of States. Many
and their entitlement to their lands, territories and
political leaders and authors view it as an instrument
resources. For example, article 26 provides that
for development and as the economic equivalent of
“[i]ndigenous peoples have the right to the lands, ter-
the Declaration on the Granting of Independence to
ritories and resources which they have traditionally
All Colonial Countries and Territories in Accordance
owned, occupied or otherwise used or acquired” and
with the Charter of the United Nations.6
imposes an obligation upon States to “give legal rec-
ognition and protection to these lands, territories and
VI. T
 he United Nations Declaration resources. Such recognition shall be conducted with
on the Rights of Indigenous due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned”. The
Peoples previous article 25 determines that indigenous peo-
Following protracted negotiations over many ples should be able to uphold their responsibilities
years, the General Assembly adopted at last the to future generations in this regard. In a formulation
United Nations Declaration on Indigenous Peoples reminiscent of the above-quoted phrase in common
in 2007. This 46-article Declaration deals in a com- article 1 of the two International Covenants on Human
prehensive way with the identity, the position and Rights, it is provided in article 10 that indigenous peo-
ples deprived of their means of subsistence are enti-
5
 See D.R. Shea, The Calvo Clause: A Problem of Inter-American and Inter-
national Law and Diplomacy (Minneapolis, University of Minnesota Press, tled to just and fair redress. Article 10 stipulates that
1955).
6
 General Assembly resolution 1514 (XV), adopted by 89 votes in favour to
“[i]ndigenous peoples shall not be forcibly removed
none, with 9 abstentions. from their lands or territories. No relocation shall
 Self-determination of peoples and sovereignty over natural wealth and resources | PART TWO 99

take place without the free, prior and informed con- inextricably linked to the right to enjoy their culture
sent of the indigenous peoples concerned and after and to preserve their identity and natural environment.
agreement on just and fair compensation and, where Such rights take shape in particular through participa-
possible, with the option of return”. In a similar vein, tory rights rather than through sovereign rights. This
article 28 adds: “Indigenous peoples have the right to finding has been confirmed and elaborated in various
redress, by means that can include restitution or, when later decisions by the Inter-American Commission and
that is not possible, just, fair and equitable compen- Court, including in cases of the Moiwana Community
sation, for the lands, territories and resources which v. Suriname (2005) and the Saramaka People v. Suri-
they have traditionally owned or otherwise occupied name (2007). In the latter judgement, the Inter-Ameri-
or used, and which have been confiscated, taken, can Court of Human Rights concluded that article 21
occupied, used or damaged without their free, prior of the American Convention, interpreted in the light
and informed consent.” While these rights are cer- of the rights recognized under common article 1 of
tainly far-reaching, it should be noted that none of the two International Covenants and article 27 of the
these provisions vests indigenous peoples expressis International Covenant on Civil and Political Rights on
verbis with permanent sovereignty over their natural the rights of persons belonging to minorities, grants
wealth and resources or entails exclusive rights for to the members of the Saramaka community the right
indigenous peoples over the natural resources within to enjoy property in accordance with their communal
their territories. Rather, they vest indigenous peoples tradition.9 The Court also concluded that “Article 21
with clear-cut rights to consultation in decision-making of the Convention should not be interpreted in a way
and to benefit-sharing. This interpretation is confirmed that prevents the State from granting a type of conces-
by article 32 of the Declaration, which lays down an sion for the exploration and extraction of the natural
obligation for States to consult and cooperate in good resources within the Saramaka territory”.10 Rather, the
faith with the indigenous peoples concerned before State must observe safeguards and ensure effective
engaging in any project affecting their lands and ter- participation and reasonable benefit in order to pre-
ritories and other resources, particularly in connection serve the rights of the Saramaka people. The Court
