3.1.2 The right to free exploration and exploitation of natural resources
States have the right to freely use and exploit natural resources and exercise effective control over them, and to decide how their natural resources should be used.149 These rights were originally formulated by developing countries with a view to ensuring effective control of their natural resources and maximizing the benefits resulting from their exploitation, and expressed in the Continental Shelf Convention.150 It provides that the coastal state exercises sovereign rights on the continental shelf to explore and exploit its natural resources. These rights are also exclusive in the sense that if a coastal state does not carry out research on the continental shelf or exploit its natural resources, no one can take such action, nor claim it on the continental shelf, without the express consent of the coastal state.151 This regulation has been repeated in the UN Convention on the Law of the Sea (UNCLOS),152 which also states that in the exclusive economic zone the coastal state has sovereign rights to explore, exploit, protect, and rationally use natural resources, both living and non-living, waters covering the seabed, as well as the seabed and its subsoil, and for other activities related to the economic exploration and exploitation of the zone, such as energy production through the use of water, currents, and winds.153
Both the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights, formulate the inalienable right of nations to enjoy fully and freely their wealth and natural resources.154 The parties to the Treaty for Amazonian Cooperation also declare that the exclusive right to use and exploit natural resources in their territories is a right which is an integral element of the sovereignty of each state.155 In the subsequently signed Amazonian Declaration, the presidents of the states-parties to the Treaty for Amazonian Cooperation confirmed the sovereign right of each state to freely manage its natural resources.156
The Energy Charter Treaty recognizes the sovereign rights of states-parties to energy resources, in particular the right to determine in which territories and to what extent to seek and develop energy resources, and to participate in such exploration and exploitation, including through direct participation of government or state-owned enterprises.157
In Fisheries jurisdiction (1974), the ICJ recognized that on the basis of international customary law emerging from the Conferences of the Law of the Sea of 1958 and 1960, the coastal state has the right to establish a two-hundred-mile exclusive fishery zone and preferential fishing rights in adjacent waters. The ICJ confirmed that the right to free exploration and exploitation of natural resources is one of the fundamental rights resulting from the principle of permanent sovereignty.158
3.1.3 The right to regain effective control and compensation
The UN Declaration on the Establishment of a New International Economic Order159 provides that this order should be based, inter alia, on the respect of the principle that all states, territories and nations under foreign occupation, foreign and colonial domination, or apartheid have the right to restitution and full compensation for exploitation and impoverishment, as well as damage to natural resources and other resources of these countries, territories, and nations.160 This declaration constitutes one of the attempts to assign the right to permanent sovereignty over wealth and natural resources to the nations of occupied non-member states and to ensure that even those who cannot or can no longer exercise their right to sovereignty over these resources should still have the right to make claims about ownership over them.
Security Council Resolution No. 687 (1991), which introduces a comprehensive peace package imposed on Iraq after the Gulf War in 1990–1991, confirms that Iraq is responsible under international law for direct loss, damage, including environmental damage and depletion of natural resources, as a result of the unlawful invasion of Iraq and the occupation of Kuwait.161 This resolution can be interpreted as an attempt to protect the natural resources of states and nations in times of armed conflict. The most important general regulation of this kind of claim in the treaty law includes the ICCPR and ICESCR: “In no case may a people be deprived of its own means of subsistence”.162 As a rule, sovereign rights do not pass to the occupant. With regard to property, this is provided for in Article 55 of the Hague Regulations, which states that the occupying state should be considered only as the administrator and user of public buildings, real estate, forests and farm holdings belonging to an enemy state but located in occupied territory. In addition, the occupying state should protect the value of these assets and rule them in accordance with the rules of use. The concept of “use” of property determines that the occupying state cannot rule a property and may only use it subject to the requirement to protect the capital of a given property. The application of this principle to non-renewable resources, such as mineral resources, remains controversial.163
3.2 The economic development of the state and the prosperity of nations
3.2.1 The right to use natural resources for the development of the country
The right to use natural resources for the development of the country was expressed in Resolution No. 626 (VII),164 which affirms that states can freely exercise their rights to exploit their wealth and natural resources wherever they deem it desirable for their own progress and economic development. Resolution No. 1803 (XVII) refers to the development of the country and the well-being of the nation of a given state.165 The first act that combined the right to permanent sovereignty with the claims of developing countries for a greater share in the processing, marketization and distribution of natural resources was Resolution No. 2158 (XXI).166 This concept is also indirectly included in the Declaration on the Establishment of a New International Economic Order167 as the right to obtain fair and stable, equal and cost-effective prices, and the right to conduct pricing policies as well as to coordinate production policies and membership in producer associations.168 It is also important that the expression “and development” was added to the principle 21 formulated in the Stockholm Declaration169 and that it was subsequently incorporated in principle 2 formulated in the Rio Declaration.170 This reformulation points out that environmental policy of developing countries cannot replace
