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State Sovereignty, Human Rights, Natural Resources12

Petra Gümplová

I Sovereignty and Human Rights

Sovereignty emerged in early modern political thought as a concept of the supreme political

power which has the sole authority to make law within a territorially defined space. To

highlight this novel and quintessentially modern concept of the supreme political authority

and its unity with law enactment and enforcement, early modern political thinkers, Hobbes in

particular, characterized sovereignty in terms of unity, indivisibility, unconditionality, and

unlimitedness of the absolute power unbound by the covenant which institutes it (Hobbes

1986). Based on the first modern theories of sovereignty, the concept has been generally

interpreted by political theorists as involving the following tenets: 1) the idea that sovereignty

is located in a single and unitary organ of the state or is embodied in a person; 2) the idea that

the coherence and unity of a legal system have to be traceable back to the will of the

sovereign who is legibus solutus, i.e. above the law; 3) the view that law ought to be obeyed

merely because it is the command of the sovereign; and 4) the view that sovereignty is linked

to a specific set of prerogatives which also include the jus belli (right to war) which renders

sovereignty incompatible with the international law (Cohen 2012: 27-29).3

Looking back into the conceptual history of sovereignty confirms that sovereignty has

always been associated with unlimited and indivisible exercise of power, command theory of

law, and unified monopoly of the state on coercion and control. This absolutist interpretation

reappeared in different traditions of legal and political theory all of which operated with some

or all of the above mentioned tenets – legal positivism (Austin 1998), theories of popular

sovereignty (Rousseau 1987, Sieyès 2003), or the decisionistic theory of Carl Schmitt

(Schmitt 2005). Based on the dominant understanding of sovereignty in terms of a supreme

1 This paper is being published in German as Gümplová, Petra. 2014. Staatliche Souveränität, Menschenrechte

und natürliche Ressourcen, in: Christian Volk/Friederike Kuntz (Eds.), Der Begriff der Souveränität in der

transnationalen Konstellation. Baden-Baden: Nomos, 2014. 2 Parts of Section 2 of this article appeared in Gümplová, Petra. 2014: Restraining Permanent Sovereignty over

Natural Resources, in: Revista Enrahonar. Quaderns de Filosofia 53, 1-22. 3 The question whether this is a correct interpretation of the original concept of sovereignty is beyond the scope

of this paper and I argued elsewhere that this interpretation does not do justice to the essence of the original,

early modern concept of sovereignty – and that constitutionalism is the original modern discourse about

sovereignty (Gümplová 2011).

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omnipotent power located in a single source and unrestrained by law, the concept has been

subject to recurrent and widely voiced criticisms (Kelsen 1920, Arendt 1963, Foucault 2009).

The critics of sovereignty often neglect the fact that the absolutist interpretation of

sovereignty is derived from a historically specific institutional embodiment of the claim to the

ultimate political authority which characterizes the concept of sovereignty. This particular

„regime of sovereignty“ reflected the birth of the absolutist state out of religious and civil

wars of the seventeenth century Europe. Originally, the discourse of sovereignty was

deployed in favor of the absolutist prince and his struggles for political control and unity

against destructive internal forces and external powers of the church and empire. As a concept

linked to the assertion of royal power, sovereignty was therefore interpreted by early modern

thinkers in terms of the above mentioned features and specific competences, functions, and

prerogatives which were deemed essential (Cohen 2012: 27).

The absolutist interpretation of sovereignty represents one of possible regimes of

sovereignty. Like many other categories of political theory, sovereignty is a category with a

meaningful political history. There is no essentialist understanding of sovereignty in terms of

a specific political regime, such that would be unalterable with the historical development.

While the core idea of sovereignty remains unchanged, namely the claim to a supreme

political authority within a territory (and to an external independence), the interpretation of

what sovereignty means in practice reflects shifting social and political institutions. Historical

variants of the institutionalization of the claim to sovereignty in different legal and political

arrangements can be analyzed along two basic axes: 1) the location and the form of sovereign

authority, and 2) the scope and the limits on sovereign authority. Absolutist sovereignty is a

historically particular regime of sovereignty and those who assume that sovereignty must be

located in a single body whose will is unlimited fall into the trap of the essentialist reading of

the meaning of the modern institution of the political sovereignty (Gümplová 2011: 23-51).

What is the core idea of sovereignty? The concept of sovereignty involves an internal

claim to supremacy of the political authority and its being the ultimate source of jurisdiction

over a population within a territory. Sovereignty means that there are no equal or autonomous

powers within the polity with comparable claims to political rule. This claim to supreme

political power is materialized in a coherent, unified, independent, and territorially

circumscribed legal system (Cohen 2012: 26-27). The sovereignty claim can be vested in

institutional settings varying from absolute monarchy to constitutional democracy.

The alternative to the absolutist paradigm of sovereignty is thus not the abandonment of

sovereignty – as many thinkers have suggested (Held 1995, Arendt 1963, Foucault 2009) –

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but the „de-absolutization“ of sovereignty through constitutionalism and democracy.

