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Netherlands International Law Review

, Volume 55, Issue 3, pp 323–341 | Cite as

Custodial Sovereignty: Reconciling Sovereignty and Global Environmental Challenges amongst the Vestiges of Colonialism

  • Werner Scholtz
Article

Keywords

International Environmental State Sovereignty International Economic Order Territorial Sovereignty International Legal System 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    I. Brownlie, Public International Law, 7th edn. (Oxford, Oxford University Press 2008) p. 289. In general, three elements of sovereignty can be distinguished in contemporary public international law: international legal sovereignty, Westphalian or Vatellian sovereignty and domestic sovereignty. The first element implies that a judicially independent territorial entity has the right to conclude agreements. The second element is also known as the duty of non-intervention in relation to the exclusive jurisdiction of states. Domestic sovereignty refers to the institutions that govern a particular state. See S.D. Krasner, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty and International Law’, 25 Mich. JIL (2003-2004) p. 1077. See also C. Schreuer, ‘State Sovereignty and the Duty of States to Cooperate — Two Incompatible Notions (Summary and Comments)’, in J. Delbrück, ed., International Law of Cooperation and State Sovereignty: Proceedings of an International Symposium of the Kiel Walther-Schücking Institute of International Law, May 23-26 2001 (Berlin, Duncker & Humblot 2002) p. 163. In general, sovereignty means that a state is not subjected to the jurisdiction of any other state. The state is, however, subjected to international law, which implies that the latter also might restrict and regulate the exercise of the sovereignty of a state. See also N. Walker, ‘Late Sovereignty in the European Union’, in N. Walker, ed., Sovereignty in Transition (Oxford, Hart 2003) pp. 3-32 at p. 6. See H. Steinberger, ‘Sovereignty’, in R. Bernhardt, ed., Encyclopaedia of Public International Law (Amsterdam, North-Holland 1987) p. 500 at pp. 501-511 for a brief discussion of the historical roots of sovereignty.Google Scholar
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    The issue of inequality has not received much attention as a theoretical concept in international law. See B. Kingsbury, ‘Sovereignty and Inequality’, 9 EJIL (1998) p. 599.CrossRefGoogle Scholar
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    No single universal definition of ‘developing countries’ exists. It must be kept in mind that the developing countries do not constitute a homogeneous group, but consists of a heterogeneous group that adheres to certain criteria of underdevelopment. A low level of GDP mostly is an important indicator of the poor economic growth of developing countries. See M. Bulajić, Principles of International Development Law: Progressive Development of the Principles of International Law Relating to the New International Economic Order, 2nd edn. (Dordrecht, Martinus Nijhoff 1993) pp. 168 et seq.Google Scholar
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    Treaties that were concluded with indigenous people by way of coercion still are legally binding. The terra nullius doctrine is reinterpreted, rather than dismissed altogether on the basis of its racist application. See for instance the application of the doctrine in Western Sahara, ICJ, Advisory Opinion, 16 October 1975. Anghie argues that a mere reformulation of offending terminology is not enough to rid international law from the negative effects of colonialism. Anghie 1999, supra n. 7.Google Scholar
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    Art. 38(1)(c) refers to the ‘general principles of law recognized by civilized nations’. The reference to ‘civilized states’ is, of course, not political correct and it seems that it is treated as non-existent. Cassese, for instance, discusses this source of international law under the heading of ‘General principles of international law recognized by the community of nations, as a subsidiary source’. The community of nations of course consisted of Europe and the USA. Cassese recognizes this on p. 190. See A. Cassese, International Law, 2nd edn. (Oxford, Oxford University Press 2005) pp. 188 et seq.Google Scholar
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    Prior to 1945 the principle of equality was affirmed in the Peace of Westphalia of 1648, but this only applied to Christian states. After the Congress of Vienna (1814-1815), the ‘Great Powers’ dominated other European states. See B. Fassbender, ‘Sovereignty and Constitutionalism in International Law’, in Walker, ed., supra n. 1, at p. 121. See also the discussion of the drafting history of the inclusion of ‘sovereign equality’ in the UN Charter. Fassbender, ibid., pp. 125 et seq.Google Scholar
