Volume 32

From Sovereignty to Self-Determination: Emergence of Collective Rights of Indigenous Peoples in Natural Resources Management

by Shawkat Alam and Abdullah Al Faruque

The principle of permanent sovereignty over natural resources (“PSNR”) is now widely recognized as an important principle of international law. It derives its meaning from the instrument that is widely regarded as establishing its status in international law—the United Nations (“U.N.”) General Assembly Resolution 1803 (XVII) of 14 December 1962, “Permanent Sovereignty over Natural Resources” (“the 1962 Declaration”). The preamble to the 1962 Declaration defines the principle, asserting that any measure in respect of PSNR “must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States.” However, since its inception in the second half of the twentieth century, PSNR has been increasingly considered as a principle expressive of the right of peoples, not just states. Indeed, there is a discernible trend of extending the principle of PSNR to the interests of indigenous peoples so that they can exercise control over their traditional lands and territories. Indigenous peoples are receiving increasing attention in international instruments. States are now under an obligation to exercise permanent sovereignty on behalf of their indigenous communities, as well as for the benefit of their citizens as a whole. The exercise of three particular rights of indigenous peoples—the right to self-determination, the right to traditionally own land and resources, and the right to prior informed consent—can help indigenous peoples exercise their right to permanent sovereignty within the nation state.

This Article considers indigenous peoples’ rights to and control over natural resources as a significant departure from, and radical extension of, traditional state sovereignty over natural resources. This transformation has been observed through recent regional human rights court decisions, through the operation of international conventions, and within legal scholarship. From analyzing these sources, this Article demonstrates that PSNR has gradually evolved from a state-centric natural resources agreement to recognition of the collective rights of indigenous peoples over their resources. The primacy of state sovereignty has been challenged by the emergence of new norms of international law which see the rights of indigenous peoples as intrinsically linked to PSNR. The resulting legitimacy afforded to those rights therefore has the potential to displace the priority originally given to states. This Article seeks to further explore the path leading to that potential outcome and its implications for the current understanding of PSNR.1

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1. See, Lillian Aponte Miranda, The Role of International Law in Intrastate Resource Allocation:
Sovereignty, Human Rights and Peoples-Based Development, 45 VAND. J. OF TRANSNAT’L L. 785
(2012); Endalew Lijalem Enyew, Application of the Right to Permanent Sovereignty over Natural
Resources for Indigenous Peoples: Assessment of Current Legal Developments, 8 ARCTIC REV. ON L. &
POL. 222 (2017).