Theoretically, the de-absolutization of sovereignty requires we rethink the relationship

between law and power and accept that legally constituted, divided, and limited political

power can be sovereign nonetheless. In practice, the absolutist sovereignty has indeed been

abandoned ever since the first modern constitutional democracy emerged in the US in 18th

century based on the separation of powers, checks and balances, popular sovereignty,

representative government, basic rights, and the division of powers entailed by federalism.

None of the institutions typical for a constitutional democratic system imply that

sovereignty is missing from the system. A liberal democratic state can be considered as an

ideal typical model of a fully de-absolutized, divided, and limited regime of sovereignty. In

constitutional democracy, sovereignty is instituted by the constitution and limited by the

principles of the rule of law and constitutionalism (individual civil and political rights, checks

and balances, division of powers, federalism). The democratic principle of popular

sovereignty locates the ultimate source of the legitimacy of political power in the people, thus

dividing sovereignty further between the public sphere embedded in the associational

structure of civil society (the people) and the formal political sphere of the state which has the

authority to make binding decisions (Cohen 2004: 14).

Political theory has not framed the process of the constitutionalization and

democratization of political power as a discourse about sovereignty but rather as a process of

the displacement of sovereignty (Arendt 1963, Habermas 1998). This is unfortunate because

dismissing the concept of sovereignty and the failure to see its usefulness in the internal realm

of the state has a dangerous effect of the depoliticization of the sources of power in modern

society. Sovereign-like powers persist in modern society – the powers derived from capital,

knowledge, and technology have in fact increased to an unprecedented degree in

contemporary society – and the ongoing challenge facing modern society is to subject these

powers to legal and political constraints. De-absolutized sovereignty is an indispensable

institution in such an effort (Gümplová 2014).

One of the reasons why political theory did not find much sympathy for the concept of

sovereignty has to do with the fact that the process of the de-absolutization of the „external“

sovereignty did not correspond historically to the process of constitutionalization and

democratization of internal sovereignty. External sovereignty involves the autonomy and

independence of a state vis-à-vis outsiders and foreign powers. Despite the fact that internal

and external sovereignty are two sides of one coin (internal supremacy of the political

authority goes hand in hand with external independence), the process of the

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constitutionalization and democratization of internal sovereignty cannot be paralleled to a

comparable process of constitutionalization and limitation of external sovereignty, i.e. the

power of the state vis-à-vis the other states. As the history of the international relations and

international law suggests, until after the World War II the external sovereignty of states has

been understood (and practiced) as a political fact of absolute and impermeable state power

existing independent from and prior to international law. Two key prerogatives tied to

external sovereignty were right to war and the right to make international law through treaties

and custom. There were no legal and substantive limits on the prerogatives of states to wage

war or colonize foreign territories. The absolutist Westphalian model according to which

states are bound only by rules to which they consent persisted in international relations; and

the international law functioned as a medium of coordination of underlying power relations,

without effectively constraining them (Cohen 2012: 28).

Only during the second half of the 20th

century, a momentous transformation occurred,

such that has had a serious impact on the institution of state sovereignty. On the one hand,

there has been an unprecedented effort to regulate the use of military force and prohibit

colonialism by international law and install a global security regime. The result of these

efforts is that contemporary sovereign states no longer have the right to go to war and to

annex or colonize foreign territory (Kaldor and Beebe 2010, Teitel 2011). On the other hand,

the prerogatives of sovereign states have changed significantly under the impact of

international legal norms of human rights. Since the adoption of the Universal Declaration of

Human Rights (UDHR) in 1948, a number of rights, such as the right to live, freedom from

torture, freedom from slavery, right to a fair trial, freedom of speech, freedom of thought,

conscience and religion, freedom of movement, and the right to engage in political activity,

have been taken to represent universal rights for all people irrespective of their state

citizenship from which no derogation is possible.

There are countless accounts of how the international human rights regime developed

since 1948 through multilateral treaty making, domestic state practice, and the work of

international courts and other actors (Sikkink 2011, Teitel 2011, Donnelly 2013, Buchanan

2014). It is beyond doubt that a profound transformation has occurred: under the impact of

norms of collective security and human rights, there has been a shift from the classic

Westphalian interpretation of sovereignty as independence, non-intervention, and impunity to

the interpretation of sovereignty as justice and security to individuals and citizens of a given

state and as the responsibility and accountability to international community – and potentially

also the liability of perpetrators (state officials or private entities) to international sanctions

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(Cohen 2012: 159-162). As of late, the international system of human rights governance has

even engaged in tasks that go beyond its „traditional“ late-20th

century functions –

humanitarian interventions, sanctions, transformative interim administrations of occupied

territories, and the imposition of obligations for states to prevent and combat terrorism (Cohen

2012: 266-319, Fox 2008).

