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Permanent Sovereignty over Natural Resources as a Corner-stone for International Economic Rights and Duties

Published online by Cambridge University Press:  21 May 2009

P.J.I.M. de Waart
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Extract

After the UN General Assembly had, on 14 December 1960, officially rung out the colonial era by adopting the Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 (XV)) with a convincing majority (89 to 0 with 9 abstentions), the new States of the third world rapidly succeeded in pitting their numerical superiority in the General Assembly against the political and economic power of the industrialised world. This made it possible for the UN system – which dates back to 1945 and the structure of which the new States had not, or had hardly, been able to influence – to be adjusted to their specific needs, particularly in the vital fields of trade and industry. Thus, they contributed by their majority in the UN Assembly to the setting up in 1964 of the United Nations Conference on Trade and Development (UNCTAD) and in 1966 of the United Nations Industrial Development Organisation (UNIDO) as organs of the General Assembly.

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Articles
Information
Netherlands International Law Review , Volume 24 , Issue 1-2 , May 1977 , pp. 304 - 322
Copyright
Copyright © T.M.C. Asser Press 1977

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References

1. Gosovic, B., UNCTAD: Conflict and Compromise (Leyden: A.W. Sijthoff, 1972), p. 19Google Scholar; Schermers, H.G., International Institutional Law, vol. I (Leyden: A.W. Sijthoff, 1972), p. 71.Google Scholar

2. G.A. Res. 3201 (S-VI) of 1 May 1974, accepted without vote. Cf. also Res. 3362 (S-VII) of 19 September 1975, accepted without vote, Preamble para. 2 and 4 and Chapter IV para. 1.

3. Cf. G.A. Res. 421 (V) Sub. D of 4 December 1950 and 626 (VII) of 21 December 1952. Cf. also Commission on Human Rights, Report of the Eighth Session of 27 06 1952, p. 5Google Scholar para. 45 and 46 and p. 8 para. 67.

4. Nincić, D., The Problem of Sovereignty in the Charter and in the Practice of the United Nations (The Hague: M. Nijhoff, 1970), p. 267–269.Google Scholar

5. Tammes, A.J.P., International Publiekrecht (Public International Law) (Amsterdam: de Erven Bohn, 1973), p. 97.Google Scholar

6. Cf. a.o. the statement by Parsky, G.L., Assistent Secretary of the USA Treasury before the Subcommittee on International Trade, Investment and Monetary Policy, House Committee on Banking, Currency and Housing dd. 07 9, 1975Google Scholar. During the Seventh Special Session of the UN General Assembly in 1975, however, the USA joined in expressing political willingness to negotiate with developing countries on the reconstruction of the international economic order.

7. A/PV.2216 of 27 April 1974, p. 51.

8. Cf. Preamble Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX). Cf. also A/RES.3362 (S-VII) of 19 September 1975 concerning Development and International Economic Co-operation Chapter VII: Restructing of the Economic and Social Sectors of the United Nations System.

9. Šahović, M., ed. Principles of International Law concerning Friendly Relations and Cooperation. (Belgrade: The Institute of International Politics and Economics; and New York: Oceana Publications, 1972), pp. 281, 283.Google Scholar

10. A principle of law may be understood as a self-evident pronouncement on positive law, a guide-line for the understanding of a particular legal system in a particular place at a particular time. Cf. Scholten, P., Mr. C. Asser's Handleiding tot de beoefening van net Nederkndsch Burgerlijk Recht, Algemeen Deel (C. Asser's Manual for the Study of Dutch Civil Law, General Part) (Zwolle: Tjeenk Willink, 1934), p. 83Google Scholar; Schwarzenbergei, G., The Inductive Approach to International Law (London: Stevens & Sons, 1965), pp. 73, 74.Google Scholar

11. For the voting record of Western States on the Charter of Economic Rights and Duties of States, cf. Doc. A/C. 2/SR1648 of 12 December 1974, and infra para. 3.1.1.

