Читать книгу Global Governance of Oil and Gas Resources in the International Legal Perspective - Joanna Osiejewicz - Страница 13
ОглавлениеFor a long time, the principle of permanent sovereignty over natural resources was expressed by granting rights and claims to states and nations resulting from their sovereignty, because states were more inclined to formulate laws extending their sovereignty, than obligations limiting it. Similarly, the academic discussion focused more on the rights flowing from sovereignty, in particular the right to take over foreign ownership. Less attention was paid to the scope of obligations incumbent on the state while exercising their sovereignty over natural resources. Nico Schrijver, based on previous research conducted by: R. Bernhardt,126 R. Higgins,127 M. Dixon and R. McCorquodale,128 the World Bank Group,129 J. Makarczyk,130 C. N. Brower,131 and A. Mourie,132 put forward the thesis that the formulation of laws inspired by the principle of permanent sovereignty over natural resources is often accompanied by the imposition of obligations aimed at introducing or restoring the balance between rights and interests of all parties involved and at protecting the quality and diversity of natural resources, also for future generations.133 According to Schrijver’s concept, the following rights derive from this principle: the right to freely dispose of natural resources; the right to free exploration and exploitation of natural resources; the right to regain effective control and compensation; the right to use natural resources for domestic development; the right to manage natural resources in accordance with the state’s environmental policy; the right to a fair share of the benefits of cross-border natural resources; the right to regulate foreign investments; the right to expropriate or nationalize foreign investments; and the right to settle disputes under national law. As the corresponding duties, Schrijver mentions: the exercise of permanent national sovereignty for the development and prosperity of nations; respect for the rights and interests of indigenous peoples; the duty of cooperation for international development; protection and sustainable use of natural wealth and resources; fair distribution of cross-border natural resources; respect for international law and fair treatment of foreign investors; and obligations related to the right to take over foreign ownership.
Listing of all international agreements relating to the above-mentioned rights and obligations remains outside the research area of this work. From the perspective of global governance, however, it is reasonable to indicate representative universal as well as regional and multilateral treaty solutions, judgments of international courts and tribunals, and non-binding guidelines to support the thesis of a certain legal international right or obligation directly related to the exercise of permanent sovereignty over natural resources. For the purposes of this work, the rights and obligations in question have been organised into five separate thematic areas: management of natural resources; development of the country and prosperity of nations; environmental protection; international cooperation; and investment protection.
3.1 The management of natural resources
3.1.1 The right to freely dispose of natural resources
The sovereign right of a state to freely dispose of wealth and natural resources within the limits of national jurisdiction is clearly highlighted in virtually all resolutions regarding permanent sovereignty.134 It is closely related to the principle that every state has the right to adopt a social and economic system it considers to be most beneficial for its development.135 This right is also expressed in the International Covenant on Civil and Political Rights (ICCPR)136 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),137 as well as the African Charter on Human and Peoples’ Rights (ACHPR).138 A similar regulation is included in the Convention on Biological Diversity.139 The Energy Charter Treaty recognizes the sovereignty of the state and sovereign rights to energy resources and provides that it in no way violates the regulations of the Contracting Parties that regulate the system of ownership of energy resources. The Treaty stipulates that each state retains the right to decide which geographic areas within its territory are to be made available for exploration and development of energy resources.140
The right to freely dispose of natural resources is also recognized in the decisions of arbitration courts. In the Liamco ruling (1977)141 a similar view was expressed. The Tribunal noted that Resolution 1803 (XVII)142 recommends respect for the sovereign right of the state to dispose of its property and natural resources and stated that resolutions, even if they are not unanimous sources of law, are proof of the dominant trend of international opinion regarding the sovereign right of states to their natural resources. In the Aminoil (1982) ruling, it was also noted that many constitutions foresee that all natural resources are state-owned.143
The Texaco judgment (1977) indicates, however, that territorial sovereignty grants the state exclusive competence to freely organize the economic structure of its territory and to introduce reforms that may seem desirable. Choosing and freely shaping the economic and social system is a significant privilege of sovereignty for the constitutionally authorized state organs. International law grants this privilege to the state, as well as the privilege of freely defining its political regime and its constitutional bodies.144 The Texaco ruling clearly indicates that the right of states to dispose of their natural resources includes the right to exercise sovereignty by undertaking international obligations towards other states and non-state actors.145 The sole arbitrator J. Dupuy introduced a distinction between “enjoyment” and the “exercise” of sovereignty. In his opinion, the concept of permanent sovereignty can be completely reconciled with the situation where a state concludes a contract that leaves the control of the other party to the contract in its territory under state control. Otherwise, each contract concluded between the state and a private foreign entity would be contrary to ius cogens regarding the exploitation of natural resources. Therefore, the concession agreement does not constitute a transfer of sovereignty, but only its limitation: the state retains, in reserved areas, the power over the operations carried out by the concessionaire, and the continuation of the exercise of sovereignty is manifested, for example, by the obligations imposed on it.146
The state therefore has considerable freedom in managing its natural resources and can assume obligations with respect to the exercise of its sovereignty by voluntary arrangements, provided that they do not transfer its sovereign entitlement to a private entity. The question then arises, where the discretion of the state reaches its limits, with allegedly “inalienable” and “permanent” character of sovereignty. As indicated by the ILA in the Seoul Declaration, permanent sovereignty is not transferable. However, the state may accept obligations with respect to the exercise of such sovereignty by way of a freely concluded contract.147 It follows that in each particular case, verification should be made as to whether the act actually infringes state sovereignty over its natural resources.148
3.1.2 The right to free exploration and exploitation of natural resources
States have the right to freely use and exploit natural resources and exercise effective control over them, and to decide how their natural resources should be used.149 These rights were originally formulated by developing countries with a view to ensuring effective control of their natural resources and maximizing the benefits resulting from their exploitation, and expressed in the Continental Shelf Convention.150 It provides that the coastal state exercises sovereign rights on the continental shelf to explore and exploit its natural resources. These rights are also exclusive in the sense that if a coastal state does not carry out research on the continental shelf or exploit its natural resources, no one can take such action, nor claim it on the continental shelf, without the express consent of the coastal state.151 This regulation has been repeated in the UN Convention on the Law of the Sea (UNCLOS),152 which also states that in the exclusive economic zone the coastal state has sovereign rights to explore, exploit, protect, and rationally use natural resources, both living and non-living, waters covering the seabed, as well as the seabed and its subsoil, and for other activities related to the economic exploration and exploitation of the zone, such as energy production through the use of water, currents, and winds.153
Both the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights, formulate the inalienable right of nations to enjoy fully and freely their wealth and natural resources.154 The parties to the Treaty for Amazonian Cooperation also declare that the exclusive right to use and exploit natural resources in their territories is a right which is an integral element of the sovereignty of each state.155 In the subsequently signed Amazonian Declaration, the presidents of the states-parties to the Treaty for Amazonian Cooperation confirmed the sovereign right of each state to freely manage its natural resources.156
The Energy Charter Treaty recognizes the sovereign rights of states-parties to energy resources, in particular the right to determine in which territories and to what extent to seek and develop energy resources, and to participate in such exploration and exploitation, including through direct participation of government or state-owned enterprises.157
In Fisheries jurisdiction (1974), the ICJ recognized that on the basis of international customary law emerging from the Conferences of the Law of the Sea of 1958 and 1960, the coastal state has the right to establish a two-hundred-mile exclusive fishery zone and preferential fishing rights in adjacent waters. The ICJ confirmed that the right to free exploration and exploitation of natural resources is one of the fundamental rights resulting from the principle of permanent sovereignty.158
3.1.3 The right to regain effective control and compensation
The UN Declaration on the Establishment of a New International Economic Order159 provides that this order should be based, inter alia, on the respect of the principle that all states, territories and nations under foreign occupation, foreign and colonial domination, or apartheid have the right to restitution and full compensation for exploitation and impoverishment, as well as damage to natural resources and other resources of these countries, territories, and nations.160 This declaration constitutes one of the attempts to assign the right to permanent sovereignty over wealth and natural resources to the nations of occupied non-member states and to ensure that even those who cannot or can no longer exercise their right to sovereignty over these resources should still have the right to make claims about ownership over them.
Security Council Resolution No. 687 (1991), which introduces a comprehensive peace package imposed on Iraq after the Gulf War in 1990–1991, confirms that Iraq is responsible under international law for direct loss, damage, including environmental damage and depletion of natural resources, as a result of the unlawful invasion of Iraq and the occupation of Kuwait.161 This resolution can be interpreted as an attempt to protect the natural resources of states and nations in times of armed conflict. The most important general regulation of this kind of claim in the treaty law includes the ICCPR and ICESCR: “In no case may a people be deprived of its own means of subsistence”.162 As a rule, sovereign rights do not pass to the occupant. With regard to property, this is provided for in Article 55 of the Hague Regulations, which states that the occupying state should be considered only as the administrator and user of public buildings, real estate, forests and farm holdings belonging to an enemy state but located in occupied territory. In addition, the occupying state should protect the value of these assets and rule them in accordance with the rules of use. The concept of “use” of property determines that the occupying state cannot rule a property and may only use it subject to the requirement to protect the capital of a given property. The application of this principle to non-renewable resources, such as mineral resources, remains controversial.163
3.2 The economic development of the state and the prosperity of nations
3.2.1 The right to use natural resources for the development of the country
The right to use natural resources for the development of the country was expressed in Resolution No. 626 (VII),164 which affirms that states can freely exercise their rights to exploit their wealth and natural resources wherever they deem it desirable for their own progress and economic development. Resolution No. 1803 (XVII) refers to the development of the country and the well-being of the nation of a given state.165 The first act that combined the right to permanent sovereignty with the claims of developing countries for a greater share in the processing, marketization and distribution of natural resources was Resolution No. 2158 (XXI).166 This concept is also indirectly included in the Declaration on the Establishment of a New International Economic Order167 as the right to obtain fair and stable, equal and cost-effective prices, and the right to conduct pricing policies as well as to coordinate production policies and membership in producer associations.168 It is also important that the expression “and development” was added to the principle 21 formulated in the Stockholm Declaration169 and that it was subsequently incorporated in principle 2 formulated in the Rio Declaration.170 This reformulation points out that environmental policy of developing countries cannot replace their development policies, especially in reference to their exploitation of natural resources. Morover, Resolution No. 3171 (XXVIII) states that a better use of natural resources is possible when the steps to be taken include all stages, from exploration to marketization.171
The UN Framework Convention on Climate Change172 explicitly refers to the sovereign right of states to exploit resources in accordance with their own development policy. One of the objectives of the Energy Charter Treaty was to help Central and Eastern Europe and the Commonwealth of Independent States173 to develop their energy potential and to stimulate their economic growth. In addition, the regulations contained in the Conventions on the Succession of the States of 1978 and 1983 regarding the principle of permanent sovereignty over natural resources indirectly aim at reserving the benefits from the exploitation of natural resources for the nations of newly independent states.174
3.2.2 The duty to exercise the nation’s sovereignty for the development and prosperity of nations
Resolution No. 523 (VI)175 provides for the rights of underdeveloped countries to freely determine how their natural resources will be used under the condition that they are used in a way that will lead them to achieve the best position for further implementation of their economic development plans, in accordance with their national interests. Resolution No. 626 (VII)176 sets less stringent conditions stating that the use of resources is to proceed as countries deem it desirable for their own progress and economic development. Resolution No. 1803 (XVII),177 on the other hand, contains specific guidelines on the exercise of the right to permanent sovereignty, stressing in the first paragraph that the right of peoples and nations to permanent sovereignty over their wealth and natural resources must be done in the interest of their national development and the well-being of the inhabitants of a given state. In this way, the UN General Assembly clearly linked the exercise of permanent sovereignty over natural resources with the requirement to promote the development of the country and the well-being of its population that should benefit from the exploitation of resources and the related development of the country. Subsequent resolutions containing references to permanent sovereignty took into account only very general guidelines, such as promoting the country’s development, or even did not provide any guidelines in this respect, imposing only a general duty to exercise permanent sovereignty freely and fully.178
Multilateral treaties impose this obligation indirectly. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights provide that under no circumstances may nations be deprived of their own means of subsistence.179 In addition, both pacts contain a statement that their provisions cannot be interpreted as violating the inherent right of all nations, that they would enjoy their wealth and resources and use them fully and freely.180 The African Charter on Human and People’s Rights provides for the right to permanent sovereignty over natural resources to be exercised in the exclusive interest of the people and affirms that in no circumstances can a nation be deprived of it.181
The African Convention for the Conservation of Nature and Natural Resources182 emphasizes the need to manage and use resources in a manner that takes into account the social and economic needs of nations or states, obliging states to adopt scientifically-based plans for forest and pasture management, taking into account the social and economic needs of the country.183 Similarly, the Treaty for Amazonian Cooperation184 establishes socio-economic development as one of its goals and indicates that responsibility for this development lies with the state as a sovereign. This goal was then repeated in the Amazonian Declaration.185 In the preamble to the Association of Southeast Asian Nations (ASEAN) on nature conservation and natural resources, states-parties have recognized the importance of natural resources and the importance of developing their forest management plans to maintain optimal efficiency and avoid a permanent capital shortfall in resources.186
In international jurisprudence and arbitration, national obligations to use natural resources for the development and well-being of nations have not yet been directly taken into account. However, there are references to the interest of local communities and their dependence on natural resources located in places perceived as land territory and waters belonging to these communities.187
3.2.3 The duty to respect the rights and interests of indigenous peoples
Increased awareness that the population living in a given territory is not always a homogeneous community but may consist of different nations and minorities, including indigenous peoples, led to the introduction of actions to protect the rights of indigenous peoples. In the initial period, the protection of indigenous peoples was understood in a general way as protection of national minorities.188 On the recommendation of the UN Subcommittee on Prevention of Discrimination and Protection of Minorities,189 the UN Economic and Social Council initiated in 1971 a study into the problem of indigenous discrimination. The Special Report of 1982190 proposed the following definition of indigenous peoples:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.