Except a few statist accounts which insist that international law still is and should remain

protective of state sovereignty, domestic autonomy, and non-intervention and that principles

of justice hold only within states (Nagel 2005), most thinkers agree that today’s state

sovereignty and legitimacy of governments should be considered contingent on their being

both non-aggressive externally and, more importantly, minimally just internally, that is,

respecting human rights. What theorists of human rights of all proveniences also agree on is

that one of the most important features of human rights is that they are meant to protect the

essential and universal features of human personhood against the state.4 As Jean Cohen

emphasized, human rights are thus best understood as „associational“ rights – they are

activated by the presence of and membership in specific socio-political institutions. They

indicate that the way a state treats its own citizens is subject to certain constraints and a matter

of international concern. International human rights thus impose moral and legal limits on

states and on those acting in their name. They function as standards for the governments of

states, such that their violation or the failure to fulfill them supplies a justification for

remedial action by the global community (Cohen 2012: 182; Beitz 2009).

The concept of sovereignty has changed substantially in light of this new global principle

of legitimacy, namely the respect for human rights. There are many interpretations of what

exactly the emerging system of international human rights implies for the international system

of sovereign states. Global constitutionalists, for example, argue that the state-based model of

international society is rapidly disappearing, making space to a global political and legal order

of an international community (Klabbers et al., 2009, Fassbender 2003, Fischer-Lescano

2005, de Wet 2006). Global constitutionalists are correct that the international system is

evolving rapidly. It is, however, questionable whether their analysis accurately reflects the

unique and novel character of the contemporary international regime of sovereign states – and

4 Dignity, freedom, and equality are usually named as the most fundamental moral features of personhood. There

are number of approaches to human rights; and they differ not just in ways they provide general justification of

human rights, but also in the explanation of what are the essential and universal features of human beings that

must be protected by human rights – agency, personhood, basic interests, capabilities, autonomy, dignity. For an

overview see (Donnelly 2013: 7-21).

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whether it is actually normatively desirable to argue that states sovereignty be displaced by

human rights.5

I agree with Jean Cohen who suggested that international human rights treaties are not

designed to abolish state sovereignty and replace it with cosmopolitan legal order but to make

states to institutionalize a common international standard and to abide by it in their domestic

law and policies. Sovereignty and human rights are thus best to be understood as two distinct

but interrelated legal principles of the same, „dualistic“ international political system. This

dualistic political system is composed of sovereign states and the international law they make

through consent and new global governance institutions that provide global cosmopolitan

legal elements derived from non-derivative human rights norms. The states remain of a

continuous relevance because they institutionalize a distinct political relationship between the

government and the citizens which binds decision-making to conditions of political

legitimacy. Yet, when a state commits genocide or enslavement or oppresses its people in

radical ways, it is subject to international community’s concern or potential intervention

justified by inviolable human rights (Cohen 2012: 45, 162, 201-207).

II Sovereignty, Territory, and Natural Resources

There is an aspiration inherent in the system of human rights to provide a fundamental

normative source of limits on the prerogatives of sovereign states and on a government’s

power. The system has the potential to turn the international system of sovereign states for the

first time in the history in a society of equal states whose legitimacy is contingent on being

minimally just and human rights respecting. Yet, except a very few thinkers, contemporary

political theory has not provided a positive account of sovereign statehood under the

transformative impact of human rights. Across social sciences, most thinkers consider state

sovereignty useless and obsolete framework for the explanation of both the empirical nature

and normative aspiration of a contemporary globalized world (Held 1995, MacCormick 1999,

Slaughter 2005).

I agree with Jean Cohen that it is a sad irony that the discourse about the demise of the

sovereign state emerges right after the international system of sovereign nation-states based

on principles of sovereign equality and non-intervention was finally universalized in the

5 A detailed analysis of the global constitutionalism is beyond the scope of this paper. For a critical discussion

with which I identify, see (Cohen 2012: 45-76).

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aftermath of decolonization and the collapse of the Soviet Union (Cohen 2012: 2). The point I

want to highlight here, however, is that those who herald the end of sovereignty often

disregard the fact that there are areas where state sovereignty matters and is robust – and

where the process comparable to what human rights achieved with regard to state sovereignty

has not taken place, neither in theory, nor in practice. Such an exemplary area where

unlimited state sovereignty matters and prevails is the system of governance over natural

resources. Authorized by a firmly established and broadly accepted norm of international law

called „permanent sovereignty over natural resources“, the management and the use of natural

resources on earth is based on a system which grants states an unlimited right to possess and

exploit land and all natural resources within their national boundaries. This system in its

current form is deeply entrenched, widely accepted and without alternative; and it can be

characterized by assertive reinforcement of states’ territorial claims and resource rights

(Schrijver 1997). In any case, the state-based system of resource sovereignty has not

undergone the process of limitation similar to the process of the de-absolutization of state

sovereignty by human rights.