12. A/9946, of 9 December 1974, pp. 14, 22, 23.

13. Ministerie van Buitenlandse Zaken, nr. 83 Verslag van de eenentwintigste Algemene Vergadering van de Verenigde Naties (Ministry of Foreign Affairs, 83 Report on the 21st General Assembly of the United Nations) (The Hague: Public Printing Office, 1967), p. 363.Google Scholar

14. Inter-American Institute of International Legal Studies, ed., The Inter-American System, its Development and Strengthening (New York: Oceana, 1966), introduction pp. XV–XXXVIGoogle Scholar; Verzijl, J.H.W., International Law in Historical Perspective, vol. I (Leyden: A.W. Sijthoff, 1968), p. 269–270.Google Scholar

15. Cf. the publication, mentioned in note 13, p. 365.

16. A/285 of 15 January 1947, p. 8 and id/Corr. 1 of 31 January 1947.

17. A/PV 2221 of 22 April 1974, pp. 88–90.

18. A/PV 2229 of 1 May 1974, p. 51.

19. Cf. Treaty on Principles governing the Activities of States in the Exploitation and Use of Outer Space including the Moon and other Celestial Bodies of 25 January 1967, Article 1; Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil thereof, Beyond the Limits of National Jurisdiction of 17 December 1970, Article 1. Brownlie, I., ed., Basic Documents on International Law, 2nd ed. (London: Oxford University Press), pp. 112, 118.Google Scholar

20. Cf. A/C.2/L1404 of 3 December 1974 and A/C.2/L 1386 of 21 November 1974, j. corr. 6 of 5 December 1974. Since, at the first UN Conference on Trade and Development in 1964, the then 77 developing countries first acted as one block, they remained the group of “77” even though they steadily increased in number.

21. A/C. 2/SR 1648 of 12 December 1974, pp. 2, 4.

22. Cf. the Canadian statement of 12 December, PV.2315, p. 56.

23. Cf. Article 2 para. 1 of the Western proposal: “Every State has permanent sovereignty over its natural wealth and resources and has the inalienable right fully and freely to dispose of them”. Article 1 of the 1962 Resolution does not (yet) formulate the right itself, but indicates that it must be exercised in the interest of the natural development and of the well-being of the people of the State concerned.

24. At the request of Canada the Second Committee voted on this paragraph separately; 20 (Western) countries voted in favour, 71 against with 18 abstentions. Cf. A/C.2/SR 1648, p. 2.

25. ID/Conf. 3./31, p. 48 of 9 May 1975 (text), 65 and 70 (voting). Italics supplied.

26. Cf. ID/Conf.3/SR.18/Add.1/Rev. 1 of 22 May 1975, pp. 192–214.

27. Ibid. p. 204.

28. A/C.2/SR.1648, pp. 63, 64.

29. Cf. the discussion on the regulation and control over the activities of transnational corporations in the ad-hoc Committee of the sixth Special Session of the UN General Assembly, during which the Federal Republic of Germany proposed that the phrase “formulation, adoption and implementation of an international code of conduct” in the draft of the “77” (A/AC116/L48 of 30 04 1974)Google Scholar should be replaced by the words “study of the feasibility of an international code…” (A/AC.166:SR.18 of 29 04 1974Google Scholar, italics supplied). Compare also para. 26 sub. (o) of the “Declaration and Plan of Action on Industrial Development and Co-operation” drawn up by the Group of Seventy-Seven adopted by the Second Ministerial Meeting, Algiers, 15–18 February 1975 (ID/Conf.3/22 of 3 March 1975): “The adoption of an international code on the transfer of technology …” with the (mitigated) final text of para. 61 sub (m) of the Lima Declaration: “Negotiations on the formulation of an international code of conduct …” (italics supplied), taking account of the fact that the draft of the industrialised Western countries (the B-group) had not included any specific provision on this matter.

30. Italics supplied. A proposal of Libanon and Syria only to speak of “… entered into between States…” was rejected (33 to 47, with 11 abstentions). Cf. Ministry of Foreign Affairs. The Hague, No. 75, p. 139. In conformity with the usual UN terminology the term transnational corporation is used in this paragraph, though the discussion in the UN Commission on Transnational Corporations, consisting of 47 Member States, has not yet brought forward a generally accepted definition of transnational corporations. Cf. OPI/CESI Features ESA/164 of 19 February 1976 and E/C.10/12 of 28 January 1976, p. 10.

