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1. Introduction

Oil and gas, as the main sources of global energy supply, have always been heavily influenced by political activities. Due to their fundamental importance to states, they were also often excluded from legal activities. The forecasts for 2035 allow us to expect that oil and gas will remain the dominant sources of the world’s primary energy.² In the near future, reliable consumer access to oil and gas at reasonable prices will still be a key strategic value. For producing countries, oil and gas will remain important sources of income and key drivers for the growth of their economies. Examining the issues of global governance on oil and gas resources under international law is justified by the importance of these resources for the entire global community as the dominant sources of global primary energy.

The conceptualization of global governance issues has led to the emergence of the concept of a “regime complex” and then to exploring its temporal changes.³ This expression is described by a number of overlapping and non-hierarchical institutions regulating a given substantive area,⁴ and its conceptual scope is similar to the scope of the conceptual term “global governance architecture” defined as the superior system of public and private institutions that are important and active in a given sphere of world politics.⁵ World law is characterized by a dynamic multiplicity of operations, in the course of which parallel normative systems of different origins stimulate, interlock, and interfere with each other.⁶ However, they do not create uniform superior orders that would absorb their parts, but still coexist in a heterarchic manner. It is no longer the policy of states to determine the differentiation of world law, but the expansion of international organizations and regulatory regimes that, despite their origin in international agreements, have grown into independent legal orders.⁷ The emergence of global regimes does not therefore mean the harmonization of legal orders, but is related to the creation of a new form of internal differentiation and the shaping of a new fragmentation⁸ that differentiates world law according to transnational homogeneous legal regimes specific to the regulated subject. As a consequence, there is a whole range of regimes in which national, international, and supranational legal acts are visible. For the purposes of this publication, it was hypothesized that in the area of global governance, a regime complex can be distinguished that is a series of overlapping and non-hierarchical institutions regulating a given substantive area, which is related specifically to the extraction of oil and gas resources and which serves the interests of nations as members of the international community.

The research method of this work is based on the concept of G. Teubner and A. Fischer-Lescano, who, inspired by the systems theory of N. Luhmann,⁹ described the process of spreading international law by referring to the multi-faceted fragmentation of world society law, that is, a global space that differentiates itself into countless autonomous systems. In their opinion, the aim of law research should be to identify specific regulatory systems, and then to study their creation and inter-systemic interaction, in search of a general model. At the same time, they considered it legitimate to ask questions about what constitutes a given system, how systems change and how they interact, how conflicts between systems are resolved, and how these systems are protected.¹⁰

The research objective is to identify the regulatory system for global oil and gas resources governance in international law. This objective was focused on specific issues concentrating on examining the origin of this system, its evolution and structure, as well as on identifying the goods protected by this system and the scope of their protection in the area in question.

The research problem is based on the following assumptions:

(1) oil and gas resources are globally located in both state and non-state territories;

(2) oil and gas resources are covered by the principle of permanent sovereignty over natural wealth and resources;

(3) the principle of permanent sovereignty over natural wealth and resources is open to changes that may affect the scope and methods of using oil and gas resources;

(4) due to the coexistence, infiltration and overlapping of legal regimes, it is not possible to clearly identify the circle of institutions involved in global governance on oil and gas as energy sources, or explicitly indicate the goods protected by these regimes, but only to make them a more or less accurate choice.

To implement the adopted objectives and specific tasks, the following research methods were applied: the dogmatic method, the observational and historical method, critical analysis, and the comparative method. The author carried out an analysis of sources of international law adopted in the relevant area; an analysis of the international tribunals’ case law in this area; literature studies; synthesis based on the results of the analysis; and inference.

To identify the complex of regimes that specifically address the governance of oil and gas resources, causal explanation has been used:

(1) intentional, oriented on the object (oil and gas) and the subject of rights and obligations covered by the notion of the principle of sovereignty over natural resources and the scope of this principle;

(2) functional, focused on the functions of legal institutions in the field of oil and gas resources governance, shaped by the emergence of increasingly strong rights and obligations in the areas recognized as being representative of the interest of the international community.