Founded in 1982, the Working Group on indigenous peoples191 was given a mandate to review human rights concerning specifically indigenous peoples and to develop standards to protect these rights. Serving as an important forum for discussing the plight of indigenous peoples, the Working Group focused its efforts on developing a Draft Declaration on the Rights of Indigenous Peoples, which in 1994 was adopted by the UN Subcommittee on Prevention of Discrimination and Protection of Minorities and sent to the UN Human Rights Commission.192 The Draft Declaration on the Rights of Indigenous Peoples also refers to the rights of this population in the scope of managing their natural resources. The preamble expressed the fear that indigenous people were deprived of human rights and fundamental freedoms, including as a result of their colonization and plundering of their lands, territories and resources. It also expressed the belief that exercising control by indigenous peoples over their land, territory and resources would enable their development to be promoted in accordance with their aspirations and needs.
The Declaration creates a number of rights of indigenous peoples to land and resources, which correspond to either the prohibitions on acting or the obligations of States to take action in order to implement these rights. The rights included in the Draft Declaration are considered to be the minimum standards for the survival, dignity and prosperity of indigenous peoples in the world. They include the state’s obligation that covers, inter alia, the prohibition to take any action against indigenous peoples aimed at or involving the deprivation of their lands, territories or their wealth;193 the prohibition to relocate indigenous peoples from land or territories without their prior voluntary consent;194 the duty to legally grant and protect the lands, territories, and wealth that traditionally belonged to the indigenous peoples who occupied them, used them or otherwise acquired them;195 the injunction to provide redress, including restitution, or, where impossible, fair, proper and just compensation for the lands, territories and natural resources that were traditionally owned or occupied or otherwise used by the indigenous peoples, and which were confiscated, taken, occupied, used or destroyed without their voluntary, prior and informed consent;196 the duty to introduce and implement assistance programmes for indigenous peoples in the field of conservation and protection of the environment and the production capacity of their lands, territories and natural resources;197 the duty to consult and cooperate in good faith with indigenous peoples through the institutions representing them in order to obtain their voluntary, prior, and informed consent before approving any project affecting their lands or territories or natural resources, in particular as regards the development, use, or exploitation of minerals, waters, or other natural resources.198
The Draft Declaration was not adopted by the UN General Assembly until 2007199 due to the fact that the definition of the indigenous peoples and the extent of their alleged right to political self-determination were considered controversial.200 In the doctrine of international law, there is still no established, uniform definition of indigenous peoples. When describing their features, attention is paid to their cultural continuation and their relationship with specific hereditary lands. Such a population should be characterized by at least a partial linguistic, cultural and social separation, distinguishing it from neighbouring groups and the dominant state culture. The self-identification of an individual as a member of the indigenous people and the recognition of such a member by a group of a given indigenous population group allows the individual to be included in the indigenous population.201
Indigenous rights were also included in the final documents of the UN Conference in Rio (1992) and Vienna (1993). Principle 22 of the Rio Declaration on Environment and Development emphasizes the need to recognize and support the identity, culture and interests of indigenous peoples and other local communities, including by recognizing their important role in environmental management due to their knowledge and traditions.202 The Vienna Declaration adopted at the World Conference on Human Rights in 1993 acknowledges the “inherent dignity” of indigenous peoples and calls on states to take positive steps, in line with international law, to ensure respect for human rights and fundamental freedoms of indigenous peoples.203
Regulations on the rights of indigenous peoples are also included in the International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989),204 in the International Covenant on Civil and Political Rights,205 as well as in the African Charter on Human and Peoples’ Rights.206 These acts set standards for the protection of these rights and establish the duty of governments to take measures, in cooperation with the peoples concerned, to protect and preserve the natural environment of the territories inhabited by these peoples.207 The Amazonian Declaration also combines the exercise of permanent sovereignty over natural resources with the duty of states to respect the rights and interests of indigenous peoples.208
In this respect, particular regulations were adopted. The Convention on Biological Diversity recognizes the contribution of indigenous peoples to the protection of biodiversity and the sustainable use of its elements, and calls on governments to respect, preserve and maintain knowledge of local communities and promote its wider use with their consent and participation, and to share benefits justly.209 The UN Convention to Combat Desertification in Those Countries Suffering from Severe Drought and/or Desertification, Particularly in Africa (UNCCD), is one of the most important instruments of the Rio de Janeiro Conference in 1992. It urges parties to ensure that decisions are taken and implementation of programmes to combat desertification and/or to mitigate the effects of drought with the participation of populations and local communities.210 The International Tropical Timber Agreement (2006) encourages states to support and develop reforestation activities and tropical woods management, as well as reclamation of degraded forest areas, with due regard to the interests of local communities dependent on forest resources.211 In addition, the Energy Charter Treaty stipulates that its provisions shall not affect the right of the contracting parties to accept or exercise preferential measures against investors who are members of indigenous peoples or their investments.212
The question of the rights of indigenous peoples was the subject of consideration by the ICJ in the case of Western Sahara (1975). The International Court of Justice ruled that territories inhabited by socially and politically organized tribes and peoples are not regarded as terra nullius, nor as land subject to occupation or appropriation. Therefore, some nomadic peoples had rights to the territories of Western Sahara. The International Court of Justice recognized that the Declaration of the General Assembly on decolonization (Resolution No. 1514 [XV])213 applies to Western Sahara, and pointed out that the application of the principle of self-determination can be realized through a free and genuine expression of the will of the population of the given territory.214
3.3.1 The right to manage natural resources in accordance with the national environmental policy
In the 1970s, especially during the Stockholm conference and shortly thereafter, there was a debate on balancing sustainable sovereignty over natural resources with the responsibility of the state in the field of environmental protection. Although some state tasks and responsibilities in respect of environmental protection have been formulated in international legal acts, it is consistently recognized that each state has the right to pursue its own environmental policy. This was clearly indicated in Rule 21 of the Stockholm Declaration of 1972215 and its almost identical counterpart in the Rio Declaration in 1992.216 The treaty law expresses this regulation in art. 193 of the UN Convention of the Law of the Sea (UNCLOS) of 1982, where it was decided that states have the sovereign right to exploit their natural resources in accordance with their environmental policy and in accordance with their duty to protect and preserve the marine environment.217 Similar provisions are also included in other conventions, namely the Vienna Convention for the Protection of the Ozone Layer (1985),218 the UN Framework Convention on Climate Change,219 the Convention on Biological Diversity,220 and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.221
The Ramsar Convention222 provides that the inclusion of national sites in the list of wetlands of international importance does not infringe on the exclusive sovereign rights of the party in whose territory they are located. The UNESCO World Convention on the Protection of Cultural and Natural Heritage (1972)223 contains a general reference to the sovereignty of the state over its natural heritage. Article 19.3 of the Energy Charter Treaty (1994)224 provides for the right of every state to regulate the conservation of resources and environmental and safety aspects related to the research and development of energy resources.
Clear references to the right of states to freely manage their natural resources in accordance with their own environmental policies are included in the Latin American conventions and regional declarations.225 The African Convention on Nature Conservation and Natural Resources (2017) also speaks on this matter.226 The ASEAN Agreement on the Conservation of Nature and Natural Resources (1985) does not include such unambiguous regulations.227
3.3.2 The duty of protection and sustainable use of natural wealth and resources
In 1962, the UN General Assembly adopted by consensus a Resolution on economic development and the conservation of nature,228 which draws attention to the extent to which the economic development of developing countries may threaten their natural resources, including wildlife and flora. It formulates for the first time the objective of not wasting natural resources and recommends taking action and introducing effective national legislation aiming at, inter alia, the protection and rational use of natural resources.
The Stockholm Declaration on the Human Environment (1972)229 indicates that careful planning and management are necessary to safeguard the natural resources of the earth for the benefit of present and future generations. Principle No. 2 states that natural resources of the earth, including the air, water, soil, flora and fauna, must be safeguarded by careful planning or management. Principle No. 13 provides for that in order to secure a more rational management of resources, and thus improve the state of the environment, states should adopt an integrated and coordinated approach to planning their development, so as to ensure that this development is compatible with the protection and improvement of the human environment. It was only after the Stockholm Conference that UN resolutions gradually developed standards for nature conservation and the use of natural resources.
The Charter of Economic Rights and Duties of States230 states that the protection, preservation and improvement of the environment for current and future generations is the responsibility of all states. All countries strive to develop such environmental and development policies that will strengthen the current and future development potential of developing countries. They are required to ensure that activities under their jurisdiction or control do not cause damage to the environment of other countries or areas outside national jurisdictions. All countries should also cooperate in shaping international norms and regulations in the field of environmental protection231.
In Resolution No. 35/7, the UN General Assembly calls on the Member States, as part of their permanent sovereignty over natural resources, to act with the utmost importance of protecting natural systems, maintaining the balance and quality of nature and preserving natural resources in the interests of present and future generations. The solemnly proclaimed revised World Charter of Nature232 expresses the conviction that man can change nature and exhaust natural resources through the activities taken or the effects of these activities. Consequently, the urgent need to maintain the stability and quality of nature and the protection of natural resources must be recognized. Therefore, the Resolution contains principles of conservation and states that natural resources, including non-renewable resources, must not be wasted, and that they must be used in moderation, given their size, rational possibilities of their conversion to consumption, and their compatibility with the functioning of natural systems.
With regard to the obligation to prevent significant harm to the environment of third countries or areas beyond national jurisdiction, Principle 21 of the Stockholm Declaration233 states that states, in accordance with the United Nations Charter and the principles of international law, have the sovereign right to exploit their own resources in accordance with their environmental policy and that this right corresponds with the assurance that activities under their jurisdiction or control do not cause damage to the environment of third countries or in areas outside national jurisdictions. The General Assembly further strengthened this provision in the Resolution on cooperation between states in the field of environmental protection,234 stating in its first paragraph that during the exploration, development, and use of natural resources, states should not cause significant adverse effects in zones beyond their national jurisdiction.