In what follows I will analyze the system of state sovereignty over natural resources from

a critical perspective of the conflict between assertive and expansive resource rights and

territorial claims made by states on the one hand, and norms and demands of global

environmental protection and international environmental law on the other hand. Then, I will

explore whether an analogy to the process of the de-absolutization of sovereignty by human

rights can be drawn; and whether and how we could potentially defend a set of norms which

would impose limits on sovereign territorial rights with regard to the environment and natural

resources within their borders in the same fashion human rights limit powers of the state vis-

à-vis its citizens. This interest is driven by a clear conflict between the state based system of

resource governance and the urgent need for a global action to tackle climate change and

environmental depletion.

Permanent Sovereignty over Natural Resources

The current system of the use of natural resources is deeply entrenched in the system of

sovereign territoriality. It is based on the international law norm called permanent sovereignty

over natural resources which has been widely and commonly accepted and recognized as a

quintessential economic corollary of state sovereignty. The original statement regarding this

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collective right is recorded in the United Nations Resolution Declaration on Permanent

Sovereignty over Natural Resources adopted in 1962. This resolution states that the

permanent sovereignty over natural wealth and resources is an inherent and overriding right of

a state to control the use of its natural resources in its territory. This right was reaffirmed in a

series of charters and resolutions dealing with human rights, international economic order,

social progress, development, and the environment. Human Rights Covenants from 1966, the

Charter of Economic Rights and Duties of States (1974) and the Declaration on the

Establishment of a New International Economic Order (1974) are the most important

international law instruments through which resource sovereignty was affirmed. As a result of

these treaties and legal instruments, permanent sovereignty over natural resources legally

protects the right of the states to an exclusive, unlimited control, free exploitation and disposal

over natural resources and all other components of natural environment in their territories,

choose its economic system without outside interference, and also regulate and nationalize

foreign investment.

The international law norm of the permanent sovereignty over natural resources is

unintelligible if one does not understand its political significance in the historical context.

Permanent sovereignty over natural resources emerged from postwar efforts to reinforce

sovereign equality of states and economic equity in the post-colonial international order. It

was aimed at protecting newly emerged states against economic exploitation by foreign

companies. Contrary to the colonial appropriation of natural resources, postcolonial and

developing nations claimed rights of ownership of their resources, linking them inextricably

to a fundamental right of self-determination. The utilization of state’s own natural resources

protected by international law was understood as an essential prerequisite for economic

development and the bulwark against predatory and imperial forms of economic power and

economic domination – and hence the bedrock of political independence (Anghie 2005,

Sornarajah 2010, Reus-Smit 2013).

While the norm of the permanent sovereignty over natural resources is relatively

unambiguous in its aim to reinforce the process of decolonization, it has been less clear what

prerogatives of states it authorizes and, more importantly, what practices cannot be justified in

its name. When assessing the development of the set of practices established in the name of

permanent sovereignty over natural resources, one general tendency becomes apparent. It is a

tendency, as Nico Schrijver rightly argued, towards extending the scope of rights and

prerogatives justified by resource sovereignty, with significantly less attention being paid to

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the question what duties are incumbent on states and what kinds of limits are imposed on

them in the exercise of their sovereignty over natural resources (Schrijver 1997: 306).

There have been several problematic areas and domestic and global injustices which

seem to have a direct bearing on how the system of permanent sovereignty over natural

resources has established itself. There is a problem of the so called resource curse, i.e. the

problem of poverty, corruption, and armed conflict in many third-world resource rich

countries (Wenar 2008). There is a problem of an unequal distribution of natural resources

and global poverty (Pogge 2002). There has been an ineffective and harmful management of

resources or expropriation of resources by foreign investment in many developing countries.

In many Latin American countries, states and indigenous groups clash in their claims to

territory and natural resources. Last but not least, there is an urgent global problem of the

climate change and hence demands for more substantial protection and for coordinated limits

on the resource use.

It is the issue of environmental crisis from which state-based resource sovereignty

appears to be especially controversial. A group of environmental scientists led by Johann

Rockström recently identified nine measurable planetary systems supporting human life and

showed that human beings had already crashed through the boundaries of three of these

systems – in greenhouse gas loading of the atmosphere, in nitrogen pollution, and in the loss

of biological diversity (Rockström 2012).6 Obviously, the continuity of state-based patterns of

resource use and exploitation (especially the use of the atmosphere) further undermines the

capacity of life-supporting ecological systems to sustain themselves and hence provide

ecosystem services for humans. Claims to permanent, full, inalienable, or absolute rights of

states to natural resources within their boundaries justified by the permanent sovereignty over

natural resources clearly undermine global effort to safeguard the environment, if only

because the environmental systems operate without paying heed to firmly entrenched and yet

historically contingent territorial jurisdictions of sovereign states.