with the development, utilization or exploitation of concluded that Suriname had not complied with these
mineral, water or other resources. These guarantees safeguards and thus had violated article 21 of the
go hand in hand with article 2 (3) of the Declaration Convention, in conjunction with common article 1 of
on the Right to Development, which calls for active, the International Covenants, to the detriment of the
free and meaningful participation in development as Saramaka people.11 Therefore, the Court ordered
well as the fair distribution of the benefits resulting in particular that the “State shall adopt legislative,
therefrom. administrative and other measures necessary to rec-
ognize and ensure the right of the Saramaka people
Such interpretation is also confirmed in decisions to be effectively consulted, in accordance with their
of some important regional human rights bodies.7 In traditions and customs, or when necessary, the right
the Mayagna (Sumo) Awas Tingni Community v. Nica- to give or withhold their free, informed and prior
ragua case, the Inter-American Court of Human Rights consent, with regards to development or investment
interpreted the notion of property to include indige- proj­ects that may affect their territory, and to reason-
nous peoples’ communal land tenure.8 However, the ably share the benefits of such the members of the
Court did not use the concept of the sovereign right Saramaka people, should these be ultimately be car-
to control and exploit natural resources. Instead, in ried out”.12
relation to the granting of concessions to third par-
ties, it referred in a general sense to article 21 (2) of In a similar vein, the African Commission on
the American Convention on Human Rights relating Human and Peoples’ Rights appealed in 2001 to
to the right to property protection and to international the Government of Nigeria to ensure better protec-
human rights law. Under international human rights tion of the human rights of the Ogoni people, in par-
law, the rights of indigenous peoples with regard to ticular to their environment, health, land and natural
their traditional lands and the natural resources are resources.13 The Commission did not link this with the
9
  Inter-American Court of Human Rights, Saramaka People v. Suriname
7
 See the Final Report of the Committee on International Law on Sustainable (judgement of 28 November 2007), para. 95.
Development of the International Law Association, June 2012, available at 10
 Ibid., para. 126.
[Link] and to be published in Proceedings of the 75th Conference 11
 Ibid., para. 158.
of the International Law Association held in Sofia 2012 (forthcoming in 12
 Ibid., para. 214 (8).
2013). 13
 African Commission on Human and Peoples’ Rights, The Social and Eco-
8
 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Com- nomic Rights Action Center and the Center for Economic and Social Rights
munity v. Nicaragua, judgement of 31 August 2001. v. Nigeria, communication No. 155/96, 2001.
100 REALIZING THE RIGHT TO DEVELOPMENT | Understanding the right to development

people’s right to permanent sovereignty over natural “land grabbing”, which relates to increasing, large-
resources or the people’s right to development as scale acquisitions and leases of land, accelerated
recorded in articles 21 and 22, respectively, of the after the 2008 global food crisis and was a major
African Charter.14 However, eight years later the Afri- concern for the enjoyment of these resource-related
can Commission in a somewhat similar case directly rights. There are cases of land being leased at very
applied the right to development for the first time. In low prices, sold below market prices, or given away
the Centre for Minority Rights Development (Kenya) in exchange for promises of employment creation or
and Minority Rights Group International on behalf transfer of technology.18 In order to correct these fail-
of Endorois Welfare Council v. Kenya,15 the African ures, the Special Rapporteur has called for leases or
Commission on Human and Peoples’ Rights found a purchases to be fully transparent and participatory
violation of the right to development, recognizing the and the revenues to be used for the benefit of the local
African Convention’s endorsement of peoples’ rights population, as provided for by both the Declaration
and noting that: on Permanent Sovereignty over Natural Resources
and the Declaration on the Right to Development.19
the right to development is a two-pronged test, that it is both Consequently, ensuring participation and fair distri-
constitutive and instrumental, or useful as both a means and
