On the occasion of the European Society of International Law (ESIL) Research Forum on: SOLIDARITY. THE QUEST FOR FOUNDING UTOPIAS OF INTERNATIONAL LAW 23-24 April 2020 Department of Law, University of Catania, Italy
The resolution 1803 (XVII) on the “Permanent Sovereignty over NaturalResources” (PSNR), adopted by the UN General Assembly in 1962, was understoodas a means of increasing the economic and technological ad- vancement ofdeveloping states. The right to control and dispose of their own naturalresources claimed by peoples under colonial rule and newly independentdeveloping states in the era of decolonisation lies at the heart of the PSNR.However, it is worth mentioning that PSNR is not absolute and the resolutionitself significantly limits its application. In particular, in cases where anauthorization was granted, the capital imported and the earn- ings on thatcapital shall be governed by inter alia by international law; the profitsderived must be shared in the proportions freely agreed upon, in each case,between the investors and the recipient state; and most im- portantly,nationalization, expropriation or requisitioning shall be based on grounds orreasons of public utility, security or the national interest and an appropriatecompensation shall be paid.
In addition, PSNR is limited by parallel international obligations ofstates. Especially international obligations arising from internationaleconomic law (for instance the WTO) or international environmental law (forinstance UN Framework Convention on Climate Change or the Convention onBiologi- cal Diversity) significantly limit states in exercising theirsovereignty over natural resources. For instance, once a state joins the WTO itis obliged to exercise its right to regulate trade and export of naturalresources ac- cording to WTO rules (Panel Report/Appellate Body Report, China –Meas- ures Related to the Exportation of Various Raw Materials). In otherwords, the fulfilment of sovereignty over natural resources is subject to theWTO rights and obligations. One may claim that the net of trade-related inter-national obligations undertaken by states undermines PSNR and implies a shifttoward a global energy market making natural resources available to those whoneed them based on an implicit solidarity. By the same token, the Principle 21of the Declaration of the United Nations Conference on the Human Environmentimplies a sense of solidarity, since states are required to ensure that theexploitation of natural resources within their jurisdiction do not cause damageto the environment of other states. To conclude, an increased globalcooperation and an ever-growing number of international obligations gave riseto a need to reconceptualize our traditional under- standing of PSNR.
Efforts to eliminate the widening gap between the developed and thede- veloping countries in 70s formulated in the Declaration on the Establish-ment of a New International Economic Order and the Programme of Action
on the Establishment of a New International Economic Order did nothave huge impact on PNSR. However, developing countries favouring a broadobligation to share the tangible benefits derived from exploration in the areasbeyond national jurisdiction, succeeded in establishing legal regimes built oninternational cooperation, sharing of benefits and solidarity (UN- CLOS, MoonAgreement). One may claim that keeping two parallel legal regimes governingexploitation of natural resources within and beyond na- tional jurisdiction,based on completely opposite understandings of solidar- ity is not sustainablein the long term.
In 2015, all United Nations member states adopted The 2030 Agenda forSustainable Development, a shared blueprint for peace and prosperity for peopleand the planet. SDG 7 “Affordable and clean energy” is focused on universalaccess to energy. Acknowledging that there are approximately 3 billion peoplewho lack access to clean-cooking solutions and slightly less than 1 billionpeople are functioning without electricity, SDG 7 aims to en- sure universalaccess to affordable, reliable and modern energy services by 2030. A globaleffort to ensure universal access to energy implies an unprecedented notion ofsolidarity in relation to energy as well as natural resources being for decadesshielded by PSNR.
The IG on International Environmental Law invites contributionsaddressing the notion of solidarity in the context of natural resourcesmanagement, contributions seeking to reconceptualize PSNR in the context ofglobaliza- tion and trade/environmental related international obligations, aswell as contributions addressing SDG 7 goal to ensure universal access toafforda- ble, reliable and modern energy services by 2030.
The concept of solidarity is one of the fundamental values on whichthe EU is founded (Article 2 of the TEU). It is referred to in variousprovisions of the EU treaties, particularly in Art. 222 of the TFEU (The Unionand its Member States shall act jointly in a spirit of solidarity if a MemberState is the object of a terrorist attack or the victim of a natural orman-made disaster) and Art. 194 of the TFEU (energy solidarity). Article 194reads: “In the context of the establishment and functioning of the internalmarket and with regard for the need to preserve and improve the environment,Union policy on energy shall aim, in a spirit of solidarity between MemberStates”. Until recently, no attention has been given to the interpretation ofthe energy solidarity clause. In 2019, the General Court of the European Unionin case T-883/16 Poland v Commission (OPAL Decision) annulled the European Commission’s decisionapproving the modification of the exemp- tion regime for the operation of the OPAL gas pipeline.In its decision, the court for the first time elaborated on a principleof energy solidarity en- shrined in Article194(1) of the TFEU. Accordingto the court,the principle of energy solidarity requiresEU member statesand EU organs, in all their energy marketdecisions with a potentialcross-border impact,to take into accountnot only their own interestsbut also those of other member states and also those of the European Union as a whole. There is no doubt that the interpretation of the principle of energy solidarity will have a significant impact onthe development of EU energy law over the next decade.
The IGon International Environmental Law invitescontributions address-ing the concept of the energy solidarity established by the Lisbon Treaty, the OPAL decision as well as the potential implicationsof the OPAL for the Energy Union.
• Energy solidarity in the context of the UN 2030 Agenda for Sus- tainable Development
• Energy solidarity in the contextof the European Union and its en- ergy and climate policy
• Sustainable energy for all
• The OPAL decision
• Energy solidarity at the international level
• The sharing of transboundary natural resources
• Legal regimesgoverning utilization of natural resources beyond national jurisdictions
• The concept of solidarity in the context of the UNCLOSand Deep- seamining
• The concept of solidarity in the context of the Moon Agreement
• PSNR in the contextof international tradelaw
• PSNR in the contextof international environmental law
All Members of the ESIL Interest Group on International Environmen- tal Law, the membersof other ESIL IGs and also the non-ESILmembers (ESIL membership will be requiredif the abstract is selected) are invitedto submit abstracts.
Paolo Davide Farah (West Virginia University, USA & gLAWcal- Global Law Initiatives for Sustainable Devel- opment,UK) - ConvenerESIL Interest Group onInternational Environmental Law
Martin Svec (Masaryk University, Czech Republic & gLAWcal – Global Law Initiatives for Sustainable Devel- opment,UK)
The following must be submitted to
•The author’s name andaffiliation;
•A 500-700-word abstract [Word file
•The author’s CV, including a list of relevant publications;
•The author’s contact details, includ- ing email addressand phone number;
•Whether the author is an ESIL mem- ber
Multiple abstracts from the same au- thors will be considered, but only one can be selected. Co-authored multi- disciplinary papers are also wel- comed.The Organizers are unable to provide fundingfor any cost related to the participation to the conference.