Global Governance of Oil and Gas Resources in the International Legal Perspective. Joanna Osiejewicz
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are considering joining projects involving the use of natural resources of cross-border nature.
The requirement to ensure fair use of cross-border resources is also confirmed by other acts of international law.282 The rights regarding cross-border resources were also highlighted in the Draft Environmental Law Guidelines and Principles on Shared Natural Resources as adopted by the United Nations Environment Programme (UNEP).283 The UN General Assembly has asked states to use these guidelines for the formulation of bilateral or multilateral conventions on the rights to natural resources shared by two or more countries.284
Article 83 para. 3 of the Convention on the Law of the Sea (1982), in reference to the agreements on delimitation of the exclusive economic zone and the continental shelf, provides that the states concerned must make every effort to conclude temporary arrangements of a practical nature without jeopardizing or obstructing the ultimate delimitation. Joint international development, that is, the joint exercise of sovereign rights by two or more states for the purpose of seeking and exploiting natural resources in a defined area, is one of such temporary provisions.285 Sharing resources may also refer to the deposits located within national jurisdiction and hence partly dependent on the principle of common human heritage and partly on the sovereignty of the coastal state over natural resources. Article 142 of the Convention on the Law of the Sea provides that activities in the Area, i.e. outside the limits of national jurisdiction, along the bottoms of the seas, oceans, and their underground, should be conducted with respect for the rights and legitimate interests of the coastal states.
The Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979)286 and the ASEAN Agreement on the Conservation of Nature and Natural Resources (1985),287 which states that the parties that share the earth resources cooperate in their protection and harmonious use, are two other international agreements on the conservation of natural resources containing provisions for shared resources. The United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD), provides for agreed common programmes on the sustainable management of transboundary natural resources as one of the forms of cooperation to combat desertification and mitigate the effects of drought.288 Joint development programmes agreed with respect to oil resources show a gradually growing readiness of states to conclude joint agreements on cross-border resources, to avoid conflicts and to obtain mutual benefits from the exploitation of cross-border resources.289
3.4.3 The duty to distribute cross-border natural resources equitably
Consultation and cooperation are necessary to avoid disputes about shared natural resources and their effects on the environment, which may result from competing national laws. The Helsinki Principles of the International Law Association (ILA) on international river waters (1966)290 served as a model for further development of international standards in this field. However, they did not result in the inclusion of appropriate regulations on cross-border resources in the Stockholm Declaration of 1972.291
The United Nations Environment Programme (UNEP) has been authorized to develop international standards for the protection and harmonious use of such resources relating to, inter alia, the information system and prior consultation. The UN General Assembly then introduced in the Charter of Economic Rights and Duties of States the regulation stating that in the case of joint exploitation of natural resources by two or more countries, they must cooperate on the basis of an information system and prior consultation in order to achieve optimal use of these resources without infringing on the legitimate interests of other entities.292 In 1978, the work of UNEP led to the adoption of the code of conduct on environmental protection for the orientation of states in the protection and harmonious use of natural resources jointly by two or more countries. The principles are aimed at the rational use of common natural resources in a way that will not adversely affect the natural environment and which would encourage the countries involved to cooperate.293
The concept of absolute sovereignty is being gradually replaced by the notion of equal use. This thesis is confirmed by some previous judicial and arbitration rulings.294 It does not mean that territorial sovereignty has been completely replaced by joint jurisdiction or joint management, but suggests that states are today obliged to recognize the interdependent rights of other states, and at least consult them with regard to the simultaneous use of cross-border resources.
3.5.1 The right to regulate foreign investments
The right to regulate foreign investments resulting from the principle of sovereignty over natural resources includes several component elements relating to foreign investments. These are: the right to regulate foreign investment as such; the right to regulate the admission of foreign investments; and the right to exercise power over foreign investments.
3.5.1.1 The right to regulate foreign investments as such
The principle of permanent sovereignty includes the sovereign right of the host state to regulate and control the activities of foreign investors, by way of exercising legislative, executive and judicial powers. It also includes the foreign investor’s duty to comply with these rules and regulations and to act in accordance with the host country’s economic and social policy, as well as the duty of the foreign investor’s state of origin to refrain from actions and policies that would violate the sovereignty of the host state or otherwise would cause significant damage to the host state.295 These rights and obligations are also subject to other rules and norms of international law, including the principle of good faith, the pacta sunt servanda principle, and the principle of non-interference in internal affairs of other states.
Resolutions of the UN General Assembly No. 1803 (XVII),296 2158 (XXI)297 and 3281 (XXIX)298 are important from the perspective of regulating foreign investments. All of them confirm the right of states to regulate foreign investments in accordance with their own objectives and development plans. Resolution No. 1803 declares that the use of natural resources and the import of foreign capital required for these purposes should be in accordance with the principles and conditions that peoples and nations consider freely or necessary for the granting of permits, restrictions or prohibitions regarding such activities. It further specifies that when a state permits the admission of foreign capital, the investment will be subject to the conditions of the permit, as well as national legislation and international law, and that freely concluded contracts should be respected in good faith. However, Resolution No.