State Right over Natural Resources and Environmental Law:

Striking the Balance for Sustainable Development

Joel Niyobuhungiro

Faculty of Law, Universitas Airlangga, Surabaya, Indonesia

Keywords: Economic Law, Environmental Law, Natural Resources, Sovereign State, Sustainable Development.

Abstract Under international economic law, states have right to exploit their natural resources without external

interference. However, Stockholm Declaration reconciled this right with the need to protect environment.

This spirit was endorsed by the Charter of Economic Rights and Duties of States, the World Charter for Nature

and the United Nations Convention on the Law of the Sea, inter alia, to maintain the momentum within

international environmental law to exploit natural resources in sustainable manner. Sustainable exploitation

of natural resources and effective implementation of environmental law can contribute to sustainable

development. Conversely, states tend to overexploit their natural resources by disregarding environmental

principles thereby impeding sustainable development. Therefore, in exploitation of their natural resources,

states should consider environmental principles whose failure thwarts sustainable development. This paper

suggest that states should exploit their natural resources by effectively implementing international

environmental law for effective sustainable development.

1 INTRODUCTION

Economy of a country depends upon various factors

including, but not limited to, natural resources

Exploitation of natural resources is mainly regulated

by both economic and environmental law.

Domestically, economic law regulates economic

relations between the government, its economic

administrative agencies and economic organizations

and citizens (Mbembe, 2015). At planetary level, it

encompasses the conduct of sovereign states in

international economic relations and the conduct of

private parties involved in cross-border economic and

business transactions (Legal Information Institute,

n.d.).

On the other hand, international environmental

law is a body of international law concerned with

protecting the environment through bilateral and

multilateral international agreements (Hyder, n.d.).

International environmental law regulates the

behaviour of states and international organizations

with respect to the environment (Legal Information

Institute, n.d).

States have right to exploit their natural wealth

and resources in the interest of their national

development (Permanent Sovereignty over Natural

Resources, 1962). Nevertheless, the right of states to

exploit their natural resources was reconciled with the

need for environmental protection notwithstanding

the interest of national development (Stockholm

Declaration, 1972). The spirit of Stockholm

Declaration was endorsed to maintain the momentum

within international environmental law to limit the

right to exploit natural resources (The Charter of

Economic Rights and Duties of States 1974,

article30).This research assesses the right of states to

exploit their natural resources under international

laws pertaining to environment and sustainable

development and the challenges of implementing

environmental law.

2 RIGHT OF EXPLOITATION OF

NATURAL RESOURCES VIS À

VIS ENVIRONMENTAL LAW

The right of states to exploit and enjoy their natural

resources without interference is in light with right of

state to economic development (Declaration on Right

to Development1986, article 1). However, the

awareness of the needful environmental protection

has prompted the need for cooperation between

Niyobuhungiro, J.

State Right over Natural Resources and Environmental Law: Striking the Balance for Sustainable Development.

DOI: 10.5220/0010050001870190

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 187-190

ISBN: 978-989-758-482-4

187

economic and environment laws over natural

resources as evidenced by environmental instruments

which restrict over-exploitation.

It is a responsibility for all states to preserve and

enhance the environment for the present and future

generations (the Charter of Economic Rights and

Duties of States, article 30). The activities within their

jurisdiction must not cause damage to the

environment of other States as reflected in principle

of “Sic utere tuo ut Alienum non Laedas” i.e. ‘Use

your own property in such a way that it does not harm

others’ (Collins Dictionary of Law, 2006).

Furthermore, states should endeavour to conserve

their natural resources as contemplated in Stockholm

Declaration principle 2.

The need to conserve natural resources also

figured prominently in 1982 with the urgency to

maintain stability and quality of nature and to

conserve natural resources (World Charter for Nature

1982, preamble). In the same year, the Law of the Sea

recognized right of sates to exploit their natural

resources pursuant to their environmental policies

and in accordance with their duty to protect and

preserve the marine environment (UN Convention on

the Law of the Sea 1982, article 193). Obviously,

from 1980s the idea of right of states to freely dispose

of their wealth and natural resources was subject to

the concepts of: the preservation of the environment;

conservation of natural resources and the sustainable

use and development of such resources.

The popularized phrase ‘sustainable

development’ embodied both states’ right to

economic development and their obligation to pay

particular attention to environmental degradation

(Brundtland Commission Report, 1987). This phrase

was coined to express the balance needed between the

right of states to exploit their natural resources with

duty to preserve the environment. It denotes a

‘development that meets the needs of the present

without compromising the ability of future

generations to meet their own needs’ (UN

Commission on Sustainable Development, 2007,

P.1).

