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Evolution and Principles of IEL
Evolution and Principles of IEL
Evolution and Principles of IEL
law
S.P. Subedi
This study guide was prepared for the University of London by:
Professor S.P. Subedi, OBE, MA, LLM, DPhil (Oxon.)
Professor of International Law, University of Leeds
This is one of a series of study guides published by the University. We regret that
owing to pressure of work the author is unable to enter into any correspondence
relating to, or arising from, the guide.
If you have any comments on this study guide, favourable or unfavourable, please
use the form at the back of this guide.
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Contents
Introduction 1
Learning outcomes
By the end of this chapter and the relevant readings you should be able
to: explain the fundamental principles of international economic law
explain the importance of the economic sovereignty of states and the
PSNR.
Essential reading
Lowenfeld, Chapters 1, 2, 11 and 22.
UN Declaration on the Permanent Sovereignty of States over their Natural
Resources 1962.
UN Charter of Economic Rights and Duties of States 1974.
Rio Declaration on Environment and Development 1992.
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International economic law: Section A
(3) Private International Law, including international choice of
law, choice of forum, enforcement of judgments and the law of
international commerce;
(4) International Business Regulation, including antitrust or
competition law, environmental regulation and product safety
regulation;
(5) International Financial Law, including private transactional
law, regulatory law, the law of foreign direct investment and
international monetary law, including the law of the
International Monetary Fund and World Bank;
(6) The role of law in development;
(7) International tax law; and
(8) International intellectual property law.
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International economic law: Section A
case where the question of compensation gives rise to a
controversy, the national jurisdiction of the state taking such
measures shall be exhausted. However, upon agreement by
sovereign states and other parties concerned, settlement of the
dispute should be made through arbitration or international
adjudication.
The concluding paragraph of the resolution seeks to assure investor countries
and foreign investors that the provisions of bilateral investment agreements
will be respected:
8. Foreign investment agreements freely entered into by or
between sovereign states shall be observed in good faith; states
and international organisations shall strictly and conscientiously
respect the sovereignty of peoples and nations over their natural
wealth and resources in accordance with the Charter and the
principles set forth in the present resolution.
The provisions of the PSNR Resolution (Resolution 1803 of 1962) have
been held widely as representing customary international law because of:
the unanimous support it received at the UN its declaratory
nature of the rules of customary international law on the subject
matter.
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Chapter 3: Fundamental principles of international economic law
25
International economic law: Section A
international obligations and with the needs of international
economic cooperation.
Article 5
All States have the right to associate in organizations of primary
commodity producers in order to develop their national
economies, to achieve stable financing for their development and,
in pursuance of their aims, to assist in the promotion of sustained
growth of the world economy. In particular accelerating the
development of developing countries. Correspondingly, all States
have the duty to respect that right by refraining from applying
economic and political measures that would limit it.
Although the charter was not a ‘hard law’ instrument having binding legal
effect, many of the principles embodied in it have been regarded as
representing the basis for the development of international economic law.
Indeed, the charter reiterates some of the principles that were already
widely accepted as representing customary rules of international law,
such as the permanent sovereignty of states over their natural resources.
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Chapter 3: Fundamental principles of international economic law
29
International economic law: Section A
Natural Resources the Ramsar Convention on
Wetlands of 1971 the 1973 Convention on
International Trade in Endangered
Species of Wild Fauna and Flora the 1979
Bonn Convention on the Conservation of Migratory
Species of Wild Animals
the 1991 Protocol on Environmental Protection to the the right of
Antarctic Treaty. states under
internationa
The Brundtland Commission l economic
The 1985 report of the World Commission on Environment law to
and exploit their
Development (WCED) (popularly known as the ‘Brundtland own
Commission’) popularised the phrase ‘sustainable resources
development’, embodying both states’ right to economic pursuant to
development and their obligation to pay particular attention to their own
any degradation of the environment resulting from environmen
development activities. tal policies
In other words, it was a phrase coined to express the balance the duty of
that had to be reached between the right of states to use or states
exploit their natural resources in accordance with their internationa
developmental policies and the duty inherent upon them to l
preserve the environment in carrying out such developmental environmen
activities. tal law to
ensure that
The Commission defined the term ‘sustainable development’
activities
as ‘development that meets the needs of the present without
within their
compromising the ability of future generations to meet their
jurisdiction
own needs’. 3
or control
In the opinion of the Commission, economic development that do not cause
undermined the environment or led to the excessive damage to
exploitation of natural resources to the detriment of future the
generations was not sustainable development. Hence, it was environmen
felt that the need to preserve and make rational use of the t of other
natural resources of a country in the interests of the states or of
environment and future generations was inherent in the areas
concept of sustainable development. beyond the
limits of
The Rio Conference 1992 national
Following the groundwork done by the Brundtland jurisdiction.