From the perspective of the demand for global environmental protection, three

controversial tendencies in the process of the gradual development of the practice of

permanent sovereignty over natural resources can be observed critically. First, there has been

6 These Earth biophysical and ecological systems include climate change, rate of biodiversity loss, nitrogen

cycle, phosphorus cycle, stratospheric ozone depletion, ocean acidification, global freshwater use, the change in

land use, atmospheric aerosol loading, and chemical pollution. According to Rockström, quantitative planetary

boundaries are defined for each system as a threshold beyond which the systems move into a state in which they

can no longer provide support for social and economic development of human societies. For example, the

suggested climate change boundary of 350 parts per million of carbon dioxide in the atmosphere aims at

preventing from crossing the threshold beyond which a significant climate change will most likely occur

(Rocsktröm 2012; Folke 2013).

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an economically motivated pressure by the states to extend sovereign resource rights beyond

their borders. Starting in 1960s, this pressure resulted in a significant expansion of sovereign

territoriality into maritime areas and into air space – and hence in the broadening of the scope

of the appropriation of resources which had previously been international. Today, permanent

sovereignty over natural resources comprises claims over natural resources and wealth not

only on land within a territory, but also over terrestrial and marine natural resources – and all

economic activities for the exploitation of these resources.7

The second parallel tendency is the continuous prevalence and priority of unrestricted

resource rights and development rights over international norms of environmental protection

and sustainable use of resources. As many critics have pointed out, a clear anthropocentric

and economic substance in the concept of sustainable development prevailed, due to ongoing

efforts to reinforce economic development in developing countries and reduce poverty and

inequality. The retrospective look at recent developments in international environmental law

shows that international community is less and less specific when it comes to guidelines for

the management of natural resources and nature conservation, while it increasingly

emphasizes the view that environmental policy should not obstruct the development policy.

Strategies for poverty reduction, food production, consumption and production patterns and

the need to safeguard natural resources for the sake of social and economic development have

dominated international discussions about sustainability and environment (Schrijver 2008: 82,

96).

Finally, there is a failure to reinforce, conceptually and legally, notions and principles of

governance that better correspond to global nature and comprehensive demands of ecological

systems. International law, for example, has not adopted any consistent framework for natural

resource domains that belong to the global community as a whole. These resources are

sometimes referred to as „global commons.“ The climate, the atmosphere, outer space, and

the high seas are obvious candidates for global commons located outside national borders.

Yet, the international law does not recognize the concept of global commons; and neither did

it develop a consistent jurisdiction for these spaces. The so called „common heritage of

humankind“ regime, introduced to foster international cooperation for peaceful purposes and

sharing benefits among all nations from the use of common resources of oceans, unfortunately

7 The sovereign jurisdiction over resources extends above the surface of the Earth into the airspace and to an

unlimited depth underground According to the Article 1 of the Convention on International Civil Aviation, every

state has complete and exclusive sovereignty over airspace above its territory which reaches up to the altitude of

100 km above sea level. Coastal states have sovereign jurisdictional rights over their territorial waters. They also

have exclusive rights to explore, exploit, and manage natural resources (permanent sovereignty over natural

resources) over waters, ocean floor and the airspace in the so called exclusive economic zone which extends to

200 nautical miles (370 km) off the coast.

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remains conceptually underdeveloped and inconsistently applied regime of resource use. It

has not provided a real environmental alternative to an essentially economic concept of

permanent sovereignty over natural resources (Schrijver 2010: 75-113).

The development of the international law of the sea in the last few decades might serve as

a telling example of all these trends. Until the second half of the twentieth century, territorial

sovereignty was strictly limited to land within the boundaries of the state. Maritime states

could only claim a narrow belt of the sea about three nautical miles along the coast as their

sovereign territory. The remaining oceans and their use were regulated by the freedom of the

high seas which defined the sea as common to all. Ships could freely navigate the waters,

states could engage in trade and fishing. The assumption was that the resources of the sea are

inexhaustible and that humans are unable to impair the quality of marine environment.

The United Nations Convention on the Law of the Sea (UNCLOS) from 1982 extended

substantially the territorial sovereignty over maritime areas. UNCLOS divided the sea into

various legal zones measured from the coastal state’s baseline. Territorial sea was extended to

12 nautical miles from the baseline, with the adjacent contiguous zone extending to 24

nautical miles. The Convention also introduced the so called exclusive economic zone (EEZ)

which extends as far as 200 nautical miles from the baseline. Within its exclusive economic

zone, a coastal state enjoys permanent sovereignty over natural resources, that is, rights of

exclusive exploring and exploiting, management, and conservation of natural resources, both

living (fisheries) and non-living (resources of the seabed and its subsoil).

Simultaneously with the extension of the sovereign resource rights on the sea, a new

principle of resource management for non-sovereign maritime areas was introduced into

international law – the so called principle of the „common heritage of mankind.“ Designed

specifically for the use of maritime resources, this regime set norms and principles of the

governance of non-sovereign areas and resources. Its aim has been to protect and manage

common areas in the name of equity, preservation, and sharing by a global community. While

resource sovereignty protects exclusive national access to resources, common heritage of

mankind was designed as a system of management of resources prohibiting the sovereign or

private appropriation. Against exclusive appropriation and sovereign territorialization,

common international management, economic cooperation, sharing benefits from

exploitation, using resources for peaceful purposes, freedom to engage in scientific research,

and preservation for future generations are emphasized (Schrijver 2010: 9).

