Exploring the Role of International Law in Sustainable Natural Resources Management for Development - Prof Marie-Claire Cordonier Segger

Professor Marie-Claire Cordonier Segger¹ is an Affiliated Fellow of the Centre, and Leverhulme Trust Visiting Professor in the University of Cambridge with the Bennett Institute for Public Policy, the Centre for Environment, Energy and Natural Resources Governance (C-EENRG) and other partners. She also serves as Senior Director of the Centre for International Sustainable Development Law (CISDL) in Montreal, Canada; Executive Secretary of the Climate Law and Governance Initiative (CLGI) with the United Nations Framework Convention on Climate Change (UNFCCC) in Bonn, Germany; and a Full Professor of International Law for the University of Waterloo in Waterloo, Canada. She is Law Fellow and Director of Studies for the LLM/MCL at Lucy Cavendish College, University of Cambridge; and laureate of the Justitia Fundamentum Regnorum Award (2016) and the Weeramantry International Justice Award (2020), among other distinctions.

By Prof MC Cordonier Segger & I Espa¹

Introduction

In recent years, international courts and tribunals have been called to consider serious questions concerning natural resources. In China – Rare Earths and China –Raw Materials, WTO adjudicators have, for instance, recognized Members’ right to design broad natural resources conservation programmes in a way that responds to their priorities in light of the principle of sustainable development and the principle of sovereignty over natural resources. The Human Rights Committee, in assessing the impacts of certain pesticides, has set out markers for emerging environmental obligations of States under the International Covenant for Civil and Political Rights (ICCPR), particularly in relation to the right to life.² The International Court of Justice’s decision to award compensation at a value that considers damage to a wetland in the context of the “ecosystem as a whole” in Certain Activities carried out by Nicaragua in the Border Area also recognizes the science underlying concern for transboundary natural resources.³

Such decisions illustrate how the sound stewardship of the increasingly degraded natural resources on which many depend, is becoming crucial matter of global, regional and transboundary concern. As our scientific knowledge advances and the complex interdependence of natural systems is better understood, and as efforts increase to promote global economic recovery from a devastating COVID-19 pandemic, the challenges for international law intensify. More coherent, effective and cooperative regimes for sustainable management of natural resources of global importance are needed. Tensions are rising as the impacts of mismanagement become more apparent, not just through depletion of crucial non-renewable resources, but also through increasingly unsustainable exploitation of otherwise renewable resources. Rising to these inter-linked challenges, new Guidelines on the Role of International Law in Sustainable Management of Natural Resources for Development (ILA Sustainable Natural Resources Guidelines) have been adopted by the International Law Association (ILA)’s 79th Biennial Conference. The ILA Sustainable Natural Resources Guidelines highlight the myriad rules and standards which now define, guide and direct State practice, and provide a roadmap for the progressive development of international law on the sustainable management of natural resources for development.⁴

Rights with Responsibilities – New developments in international law for sustainable natural resources management

With regards to global resources, international law has rapidly evolved in promotion of a more sustainable management of the atmosphere and the mitigation of anthropocentric climate change. Under the United Nations Framework Convention on Climate Change (UNFCCC), States have committed to stabilize the concentration of atmospheric greenhouse gases (GHGs) at a level that would prevent dangerous interference with the climatic system.⁵ Specifically, under the Paris Agreement, States have committed to hold temperature increases to well below 2ºC above pre-industrial levels, to pursue efforts to limit temperature increases to 1.5ºC above pre-industrial levels,⁶ and to put forward progressive Nationally Determined Contributions (NDCs) every five years to reflect their highest possible ambition⁷ in reducing GHGs. Achieving these targets requires redoubled efforts towards sustainable management of natural resources, including the conservation and enhancement of terrestrial, coastal and marine sinks and reservoirs of GHGs, which play a vital role in determining GHG concentrations in the atmosphere, and pose risks of releasing emissions on a significant scale when disturbed.⁸

International law also continues to pay great attention to biodiversity, providing frameworks for its protection and sustainable management in both global and transboundary regional contexts. In treaties such as the Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Flora and Fauna (CITES) and the Convention on the Conservation of Migratory Species of Wild Animals (CMS),⁹ States seek to conserve and sustainably use biological diversity and ecological systems, taking active regulatory and protective measures through national plans, programs, policies and international cooperation.¹⁰ Given that many species are highly migratory and cross regional boundaries,¹¹ in treaties such as the CMS,¹² States establish cooperative regimes to protect, conserve and manage migratory species that traverse their territories, through species-specific agreements for sustainable management at national and regional levels.¹³

With regards national natural resources of global importance, international law increasingly complements national instruments in promoting more sustainable natural resources management. By supporting but also shaping the regulations and institutions that States to introduce and/or maintain national laws, regulations and standards, international law holds the potential to support more cooperative co-management of key resources in an internationalized economy. As an illustration, instruments such as the Minamata Convention have focused on governing the risks entailed in the extraction and trade of minerals,¹⁴ pointing to an emerging principle whereby States shall reduce and eliminate the extraction and use of these minerals when it poses serious health and environmental threats (including in relation to GHG emissions). Similarly, a wide range of standards are increasingly focused on changing private sector practices, seeking to increase transparency, accountability and public participation by establishing inter alia mechanisms to ensure fiscal transparency, contain bribery, corruption and money laundering, combat tax avoidance and evasion, and require disclosure of climate risks. Regulations for the private sector may also prevent or mitigate human rights abuses, including violations of collective Indigenous rights in the context of extractive industry activities (especially in relation to conflict minerals).¹⁵