The book consists of four main chapters, preceded by an introduction containing a concise description of the concepts constituting its theoretical framework.

The first chapter serves to analyse the genesis and evolution of the principle of permanent sovereignty over natural wealth and resources as well as its normative content. The principle has basically two sources: on the one hand, the issue of economic development, especially in the so-called developing countries, and, on the other hand, the international principle of the right to self-determination and pacta sunt servanda, as well as the duty to cooperate for development. Undoubtedly, it is also anchored in the principle of sovereign equality. The principle of permanent sovereignty over natural wealth and resources has acquired the status of the principle of international customary law, and the further stages of its evolution have taken into account the perspective of protection and rational use of natural resources. As it has been shown, new trends emerging in an increasingly interdependent world brought about the creation of further duties and rights requiring legislative efforts, including in the field of regulation of foreign investments, environmental protection, and sustainable development. In addition, an attempt has been made to answer the question of who is authorized and equipped with the legal capacity to freely dispose of natural resources. It is emphasized that the circle of entities authorized to dispose of natural resources is subject to temporary changes. With regard to the subject matter, the analysis of resolutions on permanent sovereignty over natural resources has shown a gradual extension of the scope of resources and activities covered by the principle.

The second chapter presents the rights and obligations of states resulting from the principle of permanent sovereignty over natural resources. For a long time the principle of permanent sovereignty over natural resources has been expressed through the granting of rights and claims to states and nations resulting from their sovereignty. This was due to the fact that states were more inclined to formulate laws extending their sovereignty than to restrict them. Similarly, academic discussion has focused more on the rights derived from sovereignty, in particular the right to take over foreign ownership. Less attention has been paid to the scope of obligations incriminating the state while exercising its permanent sovereignty over natural resources. The claims and formulations of rights inspired by this principle are now accompanied by the imposition of obligations aimed at introducing or restoring the balance between the rights and interests of all involved entities and protecting the quality and diversity of natural resources, also for future generations. In order to achieve the objectives of this work, the rights and obligations in question have been organised into five separate thematic areas: the management of natural resources; the development of the country and prosperity of nations; environmental protection; international cooperation; and investment protection. Representative, universal, as well as regional and multilateral treaty solutions, rulings of international courts and tribunals, and non-binding guidelines in support of the thesis about the existence of a specific legal international right or obligation directly related to the exercise of permanent sovereignty over natural resources have also been indicated.

The third chapter focuses on the essence of global governance of oil and gas resources. It is pointed out that there is neither a universal system nor standards that could be considered truly universal and which would refer to energy resources, and to oil and gas resources in particular. Also, inter-state cooperation in the field of energy security is not global. Global governance in relation to oil and gas resources runs along those normative lines where international cooperation takes place with the participation of the most influential states, when there is a risk of insufficient consideration of their interests. This chapter also explains the terminological aspects of the concepts occurring in the area of global governance of oil and gas resources. It has been indicated that good governance of resources, i.e. effective, reliable and transparent management of mineral resources including oil and gas, requires establishing rules for the promotion of the use of natural resources in order to improve public welfare, as well as to strengthen public institutions such as the judiciary and public authorities in order to enforce these rules. In most cases, it also requires political will, so that possession of resources located in the subsoil will bring tangible benefits to the citizens. Attention is also paid to the importance of sustainable development in the governance of the oil and gas sector, understood as a concept aimed at unifying a number of seemingly competitive goals, such as providing better living conditions and greater opportunities for people, especially those living in poverty, and adapting production and consumption to the framework that can be tolerated by ecosystems in the long term. The institutional architecture of global governance in the oil and gas sector is also discussed and specific legal challenges are identified.