According to the preamble to the African Convention on the Conservation of Nature and Natural Resources (1968),235 concluded under the auspices of the Organization of African Unity, the convention is based on the obligation to use the continent’s natural resources for the progress of all nations. The main objective is to promote the necessary measures to ensure the protection, use, and development of soil, water, flora and fauna belonging to the continent’s resources, in accordance with scientific principles and with a view to the best interests of nations. In addition, all parties are obliged to pay special attention to such issues as controlling bush fires, exploiting forests, clearing land for cultivation, and limiting the intensity of forest use to the degree that does not prevent its regeneration.236 States have a special responsibility for the protection of species of animals and plants threatened with extinction, and which are represented exclusively on the territory of one of the states’ parties.237 The revised African Convention on the Conservation of Nature and Natural Resources adopted in 2017 extended the original agreement by including elements thet ensure the implementation of the sustainable development principle.238
The aim of the 1976 Apia Convention on the Conservation of Nature in the South Pacific Region,239 concluded in 1976, is to maintain the region’s potential for the protection of renewable natural resources and natural ecosystems, geological formation, heritage of wild fauna and flora and their habitats, while preserving cultural traditions and practices. In this region, the Secretariat of the Pacific Regional Environment Programme (SPREP)240 is also worth noting. It has been operating as a regional organization since 1991. The aim of this entity is to coordinate pro-environmental activities, including through the adoption of a strategy for the conservation of nature in the Pacific island region, and as part of the secretariat for the implementation of the Apia Convention.241
In relation to Latin America, the most relevant in this regard is the Treaty for Amazonian Cooperation (1978),242 whose main objective is to promote the harmonious development of the Amazon region, to protect the natural environment, as well as to safeguard and rationally use the natural resources of these territories. The subsequent Amazonian Declaration (1989) combines the exercise of permanent sovereignty with the duty to protect the environment and to respect the rights and interests of indigenous peoples. It also reminds of the need to preserve the Amazonian heritage thanks to the rational use of the region’s resources, in the interests of present and future generations.243 The declaration expresses international support for the protection of the heritage of these areas, provided that this does not constitute a violation of sovereignty.
In the preamble of the ASEAN Agreement on the Conservation of Nature and Natural Resources (1985)244 states-parties recognized the importance of natural resources for present and future generations and expressed their readiness to undertake individual and joint action to protect and manage their living resources and the other elements of nature. The treaty aims to maintain basic ecological processes and life support systems, preserve genetic diversity, and ensure the sustainable use of resources. It also seeks to establish a cooperation framework between ASEAN states-parties to serve as a reference point for national environmental legislation.
The European Union obtained competence to act in the field of environmental policy in order to achieve the objectives set out in art. 191 of the Treaty on the Functioning of the European Union (TFEU).245 These objectives include, among others: preservation, protection and improvement of the quality of the environment; prudent and rational use of natural resources; promoting measures at international level to deal with regional or worldwide environmental problems, in particular combating climate change. The concept of “acting” includes not only the adoption of legal acts under art. 288 TFEU, of which the most importance is attributed to the directive, but also political instruments, such as resolutions and conclusions of the Council, and the setting of political objectives. Because art. 192 para. 1 and 2 TFEU does not specify the criteria for selecting the form of these activities, the institutions of the European Union generally have the freedom to choose the instruments. The actors are the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.246
As part of the UN Environment Programme (UNEP), a number of conventions concerning regional seas were adopted. While they primarily aim to protect the marine environment from pollution, most also include standards and principles for cooperation in the management of natural resources in the maritime and coastal areas of the regions concerned, taking into account the need to strike a balance between economic development and environmental protection. One example is the Noumea Convention (1985) for the Protection of the Natural Resources and Environment of the South Pacific Region.247 It recognizes the economic, social and cultural value of the region’s natural resources and the need to protect this natural heritage for future generations.
The Energy Charter Treaty also includes a reference to sustainable development and calls on the states to minimize in a cost-effective way the harmful effects on the environment, both inside and outside their territory, resulting from activities in the energy sector.248
Important provisions are also included in a number of multilateral treaties in the field of nature conservation and natural resources. One of them is the Ramsar Convention (1971) on Wetlands of International Importance especially as Waterfowl Habitat.249 The aim of the convention is to protect and ensure sustainable use of all wetlands by taking action at the national and local level, as well as through international cooperation.
Under the 1972 UNESCO Convention on the Protection of the World’s Cultural and Natural Heritage,250 each State Party is required to identify, protect, preserve and maintain cultural and natural heritage on its territory for future generations. The International Union for Conservation of Nature (IUCN),251 founded in 1948 and being the first global organization focused on environmental problems, was entrusted with the task of monitoring and reporting on the state of natural lands.
The main objectives of the Convention on Biological Diversity are the protection of biodiversity, the sustainable use of its elements and the fair sharing of benefits arising from the use of genetic resources. Sustainable use is in this context defined as the use of elements of biodiversity in a way and to a degree that does not lead to a long-term decline in biodiversity, thus maintaining its potential to meet the needs and aspirations of present and future generations. The Convention on Biological Diversity contains important new principles of international environmental law, such as the “precautionary principle” and “intergenerational justice”. Recognizing the sovereignty of states over natural resources, the Convention requires that the parties facilitate access to genetic resources for their use by other entities in an environmentally friendly manner. It establishes, among others, the requirement for national monitoring of biodiversity and the development of national conservation strategies, including the provision of resources for specific species and habitats.252
The UN Framework Convention on Climate Change aims to stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous human intervention into the global climate system. This level is to be achieved within a timeframe sufficient for the natural adaptation of ecosystems to climate change, in order to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable way.253
The UN Convention to Combat Desertification,254 which is the continuation of Agenda 21 adopted in 1992 in Rio de Janeiro, aims to reduce the degradation of arid lands all over the world, including semi-arid meadows and deserts, and establishes a framework for national, subregional and regional programmes and formulates general obligations, obligations of states-parties affected by drought, and responsibilities of developed states to combat desertification and mitigate the effects of drought. Preventing desertification must be a priority in the national policy of drought-affected states-parties. They are also obligated to educate citizens and citizen groups in this matter.
The UN Convention on the Law of the Sea255 contains innovative principles and regulations concerning the protection of the environment and the preservation of the marine environment through the rational use and protection of living and non-living marine resources. The Convention formulates obligations with regard to the protection and preservation of the marine environment in those areas that are subject to national jurisdiction as a result of the establishment of a 200-mile exclusive economic zone and also on the continental shelf. This dual approach is reflected in the provision that the states have a sovereign right to exploit their natural resources in accordance with their environmental policy and in accordance with their duty to protect and preserve the marine environment.256 Part XII of the Convention formulates a number of specific obligations in the field of environmental protection. In particular, they concern the prevention, reduction and control of environmental pollution, including pollution originating from areas under national jurisdiction.257 In addition, it establishes states’ international legal responsibility for fulfilling international obligations regarding the protection and preservation of the marine environment.258 The convention also mentions the specific responsibilities of coastal states with regard to the protection and use of living resources in their exclusive economic zone.259
It is also worth pointing out the International Tropical Timber Agreement (2006)260 as an example of an attempt to include international environmental law in the multilateral treaty on specific types of stocks. In the preamble to the contract, the parties recognize the importance and necessity of adequate and effective protection of tropical forests with a view to ensuring their optimal use, while maintaining ecological balance in the regions.261 Furthermore, they indicate that, in accordance with the Charter of the United Nations and the principles of international 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 countries 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. 2158 declares in absolute terms that the exploitation of natural resources in any country should always be carried out in accordance with national law.299 Article 2 of the Charter of Economic Rights and Duties of States emphasizes that no state can be forced to offer preferential treatment to foreign investment.300 However, the Declaration on the Establishment of a New International Economic Order provides that states, as fully sovereign entities, should take measures in the interest of their national economies to regulate and supervise the activities of transnational corporations operating in their territories.301
A number of multilateral treaties directly address the issue of regulating investments. The Havana Charter (1948) stipulates that the state, unless otherwise agreed, has the right to take all appropriate safeguards necessary to: ensure that foreign investment is not used as a basis for interference in its internal affairs or national policies; determine if and to what extent and under which conditions the state would allow future foreign investment; establish effective requirements for the ownership of existing and future investments, and other reasonable requirements for such investments.302 The International Covenant on Economic, Social and Cultural Rights can be interpreted in such a way that it suggests that, under certain conditions, developing countries have the right to treat foreign investors differently from their own citizens. The ICESCR ensures that developing countries can determine, having due regard for human rights and their own national economy, to what extent they will guarantee the economic rights recognized in this Covenant to persons who do not have their nationality.303 The ASEAN Investment Agreement of 1987 provides for the host state’s right to manage foreign investments.304 Similarly, the Energy Charter Treaty (1994) indicates the right of states to regulate foreign investments, subject to the obligations under this Treaty and other norms of international law.305 The large number of bilateral agreements on investment protection and promotion of investments is also important.306
With regard to non-binding multilateral instruments other than UN resolutions, it is worth pointing out the guidelines annexed to the OECD Declaration (2011)307 on international investment and multinational companies, which ensure that every state has the right to determine the operating conditions of transnational companies under its national jurisdiction, subject to the provisions of international law and international agreements regarding the relevant investment. These issues are also reflected in the Seoul Declaration (1986)308 and the World Bank Guidelines of 1992,309 although the latter document focuses more on the promotion of foreign investment than on the perspective of the host state.
All the documents referred to above assume that the host states have the general right to regulate foreign investments and to subject the investments located in their territory to local law. However, this right is qualified by the overriding provisions of international law included in bilateral and multilateral investment agreements and by the general obligations regarding the treatment of foreigners resulting from international human rights law.310
3.5.1.2 The right to regulate acceptance of foreign investments
Resolution No. 1803 (XVII)311 declares that the import of capital needed for the development of natural resources should be in line with the principles that the states deem necessary for the granting of permits, restrictions, or bans on such activities.