However, the principle of the common heritage of humankind has not become a

counterbalance to permanent sovereignty over natural resources, and especially to territorial

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expansion and the economization of resource management justified in its name. The principle

of common heritage of humankind has been applied only to specific resources in the oceans,

namely to the area of the deep seabed and the ocean floor and its subsoil. Moreover, it

remains unclear what the principle entails when it comes to these resources. With the recent

discovery that the great ocean depths contain the so called polymetallic nodules rich in

valuable metals and with ensuing attempts to examine and commercially exploit these

resources, it is obvious that the sea-bed will not remain a completely de-commercialized or

scientific zone nor a resource preserved for future generations.8

Global aspirations of the principle of the common heritage of humankind are being

further undermined by the possibility to extend the exclusive economic zones of states even

further than 200 nautical miles. Arctic region is currently a battleground where Arctic states

motivated by resource grab compete for further territorial extension of their exclusive

economic zones. Although scientific data on what lies under the Arctic Ocean is incomplete,

mineral deposits in the Arctic seabed are estimated to hold 25% of the world’s current oil and

natural gas reserves (Sonntag, Luth 2011). The technological development and the recent ice

melt which is said to have reduced sea ice by as much as 50%, ignited territorial temptations

and resource scramble among Arctic states who now strive to extend their exclusive economic

zones further beyond the limit of 200 nm. In this area, which unlike Antarctica lacks the

specific international legal regime which would protect it against territorialization and

commercial exploitation, further territorial expansion is in fact possible on the basis of the

criteria for the delimitation of the maritime zones set in UNCLOS.

These criteria allow states to further expand their exclusive economic zone to 350

nautical miles from the baseline or to 110 nautical miles from the 2,500 meter isobath,9

whichever is more favorable to the applying State. The coastal state has to prove that there is

a continental shelf attributable to it and reaching that far as a natural prolongation of its land

territory.10

Countries such as Russia and Canada have devoted significant resources to

measuring and mapping its extended continental shelves in order to establish resource

8 As a matter of international law, all rights to these polymetallic nodules are vested in humankind as a whole. In

practice, it means that International Seabed Authority (ISA) issues contracts that authorize exploration and

mining and collects royalties and distributes them, taking into consideration the needs and interests of

developing countries. So far, only research is taking place by governments of China, India, South Korea, France,

Germany, and Russia (Schrijver 2010: 76-78). 9 Isobath is defined in bathymetry as the line connecting points in the depth 2,500 meters below water surface.

10 UNCLOS provides that there is an exception to this rule. If the continental shelf breaks into an oceanic ridge,

it cannot be extended to more than 350 nm from the coast no matter where the 2,500 meter isobath falls. This

issue lies at the heart of the Russian dispute over parts of the Arctic territory. Russia challenges the definition of

the Lomonosov and Alpha-Mendeleev ridges as submarine ridges, claiming instead that they are natural

geographical components of their continental shelf reaching to the North Pole (Sonntag, Luth 2011).

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sovereignty over the Arctic ocean floor and its subsoil beyond its 200-mile exclusive

economic zone. Just few months ago, Russia extended its resource sovereignty over oil-rich

territory in the Sea of Okhotsk by successfully applying for an extension with the

Commission on the Limits of the Continental Shelf, basing the territorial claim on the

extended continental shelf reaching beyond the conventional 200 nm EEZ.11

While the international ocean sea bed is protected by the common heritage of humankind

principle, living resources of the high seas (fish stocks) are available on the basis of the

principle of open access. In practice it means that all states have the right to engage in fishing

on the high seas on the first come, first serve basis. As a result of this regulation, almost all

living resources (fisheries) in the world’s oceans were brought under commercial exploitation.

The freedom of fishing in the high seas is limited by UNCLOS provisions regarding the

conservation and management of the living resources of the high seas. To avoid

overexploitation, the state is under obligation to maintain the population of harvested species

at levels which can produce „the maximum sustainable yield.“

Nevertheless, the vast majority of exploited fish populations have been depleted to

abundance levels well below those recommended by conventional management guidelines.

According to several reports, most fish species are on a continuing trajectory of decline

(Pikitch 2012). World Bank report from 2009 predicts that if fishing rates continue apace, all

the world’s fisheries will have collapsed by 2050s (The World Bank 2009). Faced with the

collapse of large-fish populations, commercial fleets are going deeper in the ocean and father

down the food chain for viable catches. The fishing down is triggering a chain reaction that is

upsetting the delicate balance of the sea’s biologic system. And yet, an ecosystem based

approach with more precautionary management has not replaced the traditional fisheries

management which focuses on obtaining maximum sustainable yield for a single species of

fish and ignores the detrimental effects of the fishing on the entire ecosystem.

