Author Name:   garima pawse

The origin of PSNR can be traced back to numerous resolutions which passed in the United Nations General Assembly (UNGA). While in general recommendations taken by the UNGA have no binding effect on the member states (with decisions taken in budgetary, elective or admissive matters (internal workings) being an exception), there nevertheless have been many instances in which UNGA Resolutions have considerably contributed to the formation of customary international law in one or another way. This has also found evidence in several judgments of the International Court of Justice, as well as of other judicial bodies

Concept of Permanent Sovereignty over Natural Sources

The origin of PSNR can be traced back to numerous resolutions which passed in the United Nations General Assembly (UNGA). While in general recommendations taken by the UNGA have no binding effect on the member states (with decisions taken in budgetary, elective or admissive matters (internal workings) being an exception), there nevertheless have been many instances in which UNGA Resolutions have considerably contributed to the formation of customary international law in one or another way. This has also found evidence in several judgments of the International Court of Justice (ICJ), as well as of other judicial bodies. Thus, the common repetition and recitation of previous resolutions serve as proof of a strong opinio iuris that the principle of PSNR has been accepted as a norm of customary international law.

In the time since, it has evolved into an established set of rights and obligations in a wide range of different legal regimes. Not only does it touch upon fields such as International Investment Law, the Law of the Sea, International Trade Law and the self-determination of peoples but also has and likewise receives a significant impact on and from International Environmental Law. Moreover, the principle of PSNR has evolved from a tool of developing states into an instrument not only directed at all states, but also being claimed by indigenous peoples.

In its original conception, the ultimate control over natural resources falls to and remains at all times – hence permanent - with the state, and accordingly, activities related to their development, exploitation and utilization are subjected to the state’s national laws. A state can rely on the principle to invalidate existing agreements and re-negotiate existing concessions. Moreover, it may choose to enter into international or national contracts granting other entities access to its natural resources and is free to create an environment encouraging foreign and domestic investments by guaranteeing certain minimum degrees of investment protection. This occurs in the form of regional and multilateral trade agreements (which include investment provisions) but most often takes place via investment codes or Bilateral Investment Treaties (BITs). In general, such include provisions ensuring foreign investors fair and equitable treatment concerning their activities within the host state.

The capability of a state to engage in international trade activities as well as economic transactions with regard to their natural resources in a system based on equality, equity and mutual benefits is decisive for the full enjoyment of self-determination. Thus, political sovereignty and economic sovereignty are dependent upon each other.

Moreover, the right to economic self-determination also includes the regulation of fair and just economic trade relations and the common goal of economic prosperity and growth in the international agenda. With the core of the right laying in the economic aspects of the principle of PSNR, the reflection of its rationale can be found in instruments such as the Declaration on the Establishment of a New International Economic Order and in the Charter of Economic Rights and Duties of States. Secondly, the right to self-determination includes the right to social development. International peace and security as well as a fair and equitable advancement of the world community is based on a just social order which enables all human beings to live in dignity and freedom. Everyone shall therefore be able to participate in all levels of society, i.e. labor, ownership and property, family, education, housing. The fulfillment of these rights originates in economic development and at the same time reasons the need for such. Finally, due to the fact that the encouragement and diffusion of culture and education is essential for the attainment of human dignity as well as a reflection of the principle of equality, cultural development constitutes an element of the right to self-determination as well. Cultural life can be understood as the totality of practices and attitudes which have an effect on man’s capability of expressing himself, defining his position within the world community, forming his environment, communicating with others and in their totality form part of the common heritage of mankind. This also includes specific, historically originated, ways of living which are often shared with other members of a community, such as a “particular way of life associated with the use of land resources”. Thus, peace and international cooperation must be based on respect for the way of life and customs of peoples. Every people therefore shall enjoy the right and duty to develop its own culture and at the same time co-operate with one another to spread and share their knowledge, skills and talents to enrich cultures.