The Havana Charter recognized the right of every state to determine the extent to which, if, and under what conditions it would allow future foreign investment.312 However, such a provision was not included in the General Agreement on Tariffs and Trade (GATT),313 either in the 1947 or the 1994 version, as this arrangement does not include investment. Only the 1994 General Agreement on Trade in Services (GATS)314 recognizes in its preamble the right of states to regulate the provision of services in their territories to achieve national policy objectives and the special needs of developing countries regarding the exercise of this right. All national regulations affecting trade in services should, however, be “administered in a reasonable, objective and impartial manner”.315
The right to regulate acceptance of foreign investments may be limited voluntarily, e.g. in the context of economic integration between states. The Inter-Arab agreement of 1980 on the mutual promotion and protection of investments316 states that the determination of the procedure, conditions and restrictions, and the designation of sectors in which such investments can be made, is an attribute of state sovereignty. This limitation of the right of states-parties to mutually restrict free enterprise is also contained in the Treaty on the Functioning of the European Union: the Member States of the European Union mutually recognize their citizens’ freedom of entrepreneurship and waive the right to independently regulate the enterprise of companies from another EU Member State.317 The North American Free Trade Agreement (NAFTA) of 1992, however, still provides all three parties with the exclusive right to conduct certain business activity and to refuse the inclusion of foreign investment in this activity.318 The Energy Charter Treaty (1994) declares the right of every country to freely determine which geographical areas of its territory are to be made available for the exploration and management of energy resources, as well as the right of the state to participate in such exploration and exploitation, e.g. through state-owned companies.319
The Draft OECD Convention on the Protection of Foreign Property (1967)320 stipulated that, unless otherwise agreed, no would be required to permit foreigners to acquire real estate on its territory. The OECD Declaration on International Investments and Multinational Enterprises explicitly states that it does not address the right of states to regulate foreign investment or the conditions for setting up foreign enterprises.321
3.5.1.3 The right to exercise power over foreign investments
UN resolutions confirm the host state’s right to regulate and exercise control over the activities of foreign investors in its territory, including legal and administrative measures and the exercise of judiciary.322 The Charter of Economic Rights and Duties of States establishes the right of every state to regulate and exercise power over foreign investments within its national jurisdiction in accordance with its laws and regulations and in accordance with its national objectives and priorities; as well as to supervise the activities of transnational corporations within national jurisdictions and take measures to ensure that such activities are consistent with their laws, rules and regulations, and consistent with their social and economic policies.323
The treaty law significantly develops these issues. The Havana Charter (1948) recognizes that unless other agreements oppose this, the state has the right to take all appropriate safeguards necessary to: ensure that foreign investment is not used as the basis for interference in its internal affairs or national policies; determine if and to what extent, and under what conditions, the state would allow future foreign investment; establish effective requirements for the ownership of existing and future investments and other reasonable requirements for such investments.324 The Washington Convention of 1965 on the settlement of investment disputes between States and nationals of other States, which established the International Centre for Settlement of Investment Disputes (ICSID), stresses that the basic competence to legislate in relation to foreign investors and to resolve investment disputes between the host state and the foreign investor is the responsibility of the authorities of the host country.325 The 1985 Convention on the Establishment of a Multilateral Investment Guarantee Agency (MIGA)326 expresses a respect for the state’s right to control foreign investments and states that the Agency respects the compliance of the investment with the law of the host state and the consistency of the investments with the development of the declared state goals and priorities.327 In addition, Article 15 of the Convention introduces a condition that the Agency does not enter into warranty agreements until the government of the host state approves the guarantee issued by the Agency regarding the risks to be covered. Consequently, the choice of the scope and nature of foreign investors’ involvement in the exploitation of natural resources was left to the given state. The Energy Charter Treaty (1994) includes the right of every state to impose taxes and fees related to the exploration and exploitation of energy resources.328
The OECD guidelines indicate that entities belonging to transnational enterprises located in different states are subject to the laws of these states.329 The Draft United Nations Code of Conduct on Transnational Corporations provided that states have the right to determine the role that transnational corporations can play in their economic and social development and declared that the subject of a transnational corporation falls under the jurisdiction of the state in which it operates.330 The Seoul Declaration guarantees that states have the right to regulate, exercise power, legislate, and impose taxes in relation to the natural resources and economic activities carried out in their territories by foreign entities. Unless otherwise agreed by contract, preferential treatment must not be required for every foreign investment.331
3.5.2 The right to expropriate or nationalize foreign investments
The terms “expropriation” and “nationalization” are often used interchangeably. “Expropriation” is commonly understood as a unilateral state interference directed at the property or comparable ownership rights, and “nationalization” usually means the transfer of economic activity to the public sector as part of a general programme of social and economic reforms.332 The term “taking over property” is the most general term.333 The right to expropriate or nationalize foreign investments includes: the right to take ownership as such; the right to freely determine the conditions of nationalization; the right to refuse to pay compensation or to determine it freely; the right to settle disputes based on national law; the right to freely choose resolution measures for dispute on nationalization.334
3.5.2.1 The right to take ownership as such
The right of nationalization has been explicitly included in UN General Assembly Resolutions 1803,335 3171,336 3201,337 and 3281.338 The relevant references also contain § 2 of UNCTAD Resolution No. 88 (XII)339 and the UNIDO Declaration of Lima.340
The Havana Charter provides that states have the right to set and enforce requirements for the ownership of existing and future investments.341 Regional treaties on human rights, which include the right of individuals to property, also confirm the right of the state to take over the property, subject to certain conditions.342 Similarly, regional, interregional and bilateral investment protection and investment agreements, chapters of multilateral treaties, such as NAFTA and the Energy Charter Treaty, recognize the right of all host states to expropriate a foreign entity, subject to the requirements of international law.343
The case from 1928 concerning the expropriated nitrogen factory in Chorzów is referred to as one of the first judgments in which the law of a given country to take over foreign ownership was recognized, albeit only in exceptional circumstances.344 In the case of the Anglo-Iranian Oil Company (1951–1952), the ICJ stated that, in principle, the court was not competent to adjudicate on the subject.345 Since the moment of this ruling, the right of states to nationalize foreign ownership has gradually gained widespread recognition. In arbitration awards regarding the nationalization of oil companies by Libya, the right to nationalize was confirmed, with references made to relevant UN resolutions. In the Texaco case (1978), it was pointed out that the right to nationalize should be treated as an expression of the territorial sovereignty of a given state.346 Similarly, in the case of Liamco (1981), it was stated that the right of a state to nationalize wealth and natural resources is its sovereign right.347 In the Aminoil case (1982), the court also recognized the state’s right to nationalize and stated that the nationalization of Aminoil as such was lawful and did not violate Kuwait’s obligations to Aminoil as it was part of a consistently implemented Kuwaiti programme aimed at taking control of the entire oil industry.348 In the Amoco ruling (1987) the Iran-United States Court of Claims recognized nationalization as both a fundamental attribute of a sovereign state that cannot be easily derogated, and an important tool of economic policy of both developed and developing countries.349
The recognition of the right to nationalize was reflected in the Draft United Nations Code of Conduct for Transnational Corporations, which stipulated that states have the right to nationalize or expropriate the property of transnational corporations operating in their territory;350 the Seoul Declaration, which states that the state can nationalize, expropriate, and otherwise transfer ownership or rights to real estate, its territory, and its jurisdiction;351 and the World Bank guidelines on the treatment of foreign investment, specifying in negative terms that the State may not expropriate or take over entirely or partially foreign private investments in its territory, or take measures that have similar effects, except when it is in accordance with the applicable legal procedures.352
3.5.2.2 The right to freely determine the conditions of nationalization
Resolution No. 1803 (XVII) specifies that nationalization, expropriation or requisitioning are based on the foundations or considerations of public utility, security and national interests recognized as superior to purely private individual interests, both domestic and foreign.353 The grounds referred to in Resolutions No. 1803 (XVII) and 3171 (XXVIII) may be different. National security, however, is an unquestionable premise. In this case, the state may decide to subject all entities operating in specific sectors of the economy to its control, e.g. in the fields of telecommunications, defense industry, utilities, and even in the oil industry.354 Neither treaty law nor the rulings of international courts and tribunals give grounds for recognizing that expropriating states may freely determine the conditions of expropriation or nationalization.355
In the James case (1986),356 the European Court of Human Rights (ECHR) pointed out that legitimate public interest objectives, such as economic reform measures or measures to achieve greater social justice, could justify interference with property, which proves a wide discretion left to the European states. In the arbitration judiciary, a view was expressed that legitimate expropriation or nationalization must serve public purpose, although sometimes this purpose is additionally qualified. In the Liamco case, referring to the claim that the measures were politically motivated and did not aim to achieve a legitimate public objective, the Tribunal found that there was a general opinion in international theory [sic!] that public utility is not a prerequisite for the legality of nationalization. What is more, the Tribunal stated that natural resources belong to the communities represented by the state rather than to the owner of the land.357 The Texaco ruling recognized the existence of a “public purpose” requirement, while acknowledging that there are difficulties in its assessment.358 Also the Amoco ruling indicates that such a requirement is easily met due to the “wide margin of appreciation” doctrine.359 This thesis is also confirmed in the literature on the subject.360
3.5.2.3 The right to refuse to pay compensation or to determine it freely
On the initiative of developing countries, Resolution No. 88 (XII) included a provision that the measures that states can take to regain their natural resources are the expression of the sovereign power under which every state is responsible for determining the amount of compensation and the procedure for taking such measures.361 Similarly, in Resolution No. 3171 (XXVIII) it was stated that the use of nationalization by states, as an expression of their sovereignty, means that each state has the right to determine the amount of possible compensation and mode of payment.362
There is no evidence in treaty law to support the thesis that the state has the right to withhold compensation or is free to determine the amount of compensation. On the contrary, some treaties provide for the duty to pay compensation and indicate the criteria for the amount of compensation. In many cases, however, acceptance for only “partial” compensation is observable in the natural resources sector, which results from the fact that “full” compensation when it comes to the financial resources and state development plans of the nationalizing state would actually undermine the effect of nationalization.363
Although the principle of quick, proper and effective compensation is popular with regard to bilateral investment agreements (BITs), there are few decisions of courts and international tribunals that would apply it directly in these matters. The Texaco, Aminoil and Ebrahimi364 rulings are examples of references to the “appropriate compensation” formula contained in Resolution No. 1803.365 In the case of INA Corporation v. Iran (1985), the Iran-United States Claims Tribunal noted that in the case of illegal nationalization on large scale, international law gradually approached an assesment that may result in undermining the doctrinal value of any “full” or “appropriate” compensation normally proposed in this case.366 In the view of the Tribunal, the contemporary soft principle of international law on compensation has found the most concrete expression and widespread acceptance in Resolution No. 1803 (XVII). Furthermore, the Tribunal considered that the expressions “appropriate”, “fair”, and “just” define practically interchangeable terms in relation to compensation, since even in the case of the best intentions they inevitably leave a margin of uncertainty and recognition.367
In the case of Ebrahimi v. Iran (1994), the Iran-United States Claims Tribunal stated that although international law undoubtedly determines the duty to compensate for seized property, the theory and practice of international law do not allow to state that “quick, appropriate and effective” compensation is the predominant standard. Rather, customary international law favours the standard of “appropriate” compensation. The gradual appearance of this principle seeks to ensure that the amount of compensation is determined in a flexible way, i.e. taking into account the particular circumstances of each case. The “proper” standard of compensation does not mean, however, that compensation should always be “less than full” or always “partial”. After correct estimation of the full value of the property, the compensation should be set to reflect the relevant facts and circumstances of each case.368
The ad hoc tribunal in the Aminoil case considered the issue of “legitimate expectations” that the investor would have, including the assessment of “excessive profits” in the past, remaining above the “reasonable rate of return” that should be deducted from the amount of compensation.369 The retroactive concept of excessive profits has already been used before, e.g. by the Chilean government during the nationalization of the Andean Mining Company,370 a copper mining enterprise, and by the Libyan government in reference to Bunker Hunt,371 but it met with opposition from the United States372 due to the specificity of oil companies, which – if deprived of excess profits from the business – will not be able to afford exploration and development of other deposits.
3.5.2.4 The right to freely choose the means of settling disputes concerning nationalization
In this regard, there may be two types of potential disputes: disputes between states and disputes between the host country and the foreign investor. Achieving agreement on arrangements for the second-type dispute resolution has always been more problematic. The Latin American countries have taken a particularly strong stance on this matter by making provisions in their constitutions and by applying the Calvo clauses in contracts securing that foreigners should be subject to the law of the host country and that they should bring investment disputes only to local courts. On the other hand, Western states have stressed the right of host countries to grant diplomatic protection and the right of foreign investors to adjudicate in cases where the fairness of local courts is questioned.373
Resolutions of the General Assembly No. 1803 (XVII)374 and 3171 (XXVIII)375 and Article 2 of the Charter of Economic Rights and Duties of States (CERDS) are important in this respect, although, as regards dispute resolution, they only concern the disputes on compensation. Resolution No. 1803 (XVII) indicates the need to exhaust local remedial actions before an applicant appeals to arbitration or international jurisdiction, unless otherwise agreed. Article 2 of the CERDS is consistent with the Calvo clause, and therefore only emphasizes the resolution of disputes by national courts, unless a free choice of other peaceful means has been made.
