expend their natural resources to support the development of other developing countries. Because all countries – both industrialized and developing – have the right to permanent sovereignty, it can be considered whether the general duty to cooperate in the development of developing countries should not imply a specific obligation of the state in the use, exploitation, or sharing of natural resources for the purpose of promoting the development of developing countries. Such obligations can be found in Articles 69 and 70 of the 1982 UN Convention on the Law of the Sea, which, under certain conditions, provide for the sharing of living resources in the exclusive economic zones of coastal states with their neighbouring inland countries or other developing countries with different disadvantageous geographical locations. However, the fulfillment of this obligation depends on the way in which coastal states will interpret it.278 Nevertheless, the Convention on the Law of the Sea has identified this share of resources as the entitlement of the geographically disadvantaged inland states, which consequently entails a legal obligation on the part of the coastal states. The coastal states are also required to pay fees for the exploitation of the inanimate resources of their continental shelf beyond the 200 nautical mile zone, collected by the International Seabed Authority.279 The ISA distributes the collected fees to the states-parties to the Convention on the basis of fair criteria, taking into account the interests and needs of developing countries, especially the least developed and inland ones. Although modern international law presupposes that states have a duty to cooperate on development, of the developing countries in particular, there is no indication that this general obligation will be transferred to a higher level, as regards the obligation for states to exercise their right to permanent sovereignty.280
3.4.2 The right to a fair share of the benefits of cross-border natural resources
The Charter of Economic Rights and Duties of States,281 as one of the few UN resolutions, concerns the concept of common natural resources. Article 3 states that when natural resources are being used jointly by two or more states, each state should cooperate on the basis of an information system and prior consultation in order to achieve optimal use of these resources, without harming the legitimate interests of other entities. It can be concluded that the state has the right to information from neighbouring countries and also to consult them, if the neighbouring countries are considering joining projects involving the use of natural resources of cross-border nature.
The requirement to ensure fair use of cross-border resources is also confirmed by other acts of international law.282 The rights regarding cross-border resources were also highlighted in the Draft Environmental Law Guidelines and Principles on Shared Natural Resources as adopted by the United Nations Environment Programme (UNEP).283 The UN General Assembly has asked states to use these guidelines for the formulation of bilateral or multilateral conventions on the rights to natural resources shared by two or more countries.284
Article 83 para. 3 of the Convention on the Law of the Sea (1982), in reference to the agreements on delimitation of the exclusive economic zone and the continental shelf, provides that the states concerned must make every effort to conclude temporary arrangements of a practical nature without jeopardizing or obstructing the ultimate delimitation. Joint international development, that is, the joint exercise of sovereign rights by two or more states for the purpose of seeking and exploiting natural resources in a defined area, is one of such temporary provisions.285 Sharing resources may also refer to the deposits located within national jurisdiction and hence partly dependent on the principle of common human heritage and partly on the sovereignty of the coastal state over natural resources. Article 142 of the Convention on the Law of the Sea provides that activities in the Area, i.e. outside the limits of national jurisdiction, along the bottoms of the seas, oceans, and their underground, should be conducted with respect for the rights and legitimate interests of the coastal states.
The Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979)286 and the ASEAN Agreement on the Conservation of Nature and Natural Resources (1985),287 which states that the parties that share the earth resources cooperate in their protection and harmonious use, are two other international agreements on the conservation of natural resources containing provisions for shared resources. The United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD), provides for agreed common programmes on the sustainable management of transboundary natural resources as one of the forms of cooperation to combat desertification and mitigate the effects of drought.288 Joint development programmes agreed with respect to oil resources show a gradually growing readiness of states to conclude joint agreements on cross-border resources, to avoid conflicts and to obtain mutual benefits from the exploitation of cross-border resources.289
3.4.3 The duty to distribute cross-border natural resources equitably
Consultation and cooperation are necessary to avoid disputes about shared natural resources and their effects on the environment, which may result from competing national laws. The Helsinki Principles of the International Law Association (ILA) on international river waters (1966)290 served as a model for further development of international standards in this field. However, they did not result in the inclusion of appropriate regulations on cross-border resources in the Stockholm Declaration of 1972.291
The United Nations Environment Programme (UNEP) has been authorized to develop international standards for the protection and harmonious use of such resources relating to, inter alia, the information system and prior consultation. The UN General Assembly then introduced in the Charter of Economic Rights and Duties of States the regulation stating that in the case of joint exploitation of natural resources by two or more countries, they must cooperate on the basis of an information system and prior consultation in order to achieve optimal use of these resources without infringing on the legitimate interests of other entities.292 In 1978, the work of UNEP led to the adoption of the code of conduct on environmental protection for the orientation of states in the protection and harmonious use of natural resources jointly by two or more countries. The principles are aimed at the rational use of common natural resources in a way that will not adversely affect the natural environment and which would encourage the countries involved to cooperate.293
The concept of absolute sovereignty is being gradually replaced by the notion of equal use. This thesis is confirmed by some previous judicial and arbitration rulings.294 It does not mean that territorial sovereignty has been completely replaced by joint jurisdiction or joint management, but suggests that states are today obliged to recognize the interdependent rights of other states, and at least consult them with regard to the simultaneous use of cross-border resources.
