As human societies and the world economy begin to reopen, there is a pressing need to provide more coherent, cooperative, effective law and policy regimes for sustainable natural resource management and use. Professor Marie-Claire Segger and Professor Ilaria Espo discuss the importance of the newly adopted ILA Sustainable Natural Resources Guidelines.
The degradation and sound stewardship of the world’s common heritage, including many significant natural resources, has become a crucial matter of global, regional and transboundary concern. As scientific knowledge advances and the complex interdependence of natural systems is better understood, the challenges for international law are intensified. Tensions are rising as evidence progressively demonstrates that many natural resources are being increasingly mismanaged and degraded, leading to depletion of crucial non-renewable resources, as well as over-exploitation of potentially renewable resources. As human societies and the world economy begin to re-open over the coming months and years, there is a pressing need to provide more coherent, cooperative, effective law and policy regimes for sustainable natural resources management and use.
Rising to these inter-linked challenges, new guidelines have been adopted by the International Law Association (ILA) on the Role of International Law in Sustainable Management of Natural Resources for Development (ILA Sustainable Natural Resources Guidelines). These ILA Sustainable Natural Resources Guidelines highlight the myriad rules and standards which now define, guide and direct State practice, and providing a roadmap for the progressive development of international law on the sustainable management of natural resources for development.
An overview of the ILA Sustainable Natural Resources Guidelines
As a contribution to international efforts to address these immense and inter-related challenges, and to achieve the world’s Sustainable Development Goals, the ILA Committee on the Role of International Law in Sustainable Management of Natural Resources for Development was established in 2012 (Washington ILA) in order to investigate the contours of the duty of States to ensure sustainable use of natural resources, in the context of the SDGs, and relevant treaty law, practices and international dispute resolution. Importantly, the ILA Sustainable Natural Resources Guidelines find that both established and emerging international law norms can help, rather than hinder, sustainable management of global natural resources, and regional, transboundary and national natural resources of global relevance.
Part I of the ILA Sustainable Natural Resources Guidelines presents, sector by sector in a non-exhaustive survey, rules derived from international treaties and practices on the sustainable management of global, regional, transboundary and national natural resources, covering: (1) global natural resources such as celestial bodies, the atmosphere and a stable climate system, biological diversity and ecological systems, and the ocean and its mineral and living resources; (2) regional and transboundary natural resources of global importance such as forests and landscapes as regional and transboundary natural resources, rivers and freshwater ecosystems as regional and transboundary natural resources, and migratory species as regional and transboundary natural resources; and (3) national natural resources of global relevance such as forests and landscapes, land and soil, mineral commodities, including precious minerals and sustainable energy.
Part II of the ILA Sustainable Resources Management Guidelines surveys trends and innovations in international instruments and approaches, as a selection of: (4) trends in international human rights, economic, environmental, peacebuilding and post-conflict instruments, such as: human rights approaches; economic incentives and instruments; environment and sustainable development cooperation including scientific collaboration, financing mechanisms, monitoring, reporting and verification, and public participation and access to information and justice; environmental war crimes, peacebuilding and post-conflict instruments, and the importance of secure land and water access and tenure. The Guidelines also consider (5) innovative techniques and requirements in international instruments, such as: transparency and stakeholder engagement, equitable benefit-sharing, legal indicators of effectiveness, and control of illicit flows; and (6) recent progress on sustainable natural resources management in international dispute settlement, including the decisions of international courts and tribunals.
Finally, in Part III, explanatory notes are provided for the interpretation and application of the 2020 ILA Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development. The newly adopted ILA Sustainable Natural Resources Guidelines reflect both established international law, including lex lata rules of treaty law that are binding on the Parties and also customary rules, and also many norms that are still lex ferenda, with a view to future directions in law-making.
Future law and policy directions: capacity through research, education and partnerships
In summary, through this careful and detailed survey of instruments, implementation trends and innovative techniques, conducted over eight years by a circle of highly qualified jurists, several key findings can be highlighted.
First, international law has the potential to shape the principles, regulatory frameworks, institutions, standards and incentives for natural resource management on multiple levels. International law both reflects and also catalyses the design, adoption, and implementation of sustainable natural resource management and resolution of disputes in relation to use of natural resources. Indeed, international law and non-binding international and national instruments such as standards and guidelines function as a baseline for States and others, shaping operating environments in which sustainable development will either be fostered, or frustrated.
Second, it is clear that concepts of sovereignty and territory are evolving to accommodate new scientific understanding of interrelated ecological systems and conditions, and notions of custodial sovereignty may offer useful insights. Sovereignty, of key importance to international law from its inception, is becoming more fluid in the face of shared responsibilities for the sustainable use of transboundary, regional, and global international natural resources, and collaborative regimes for management. Tensions continue, especially for nationally based natural resources, and international legal regimes may offer options to reconcile key concerns, avoiding or reducing potential for conflicts over resource use, as well as defusing potential clashes between resource conservation and exploitation goals.
Third, international natural resources management systems could make a vital contribution to the achievement of the Sustainable Development Goals and the 2030 Agenda worldwide, but how these regimes are governed will be crucial for implementation and enforcement. Natural resources are essential to advance nearly all 17 Sustainable Development Goals, and many of the 169 targets, from poverty elimination, to ending hunger, to access to water and energy, to combatting climate change and promoting peace, justice and security. A range of governance mechanisms, from formalized compliance mechanisms to informal industrial and sectoral oversight procedures, offer essential tools for sustainable natural resources management and the sustainable use of natural resources.
And finally, the new 2020 ILA Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development were adopted, to define and guide, and also to provide a roadmap for the progressive development of international law on the sustainable management of natural resources for development. These can be offered to international community as an invitation and contribution to guide and encourage upcoming efforts to re-open the world economy after the global pandemic in a manner that fosters, rather than frustrates, global commitments and obligations towards sustainable development.
 Committee on the Role of International Law in Sustainable Natural Resources Management for Development International Law Association, ‘The role of international law in sustainable natural resources management for development’ in International Law Association Final Report of the 79th Biennial Conference (Kyoto 2020) (International Law Association Kyoto 2020)
These Guidelines were launched in the UK and Canada on 17 March 2021 through the Online Leverhulme Lecture & Distinguished Experts Dialogue: Natural Resources, the Sustainable Development Goals and International Law. Watch the recording.