Unlike the Stockholm Conference which was on

the human environment, the Rio Conference

considered both environment and development (Rio

Declaration1992, principle 1). In principle 2, it sought

to harmonize the right of states to exploit their own

natural resources with duty to ensure that activities

within their jurisdiction or control do not cause

damage to the environment of other states or of areas

beyond the limits of national jurisdiction as discussed

earlier under the principle of ‘Sic utere tuo ut

Alienum non Laedas’.

The UN Convention on Biological Diversity did

not lag behind. It reaffirmed the sovereign rights of

states over their biological resources but stressed that

states must conserve their biological diversity and use

their biological resources in sustainable manner

according to their particular conditions and

capabilities (UN Convention on Biological Diversity,

1992, article 6).

3 IMPLEMENTATION OF

ENVIRONMENTAL LAW FOR

SUSTAINABLE

DEVELOPMENT

Sustainable development is renowned phrase that

bridged economic right of states over their natural

resources and environmental law. It holds that, the

development must meet the present needs without

compromising future generations to meet their own

needs (UN Commission on Sustainable

Development, 2007). The rationale of sustainable

development is equated with the principle of

“intergenerational equity” whereby every generation

holds the earth in common with members of the

present generation and with other generations, past

and future and there must be fairness among

generations in the use and conservation of the

environment and its natural resources (Oxford Public

International Law, n.d.).

It is safe to submit that economic development

that undermines environment is not sustainable

development. Thus, sustainable development rests on

commitment to equity with future generations with

responsibility to "protect and improve" the

environment for both present and future generations

(Weiss, n.d.)

Rio Declaration incorporated sustainable

development dimension into international economic

law issues and highlighted the importance of

international economic law principles for the

effective operation of the rules of international

environmental law (Rio Declaration, Principle12).

Although sustainable development has gained

remarkable impetus in harmonizing right of

exploitation of natural resources with environmental

protection, there are still challenges equated with lack

of fair and equitable implementation of

environmental law

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4 CHALLEGES OF

IMPLEMENTATION OF

ENVIRONMENTAL LAW

The ubiquity of environmental laws in most

countries, if not all, does not imply that they are

adequately implemented. Despite tremendous

development of environmental law particularly at

planetary level, some environmental instruments are

not legally binding. Thus, this makes environmental

law less implemented. Furthermore, national

administrations, especially in developing economies,

lack the capacity to effectively implement

regulations, policies, measures taken to meet

obligations towards environment (Rose, 2011).

The protection of some environmental items is

technical. There is lack of competency, expertise and

equipment required to ensure compliance with

environmental obligations. In addition to that, some

of the measures taken involve costs and require

ability and willingness to invest resources to facilitate

its implementation (Nicholas, 2006). Rose (2011) put

that ‘Environmental treaties often articulate specific

obligations that are negotiated without a clear plan for

their national implementation. According to Rose, the

difficulty of making concrete assessments of the

financial, human, technical and social requirements

of implementation is another challenge.

Turamwishimiye (2014) highlighted the

operational, procedural and technical problems in the

prosecution of environmental crimes. She added that

the lack of the required quality; technical knowledge

and financial resources constitutes obstacle in

fighting against environmental crimes. It was also

argued that lack of political will in implementation of

policies, treaties and laws on environmental

conservation thwarts them to materialize (Mwinzi,

2017).

Moreover, since the Rio declaration refers to

national and international law in matters concerning

environmental liability and compensation, states

prefer to establish private law regimes which focus on

private actors’ liability, while excluding

consideration of states’ accountability (Handl, n.d.).

Therefore, this room for states to cherry pick between

international and national law impedes effective

implementation.

5 CONCLUSION

Although state have economic right to exploit their

natural resources, environmental related laws restrict

this right for the sake of sustainable development.

Environmental law principles such as sustainable

development, inter alia, prohibit exploitation of

natural resources which undermines sustainable

development. It is argued that economic

development, social development and environmental

protection are “interdependent and mutually

reinforcing pillars” as three components of

sustainable development (Johannesburg Plan of

Action, para.5).

Despite its incontrovertible importance in

sustainable development, environmental law is not

effectively implemented. States pay much attention at

exploitation of their natural resources at the detriment

of environment. Countries, especially developing

countries, tend to concentrate on economic

development by exploiting their natural resources but

tend to ignore environmental rules.

This paper suggests that environmental

dimension should be integrated into the poverty

reduction strategy. As enshrined in article 3 and 4 of

the United Nations Framework Convention on

Climate Change, states should cooperate for better

scientific understanding of the problems. Moreover,

state should share knowledge and technologies to

achieve the sustainability by implementing principle

of international economic and environment law (Rio

Declaration 1992, Principle 12).

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