an end. A violation of either the procedural or substantive bution of revenues demands a positive and respon-
element constitutes a violation of the right to development. sible exercise of sovereignty by States. Such policies
Fulfilling only one of the two prongs will not satisfy the right would entail establishing an appropriate institutional
to development. The African Commission notes the Com-
plainants’ arguments that recognising the right to develop-
framework to ensure benefit to all involved parties, in
ment requires fulfilling five main criteria: it must be equitable, particular because participation has been identified
non-discriminatory, participatory, accountable, and trans- as key to ensuring long-term sustainability and the suc-
parent, with equity and choice as important, over-arching
cess of investments.20 Conceived in such terms, large-
themes in the right to development.16
scale investments in farmland have the potential to
benefit all parties. When the recipient State is unable
Of particular significance was indeed participa-
or unwilling to discharge human rights obligations,
tion, which for the African Commission was not simply
there ought to be a complementary responsibility of
consultation within the democratic decision-making
the home State of the investor to address this matter
process in Kenya—itself important—but, in regard to
and to promote respect for such obligations.21
development projects, must include “obtain[ing] [the
Endorois’] free, prior, and informed consent, accord-
ing to their customs and traditions”.17 It is notable that VII. Final observations and conclusions
so far at least one semi-judicial body has applied the
right to development as enshrined in article 22 of the Rather soon after the creation of the United
African Charter on Human and Peoples’ Rights and Nations, both self-determination of peoples and
subjected it to judicial consideration. resource sovereignty came to be viewed as impor-
tant dimensions of the decolonization process. They
Furthermore, concrete examples of the perti- also feature prominently in debates on the causes
nence of a people-centred approach premised on the of underdevelopment and the conditions for devel-
right to development abound in the practice of the opment. Therefore, both principles were considered
United Nations. For example, the Special Rapporteur to be primary development instruments. For a long
on the right to food, Olivier De Schutter, stressed in his
report to the General Assembly in 2010 (A/65/281) 18
 Ibid., para. 31. See also T. Kachika, Land Grabbing in Africa: A Review
the link between sovereignty over natural resources of the Impacts and the Possible Policy Responses (Oxfam International,
2010); FoodFirst Information and Action Network (FIAN) International,
and access to land. In this context he refers to indige- Land Grabbing in Kenya and Mozambique–A Report on Two Research
nous peoples, smallholders cultivating land and herd- Missions: and a Human Rights Analysis of Land Grabbing (Heidelberg,
2010); The Oakland Institute, Understanding Land Investment Deals in
ers, pastoralists and fisherfolk. Moreover, the Special Africa: Country Report: Sierra Leone (Oakland, California, 2010); The
Rapporteur, in his report to the Human Rights Coun- Oakland Institute, Understanding Land Investment Deals in Africa: Country
Report: Mali (Oakland, California, 2010); The Oakland Institute, Under-
cil in 2009 (A/HRC/13/33/Add.2), had noted that standing Land Investment Deals in Africa: Country Report: Ethiopia (Oak-
land, California, 2010); Oxfam, Land and Power: The Growing Scandal
14
 Article 21 of the African Charter on Human and Peoples’ Rights reads Surrounding the New Wave of Investments in Land, Oxfam Briefing Paper
in part: “1. All peoples shall freely dispose of their wealth and natural 151 (September 2011).
resources. This right shall be exercised in the exclusive interest of the peo- 19
 A/HRC/13/33/Add.2, para. 32.
ple. In no case shall a people be deprived of it.“2. In case of spoliation 20
 Lorenzo Cotula and others, Land Grab or Development Opportunity?: Ag-
the dispossessed people shall have the right to the lawful recovery of its ricultural Investments and International Land Deals in Africa (London and
property as well as to an adequate compensation.” Rome, International Institute for Environment and Development, Food and
15
 Communication No. 276/2003. Agriculture Organization of the United Nations and International Fund for
16
 Ibid, para. 277. Agricultural Development, 2009), p. 104.
17
 Ibid, para. 291. 21
 A/HRC/13/33/Add.2, para. 33.