Indigenous people and their claim to Self Determination

Historically, indigenous peoples were not within the realm of application of the principle of self-determination, also due to the fact that international law was overall deficient in recognizing them as possible right-bearers. However, with an increased awareness of recognizing indigenous peoples as subjects of international law it has been argued that they have the right to political, economic, social and cultural self-determination. Under the concept of self-determination, indigenous peoples have therefore have brought forth claims to exercise their traditional way of life, to have the right to achieve sustainable development via indigenous practices, to participate in the benefits derived by the utilization of resources located on their lands, and most importantly to be subjects to the principle of PSNR as well. Moreover, indigenous peoples have maintained that they enjoy the right to have representative political institutions; to have sufficient access to their lands, territories and natural resources in order to preserve and develop cultural practices and traditions; to be free of adverse discrimination; to receive fair and equitable compensation and reparation for violations of their interests and property occurring without their free, prior and informed consent; to have access to the necessary means to ensure their equitable economic, social and cultural development; and to freely choose their own policies for their development.

Moreover, indigenous peoples have maintained that they enjoy the right to have representative political institutions; to have sufficient access to their lands, territories and natural resources in order to preserve and develop cultural practices and traditions; to be free of adverse discrimination; to receive fair and equitable compensation and reparation for violations of their interests and property occurring without their free, prior and informed consent; to have access to the necessary means to ensure their equitable economic, social and cultural development; and to freely choose their own policies for their development. States and international institutions often acknowledge that indigenous peoples have achieved the status of beneficiaries of self-determination. It has especially found recognition with regard to such indigenous groups that possess a distinct identity, with historically social, cultural and political diverse elements of society from the majority of the population of a state. S. James Anaya identifies five major sets of rights in relation to self determination which have been accepted as applying to indigenous peoples: freedom from discrimination; respect for cultural integrity; lands and natural resources; social welfare and development; and self-government and autonomy concerning internal affairs. However, states remain keen to preserve their territorial integrity.

Conclusion:
The concept of PSNR has been an internationally accepted principle since approximately 50 years. Throughout this period, the rights and obligations which can be considered to fall within its scope have expanded and incorporated newly arising interests. This was the case with regard to international investment law as well as international environmental law. Nevertheless, the primary intention of PSNR, to rectify previous injustices and create new and equitable terms for international relations, has always prevailed. This also allows for an understanding why the original right underlying the principle – the right of peoples and states to freely dispose, use and exploit their natural resources in the interest of national development and for this purpose to regulate their economy – has remained hardly untouched by evolving norms, e.g. in the field of international investment law or international environmental law. The ability of the principle to function as a tool to eliminate inequality, discrimination, colonialism and racism also explains why indigenous peoples have come into discussion as constituting new subjects in this regard. The problematic issue in this regard is that only in very limited circumstances will indigenous peoples be entitled to external self-determination, and thus, in the traditional sense, enjoys full authority over their lands, territories and resources. The case-study of Greenland shows that although economic sufficiency flowing from control over natural resources is inevitable for independence, it is their perception as constituting a colonized people which sparks the international community to accept their quest for independence. Thus, even if states grant extensive rights to indigenous peoples with regard to their lands, territories and resources, and recognize their traditional land tenure systems as title to ownership, the state in general will remain in full control over its territory and therefore be able to freely utilize the lands, territories and natural resources to pursue its national development as well as choose its economic, environmental and developmental policies.

End-Notes
# Jane A. Hofbauer, The Principle of Permanent Sovereignty over Natural Resources and Its Modern Implications, https://skemman.is/bitstream/1946/4602/1/Jane_Hofbauer.pdf
# N. Schrijver: Sovereignty over Natural Resources – Balancing Rights and Duties, http://catdir.loc.gov/catdir/samples/cam034/96033595.pdf
# Subhash c jain, permanent sovereignty over natural resources and nationalization, http://14.139.60.114:8080/jspui/bitstream/123456789/16524/1/009_Permanent Sovereignty over Natural Resources and Nationalization in International Law (241-256.pdf
# A. Anghie: Imperialism, Sovereignty, and the Making of International Law,
# N. Schrijver: Sovereignty over Natural Resources – Balancing Rights and Duties, http://catdir.loc.gov/catdir/samples/cam034/96033595.pdf
# S. R. Chowdhury: “Permanent Sovereignty over Natural Resources

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