As the example of marine resources show, the principle of common heritage of

humankind – a potentially far-reaching global principle applicable as a set of protective

measures to ecological systems regardless of their lack of an overlap with the state territory –

does not represent an alternative to the regime of territorial sovereignty which explicitly

protects unlimited rights to economic appropriation and exploitation of resources. The

application of common heritage of humankind on other candidates for global commons has

11

The acquisition is seen by experts as merely a dress rehearsal for a far bigger land grab of the North Pole.

Already in August 2007, a Russian expedition deposited a Russian flag on the seabed at the North Pole, claiming

it as the utmost peak of its territory prolonged by submarine geological formations in their continental shelf.

14

also been ambiguous.12

For example, the atmosphere does not enjoy any special legal status

and governance regime under international law. Despite the fact that atmospheric resources

share many features with natural resources in international areas, they are not global

commons. When they are located above areas with national jurisdiction of states and above

exclusive economic zones, they are subject to the sovereignty of states. The remaining

atmospheric resources are a common property, providing a completely free and open waste

disposal system for a whole range of pollutants (Schrijver 2010: 98). Only recently, ozone

layer and the climate system were declared vaguely a „common concern of humankind“ and

their protection has become the subject of several protocols which stipulate measures and

control mechanisms necessary for tackling ozone depletion and climate change.13

III Resource Sovereignty and Global Environmental Justice

Responding to global issues which can be linked to the practice of resource sovereignty,

global justice thinkers have contested the norm of the permanent sovereignty over natural

resources, arguing that claims to permanent, full, inalienable, or absolute rights of states to

natural resources within their boundaries clearly undermine efforts to address these global

issues. Charles Beitz, one of the most prominent global justice thinkers, argued that our

placement within borders is contingent and hence morally arbitrary as a way of determination

of the scope of justice. Because borders are contingent, the states cannot plausibly make

exclusive claims to natural resources within their borders (Beitz 1990). Hillel Steiner

suggested the natural world is owned in common, by each person equally; and argued for a

considerable global redistribution of goods and resources (Steiner 1996). Thomas Pogge

proposed to remove full property rights with respect to natural resources from states and their

governments and to introduce the global resources dividend to be used to fund the eradication

of world poverty (Pogge 2002).

12

For example, the norm of non-appropriation of resources is not clearly articulated in any treaty or agreement

regulating outer space and celestial bodies. The Moon Agreement from 1979 (ratified by 13 states only, none of

which are capable of space exploitation), stipulates that the states have the right to exploration and use of the

moon without discrimination of any kind and on an equal basis. Unlike UNCLOS, the agreement does not lay

down a specific institutional structure to govern the exploitation of these resources (Schrijver 2010: 88-90). 13

The Montreal Protocol was adopted in 1989 to reduce the emission of ozone-depleting substances.

Unfortunately, the ratification of most recent amendments with stronger control measures has been seriously

lagging despite the obvious fact that the Antarctic ozone hole will persist longer than estimated. As regards

climate change, there is Kyoto Protocol from 1997 which determines measures necessary for stabilization of

atmospheric concentrations of greenhouse gases. Support and participation in the Protocol has been low; and

ensuing conferences on climate change did not produce any binding commitments on further emission reduction

(Schrijver 2010: 101-110).

15

According to global justice thinkers, state borders principally do not represent relevant

ways of establishing the scope of justice. State borders thus do not constitute the boundaries

of resource rights. Global justice thinkers argue that resource rights have different scopes and

that the entitlement to resources and the redistribution of resources are based on principles

other than those which are peculiar to states. I cannot offer an analysis of global justice

approaches to resources here; suffice it to say that the disregard of the existing international

system of states and its sociological and legal validity, and the refusal of the aspiration that an

international system of states could become a society of equal and cooperating states who

respect each other’s sovereignty and autonomy and at the same time abide by common

standards and global norms (such as human rights) represents, is in my view, a serious flaw of

this approach.

As I have suggested, there are compelling historical-political reasons not to dismiss the

principle of the permanent sovereignty over natural resources. Resource sovereignty is a

legitimate outcome of inclusive, egalitarian, multilateral, and consent based process of

international law making facilitated by the United Nations.14

It reflects an attempt to establish

a new postcolonial international order; and it gives an economic expression to its normative

principles and aspirations such as sovereign equality, equity, non-intervention, and self-

determination. From the perspective of this historical movement of the building of

international order in the aftermath of WWII, territorially determined resource rights are an

economic corollary of state sovereignty. Its emergence and legal codification marks a

profound transformation of the international order which occurred under the impact of

decolonization and universalization of statehood in the second half of the twentieth century

(Reus-Smit 2013: 187-198).

To be sure, the legitimization of the principle of resource sovereignty via the politics of

international law does not suffice. Permanent sovereignty over natural resources cannot be

defended just as an element of legitimate positive law. In line with my argument about the

transformation of state sovereignty and the establishment of the international regime of

human rights, I propose we „de-absolutize“ the state-based system of resource sovereignty by

subjecting it to a more expansive set of limits and duties derived from a „higher“ ground of

justice similar to – or directly derived from – a higher ground of which human rights are an

expression. The point, in other words, is to insert norms and principles in the conception of

sovereign territorial resource rights which indicate more stringent limits to states’ resource

14

The process of the legalization of permanent sovereignty over natural resources (and the role the UN played in

this process) is documented in great detail by Schrijver (Schrijver 1997: 33-119).