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    The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, hereafter the Friendly Relations Declaration. See UN GA Res. 2625 (XXV) of 20 October 1970. The Declaration furthermore states that: ‘In particular, sovereign equality includes the following elements: (a) States are juridically equal; (b) Each state enjoys the rights inherent in full sovereignty; (c) Each state has the duty to respect the personality of other states; (d) The territorial integrity and political independence of the state are inviolable; (e) Each state has the right freely to choose and develop its political, social, economic and cultural systems; (f) Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.’Google Scholar
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    See Fassbender, supra n. 15. The permanent membership of the five members and the right of veto in terms of Art. 27(3) of the UN Charter is an exception to the sovereign equality of states in the UN. Other exceptions also exist, such as weighted voting in certain international organizations. These exceptions are, however, not constructed as contradicting the principle of sovereign equality as they have been voluntarily consented to. Steinberger, supra n. 1, p. 515. See also Simpson, supra n. 14, p. 48. See, however, T.M. Franck, The Power of Legitimacy Among Nations (Oxford, Oxford University Press 1990) p. 177.Google Scholar
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    See Simpson, supra n. 14. Equality before the law refers to formal equality. See Simpson, ibid., pp. 42 et seq. Jackson, however, views sovereign equality and the one-nation, onevote system as ‘anti-democratic’ in comparison to a system that takes into account factors such as population. J.H. Jackson, ‘Sovereignty-Modern: A New Approach to an Outdated Concept’, 97 AJIL (2003) p. 795.CrossRefGoogle Scholar
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    It is important to recognize that permanent sovereignty is not absolute as it also has the same limitations as sovereignty. Permanent sovereignty, for instance, creates a duty to respect other states’ sovereignty over their natural resources. This means that states should not use their natural resources to such an extent as to cause transboundary harm. Perrez, supra n. 23. No uniform agreement exists regarding the exact scope and content of the notion. See also K. Hossain and S.R. Chowdhury, eds., Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (New York, St Martin’s Press 1984) p. 1. Permanent sovereignty has been formulated and reflected in various resolutions in the General Assembly of the UN. The landmark resolution in this regard is Res. 1803 which affirms the right of states to permanent sovereignty over natural resources but, in addition, requires that permanent sovereignty has to be exercised in the interest of the people and subject to general international law. See UN GA Res. 1803 (XVII) of 14 December of 1962. Other resolutions are, inter alia: UN GA Res. 523 (VI) of 12 January 1952; UN GA Res. 626 (VII) of 21 December 1952 and UN GA Res. 2158 (XXI) of 25 November 1966. The Earth Charter of 2000 supports this idea as principle 2 states that ‘with the right to own, manage and use natural resources, comes the duty to prevent environmental harm and to protect the rights of the people’. See also N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, Cambridge University Press 1997) pp. 120 et seq. The legal status of permanent sovereignty is dubious. Chowdhury is of the opinion that permanent sovereignty has jus cogens status in international law. S.R. Chowdhury, ‘Permanent Sovereignty and its Impact on Stabilization Clauses, Standards of Compensation and Patterns of Development Co-operation’, in K. Hossain and S. R. Chowdhury, eds., Permanent Sovereignty over Natural Resources in International Law: Law and Practice (New York, St Martin’s Press 1984) p. 1 at p. 38. It is, however, a view that is not shared by all scholars. See J. Makarczyk, Principles of a New International Economic Order (Dordrecht, Nijhoff 1988) p. 352.Google Scholar
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    T. Johnston, ‘The Role of Intergenerational Equity in a Sustainable Future: The Continuing Problem of Third World Debt and Development’, 6 Buffalo Environmental Law Journal (1998/99) pp. 36–83. Johnston discusses factors that are responsible for the inequitable relationship between the North and South and convincingly argues that third world debt plays a major role in this regard.Google Scholar
