Global Governance of Oil and Gas Resources in the International Legal Perspective. Joanna Osiejewicz
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law, states have the sovereign right to exploit their resources in accordance with their own environmental policy and are responsible for ensuring that the activities under their jurisdiction do not adversely affect the natural environment of third countries nor areas outside national jurisdiction.262
International and arbitration case law has so far mainly focused on the obligation of states to prevent significant damage to the environment of third countries. Representative of this subject is the arbitration award in the case of Trail Smelter (1941)263 and the ICJ ruling on nuclear tests in the South Pacific (Australia/New Zealand v. France, 1974264 and New Zealand v. France, 1995265).
3.4.1 The duty to cooperate internationally for development
Resolution 523 (VI)266 recognizes that developed countries must use natural resources for the further development of the global economy. This wording can be interpreted as an expression of the duty of cooperation for international development. In the regulations on permanent sovereignty contained in the Charter of Economic Rights and Duties of States,267 as well as in the Resolution on the Establishment of a New International Economic Order,268 such a requirement does not exist, but there are many references to general goals such as sustainable growth of the global economy, balanced international trade, and economic cooperation between countries.269
As far as the multilateral treaties are concerned, only general references to the duty to cooperate can be found, although none of them is directly related to permanent sovereignty over natural resources. The most important of them is of course the United Nations Charter,270 especially Chapter IX on international economic and social cooperation.271
The preamble of the General Agreement on Customs and Trade (GATT)272 states that international relations in the field of trade and economic ventures should aim to raise the standard of living, make full use of the world’s resources, and develop production and exchange of goods. The WTO (1994) Statute273 incorporates a modified formula for this objective, calling for the optimal use of global resources in line with the objectives of sustainable development, with the aim of protecting and conserving the environment, as well as increasing funds for this purpose in a manner consistent with the needs appearing at the various levels of economic development.
The Energy Charter Treaty aims to promote long-term cooperation in the field of energy by supporting the exploration and development of energy resources on a commercial and non-discriminatory basis. Facilitating access to these resources and securing the supply of oil and gas are the main motives driving this cooperation.274
The United Nations Convention on the Law of the Sea indicates as its general objective the establishment of legal orders for the seas and oceans, which will promote the fair and effective use of resources, both inside and outside the boundaries of national economic jurisdiction.275
The Seoul Declaration establishes the goal that states-parties and the international organizations involved should be guided by in their actions, but it does not impose on them unambiguous obligations. The duty to cooperate in international economic relations implies a gradual development of this goal in the context of the growing economic interdependence between states. In particular, it should lead to enhanced cooperation in the field of international trade, international monetary and financial relations, transnational investments, technology transfer, regulation of transnational corporation activities and transnational restrictive trade practices, the supply of food, energy and raw materials, international environmental protection, development rights, and coordination of various activities with a view to the coherent implementation of new international economic governance.276 Cooperation for global development has been formulated as an incentive rather than an obligation, which makes it difficult to determine whether and, if so, which specific international obligations in the use of natural resources result from such a duty to cooperate.277
It is worth noting that the resolutions regarding permanent sovereignty do not explicitly call on states to exercise permanent sovereignty or to use and expend their natural resources to support the development of other developing countries. Because all countries – both industrialized and developing – have the right to permanent sovereignty, it can be considered whether the general duty to cooperate in the development of developing countries should not imply a specific obligation of the state in the use, exploitation, or sharing of natural resources for the purpose of promoting the development of developing countries. Such obligations can be found in Articles 69 and 70 of the 1982 UN Convention on the Law of the Sea, which, under certain conditions, provide for the sharing of living resources in the exclusive economic zones of coastal states with their neighbouring inland countries or other developing countries with different disadvantageous geographical locations. However, the fulfillment of this obligation depends on the way in which coastal states will interpret it.278 Nevertheless, the Convention on the Law of the Sea has identified this share of resources as the entitlement of the geographically disadvantaged inland states, which consequently entails a legal obligation on the part of the coastal states. The coastal states are also required to pay fees for the exploitation of the inanimate resources of their continental shelf beyond the 200 nautical mile zone, collected by the International Seabed Authority.279 The ISA distributes the collected fees to the states-parties to the Convention on the basis of fair criteria, taking into account the interests and needs of developing countries, especially the least developed and inland ones. Although modern international law presupposes that states have a duty to cooperate on development, of the developing countries in particular, there is no indication that this general obligation will be transferred to a higher level, as regards the obligation for states to exercise their right to permanent sovereignty.280
3.4.2 The right to a fair share of the benefits of cross-border natural resources
The Charter of Economic Rights and Duties of States,281 as one of the few UN resolutions, concerns the concept of common natural resources. Article 3 states that when natural resources are being used jointly by two or more states, each state should cooperate on the basis of an information system and prior consultation in order to achieve optimal use of these resources, without harming the legitimate interests of other entities. It can be concluded that the state has the right to information from neighbouring countries and also to consult them, if the neighbouring