The role of international law in intrastate natural resource allocation: sovereignty, human rights, and peoples-based development.

AuthorMiranda, Lillian Aponte

ABSTRACT

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. This Article fills a gap in the existing literature by identifying and analyzing emerging international law approaches that impact the intrastate allocation of land and natural resources to historically marginalized communities, and thereby, carve away at states' top-down decision-making authority over development. It argues that while international law may have only been originally concerned with the allocation of land and natural resources in an interstate context, it plays a distributive role today in an intrastate context. Ultimately, this Article proposes that an emerging human rights approach to the allocation of land and natural resources supports a peoples-based development model potentially capable of more readily alleviating conditions of inequity and continued subordination for historically marginalized communities.

TABLE OF CONTENTS I. INTRODUCTION II. INTRASTATE NATURAL RESOURCE ALLOCATION AND THE DOCTRINE OF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES A. The Interstate Debate: Accounting for the Third World 1. Permanent Sovereignty over Natural Resources and Decolonization 2. Permanent Sovereignty over Natural Resources and the Promotion of Self-Determination 3. Permanent Sovereignty over Natural Resources and the Promotion of Economic Development B. The Intrastate Debate: Accounting for the Fourth World 1. Permanent Sovereignty over Natural Resources by Peoples of a State 2. Permanent Sovereignty over Natural Resources by Indigenous Peoples and Other Historically Marginalized Communities III. INTRASTATE NATURAL RESOURCE ALLOCATION AND HUMAN RIGHTS A. Substantive Land and Resource Rights of Indigenous Peoples and Other Historically Marginalized Communities B. Procedural Land and Resource Rights of Indigenous Peoples and Other Historically Marginalized Communities IV. INTRASTATE NATURAL RESOURCE ALLOCATION AND GOOD GOVERNANCE V. INTRASTATE NATURAL RESOURCE ALLOCATION AND THE DEVELOPMENT OF PEOPLES A. Natural Resource Allocation Beyond State Sovereignty B. Natural Resource Allocation Based on Peoples' Human Rights: Toward a Peoples-Based Model of Development? VI. CONCLUSION I. INTRODUCTION

During the past decade, Brazil has been actively pursuing, in conjunction with a consortium of private business actors, a hydroelectric dam project of massive proportions along the Xingu River: the Belo Monte Dam project. (1) Belo Monte constitutes the second largest dam project in Brazil and the third largest dam project in the world. (2) Brazil proposes that the dam will produce 11,233 megawatts of primarily clean energy by diverting water to regions in need of access, thereby furthering economic development and contributing to a higher standard of living for the nation as a whole. (3) Multiple communities living along the river--some who claim an indigenous identity, (4) others who live off the river in conditions of poverty, and others who use nearby land for agricultural purposes--have voiced significant concerns about the impact of the project on their local livelihood as well as their cultural and economic development. (5) It is projected that thousands of people will be displaced and that approximately 500 square kilometers will be flooded as a result of the project. (6) Critics also suggest that damming the river could diminish fisheries and ultimately contaminate the water used by local communities. (7)

In the context of such a large-scale development project, multiple communities have potentially legitimate interests with respect to ownership or occupancy of land near the river and access to the river as a natural resource. (8) Given the significant impacts to be borne by indigenous and other communities, (9) the federal prosecutor of Para has filed several cases during the last decade challenging Brazil's failure to engage in an adequate process of consultation. (10) The lack of an adequate consultation process has also led the Inter-American Commission on Human Rights to request that Brazil suspend construction of the dam. (11) In light of Brazil's resistance, the Inter- American Court of Human Rights is expected to address the issue. (12) Recent reports indicate that the Brazilian government has granted a license approving the construction of the Belo Monte Dam. (13)

As is evident in the dynamics produced by the Belo Monte Dam project, state natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. As international law evolves in response to such consequences, increased analysis is merited regarding its potential role and impact.

Since its genesis, international law has addressed issues of land and natural resource allocation. (14) In the last century alone, international law has played a significant role in global debates regarding ownership, use, control, and development of land and natural resources. More specifically, in the period of colonial dissolution, the international doctrine of permanent sovereignty over natural resources was developed and applied to interstate disputes between colonizing states and newly independent colonies. (15) This doctrine emerged with the aim of protecting newly independent states from economic recolonization resulting from the appropriation of their natural resource base by foreign actors. (16) In more recent debates, the doctrine of permanent sovereignty over natural resources has been alluded to by scholars in the context of interstate disputes between developed and developing states pursuant to the same rationale: protecting a developing state's ability to seek growth through the economic benefits gained from an entitlement to commercialize its natural resource base. (17) Nevertheless, natural resource development projects have given rise to complex intrastate disputes involving the interests of multiple marginalized communities, including indigenous peoples, racial and ethnic minorities, and the rural poor. (18)

While the doctrine of permanent sovereignty over natural resources emerged in the context of interstate debates, (19) its role in current intrastate debates has received limited scholarly analysis. Undeniably, at the core of current debates is a distributional concern based on the potentially legitimate claims of multiple marginalized communities vis-a-vis the broader national polity and vis-a-vis the state. How has international law evolved to address the allocation of land and natural resources to historically marginalized communities in the context of natural resource development projects? What are the consequences of such evolution?

This Article addresses the evolution of international law, and its infiltration into what has been deemed a sacred prerogative of states--sovereignty over their natural resources--and thereby, ultimate decision-making authority regarding the course of development. To that end, this Article fills a gap in the existing literature by identifying, analyzing, and evaluating emerging international law approaches that impact the intrastate allocation of land and natural resources to historically marginalized communities, and thus, carve away at states' top-down decision-making authority over development. Specifically, Part II discusses an emerging approach--grounded in notions of sovereignty--toward the intrastate allocation of land and resources. It surveys the evolution of the doctrine of permanent sovereignty over natural resources with a focus on the most recent interpretive argument, which locates sovereign rights over natural resources in the "peoples" of a state. (20) Part III discusses a second emerging approach toward the intrastate allocation of land and resources that finds its roots in human rights precepts. It charts the evolving human rights jurisprudence regarding indigenous peoples' rights over land and resources with a focus on contemporary analyses that tie such rights primarily to communal identity and cultural preservation. (21) Part IV surveys a third approach, based on evolving principles of good governance, that obviates a "rights/duties" dichotomy and promotes a regulatory solution. It focuses on initiatives that regulate the disclosure of state profit margins in natural resource extraction projects. (22) Part V analyzes the potential of these three distinct approaches, and the models of development that they support, for alleviating conditions of inequity and continued subordination for marginalized communities in the context of natural resource development projects. (23)

This Article asserts that while international law may have only been originally concerned with the allocation of land and natural resources in an interstate context, today it plays a role in debates regarding proper intrastate allocation. In addition, this Article suggests that emerging approaches under international law that implicate the intrastate allocation of land and natural resources pose a challenge to the traditional state-based model of development. (24) It ultimately proposes that an emerging human rights approach based on the substantive land and resource rights of peoples supports a peoples-based model of development potentially capable of more readily alleviating conditions of inequity and continued subordination for historically marginalized communities.

  1. INTRASTATE NATURAL RESOURCE ALLOCATION AND THE DOCTRINE OF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES

    One approach under international law to resolving...

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