16

rights and which establish basis for a system of global governance capable of addressing

controversial practices of states such as unlimited and environmentally harmful exploitation

of natural resources or economic exploitation or devastation of global commons.

Human rights, both as a theory and as a practice, have direct normative and

methodological application to the problem of resource rights. How? Let me rephrase the

existence of human rights in terms of combined grounds of justice. The existence of human

rights, that is, their philosophical foundation and the establishment of the international regime

of human rights, express the fact that there is a global order which is irreducible to actions of

states and which generates its own principles of justice. There are different ways how to

demonstrate the existence of a global order. For example, it can be effectively traced to the

process of globalization and linked to various sets of rules and interferences that constitute

global order (trade, security etc.). It can also be traced to international regime of human rights.

Human rights are grounded in normative premises about what all humans on earth have

in common. The approaches to the essence of distinctively human life vary and rely on

accounts of human agency and autonomy (Gewirth 1982, Griffin 2008), basic interests (Finnis

1980), human capabilities (Nussbaum 1997, Sen 2004), or human dignity (Habermas 2013,

Forst 2010). What unites these approaches is the assumption that there is a conception which

appeals to the significance of certain features of human life and its valuability – and that the

establishment of human rights is necessary to protect these distinct features of human life.

Mathias Risse suggested we call the universal features of human life simply common

humanity (Risse 2012) and think of it as a non-relationist ground of global justice. While

shared membership in a state remains the most significant grounds of justice,15

state-framed

domestic justice must integrate principles associated with other grounds such as common

humanity – and hence comply with human rights which are its expression. This universal

ground does not stand in contrast to domestic justice but it is one of its most important

grounds. Moreover, it gives rise to an international community and to global governance

institutions (global political and legislative system of the UN, courts, monitoring agencies,

transnational actors etc.) which assist individuals and groups claim their human rights and

provide mechanism for sanctioning human rights violations on a global level.

Common humanity as a ground of global justice might be correlative or perhaps even

implied in another ground of justice with a global scope – humanity’s collective inhabitation

15

Besides reasons mentioned above (political legitimacy of decision making), states represent the most relevant

framework for a shared membership, both normativelly and practically, which is explicable in terms of

reciprocity, cooperation, and immediacy of interaction and efficacy of state coercion. Therefore, Risse argues,

states represent a most relevant scope of justice (Risse 2012, 23-40).

17

of Earth and common ownership of the resources crucial for everybody’s survival and

fulfilment of the basic needs.16

The idea of the inhabitation of the earth by humankind as a

whole not only suggest that the globe, in a holistic, indivisible sense, is the dwelling space of

humanity and a very quintessence of human condition which needs to be preserved (Arendt

1958), but also that earth is an interconnected system of resources everybody needs for their

survival and for the satisfaction of their basic needs. In the most basic sense, the fact of

collective inhabitation of the earth thus expresses the fact that there are resources which are

common to humans prior to moral claims of individuals or groups based on various grounds

(labor, activity, occupancy etc.). The holistic conception of the earth, the inhabitation of it by

the humankind, and the distribution of its resources which does not pay heed to firmly

entrenched and yet historically contingent territorial jurisdictions of sovereign states can

certainly lead to a formulation of a set of demands on states and other collectives to occupy

and use the earth in a manner that respects the equal status of all individuals as members of

humankind occupying the earth (Risse 2013:109).

A concrete set of norms, principles, rights, and duties is still to be elaborated and it is an

urgent task for philosophers and social scientists in the 21st century. When imagined from the

perspective of the environmental issues linked to resource sovereignty which I described

above, namely territorial expansion, primacy of the development, and the failure to protect

global commons, the following tasks seem to follow from the assumption of the principle of

the common inhabitation of the earth. First, we need to foster a philosophical discourse about

intrinsic, non-economic value of nature or of resources which represent global commons and

about interests humans have in protecting environment. Second, we need to elaborate a

conception of global environment overlaying the division of earth into sovereign territories as

well as further elaboration of the concept of global commons which correspond to vital

ecosystems (ozone layer, atmosphere, rainforests, climate system, ocean ecosystem etc.).

Correspondingly, a systematic and consistent framework and international law jurisdiction for

these domains located outside or overlaying the boundaries of states needs to be developed,

such that better responds to the need of responsible and sustainable use and conservation of

the environment. Last but not least, the strengthening of the concept of sustainable

development is required, such that provides a clearer set of limits on states in the exercise of

their resource sovereignty.

16

Mathias Risse uses the conception of „common ownership of the earth“ inspired by Grotius (Risse 2012: 89-

208).

18

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