The analysis of the content of the principle of permanent sovereignty over natural resources and the rights and obligations resulting from it, as well as the nature and character of global governance in the oil and gas sector, finding a normative source in this principle, has identified a complex of sectoral regulatory regimes governing oil and gas resources. The conclusions formulated in the first three chapters are developed in the fourth chapter, which includes the presentation of a complex of heterarchic regimes for global governance in oil and gas resources. It consists in particular of: trade; investment protection; resources in maritime areas; transparency and accountability of the oil and gas sector; and protection of local communities. Each of these regimes presents further, more detailed differentiations. However, it is clearly indicated that the boundaries of these regimes are not definite, and their differentiation cannot be determined categorically.

The summary of the work has been used to verify the research hypothesis and present the results obtained and the conclusions drawn.

2 BP Energy Outlook 2017, https://www.bp.com/content/dam/bp/pdf/energy-economics/energy-outlook-2017/bp-energy-outlook-2017.pdf (2018-06-11).

3 Compare: J. Colgan, R. Keohane, T. Van de Graaf, Punctuated equilibrium in the energy regime complex. The Review of International Organizations 2012, vol. 7, No. 2, p. 117–143; L. Baccini, V. Lenzi, P. Thurner, Global energy governance: Trade, infrastructure, and the diffusion of international organizations. International Interactions 2013, vol. 39, No. 2, p. 192–216; comprehensively: T. Van de Graaf, The Politics and Institutions of Global Energy Governance, Basingstoke 2013.

4 Notion defined by K. Raustiala, D. Victor, The regime complex for plant genetic resources. International Organization 2004, t. 58, No. 2, p. 277–309.

5 Notion defined by F. Biermann, P. Pattberg, H. van Asselt, F. Zelli, The fragmentation of global governance architectures: A framework for analysis, Global Environmental Politics 2009, vol. 9, No. 4, p. 14–40.

6 Compare: M. Amstutz, V. Karavas, Weltrecht: Ein Derridasches Monster, (in): G.-P. Calliess, A. Fischer-Lescano, D. Wielsch, P. Zumbansen (ed.), Soziologische Jurisprudenz, Festschrift für Gunther Teubner zum 65. Geburtstag, Berlin 2009, p. 645–672.

7 Compare: A. Hasenclever, P. Mayer, V. Rittberger, Theories of international regimes. Cambridge studies in international relations, vol. 55, Cambridge University Press, Cambridge 1997, p. 162 et. seq.

8 A. Fischer-Lescano, G. Teubner, Fragmentierung des Weltrechts. Vernetzung globaler Regimes statt etatistischer Rechtseinheit, (in:) M. Albert, R. Stichweh (ed.), Weltstaat – Weltstaatlichkeit: Politische Strukturbildung nach der Globalisierung, Wiesbaden 2005, p. 10.

9 N. Luhmann, Die Gesellschaft der Gesellschaft, Frankfurt 1997, p. 595. See also: N. Luhmann, Social Systems, Stanford 1995; N. Luhmann, Law as a Social System, Oxford 2004. See also: J. Osiejewicz, Harmonizacja prawa państw członkowskich Unii Europejskiej, Warsaw 2016, p. 7–9; J. Osiejewicz, La frammentazione del diritto mondiale come determinante della sua armonizzazione, Rivista Diritto e Processo/derecho y proceso – right & remedies 2016, p. 374–387; J. Osiejewicz, Antropocentryczna lingwistyka języków specjalistycznych, (in:) S. Grucza, M. Olpińska-Szkiełko, M. Płużyczka, I. Banasiak, M. Łączek (ed.), F. Grucza, Dzieła zebrane. Tom 1. O nauce prof. Franciszka Gruczy. Wydanie jubileuszowe z okazji 80. rocznicy urodzin, Warsaw 2017, p. 181–194.

10 See.: G. Teubner, A. Fischer-Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, Michigan Journal of International Law 2004, vol. 25, p. 999–1046; G. Teubner, The King’s Many Bodies: The Self-Deconstruction of Law’s Hierarchy, Law & Society Review 1997, vol. 31, p. 763–788; G. Teubner, Contracting Worlds: The Many Autonomies of Private Law, Social & Legal Studies 2000, vol. 9, p. 339–417.