The requirement of prior exhaustion of local measures is strongly rooted in international law and is expressed in treaty law,376 international jurisprudence,377 and in doctrine. It amounts to the fact that the state against which a complaint has been brought for damages caused by non-state actors has the right to refute such action if that entity has not exhausted all remedies in accordance with the law of that state. This requirement results from the principle of state sovereignty and expresses respect for the territorial jurisdiction of states. Its justification is that the state must be able to remedy the situation in accordance with its own judicial or administrative procedures.378
In accordance with the ICSID Convention, a contracting state may require that all local administrative or judicial means are exhausted before agreeing to international arbitration. The Convention also provides that any contracting state shall provide diplomatic protection or bring an international claim in relation to a dispute which one of its investors and other contracting state agreed to surrender under the ICSID arbitration procedure.379
The Draft OECD Convention on the Protection of Foreign Property (1967)380 underlines the role of international arbitration in inter-state disputes. It also indicates that the parties’ investors may institute proceedings before an arbitration tribunal established under the Convention regarding: exhaustion of local or other (national or international) mandatory remedies; acceptance of the jurisdiction of the arbitration tribunal by the host country; and the waiving by the receiving State of the right to submit a claim directly to the defendant state or to bring it before an international tribunal.381
The Inter-Arab Agreement on the mutual promotion and protection of investments (1980)382 established the Arab Investment Court, which is competent to resolve any dispute between states-parties or between Arab investors and host countries. Article 31 of the Agreement states that the Arab investor first addresses the justice system of the state in which he made the investment. In the event of conflicts of jurisdiction between the Arab Investment Court and national courts, international jurisdiction of the Court shall prevail.383
The dispute settlement regulations included in the Investment Agreement of the Organization of the Islamic Conference (1981, now under the name Organization of Islamic Cooperation) offer the opportunity to present disputes for national or international arbitration, without having to exhaust local remedies.384 The same applies to the international arbitration procedure specified in the ASEAN Investment Agreement.385 NAFTA includes an arbitration procedure for settling disputes between the state and the investor.386 ICSID also defines its own procedures for settling disputes between the state and the investor.387 The Energy Charter Treaty discusses dispute settlement mechanisms, distinguishing between the investor and state disputes and the disputes between states-parties to the agreement. The investor may decide to submit the dispute to the courts or administrative tribunals of a state that is a party to the dispute or in accordance with any applicable, previously agreed dispute resolution procedure, and may decide to submit the dispute for international arbitration or conciliation. Recourse to administrative courts is therefore treated as an option, not as an obligation.388
Despite the controversy and uncertainty indicated, almost all of the above-mentioned acts emphasize the right of states to freely choose dispute resolution measures for nationalization and compensation. This freedom includes the right to demand the exhaustion of local resources in the context of a dispute between the host country and the foreign investor, as well as the freedom to resort to other peaceful means, to which interested parties freely agreed. This position is also reflected in the Seoul Declaration, which states that disputes must be settled by peaceful means chosen by the interested parties and that the principle of local remedies should be respected, if applicable.389 The use of the phrase “interested parties” indicates that it also includes international arrangements between the states and foreign investors.
3.5.2.5 The right to resolve disputes based on national law
Although both Resolution 1803 (XVII)390 and the Charter of Economic Rights and Duties of States (CERDS)391 provide that compensation should be “appropriate”, they differ essentially in the law applicable to its determination. The first relates primarily and the second exclusively to the national law of the nationalizing state. Resolution No. 1803 (XVII) also refers to international law,392 while CERDS only adds, after expressing “its relevant laws and regulations”, the phrase “and all circumstances that the State considers pertinent”.393 It is obvious that such formulation may result in wide discretionary state powers, but according to CERDS, the state of nationalization remains bound by its national law, in accordance with the Calvo doctrine. The situation is different in Resolution No. 3171 (XXVIII)394 and UNCTAD Resolution No. 88 (XII),395 which do not indicate the applicable law. The arbitration rules of the UN Commission on International Trade Law UNCITRAL (1976)396 define in Article 33 that arbitration tribunals must apply the law determined by the parties as relevant to the substance of the dispute.397 In the absence of such an agreement, the court must apply the law determined by the conflict-of-law rules it deems appropriate, and rule in accordance with the terms of the contract, taking into account the commercial usage applicable to the transaction.
Article 42 of the ICSID Convention (1965) indicates that arbitration tribunals should settle disputes in accordance with such law as the parties to the dispute have agreed. In the absence of an agreement on this subject, the court applies the law of the host state (including its conflict rules) and the rules of international law that may apply in a given case. The Inter-Arab agreement on the mutual support and protection of investments also makes provision for the law applicable to dispute resolution and provides that compensation for expropriation is to be paid in accordance with the generally applicable legal regulations governing expropriation.398 The Energy Charter Treaty, on the other hand, provides that arbitration tribunals resolve disputes in accordance with this Treaty and the relevant rules and principles of international law.399
The issue of law selection has been included in a number of arbitral awards. Most of them recognize the freedom of the parties to choose the law to which the contracts and procedures applicable to arbitration are subject. An example of this can be the three Libyan oil concessions which included clauses of the applicable law.400
Non-binding instruments other than UN resolutions contain only general indications on the subject matter. The ICC guidelines require respect for international law in reference to the treatment of foreign property.401 The Draft United Nations Code of Conduct on Transnational Corporations provides rather broadly that adequate compensation is to be paid in accordance with applicable laws and rules, and thus avoids determining whether priority should be given to national or international law.402 Similarly, World Bank guidelines only point to the application of “applicable legal procedures”.403
Therefore, national law generally has priority in the event of a dispute between the host state and foreign investor. If the dispute cannot be resolved under national law, international law should be recognized as appropriate.
3.5.3 The duty to respect international law and treat foreign investors fairly
The main resolutions on permanent sovereignty require the states, as part of their permanent sovereignty, to respect the rights of other states and fulfill international commitments in good faith. Apart from bilateral and multilateral investment agreements, the duty to ensure fair treatment of foreign investors is seldom referred to directly in other acts of international law. The African Charter on Human and Peoples’ Rights confirms that the free management of wealth and natural resources should be exercised without prejudice to the duty of international economic cooperation based on mutual respect, fair exchange, and principles of international law.404 The UN Convention on the Law of the Sea also explicitly states that coastal states in the exercise of their rights in the exclusive economic zone should duly take into account the rights and obligations of other states.405 The rights of other states in the exclusive economic zone cover three of the four maritime freedoms.406 The exercise of rights by the coastal State with regard to the continental shelf shall not, however, affect or cause the disruption of navigation and other rights and freedoms of third states provided for in the Convention.407 What is more important are the general regulations of the Convention relating to the question of good faith and abuse of law.408
With regard to the multilateral agreements related to investments, the ICSID Convention contains one important reference to the application of international law and provides that in the event of disagreement regarding the law applicable to the interpretation and scope of the contract, the court applies the law of the host state party to dispute and such principles of international law that may apply.409 According to the Arab Investment Agreement, the host country undertakes only to protect the investor and to protect its investments and rights.410 Similarly, the ASEAN Investment Agreement,411 the NAFTA,412 and the Energy Charter Treaty413 guarantee investors and other contractors fair and equal treatment as well as full protection and safety.
Bilateral investment treaties as agreements to constitute an incentive for foreign investors also usually require the fulfillment of international obligations and fair treatment of investors.414
Judgments of international courts and tribunals offer a lot of evidence demonstrating that international law and the laws of other states should be respected. This is clear, for example, from the judgment of the ICJ in the Barcelona Traction case (1970), which states that if a state allows foreign investments on its territory, it is obliged to provide them with legal protection and ensure their proper treatment.415 This obligation also stems from a number of judgments regarding the delimitation of maritime areas, such as the North Sea shelf case (1969),416 the continental shelf issue between Tunisia and Libya (1982),417 the delimitation of the Gulf of Maine (1984),418 the continental shelf case (Libya v. Malta, 1985),419 and the case of marine delimitation between Greenland and Jan Mayen (Denmark v. Norway, 1993).420 In addition, arbitration judgments concerning the nationalization of oil, such as the Amoco ruling (1987), in which the Court explicitly referred to the Treaty on the mutual relations between Iran and the USA (as lex specialis), as well as to customary international law (as lex generalis), to fill any gaps and ensure proper interpretation of the unclear provisions of the treaty on mutual relations.421
The ICC guidelines explicitly urge the host state’s government to adhere to the recognized principles of international law, including equitable and equal treatment of foreign property.422 The OECD Declaration of 1976, in the text of the annex containing guidelines for multinational enterprises, refers to the obligations of states to treat entrepreneurs fairly and in accordance with international law.423 The Seul Declaration contains a number of appeals to the duty to comply with international law, indicating that permanent sovereignty means the jurisdiction of the state over natural resources, economic activity and wealth without exemption from the application of relevant rules and international law. Although permanent sovereignty is called “inalienable”, the state can accept obligations with regard to the exercise of sovereignty by means of a freely contracted relationship, meaning that a state that freely concludes contracts affecting its permanent sovereignty must must perform all obligations arising from it in good faith.424 The guidelines of the World Bank (1992) are intended to complement the existing bilateral and multilateral agreements and other international instruments425 and provide that each state shall fairly and equally treat investments carried out on its territory by nationals of other countries, in accordance with the standards set out in these guidelines.
3.5.4 Obligations related to the right to take over foreign ownership
The obligations related to the right of nationalization or expropriation, as indicated in Resolution 1803 (XVII) and subsequent resolutions of the General Assembly of the United Nations, are related to the following conditions of the lawfulness of action: in the public interest; without discrimination; with the payment of compensation; while maintaining the standard of compensation; in due proceedings; with retaining the right of appeal.
3.5.4.1 The requirement of acting in the public interest
UN resolutions stipulate that a nationalizing state has a wide margin of discretion in determining what is necessary for “public utility, security or the national interest”426 or for the purpose of “safeguarding the natural resources”.427 Protocol I to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) explicitly states that no one may be deprived of property, except in the public interest.428 The US Convention on Human Rights refers to “public utility or social interest”,429 while the African Charter on Human and Peoples’ Rights indicates “public need” or “the general interest of the community”.430 Similarly, the OECD Convention on the Protection of Foreign Property,431 the Inter-Arab Agreement on mutual support and protection of investments,432 and the Investment Agreement of the Organization of the Islamic Conference433 state that it is permissible to expropriate investments in the public interest. The ASEAN Investment Agreement434 refers in this context to “public use… purpose, or… interest”, while the Energy Charter Treaty (1994) refers to “a purpose which is in the public interest”.435 Returning to the most traditional formula, NAFTA (1992) indicates in this aspect directly the “public purpose”.436
The public purpose requirement has been recognized by the Permanent Court of International Justice (PCIJ) in the case concerning certain German interests in Polish Upper Silesia, 1926;437 in the case concerning the Factory at Chorzow, 1928;438 in arbitration cases BP v. Libia (1974)439 and Aminoil (1982);440 as well as by the Iran-United States Claims Tribunal in the American International Group case,441 in the INA Corporation442 case, and in Amoco case.443
3.5.4.2 The requirement of acting without discrimination
The requirement of non-discrimination is ambiguous because in this legal situation two types of discrimination are possible: discrimination on the axis of foreigners-citizens and discrimination in relation to foreigners.