31. Cf. A/C.2SR.1638 of 27 November 1974, p. 5.

32. In response to the numerical superiority of the “77” in UN organ decision-making, except the Security Council, the major Western Powers emphasise more than they used to that UN resolutions are recommendations and, therefore, not binding. The Report of the Group of Experts on the Structure of the United Nations System (E/AC.62/9 of 28 May 1975) observes on this matter: “The system of decision-making of the United Nations on economic and social questions places insufficient emphasis on the search for consensus” (para. 18, p. 5)Google Scholar. A resolution must be regarded as an act relevant by right because and in so far as the decision has been properly made, and is intended to influence the conduct of Member States by a decision which may be considered as a near-legal text. Resolutions are at least “urging expressions”. Cf. Tammes, , Internationaal Publiekrecht, pp. 33–34Google Scholar and Het universele rechtsstelsel beschreven aan de hand van een classificatie [The Universal Legal System Described with the Aid of a Classification], (Amsterdam: N.V. Noordhollandsche Uitgevers Maatschappij, 1969), p. 14Google Scholar.Cf. also Falk, R.A., “On the Quasi-Legislative Competence of the General Assembly”, 60 A.J.I.L., p. 783.Google Scholar

33. Jenks, C.W., “Multinational Entities in the Law of Nations”, in Transnational Law in a Changing Society, (New York/London: Columbia University Press, 1972), p. 82.Google Scholar

34. See notably the Afro-Asian criticism of an American proposal on the definition of peremptory norm in the Convention on the Law of Treaties, to the effect that jus cogens is based on recognition in common by the national and regional legal systems of the world as a peremptory norm. Cf. Kearney, D. and Patton, E., “The Treaty on Treaties”, in 64 A.J.I.L. (1970), pp. 536–537.Google Scholar

35. Art. 27 of the Convention on the Law of Treaties and Art. 4 of the Draft Articles on State Responsibility. Cf. Kearney, and Patton, , op.cit., p. 517Google Scholar; Report of the International Law Commission on the work of its twenty-fifth session (doc.A/9010/Rev.l), p. 23, 26Google Scholar sub. 13.

36. This Convention was ratified in mid-1975 by 66 countries including some fifty developing countries: 34 African, 9 Asian and 3 Latin-American countries, as well as one Middle-East country. Cf. International Centre for Settlement of Investment Disputes (ICSID), ninth annual report of 15 08 1975, pp. 8–9.Google Scholar

37. A/C.2/L.1404 sub (f).

38. Cf. the first introductory consideration to the Guidelines. It is also clearly apparent from the last one, according to which Member Countries set forth the guidelines, apart from their national legislation, “in accordance with international law and international agreements as well as contractual obligations to which they have subscribed”. Such a formulation strengthens the above-mentioned tendency to place transnational and States as legal subjects on the same level. Among the governments of the OECD-Member countries the Turkish Government was not in a position to participate in this Declaration.

39. Illustrative in this respect are the guidelines pertaining to taxation and to employment and industrial relations, according to which enterprises should “refrain from making use of the particular facilities available to them,… for modifying in ways contrary to national laws the tax base on which members of the group are assessed “and should not” threaten to utilise a capacity to transfer the whole or part of an operating unit from the country concerned in order to influence unfairly those negotiations (i.e. bona fides negotiations with representatives of employees on conditions of employment) or to hinder the exercise of a right to organise”. Where governments have to confine themselves to such guidelines, it is obvious that “observance of the guidelines is voluntary and not legally enforceable”.

40. In the report of the Group of Eminent Persons to study the Impact of Transnational Corporations on Development and on International Relations it was stressed that the Group was struck by the lack of useful, reliable and comparable information on many aspects of the subject of transnational corporations and that the availability of pertinent information is central to many issues, such as restrictive business practices, transfer pricing and taxation. Cf. E/C.10/2/Add. 1 of 6 March 1975. There is a tremendous need for inter-governmental understandings on the proper role of transnational corporations in the world-economy. Precisely for this reason the Commission on Transnational Corporations and its Information and Research Centre on Transnational Corporations have been established by ECOSOC. Cf. ECOSOC Res. 1913(LVLI) of 5 12 1974.Google Scholar

41. “There is at present no single international instrument which is addressed exclusively and fully to the issues related to transnational corporations. Most universal instruments deal with many other topics in addition to transnational corporations; their references to transnational corporations are fairly general and abstract in character, while at the same time being non-comprehensive” (E/C.10/9 of 30 01 1976Google Scholar, para 15).

42. Cf. ECOSOC Res. 1913(LVH) on the impact of transnational corporation on the development process and on international relations, especially par. 4(c) according to which it belongs to the terms of reference of the Information and Research Centre on Transnational Corporations: “To organize and co-ordinate at the request of Government, programmes of technical co-operation on matters related to transnational corporations, through existing organs of the United Nations System, aimed at strengthening the capacity of host countries, in particular of developing countries, in their dealings with transnational corporations;”. See also in this connection E/C.10/13 of 28 January 1976: “Proposed Programme of Technical Assistance on Matters related to Transnational Corporations”.