Permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law

Permanent sovereignty over natural resources has emerged as a fundamental principle in international law, allowing postcolonial states to assert full sovereignty or ‘sovereign rights’ over natural resources found within the limits of their jurisdiction. Despite the postcolonial context in which the first United Nations General Assembly resolutions in the field were adopted, there has been an increasing recognition that the right to permanent sovereignty should be given a wider scope and could start to legitimise the claims of non-state actors and communities in defining ownership and usage rights over the natural resources within a state. Indeed, international law has evolved to recognise a number of substantive and procedural rights for indigenous peoples, including: ownership rights over natural resources; the right to participate in decision-making and to prior and informed consent in the context of natural resources extraction projects; and the sharing of benefits arising from the exploration and commercial exploitation of natural resources in indigenous lands. This paper argues that the principle of permanent sovereignty over natural resources complements and further refines the right of self-determination of ‘peoples’ under international law while establishing important parameters for the allocation of property rights in natural resources. Moreover, by implementing substantive and procedural rights that allow indigenous peoples to exercise resource rights, it is suggested that states have transferred sovereign powers over natural resources to non-state actors, thus upsetting the notion of permanent sovereignty as a right belonging to states