According to Resolution No. 1803 (XVII), discrimination between citizens and foreigners may be considered unlawful in light of the expression that nationalization must be based on grounds that have been recognized as superior to purely individual and private interests, both domestic and foreign.444 However, it is not entirely clear to what extent the condition of non-discrimination can be derived from the provisions of international law related non-specifically to the treatment of foreign property.445
The International Covenant on Economic, Social and Cultural Rights foresees that developing countries can determine, with respect for human rights and their national economy, to what extent foreigners will be guaranteed the economic rights recognized in this Covenant.446 This deviation from the principle of non-discrimination, however, was not continued in legal instruments concerning regulation of foreign investments. The Inter-Arab agreement on the mutual promotion and protection of investments explicitly guarantees “non-discriminatory treatment”, whereas the Investment Agreement of the Organization of Islamic Conference stipulates that expropriation will take place “without discrimination”.447 Similarly, the ASEAN Investment Agreement, NAFTA, and the Energy Charter Treaty refer to the non-discriminatory basis of expropriation. Most of bilateral investment agreements also explicitly refer to full non-discriminatory treatment: foreign investors benefit from treatment no less favourable than that granted to the citizens or enterprises in the host country or the investments of citizens or companies of any third country, if the latter is more favourable to the investor (the most-favoured-nation clause).448
Case law provides examples of the prohibition of discrimination. In the case of BP v. Libya, the arbiter G. Lagergren stated that Libya had broken “public international law” because the expropriation was “arbitrary and discriminatory”.449 In the Amoco ruling, the Iran-United States Claims Tribunal found that in customary international law, discrimination in the field of expropriation is generally considered to be forbidden.450
The principle of non-discrimination has also been included in various guidelines for foreign investments: e.g. ICC guidelines call for “the avoidance of unreasonable and discriminatory measures”.451
3.5.4.3 The requirement to pay compensation
Resolution No. 1803 (XVII) regarding permanent sovereignty over natural resources confirms the duty to pay compensation in the event of expropriation and nationalization, stating that “the owner shall be paid appropriate compensation”.452 UNCTAD resolutions No. 88 (XII) and 3171 (XXVIII) have made efforts to deny this obligation and recognize the payment of compensation for a discretionary, not absolute condition; however, there has been no significant continuation of these initiatives.453
The regulations of the United Nations Code of Conduct on multinational corporations regarding the fact that the state has the right to expropriate the property of multinational corporations for the payment of adequate compensation, in accordance with the applicable rules and principles, can be interpreted accordingly.454
Treaty law extensively recognizes the duty to pay compensation. Article 1 of Protocol I455 to the European Convention for the Protection of Human Rights and Fundamental Freedoms456 explicitly does not provide for such an obligation, but the expression “in accordance with the general principles of international law” may be broadly interpreted as being in favour of this obligation, at least for non-citizens. The unambiguous obligation to compensate can be found in Article 21 (2) of the American Convention on Human Rights (1969),457 as well as in a number of multilateral investment agreements and in most bilateral investment treaties.458
The International Court of Justice confirmed obligation to compensate in the dispute on the temple of Preah Vihear (Cambodia v. Thailand, 1962). Arbitration rulings BP v. Libia,459 Texaco,460 Liamco,461 and Aminoil462 expressly recognize this obligation.463 The Iran-United States Claims Tribunal has recognized in its jurisprudence that both under international customary law treated as lex generalis and in accordance with the treaty on the reciprocal relations between Iran and the USA of 1955 as lex specialis, compensation is due.464 In the judgment American International Group Inc. v. Iran (1983),465 this Tribunal explicitly stated that the principle of public international law is that even in the event of legal nationalization, the former owner of a nationalized property is usually entitled to compensation for the loss of value of the seized property.466 In its judgment in the Ebrahimi case (1994), the Tribunal reiterated that international law undoubtedly defined the duty to compensate for the property taken over.467
The ICC Guidelines,468 the Draft United Nations Code of Conduct on Transnational Corporations,469 and the World Bank Guidelines470 require the payment of compensation in the event of expropriation or nationalization.
3.5.4.4 The requirement to maintain the compensation standards
A number of Western states have consistently maintained the position that compensation should be in line with the triple standard, being prompt, appropriate, and effective, which was confirmed by the debate on the Declaration on permanent sovereignty, the Declaration for the Establishment of a New International Economic Order, as well as the Charter of Economic Rights and Duties of States. In its traditional form, this standard meant that if a restoration to the previous state (restitutio in integrum) was not possible, compensation was to be made by paying the sum corresponding to damnum emergens and lucrum cessans, and the payment was to be “prompt, adequate and effective” (the so-called Hull formula).471 The developing countries, on the other hand, have consistently denied the existence of a generally accepted practice in this area. The pursuit of consensus resulted in the adoption of the appropriate compensation formula contained in Resolution No. 1803 (XVII),472 with intentional ambiguity that was repeated in the Charter of Economic Rights and Duties of States.473 Thus the supporters of the triple standard, as well as advocates of the new doctrines referring to the “ability to pay”, “excess profits”, as well as “unjust enrichment” were able to use this term in their favour.
The Draft United Nations Code of Conduct on Transnational Corporations leaves all options open, ensuring that “the State adopting those measures should pay adequate compensation taking into account its own laws and regulations and all the circumstances which the State may deem relevant”.474
Several multilateral treaties refer to the issue of the compensation standard. Importantly, when it comes to the moment of payment, the traditional wording “fast” or “immediately” is sometimes replaced by the words “without undue delay” (in the Draft OECD Convention on the protection of foreign property475) and by “without delay” (in the ASEAN Investment Treaty476). The Inter-Arab Investment Agreement on mutual support and investment protection stipulates that compensation must be paid within a period not exceeding one year from the date on which the expropriation decision became final.477 The Investment Agreement of the Organization of the Islamic Conference requires a “prompt payment”.478 Also NAFTA uses the traditional term “without delay”.479 The Energy Charter Treaty provides that expropriation should be combined with the payment of prompt compensation.480
The draft OECD Convention on the Protection of Foreign Property stipulates that the measure of expropriation should be combined with the payment of “just compensation”.481 Such compensation should represent the real value of the property affected by expropriation and should be transferable to the extent necessary to be effective for the eligible party. Also the American Convention of 1969 on the protection of human rights refers to the concept of “just compensation”.482 The Inter-Arab Investment Agreement on mutual support and investment protection (1980) provides for “fair compensation”,483 whereas the Investment Agreement of the Organization of the Islamic Conference (1981) requires “adequate and effective compensation to the investor in accordance with the laws of the host state regulating such compensation”.484 The ASEAN Investment Agreement contains the term “prompt, adequate, and effective compensation”.485 The NAFTA specifies that such compensation shall be “equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (‘date of expropriation’) and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value”. Moreover, the compensation will be “fully realizable” and “freely transferable” in any currency from the host country.486 The Energy Charter Treaty uses the standard of “quick, appropriate and effective” compensation.487
However, the Amoco ruling clearly states that the future capitalization of income that may be generated by such activity after the transfer of ownership as a result of expropriation (lucrum cessans – the judgment concerning compensation for “goodwill and commercial prospects”) should not be taken into account when assessing the compensation due for the legal takeover of property.488 In the case of Ebrahimi (1994), the court pointed out that the extra remuneration for lucrum cessans is dependent on the prior characterization of the takeover as unlawful.489 In some cases, such as Phillips Petroleum (1989), the Tribunal did not differentiate the compensation, but applied the uniform standard provided for in the Treaty on mutual relations and interpreted it as a requirement for compensation representing the “full equivalent of the property taken”.490
The ICC guidelines contain the “without undue delay” formula,491 while the Draft United Nations Code of Conduct on Transnational Corporations does not include this element. The World Bank Guidelines equate the terms “prompt” and “without delay”, but accept that if the state is affected by exceptional circumstances, the compensation may be paid within a period which shall be as short as possible and which shall in no case exceed five years from the date of acquisition, provided that reasonable market interest is applied to deferred payments in the same currency.492
With regard to the requirement of “adequacy” or “full value” of compensation, ICC guidelines use the term “just compensation”.493 The Draft United Nations Code of Conduct on Transnational Corporations uses the term “adequate compensation… in accordance with the applicable legal rules and principles”. The World Bank refers to the traditional formula “appropriate” in the sense of market value. The guidelines contain detailed rules on how to determine the market value of the investment in a reasonable manner.494
Regarding the requirement for the effectiveness of the compensation, the ICC guidelines contain only the word “effective” in the compensation clause.495 The World Bank Guidelines amount to effective indemnity payable in “the currency brought in by the investor where it remains convertible, in another currency designated as freely usable by the International Monetary Fund or in any other currency accepted by the inwestor”.496
3.5.4.5 The requirement to perform a reliable procedure
Although it is universally accepted that expropriation must take place on the basis of reliable procedure,497 none of the resolutions regarding permanent sovereignty over natural resources explicitly refers to this concept.
The requirement of a fair legal process was important for refusing to recognize the legality of a series of “nationalizations” by Western courts and governments, for example, the Chilean copper mines. Chilean law regulating the nationalization of copper adopted the principle that compensation should be reduced by the amount of excess profits which the copper mining companies in the past had been awarded in a discretionary way by the then head of state, President Allende, with no possibility of appeal.498
The ICC guidelines call for the avoidance of “unjustified measures”.499 The World Bank’s guidelines vaguely refer to “applicable legal procedures”,500 whereas the Seoul Declaration and the Draft United Nations Code of Conduct on Multinational Corporations contain no reference to a fair trial.
126 R. Bernhardt (ed.), Encyclopedia of Public International Law, 12 Instalments, Amsterdam 1981–1990.
127 R. Higgins, The taking of property by the state: recent developments in international law (vol. 176), in: Collected Courses of the Hague Academy of International Law, The Hague Academy of International Law, http://dx.doi.org/10.1163/1875-8096_pplrdc_ej.9789024728473.259_392 (2018-06-24).
128 M. Dixon, R. McCorquodale, Cases and Materials on International Law, London 1995.
129 World Bank Group, Legal Framework for the Treatment of Foreign Investment, vol. I: Survey of Existing Instruments: Progress Report and Background Studies, Washington 1992.
130 J. Makarczyk, Principles of a New International Economic Order: A Study of International Law in the Making, Dordrecht 1988.
131 C. Brower, The Iran-United States Claims Tribunal, (in:) Recueil des Cours (1990–V) vol. 224, p. 127–396, Dordrecht 1993.
132 A. Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-US Claims Tribunal, Dordrecht 1994.
133 N. Schrijver, Sovereignty over Natural Resources, Cambridge 2008, p. 258 et seq. and 306 et seq.
134 UNGA resolution of 12 January 1952, 523 (VI)…, op. cit.; UNGA resolution of 21 December 1952, 626 (VII) …, op. cit.; UNGA resolution of 17 December 1973, 3175 (XXVIII), Permanent Sovereignty over Natural Resources in the Occupied Arab Territories, https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/282/47/IMG/NR028247.pdf?OpenElement (2018-06-24); UNGA resolution of 20 July 1992, 46/235, Restructuring and revitalization of United Nations in the economic, social and related fields, A/RES/46/235, http://unctad.org/en/PublicationsLibrary/ares46d235_en.pdf (2018-06-24); UNCTAD Trade and Development Board, resolution 88 (XII) of 19 October 1972, International Legal Materials 1972 (11), p. 1474.
135 UNCTAD I, Final Act of 15 June 1964…, op. cit.,. No. III; UN resolution 1970 Declaration on Principles of International Law, Principle III.4; UNGA resolution of 17 December 1973, 3171 (XXVIII)…, op. cit., Preamble, No. 3.
136 Art. 1, International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (2018-07-21).
137 Art. 1 International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx (2018-07-21).
138 Art. 21, African Charter on Human and Peoples’ Rights adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf (2018-06-24).
139 Preamble and Art. 15 (1) of the Convention. Convention on Biological Diversity…, op. cit.
140 Art. 18.3, The Energy Charter Treaty, 2080 UNTS 95; 34 ILM 360 (1995).
141 Iran-United States Claims Tribunal, Libyan American Oil Company (LIAMCO) v. Government of Libyan Arab Republic, Revue de l’Arbitrage, 1980, p. 132–191, reprinted in 20 ILM (1981), p. 53, Judgment of 12 April 1977, https://www.trans-lex.org/261400 (2018-06-24).
142 UNGA resolution of 14 December 1962, No 1803 (XVII)…, op. cit.
143 Ad hoc Arbitral Tribunal, The Government of the State of Kuwait v. American Independent Oil Company (Kuwait v. Aminoil), Award of 24 May 1982 21 ILM 1982, p. 976 et seq., https://www.biicl.org/files/3938_1982_kuwait_v_aminoil.pdf (2018-06-25).
