GLOBAL STAKEHOLDERS: THE IMPACT OF INTERNATIONAL LAW ON THE RESOURCES INDUSTRY
| Jurisdiction | United States |
(Apr 1999)
GLOBAL STAKEHOLDERS: THE IMPACT OF INTERNATIONAL LAW ON THE RESOURCES INDUSTRY
Ibibia Lucky Worika
Centre for Energy, Petroleum and Mineral Law and Policy
University of Dundee
Dundee, Scotland
Table of Contents
1. INTRODUCTION
2. INTERNATIONAL RESOURCES INDUSTRY: NEW DEVELOPMENTS
2.1 Environment and Human Rights
2.2 Sustainable Development
2.3 New Stakeholders
2.4 The Role of International Law
3. INTERNATIONAL LAW AND THE RESOURCES INDUSTRY: AREAS OF INTERACTION
3.1 Mineral Resources of the 'Global Commons'
3.2 Protection of Natural and Cultural Heritage, and Preservation of Biodiversity
3.3 Environmental Impact Assessment
3.4 Public Participation and Access to Environmental Justice
4. CONCLUDING OBSERVATIONS
5. ADDENDUM: List of Relevant International Instruments
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1. INTRODUCTION
The last two decades have seen dramatic changes in the way natural resource-related industries — especially petroleum exploration and production (E&P) and mining — are regulated at various levels: national, regional and international. Growing environmental awareness and the emergence of the human rights issues have had particularly significant impact on the attitudes and policies of both industry and States concerned. These issues have become more and more central to the thinking of the mineral industry, governments and international organisations.
Mining and oil and gas E&P activities, both onshore and offshore, are associated with a variety of environmental impacts, especially at the local level. Until relatively recently, however, various forms of pollution and environmental and social impacts did not attract significant attention. This is beginning to change. Indeed, many governments are seriously considering the environmental viability of such activities and are adopting more stringent regulatory controls.
On a national level, the relatively permissive approach to the development of natural resources associated with lax regulatory frameworks and insufficient control has given way to improved and increasingly tight environmental regulations. While governments generally take the lead in regulating the environmental impact of mining and petroleum operations, individual companies increasingly rely on self-regulation through either industry-wide guidelines or codes of conduct, or individual company's statements of policies and guidelines.
On an international level, bilateral (transboundary), regional and global measures have been taken to remedy the environmental damage already done and to prevent or limit further impacts on the environment. International legal principles, rules and standards, both binding ("hard law") and hortatory ("soft law"), increasingly affect mining and petroleum activities either directly or through governing them domestic legal frameworks.
It is the recent developments in the sphere of international law and the way they affect both domestic legal order and the resources industry that will be the focus of this paper. The paper does not, however, purport to provide an extensive review and analysis of these processes.1 Its purpose is more modest. It will pick up some of the important new concepts and trends that effectuate continuous and radical changes in regulatory scene. And, secondly, the paper will look at those areas of interaction between international law and the resources industry where the impact of the former has been particularly noticeable.
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2. INTERNATIONAL RESOURCES INDUSTRY: NEW DEVELOPMENTS
2.1. Environment and Human Rights
Two issues — environment and human rights — have become particularly prominent on the national and global agenda during the last 10-15 years. It is predicted that environment and human rights will dominate both the resources industry and international law2 in the next century. While it is plausible to attribute this rise in global environmental awareness to the disasters of the 1980s, the unsustainable practices of industrial development may have triggered environment and human rights consciousness in the first place.
Natural resources exploration and development, with concomitant environmental impact, quite often takes place in countries with undemocratic central governments, which are hesitant to concede a measure of autonomy to local petroleum-bearing and mining communities.3 This, together with recent developments in international human rights as well as environmental law and policy, including the activist role of non-governmental organisations have all combined in varying degrees to reinforce the linkages between environmental protection and human rights.
In Africa, the Americas, Asia and Europe, the linkage between environment and human rights issues is intertwined with paralled developments on the international scene. The Stockholm Declaration on the Human Environment was, perhaps, the first authoritative document which recognised the environment as an aspect of human rights. Principle 1 of that Declaration states that:
[M]an has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the environment for present and future generations.4
The fact that this declaration fell short of proclaiming a right to the environment,5 and that, there was neither state practice nor opinio juris in support of such proclamation,6 may not be unconnected with why the right to the environment was not incorporated into the corpus juris of international law.
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Even then, at the global level, there has been an increasing recognition of the linkage between the environment and human rights.7 As of 1990, the UN General Assembly had adopted a resolution on the "Need to ensure a healthy environment for the well-being of individuals."8 Proposals were even submitted at the preparatory Committee meetings for UNCED, to include recognition of the right to a healthy environment in the final document.9 However, Principle 1 of the Rio Declaration simply states that:
[H]uman beings are at the centre of the concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.10
Although this provision is seen by some commentators as a regressive step in the development of the linkage between the environment and human rights in the international fora,11 declarations and resolutions per se are merely subsidiary sources of international law, as they do not have binding nature. They may be useful in identifying common aspirations of the international community and, may, of course, gradually crystallise into binding norms. But there is a view that a human right to a 'decent,' 'healthful' and 'safe' environment must be formally recognised in a form of a binding international obligation.12 In a nutshell, the right to the environment is considered as one of the emerging "third generation" rights or "solidarity" rights.13
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Some commentators have nevertheless been very critical about the proliferation and almost anarchic manner in which the province of human rights is being expanded.14 However, at the time of the Universal Declaration, it would not have been possible for mankind to anticipate the future impact of industrial development on the environment.15 Events in the Niger Delta where Shell Petroleum Development Company as well as the Nigerian Government were accused of environmental and human rights abuses against the Ogonis16 and other indigenous groups, whose communities contain the bulk of Nigeria's petroleum resources, have reinforced the linkages between the environment and human rights.
Environmental protection would seem to surpass the mere protection of human rights, as it most certainly includes nature and the entire ecosystem. But, the recognition that mankind's survival depends upon a clean, safe and healthful environment equally places the claim to a clean environment on the human rights agenda.17 Besides, the fact that the environment does suggests broader interests should not detract from the legitimacy of a right to a clean environment.
2.2. Sustainable Development
The concept of "sustainable development" has emerged as another crucial factor which influences the behaviour of both governments and the industry. Although a desirable goal, there are contending versions and perspectives of "sustainable development." These reflect different cultural patterns, ideological inclinations and development goals. The widely-recognised 'Brundtland definition' can serve only as a starting point in the current discourse.18
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Despite certain shortcomings of this definition,19 and the attempts to refine or redefine it,20 the general thrust of this concept is clear. Sustainable development is related to the problem that world resources are not infinite, and that, in juxtaposing the present level of consumption of these resources against projections of increasing world wide demand, the global biosphere will not be able to indefinitely tolerate or support such a way of living.21
The most important issue raised by the idea of sustainable development in the context of petroleum and mineral resources investments is how to meet the current natural resources demand without compromising those of future generations. This is essentially because both types of resources are generally considered to be finite, although there is no uniformity of opinion concerning this matter either.
On the one hand, there is a tendency to believe that petroleum and mineral resources are nearly infinite, and that it is just a matter of money and technology to recover them.22 With regard to oil, some reason that,
[I]n regard to the size of distribution of accumulations the resources are almost infinite, with a few large fields and an...
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