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    I previously have coined the term in relation to the issue of elephant culling but have not expanded on the theoretical premises of this notion in international law as the previous article for the most part dealt with the application of the notion in relation to the casus of elephant culling. See W. Scholtz, ‘Animal Culling: a Sustainable Approach or Anthropocentric Atrocity: Issues of Biodiversity and Custodial Sovereignty?’, 2 Macquarie Journal of International and Comparative Environmental Law (2005) pp. 9–30. Other authors have also developed theories concerning the role of sovereignty and the threat to the global environment. See A.D. Tarlock, ‘Exclusive Sovereignty versus Sustainable Development of a Shared Resource: The Dilemma of Latin American Rainforest Management’, 32 Texas ILJ (1997) pp. 37-66. See furthermore: P. Birnie, ‘The Role of International Law in Solving Certain Environmental Conflicts’, in J.E. Carroll, ed., International Environmental Diplomacy: The Management and Resolution of Transfrontier Environmental Problems (Cambridge, Cambridge University Press 1990) p. 95 at p. 104. She accordingly proposes that sovereignty should be replaced by the concept of ‘planetary citizenship’. Another suggestion is that of ‘decentralized planetary sovereignty’ which means the acceptance of functional sovereignty instead of territorial sovereignty. This idea makes provision for the internationalization of resources on the basis of the common heritage of mankind (CHM). International organizations have a very important role to play in this regard. See J. Tinbergen, Reshaping the International Order: A Report to the Club of Rome (London, Hutchinson 1977) para. 5.8. Another interesting approach to the management of global environmental resources is the application of the ‘public trust’ doctrine. See P.H. Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’, 4 Global Environmental Politics (2004) pp. 47-71. See also: T. Gebel, Der Treuhandgedanke und die Bewahrung der biologischen Vielfalt. Einschränkung der territorialen Souveränität durch treuhänderische Verwaltung von lebenden Umweltressourcen? (Sinzheim, Pro Universitate Verlag 1998) and V.P. Nanda and W.K. Ris, Jr., ‘The Public Trust Doctrine: A Viable Approach to International Environmental Protection’, 5 Ecology Law Quarterly (1975/76) pp. 292-319. It is not possible to discuss the differences between my suggestion and the above. The main difference is, however, that ‘custodial sovereignty’ is found on the acknowledgement of the colonial history of international law as well as the inequality that exists between states.Google Scholar
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    It is not my intent to provide a detailed analysis of this issue. Rather, I shall present examples and briefly reflect on this issue. See L. Gündling, ‘Compliance Assistance in International Environmental Law: Capacity-Building Through Financial and Technology Transfer’, 56 Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (1996) pp. 796–809. His discussion on the difficulties relating to technical and financial assistance is of particular importance. See F. Biermann, Financing Environmental Policies in the South: An Analysis of the Multilateral Ozone Fund and the Concept of ‘Full Incremental Costs’ (Berlin, WZB 1996). See also: UNEP, Handbook for the International Treaties Protecting the Ozone Layer (Nairobi, UNEP 2003). Various international treaties contain provisions pertaining to financial and technical assistance. Art. 10 of the Montreal Protocol establishes a Multilateral Fund which makes provision for financial and technical assistance, including the transfer of technologies, to developing countries. The UNFCCC also contains numerous provisions concerning the transfer of finances and technology. Arts. 4(3)- (5) provide for the assistance of developing countries in the fulfilment of their obligations through financial resources, the transfer of technology and know-how. Art. 16 of the CBD reads that ‘transfer of technology … to developing countries shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferential terms’. Under Art. 18(2) technical and scientific cooperation, in particular with developing parties, shall be promoted. Art. 19 deals with the handling of biotechnology and distribution of its benefits and also makes mention of developing countries. Arts. 20, 21 and 39 of the CBD deal with the transfer of financial resources. Art. 39 designates the GEF as the interim institutional structure for the period between the entry into force of the CBD and the first meeting of the Conference of the Parties. In terms of Decision I/2 of the Conference of Parties, the GEF shall remain the institutional structure to operate the financial mechanism.Google Scholar