144 Sole arbitrator R.-J. Dupuy, Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Government of Libyan Arab Republic…, op. cit., No. 59.
145 Ibidem, No. 66–67.
146 Ibidem, No. 26.
147 Principle 5.2., ILA’s Seoul Declaration on Progressive Development of Principles of Public International Law Relating to a New International Economic Order, as adopted by the 62nd Conference of the International Law Association held in Seoul in 1986, see: D. French, ‘From Seoul with Love’ — The Continuing Relevance of the 1986 Seoul ILA Declaration on Progressive Development of Principles of Public International Law Relating to a New International Economic Order, Neth Int Law Rev (2008) 55: 3. doi:10.1017/S0165070X0800003X.
148 N. Schrijver, Sovereignty…, op. cit., p. 264; see also: Ad hoc Arbitral Tribunal, The Government of the State of Kuwait v. American Independent Oil Company (Kuwait v. Aminoil)…, op. cit., No. 90.
149 No. 4 (e), UNGA resolution of 1 May 1974, 3201 (S-VI) …, op. cit.; UNGA resolution of 12 January 1952, 523 (VI) …, op. cit.; UNGA resolution of 14 December 1962, 1803 (XVII) …, op. cit.; UNCTAD I, Final Act of 15 June 1964…, op. cit.; UNCTAD Trade and Development Board, resolution 88 (XII) of 19 October 1972…, op. cit.; UNGA resolution of 21 December 1952, 626 (VII)…, op. cit., Preamble No. 3.
150 Convention on the Continental Shelf. Done at Geneva on 29 April 1958. Entered into force on 10 June 1964. United Nations, Treaty Series, vol. 499, p. 311, http://legal.un.org/ilc/texts/instruments/english/conventions/8_1_1958_continental_shelf.pdf (2017-07-09).
151 Ibidem, Art 2 (1) and 2 (3).
152 Art 77 (1), (2), United Nations General Assembly, Convention on the Law of the Sea, 10 December 1982, available at: http://www.refworld.org/docid/3dd8fd1b4.html (2018-07-21).
153 Ibidem, Art. 56.1 (a).
154 Art. 25, ICCPR…, op. cit.; Art. 47 ICESCR …, op. cit.
155 Art. IV, Treaty for Amazonian Cooperation, Brasilia, 3 July 1978, https://www.oas.org/dsd/Events/english/PastEvents/Salvador_Bahia/Documents/Amazonannexes.pdf (2018-06-24).
156 Art. 4, The Amazonian Declaration, adopted at Manaus, Brazil, on 6 May 1989 by the Presidents of the States Parties to the Treaty for Amazonian Co-operation, UN Doc A/44/275, E/1989/79, http://www.jstor.org/stable/20693361?seq=1#page_scan_tab_contents (2018-06-24).
157 Art. 18 (3), Energy Charter Treaty …, op. cit.
158 International Court of Justice, Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25 July 1974, I.C.J. Reports 1974, p. 3, No 79.
159 A/RES/S-6/3201 …, op. cit.
160 Para. 4(f), UNGA resolution of 1 May 1974, 3201 (S-VI) …, op. cit.; Art. 16 (1), UNGA resolution of 12 December 1974, 3281 (XXIX) …, op. cit.; No. 33, UNIDO Lima Declaration & Plan of Action on Industrial Development and Co-Operation…, op. cit.
161 UN Doc. S/RES/687, 3 April 1991, No. 16.
162 Art. 1.2. ICESCR and Art. 1.2. ICCPR…, op. cit.
163 N. Shrijver, Sovereignty…, op. cit., p. 268.
164 UNGA resolution of 21 December 1952, 626 (VII)…, op. cit.
165 UNGA resolution of 14 December 1962, 1803 (XVII)…, op. cit.
166 UNGA resolution of 25 December 1966, 2158 (XXI)…, op. cit.
167 UNGA resolution of 1 May 974, 3201 (S-VI)…, op. cit.
168 N. Shrijver, Sovereignty…, op. cit., p. 270.
169 Declaration of the United Nations Conference on the Human Environment, Stockholm…, op. cit.
170 A/CONF.151/26 (vol. I)…, op. cit.
171 Para. 7, UNGA resolution of 17 December 1973, 3171 (XXVIII)…, op. cit.
172 United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84 GE.05-62220 (E) 200705…, op. cit.
173 Preambel, Energy Charter Treaty…, op. cit.
174 Vienna Convention on Succession of States in respect of Treaties (1978), Vienna Convention on Succession of States in respect of State Property, Archives and Debts…, op. cit.
175 UNGA resolution of 12 January 1952, 523 (VI)…, op. cit.
176 UNGA resolution of 21 December 1952, 626 (VII)…, op. cit.
177 UNGA resolution of 14 December 1962, 1803 (XVII)…, op. cit.
178 N. Shrijver, Sovereignty…, op. cit., p. 308.
179 Art. 1 ICESCR and Art. 1 ICCPR…, op. cit.
180 Art. 25 ICESCR and Art. 47 ICCPR…, op. cit.
181 Art. 21.1 ACHPR…, op. cit. See also: R. N. Kiwanuka, The Meaning of’People’ in the African Charter on Human and Peoples’ Rights, African Journal of International Law 82/1988, p. 95–99.
182 African Convention on the Conservation of Nature and Natural Resources (1968), CAB/LEG/24.1, http://www.au.int/en/sites/default/files/treaties/7763-file-african_convention_conservation_nature_and_natural_resources.pdf (2018-11-28).
183 Ibidem, art. IV lit. b).
184 Art. 1 and 4, Treaty for Amazonian Cooperation…, op. cit.
185 Para. 1, Amazonian Declaration…, op. cit.
186 Art. 6.2 (g), Agreement on the Conservation of Nature and Natural Resources, Kuala Lumpur, 9 July 1985, http://environment.asean.org/agreement-on-the-conservation-of-nature-and-natural-resources/ (2018-06-24). The agreement did not come into force.
187 N. Shrijver, Sovereignty…, op. cit., p. 310.
188 P. Thornberry, International Law and the Rights of Minorities, Clarendon Press: Oxford 1991, p. 331.
189 1999 its name has been changed into Sub-Commission on the Promotion and Protection of Human Rights; http://www.unic.un.org.pl/prawa_czlowieka/organyonz_ppopc.php (2018-06-19).
190 UN Commission on Human Rights, Study of the problem of discrimination against indigenous populations, 11.03.1986, E/CN.4/RES/1986/35, http://www.refworld.org/docid/3b00f02630.html (2018-06-19).
191 ECOSOC, Study of the problem of discrimination against indigenious populations, UN Doc. E/RES/1982/34, s. 26–27, http://www.un.org/ga/search/view_doc.asp?symbol=E/RES/1982/34 (2018-06-24).
192 ECOSOC, Discrimination against indigenious populations, UN Doc. E/CN.4/Sub.2/1988/25, http://www.un.org/ga/search/view_doc.asp?symbol=E/CN.4/Sub.2/1988/25 (2018-06-24); Report of the Working Group on Indigenous Populations on its eleventh session annexing the Draft Declaration, UN Doc. E/CN.4/Sub.2/1993/29, 23 August 1993, p. 50–60.
193 Art. 8 (b), United Nations Declaration on the Rights of Indigenous Peoples, Annexed to UN Doc A/61/295, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (2018-06-24).
194 Ibidem, Art. 10
195 Ibidem, Art. 26.
196 Ibidem, Art. 28. See also: M. Greβler, Moralność publiczna jako wyznacznik treści pojęcia wolność gospodarcza, Prawo kanoniczne 2015, No. 2 (58), p. 163–178.
197 Ibidem, Art. 29.
198 Ibidem, Art. 32.
199 UNGA resolution of 13 September 2007, 61/295, United Nations Declaration on the Rights of Indigenous Peoples, op.cit.
200 N. Shrijver, Sovereignty…, op. cit., p. 313. Patrz także obszernie o projekcie Deklaracji: C. J. Iorns, Indigenous Peoples and Self-Determination: Challenging State Sovereignty, Case Western Reserve Journal of International Law 24/1992, p. 199–348.
201 UN Commission on Human Rights, Study of the problem of discrimination against indigenous populations,.. op. cit., para. 379.
202 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992) A/CONF.151/26 (vol. I)…, op. cit.
203 Para. 20, Vienna Declaration adopted by the 1993 World Conference on Human Rights, UN Doc. A/CONF.l57/23, adopted on 25 June 1993, http://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf (2018-06-24).
204 International Labour Organization (ILO), Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, Adopted 27 June 1989, 72 ILO Official Bull. 59, 28 ILM 1382 (1989).
205 ICPR, op. cit.
206 OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)…, op. cit.
207 ILO Convention No. 169…, op. cit.: art. 7 (4): Governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.
208 Par. 3, Amazonian Declaration…, op. cit.
209 Art. 8 (j), Convention on Biological Diversity…, op. cit.
210 Art. 3 (a), United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa – UNCCD, Paris, 14 October 1994, United Nations, Treaty Series, vol. 1954, p. 3. See also Preamble and Art. 5 (d) and 19.1 (a).
211 Art. 1 (j), International Tropical Timber Agreement, 1.2.2006, TD/TIMBER.3/12, http://www.itto.int/itta/ (2017-06-24).
212 Art. 24.2 (iii), Energy Charter Treaty…, op. cit.
213 UNGA resolution of 14 December 1960, 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, http://legal.un.org/avl/pdf/ha/dicc/dicc_e.pdf (2018-06-18).
214 International Court of Justice, Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12. See also: T. M. Franck, The Stealing of the Sahara, American Journal of International Law 70/1976, p. 709–711.
215 Declaration of the United Nations Conference on the Human Environment, Stockholm…, op. cit.
216 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992…, op. cit.
217 Art. 193 UNCLOS…, op. cit.
218 Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985, http://legal.un.org/avl/ha/vcpol/vcpol.html (2018-06-19).
219 United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84 GE.05-62220 (E) 200705, https://unfccc.int/resource/docs/convkp/conveng.pdf (2018-11-26).
220 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, https://www.cbd.int/convention/text/default.shtml (2018-11-29).
221 UNCCD…, op. cit.
222 Art. 2 (3), The Convention on Wetlands of International Importance, especially as Waterfowl Habitat 1971. Ramsar, 2 February 1971, Protocol, Paris, 3 December 1982, Amendments to Articles 6 et 7 of the Convention, 28 May 1987, http://www.ramsar.org/sites/default/files/documents/library/scan_certified_e.pdf (2018-06-24).
223 Art. 6 ust. 1, Convention Concerning the Protection of the World Cultural and Natural Heritage, Adopted by the General Conference at its seventeenth session Paris, 16 November 1972, http://whc.unesco.org/archive/convention-en.pdf (2018-06-24).
224 Treaty for Amazonian Cooperation…, op. cit.; Declaration of San Francisco de Quito on the Establishment and Development of an Andean Peace Area (2004), http://www.internationaldemocracywatch.org/index.php/andean-community-of-nations-declarations/393-declaration-of-san-francisco-de-quito-on-the-establishment-and-development-of-an-andean-peace-area- (2018-06-24); Amazonian Declaration…, op. cit.
225 N. Shrijver, Sovereignty…, op. cit., p. 275.
226 Preamble, Revised African Convention on the Conservation of Nature and Natural Resources, Date of Adoption: March 07, 2017. https://www.au.int/web/en/treaties/african-convention-conservation-nature-and-natural-resources-revised-version (2018-06-24).
227 ASEAN Agreement on the Conservation of Nature and Natural Resources…, op. cit.
228 UNGA resolution of 18 December 1962, 1831 (XVII), Economic Development and the Conservation of Nature, A/RES/1831(XVII).