Science, Sustainability and the Law - Recent trends in natural resources treaty negotiation and dispute resolution processes

International legal instruments continue to evolve to meet today’s challenges in sustainable natural resources management. A positive trend is that sustainable natural resources management has gained prominence in a larger body of international law. On the one hand, this includes international human rights treaties and, on the other hand, international economic agreements and multilateral economic treaties. In both cases, important innovations have occurred through carefully crafted dispute resolution in international courts and tribunals.

With regards to human rights treaties, regional courts are increasingly called to consider claims at the nexus of human rights and natural resources.¹⁶ This has led to an extensive and evolutive interpretation of the scope of rights and duties related to the enjoyment of natural resources, including the right of Indigenous peoples to enjoy the natural resources in their traditional lands, as well as the right of both current and future generations to derive a benefit from the protection of nature and natural resources.¹⁷ Further, a number of quasi-judicial and other bodies have issued findings and decisions that are critical in entrenching the sustainable management of natural resources in organizational, as well as in international, regional and national legal practice. The World Bank Inspection Panel,¹⁸ Inter-American Development Bank Independent Consultation and Investigation Mechanism,¹⁹ Committee on the Elimination of Racial Discrimination,²⁰ Human Rights Committee,²¹ and multilateral environmental agreements’ enforcement mechanisms, such as those associated with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters²² and the North American Agreement on Environmental Cooperation,²³ to signal a few, have been asked to resolve claims relating to unsustainable natural resources exploitation, and have risen to the challenge.

International economic instruments also exhibit an increasing recognition of the links between international trade and investment rules, and the sustainable development of the world’s resources. Free trade agreements (FTAs) among States have begun to include more specialized provisions to protect the environment and natural resources and to promote sustainable development, such as climate finance mechanisms, the promotion of trade and investment in more sustainable products, services or technologies, disaster risk reduction collaboration, commitments to encourage subsidies for clean and renewable energy resources or organic agriculture, the inclusion of standard setting for low-carbon development, and the use of monitoring and assessment mechanisms to review the impacts of trade agreement implementation.²⁴

At the multilateral level, the World Trade Organization has attempted, for instance, to lower tariffs on environmental goods and services (EGS). The most significant developments, however, have emerged out of WTO dispute settlement system, which has been willing in certain circumstances to consider sustainable natural resources management concerns even in the context of restrictions on international trade, via natural resources conservation related exceptions. In US – Shrimps and US –Tuna Products (Article 21.5), for instance, WTO adjudicators clarified that Members can legitimately pursue conservation measures necessary for the conservation of both non-living and living exhaustible natural resources, even if such rules result in extraterritorial effects, if bona fide efforts have sought to include all trading partners in the regime. Similarly, international investment agreements (IIAs) have begun to include significant aspects of environmental protection and conservation, incorporating commitments to promote sustainable development and reaffirming State rights and duties to regulate in relation to sustainable development.²⁵ These trends may be reflected in decisions of the International Centre for Settlement of Investment Disputes, notably Chevron Corporation and Texaco Petroleum Corporation v Ecuador, relating to the ability of States to abrogate contracts relating to the exploitation of national oil resources, and Gauff (Tanzania) Ltd v United Republic of Tanzania, relating to contractual obligations of a State stemming from water and sewerage contracts with foreign entities.

Such developments can be supported by the growing willingness on the part of international courts and tribunals to recognize the need for sustainable management of natural resources in principle, as an aspect of sovereign State responsibilities that are increasingly justiciable across a variety of jurisdictions. This is reflected not only in the decisions of the International Court of Justice, but also the Permanent Court of Arbitration (e.g. Abey-Sudan, Iron Rhine) and the International Tribunal of the Law of the Sea (e.g. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area).

Conclusion

International law on natural resources management has been steadily evolving to better promote more sustainable use of natural resources at the global, regional and transboundary, and national levels, particularly with regards common concerns and common heritage of humankind. While innovative, inter-actional development of cooperative international regimes may hold real potential to support the seventeen global Sustainable Development Goals (SDGs), actual progress in achieving the 169 targets, and compliance with the international legal instruments that support them, still falls far short. International courts and tribunals are, on key occasions, offered the opportunity to strengthen the international system, building on the foundations laid by careful conservation science, and by the emerging rules of international law. New post-pandemic economic stimulus measures may represent “the global investment opportunity of a millennium” for sustainable development,²⁶ but more can and must be done to ensure a more sustainable recovery and re-opening of the world economy. Great progress is possible by States in implementing their treaty obligations, and by courts and tribunals in peacefully resolving international disputes, but also there is also an important role for the research and educational institutions. It is important not just to re-open the world economy, but to build back better or indeed, to ‘build forward’ – and for this, by advancing knowledge and respect for the ILA Sustainable Natural Resources Guidelines, we contribute an important strand in the tapestry of solving these crucial global challenges.