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    See S.A. Silard, ‘The Global Environment Facility: A New Development in International Law and Organization’, 28 George Washington Journal of International Law and Economics (1995) pp. 607–654. Other funds may also be of importance in this regard. See B.B. Röben and V. Röben, ‘Institutional Aspects of Financing Sustainable Development After the Johannesburg Summit of 2002’, 63 Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (2003) pp. 517-520.Google Scholar
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    I borrow the term ‘global environmental resources’ from Glennon. See Glennon, supra n. 59, pp. 1-43.Google Scholar
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    This means that fossil fuels are excluded from this definition. Incorporating fossil fuels in this definition will be met by fierce resistance from oil producing countries and may serve as the basis for further interventionist policies by developed countries. It must be borne in mind that nonrenewable resources also can become depleted if they are used in an unsustainable manner. See J.M. Conrad, Resource Economics (Cambridge, Cambridge University Press 1999) p. 1.CrossRefGoogle Scholar
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    Biological resources are the tangible biotic components of ecosystems. Art. 2 of the CBD states that biological resources ‘include genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity’. Examples of biological resources are real entities, such as maize, elephants, elephant tusks or fish. In contrast, biodiversity is not the sum of ecosystems, species and genetic material, but rather the variability within and among them. Biodiversity is an attribute to life. L. Glowka, et al., A Guide to the Convention on Biological Diversity (Gland, IUCN, the World Conservation Union 1994) p. 15.Google Scholar
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    I have considered if one should not declare the components of the biosphere in the broadest geophysical sense as global environmental resources. This, then, would include the global ecological system integrating all living beings and their relationships, including their interaction with the elements of the lithosphere (rocks), hydrosphere (water) and atmosphere (air). This is, however, stretching things too far as this merely means that ‘everything’ is a global environmental resource.Google Scholar
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    F. Biermann, Saving the Atmosphere: International Law, Developing Countries and Air Pollution (Frankfurt-on-Main, Lang 1995) p. 5.Google Scholar
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    The sovereignty over territorial airspace is not unrestricted as it is limited in height and extends to the point where the airspace meets space itself. The Outer Space Treaty of 1967 (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) does not establish a precise boundary between airspace and outer space. The Moon Treaty of 1979 (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies), which has recalled the latter, also does not clearly define this issue. See P. Sands, Principles of International Environmental Law (Cambridge, Cambridge University Press 2003) p. 14.CrossRefGoogle Scholar
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    Vogler, however, treats it as part of the global commons. J. Vogler, The Global Commons: A Regime Analysis (Chichester, Wiley & Sons 1995) pp. 2 et seq. This also seems to be the approach that the International Law Commission favours. See Report of the International Law Commission, supra n. 57, p. 118. The problem further is illustrated by the Vienna Convention for the Protection of the Ozone Layer of 1985. Art. 1(1) defines the ozone layer as ‘the layer of atmospheric ozone above the planetary boundary layer’. It is difficult to apply the notions of sovereignty or shared resources in this regard.Google Scholar
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    See in this regard Biermann, supra n. 72, pp. 9-10.Google Scholar
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    I think that one indeed may view the atmosphere as a natural renewable resource as it consists of, inter alia, 20.95 per cent oxygen, which is listed as a renewable resource.Google Scholar
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    See in this regard K. Ginther, E. Denters and P.J.I.M. de Waart, Sustainable Development and Good Governance (Dordrecht, Nijhoff 1995).Google Scholar

Copyright information

© T.M.C. Asser Press 2008

Authors and Affiliations

  • Werner Scholtz
    • 1
    • 2
    • 3
  1. 1.PU for CHESouth Africa
  2. 2.Leiden UniversityNetherlands
  3. 3.North-West UniversitySouth Africa

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