229 Preamble, para. 2, Stockholm Declaration on the Human Environment…, op. cit.
230 UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
231 Ibidem, Art. 30.
232 UNGA resolution of 28 October 1982, 37/7, World Charter for Nature…, op. cit.
233 Stockholm Declaration on the Human Environment…, op. cit.
234 UNGA resolution of 15 December 1972, 2995 (XXVII), Cooperation between States in the Field of the Environment, https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/270/25/IMG/NR027025.pdf?OpenElement (2018-08-02).
235 African Convention on the Conservation of Nature and Natural Resources. Concluded at Algiers on 15 September 1968, https://treaties.un.org/doc/Publication/UNTS/Volume%201001/volume-1001-I-14689-English.pdf (2018-06-24).
236 Ibidem, Art. 6.
237 Ibidem, Art. 8.
238 Revised African Convention on the Conservation of Nature and Natural Resources…, op. cit.
239 Apia Convention on Conservation of Nature in the South Pacific. Concluded under the auspices of the South Pacific Commission, Apia, 12 June 1976, in force 28 June 1980, 6AC/SC/RD/4, http://www.sprep.org/attachments/legal/ApiaConvention.pdf (2018-06-24).
240 https://www.sprep.org (2017-06-24).
241 M.M. Kenig-Witkowska, Prawo środowiska Unii Europejskiej. Zagadnienia systemowe, Warsaw 2005, p. 99.
242 Treaty for Amazonian Cooperation…, op. cit.
243 Amazonian Declaration…, op. cit.
244 ASEAN Agreement on the Conservation of Nature and Natural Resources…, op. cit.
245 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ C 115, 9.5.2008, p. 1–388.
246 J. Osiejewicz, Harmonizacja.., op. cit., p. 195–197.
247 Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region. Adopted in Noumea, New Caledonia on 24 November 1986, http://sedac.ciesin.org/entri/texts/natural.resources.south.pacific.1986.html (2018-06-24).
248 Art. 19, Energy Charter Treaty…, op. cit.
249 Ramsar Convention on Wetlands…, op. cit.
250 Art. 4, World Heritage Convention…, op. cit.
251 International Union for Conservation of Nature and Natural Resources, https://www.iucn.org (2018-06-24).
252 Art. 7 i 9, Convention on Biological Diversity…, op. cit.
253 Art. 4.1 (d), (e), UN Framework Convention on Climate Change.
254 UN Convention to Combat Desertification…, op. cit.
255 UNCLOS…, op. cit.
256 Ibidem, Art. 193.
257 Ibidem, see specifically Art. 194 ust. 2.
258 Ibidem, Art. 235.
259 Ibidem, Art. 61, 62.
260 International Tropical Timber Agreement…, op. cit.
261 Ibidem, Art. 1 (m).
262 Ibidem, Preamble, (d).
263 Arbitral Tribunal, Trail Smelter Arbitration Case (United States v. Canada) 1941, U.N. Reports of International Arbitral Awards 1905 (1949), vol. III,s. 1905–1982, Award of 16 April 1938 and 11 March 1941 http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf (2018-06-24).
264 International Court of Justice, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, http://www.icj-cij.org/docket/?sum=317&code=nzf&p1=3&p2=3&case=59&k=6b&p3=5 (2018-06-24).
265 International Court of Justice, Nuclear Tests (New Zealand v. France) Case. Order of 22 September 1995, http://www.icj-cij.org/files/case-related/97/7557.pdf (2018-07-27).
266 UNGA resolution of 12 January 1952, 523 (VI)…, op. cit.
267 UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
268 UNGA resolution of 1 May 1974, 3201 (S-VI)…, op. cit.
269 Art. 6–9 and Art. 33 UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit. The right to exercise permanent sovereignty over natural resources should be read and interpreted in the light of Article 33 and in the general context of the Charter of Economic Rights and Duties of States.
270 Charter of the United Nations and the Statute of the International Court of Justice, San Francisco 1945, https://treaties.un.org/doc/publication/ctc/uncharter.pdf (2018-07-21).
271 See Art. 55 and 56 of the Charter of the United Nations, as well as Art. 74, which includes a reference to the general principle of good neighbourliness, with due regard to the interests and well-being of the rest of the world, in social, economic and commercial matters. See also: J. Cot, A. Pellet, La Charte des Nations Unies: Commentaire article par article, Paryż 1991, pp. 843–863 and 887–893.
272 General Agreement on Tariffs and Trade (GATT) 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994), https://www.wto.org/english/docs_e/legal_e/06-gatt_e.htm (2018-06-25).
273 Marrakesh Agreement Establishing the World Trade Organization (WTO), Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994), https://www.wto.org/english/docs_e/legal_e/04-wto.pdf (2018-06-25).
274 Energy Charter Treaty…, op. cit.
275 Preamble, para. 4, UNCLOS…, op. cit.
276 Section 4 “Duty to Cooperate for Global Development”, Seoul Declaration…, op. cit.
277 N. Shrijver, Sovereignty…, op. cit., p. 322.
278 Ibidem, p. 323.
279 Art. 82 (4) UNCLOS…, op. cit.
280 N. Shrijver, Sovereignty…, op. cit., p. 324.
281 UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
282 For example, the action plan adopted by the UN Conference on Water in Mar del Plata (Argentina, 1977) included a recommendation stating that with regard to the use, management and development of shared water resources, national policies should take into account the right of every country to use such resources fairly. See: Report of the UN Water Conference in Mar del Plata (Argentina, 1977), UN Doc. E/CONF.70/29, Recommendation No. 91, 1977, p. 53; see more: M. Falkenmark, UN Water Conference: Agreement on Goals and Action Plan, 1997 Ambio T. 6, No. 4, p. 222–227.
283 Environmental Law Guidelines and Principles on Shared Natural Resources, UNEP GC Dec. No. 6/14, 19 May 1978, adopted by consensus, and reproduced in UN Doc. A/33/25, p. 154–155.
284 On the delimitation of resources: J. Osiejewicz, Delimitacja własności ropy naftowej w prawie międzynarodowym, (in:) M. Minta, W. Śledzik (ed.), Energetyka. Wyzwania prawno-instytucjonalne, Poznań 2016, p. 148–167.
285 Latin American perspective: F. Orrego Vicuna (ed.), The Exclusive Economic Zone. A Latin American Perspective, Colorado 1984.
286 Convention on the Conservation of Migratory Species of Wild Animals. Done at Bonn on 23 June 1979 http://www.cms.int/en/convention-text (2018-06-25).
287 Art. 19, ASEAN Agreement on the Conservation of Nature and Natural Resources…, op. cit.
288 Art. 11, UN Convention to Combat Desertification…, op. cit.
289 M. Valencia, Joint Development of Petroleum Resources in Overlapping Claim Areas, in J. D. Lambert & F. Fesharaki (eds.) Economic and political incentives to Petroleum Exploration: Developments in the Asia-Pacific Region, Washington 1990, p. 73–113.
290 ILA, Helsinki Rules on the Uses of the Waters of International Rivers (1966), http://www.internationalwaterlaw.org/documents/intldocs/Helsinki_Rules_with_comments.pdf (2018-06-25).
291 Compare: N. Shrijver, Sovereignty…, op. cit., p. 337.
292 Art. 3, UNGA resolution of 12 December 1974, 3281 (XXIX), op. cit.
293 UNEP, Environmental Law Guidelines and Principles on Shared Natural Resources (1978), https://dirittointernazionaledellambiente.files.wordpress.com/2010/03/1978-unep-principles-shared-resources.pdf (2018-06-25).
294 Compare: Arbitral Tribunal, Lac Lanoux arbitration case, Reports of International Arbitral Awards vol. XII, p. 281–317, Recueil Des Sentences. Arbitral. Affaire du lac Lanoux (Espagne, France), 16 November 1957, http://legal.un.org/riaa/cases/vol_XII/281-317_Lanoux.pdf (2018-06-25).
295 N. Shrijver, Sovereignty…, op. cit., p. 279.
296 UNGA resolution of 14 December 1962, 1803 (XVII)…, op. cit.
297 UNGA resolution of 25 November 1966 r., Nr 2158 (XXI)…, op. cit.
298 UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
299 No. 4, UNGA resolution of 25 November 1966, 2158 (XXI)…, op. cit.
300 Art. 2, UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
301 No. 4 letter (g), UNGA resolution of 1 May 1974, 3201 (S-VI)…, op. cit..
302 Art. 12, International Investment for Economic Development and Reconstruction’ Havana Charter for an International Trade Organization, 24 March 1948, UN Doc. E/CONF.2/78.
303 The Lome IV Convention, Art. 2.3.
304 Art. III.l, ASEAN Investment Agreement signed in Makati City, Philippines on 7 October 1998, 27 ILM (1988), s. 615, http://www.asean.org/storage/images/2013/economic/aia/ACIA_Final_Text_26%20Feb%202009.pdf (2017-06-25).
305 Art. 10 i 18, Energy Charter Treaty…, op. cit.
306 More: N. Shrijver, Sovereignty…, op. cit., p. 280-281.
307 OECD, Declaration on International Investment and Multinational Enterprises (2011), Annex 1, The OECD Guidelines for Multinational Enterprises, https://www.oecd.org/daf/inv/investment-policy/ConsolidatedDeclarationTexts.pdf (2018-06-25).
308 Seoul Declaration…, op. cit.
309 World Bank, Legal framework for the treatment of foreign investment (vol. 2): Guidelines, http://documents.worldbank.org/curated/en/955221468766167766/Guideline (2018-06-25).
310 N. Shrijver, Sovereignty…, op. cit., p. 281.
311 UNGA resolution of 14 December 1962, 1803 (XVII)…, op. cit.
312 Art. 12.1 (c)(ii), Havana Charter…, op. cit.
313 General Agreement on Tariffs and Trade…, op. cit.
314 General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994), https://www.wto.org/english/tratop_e/serv_e/gatsintr_e.htm (2018-06-25).
315 Ibidem, art. VI.1.
316 Unified Agreement for the Investment of Arab Capital in the Arab States (Arab Investment Agreement), signed on 26 November 1980 in Amman, Jordan, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2394 (2018-06-25).
317 Art. 49 TFEU…, op. cit.
318 Art. 1101.2 and Annex III, NAFTA, North American Free Trade Agreement, 32 ILM 289, 605 (1993), http://www.sice.oas.org/trade/nafta/naftatce.asp (2018-06-25).
319 Art. 18 (3) Energy Charter Treaty…, op. cit.
320 Para. 9, Notes and Comments to Art. l (b), OECD Draft Convention on the Protection of Foreign Property (1967), 7 ILM (1968), p. 122.
321 Para. II (4), OECD, Declaration on International Investment and Multinational Enterprises (2011), https://www.oecd.org/daf/inv/investment-policy/ConsolidatedDeclarationTexts.pdf (2018-06-25).
322 E.G. para. 3, UNGA resolution of 14 December 1962, 1803 (XVII)…, op. cit.; Art. 2, UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit.
323 Art. 2, UNGA resolution of 12 December 1974, 3281 (XXIX)…, op. cit. See also para. 4 (g), UNGA resolution of 1 May 1974, 3201 (S-VI)…, op. cit.
324 Art. 12.1 (c)(l), Havana Charter…, op. cit.
325 Art. 26, ICSID Convention…, op. cit.
326 World Bank Convention Establishing the Multilateral Investment Guarantee Agency (MIGA). Done at Seoul, October 11, 1985 https://www.miga.org/Documents/MIGA%20Convention%20February%202016.pdf (2018-06-15.
327 Art. 12 (d)(ii) i (iii), MIGA Convention.
328 Art. 18 (3), Energy Charter Treaty…, op. cit.
329 Para. 7, OECD Guidelines…, op. cit.
330 Para. 48 and 56, Draft United Nations Code of Conduct on transnational corporations, UN Doc. E/1990/94, 12 June 1990, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2891 (2018-06-25).
331 Section 5.5., Seoul Declaration…, op. cit.