 Self-determination of peoples and sovereignty over natural wealth and resources | PART TWO 101

time, the discourse on self-determination of peoples (e) Due care should be paid to the environ-
and sovereignty over natural wealth and resources ment without compromising the rights of
has tended to focus on the formulation of rights of future generations;
non-self-governing peoples and newly independent
States. Developing countries, assembled in the Group (f) States should cooperate for worldwide sus-
of Seventy-Seven (G77), attempted to broaden and tainable development.
strengthen their rights. They sought to “broaden” them
by claiming sovereignty over marine resources in sub- Among the legal instruments cited, the Decla-
stantially extended sea areas and all resource-related ration on the Right to Development stands out as it
activities, including processing, marketing, and distri- vests the right to development in both “every human
bution of raw materials. Most Western States strongly person” and “all peoples”. The Declaration recalls
opposed these extensions. In addition, the G77 sought in particular the right of peoples to exercise “sover-
to “strengthen” resource sovereignty by claiming as eignty over their natural wealth and resources”. As
many rights as possible, including the right to share in discussed above, this resource sovereignty is the eco-
the administration and profits of foreign companies, nomic dimension of the right to self-determination as
the right to terminate concession agreements from the it evolved in the 1950s. The political dimension of
past and to determine freely the amount of “possible” self-determination is also reflected in the Declaration,
compensation in the event of nationalizations, and the which stipulates in article 1 (1) that “all peoples are
right to settle investment disputes solely upon the basis entitled to participate in, contribute to, and enjoy eco-
of national law and by national remedies. nomic, social, cultural and political development”.
These clauses, and the contemporary content of the
At different points in time controversy escalated, principles of economic and political self-determination
especially during the call for a New International Eco- and resource sovereignty, show their interrelatedness
nomic Order in the 1970s. However, some of the rough to the right to development, if not their symbiotic inter-
edges were removed and a spirit of compromise and action.
cooperation became possible again, as evidenced
One may wonder, however, whether the princi-
by such landmark documents as the Declaration on
ples of self-determination of peoples and resource sov-
Permanent Sovereignty over Natural Resources, the
ereignty of States have not lost much of their relevance
Declaration of the United Nations Conference on the
in this era of increasing qualifications with respect to
Human Environment adopted in Stockholm in 1972,
State sovereignty as embodied in human rights law,
the United Nations Convention on the Law of the Sea
Security Council resolutions on peace and security
of 1982, the Declaration on the Right to Development,
and international environmental law, and in an age
the Rio Declaration on Environment and Development
of globalization and multilateral consultation and
of 1992 and the Johannesburg Declaration on Sus-
cooperation. However, they clearly remain relevant
tainable Development of 2002. Progressively, there
if one interprets them dynamically, using the analysis
emerged a consensus to balance rights and duties in
proposed in this chapter for a people-centred norma-
the following six principles, which capture the essence
tive approach to a responsible exercise of sovereignty
of resource sovereignty:
over natural resources.
(a) Natural resources should be employed for
national development and the well-being of Nearly all peoples, if not all of them, are still
the people; very much attached to their self-determination.
­Furthermore, in a world with a low level of interna-
(b) The rights of indigenous peoples to their
tional integration, States are still the prime layer of
habitat and its natural resources should be
international administration and have the primary
protected;
respon­sibility for realizing the right to development
(c) Natural resources should be properly and of their citizens. These principles no longer serve
prudently managed, based upon the princi- merely as the source of each people’s freedom and
ple of sustainable use; every State’s freedom to benefit from their natural
resources, but also as the source of corresponding
(d) Nationalization and marine resource-re- responsibilities requiring careful resource manage-
lated policies should be implemented “in ment and imposing accountability at the national
accordance with international law”; and international levels in an effort to contain and
102 REALIZING THE RIGHT TO DEVELOPMENT | Understanding the right to development

resolve, if not prevent, resource-extraction conflicts.22 principles of self-­determination of peoples and sov-
The challenge is how to inject these established ereignty over natural wealth and resources into the
basic tenets of the right to development and in this
 See chapter 5, “Natural resources and armed conflict”, in N.J. Schrijver,
22
way best serve the interests of present and future
Development Without Destruction: The UN and Global Resource Man-
agement (Bloomington and Indianapolis, Indiana University Press, 2010). generations of humankind.