Commission on broad concepts such as sustainable Principle 2 of
development that embraced not only the environment, but also the Declaration
all other economic activities regulated by international reads:
economic law, the UN decided to convene a special
States
Conference on Environment and Development in Rio in 1992.
have, in
Unlike the Stockholm Conference (which was on the human accordan
environment) the Rio Conference was going to consider both ce with
the environment and development, displaying the importance the
attached to the elements embodied in both words. Principle 1 Charter
of the resulting Rio Declaration on Environment and of the
Development declared that human beings were at the centre of United
concerns for sustainable development. Nations and the principles
The Rio Declaration was adopted unanimously by the Rio of international law, the
sovereign
Conference – the largest conference ever convened in the
history of international relations. It seeks to recognise:
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Chapter 3: Fundamental principles of international economic law
3
Our common future: World Commission on Environment and Development (Oxford:
Oxford University Press, 1987), p.43.
31
International economic law: Section A
right to exploit their own resources pursuant to their boundar
own environmental and developmental policies, and y or
the responsibility to ensure that activities within their global
jurisdiction or control do not cause damage to the environ
environment of other States or of areas beyond the mental
limits of national jurisdiction. problem
s should,
The language used here draws heavily on the provisions of:
as far as
Principle 21 of the Stockholm Declaration possible,
Article 30 of the 1974 Charter of Economic Rights and be based
Duties of States on an
internati
the 1962 UN Declaration on Permanent Sovereignty of
onal
States over their Natural Resources (PSNR).
consens
The tension between the right of states to exploit their natural us.
resources and the need to conserve natural resources has been
a tension between international economic law and The
international environmental law. The law of sustainable UN
development has brought these two together, adding a Conv
sustainable development dimension to various principles of entio
international economic law such as: n on
Biolo
equity the right to economic development the gical
right of permanent sovereignty of states over their natural Dive
resources. rsity
Although the Rio Declaration widened the scope of the 1992
principle of sustainable development to include not only The Rio
conservation of natural resources, but also a host of other Declaration was
elements, it gave this principle a credible international not the only
standing. outcome of the
What is more, Principle 12 of the Rio Declaration injects the Rio
sustainable development dimension into international Conference.
economic law issues and highlights the importance of The 1992 UN
international economic law principles for the effective Convention on
operation of the rules of international environmental law. Biological
Diversity was
Principle 12 opened for
States should cooperate to promote a supportive and signature at the
open international economic system that would lead to Rio Conference
economic growth and sustainable development in all and was signed
countries, to better address the problems of by 157 states
environmental degradation. Trade policy measures for and the
environmental purposes should not constitute a means European
of arbitrary or unjustifiable discrimination or a Union.
disguised restriction on international trade. Unilateral
actions to deal with environmental challenges outside
the jurisdiction of the importing country should be
avoided. Environmental measures addressing trans-
The preambular paragraphs of the Convention reaffirm the
sovereign rights of states over their own biological
resources.
However, the Convention stresses at the same time that states are
responsible for:
conserving their biological diversity
using their biological resources in a
sustainable manner.
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Chapter 3: Fundamental principles of international economic law
Activity 3.1
To what extent has international environmental law
influenced the development of international economic
law?
Feedback: page 33.
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International economic law: Section A
environmental law principle of sustainable development, a relatively
new principle, has had a profound impact on international economic
law.4
Self-assessment questions
What are the main principles of international
economic law?
How have those principles evolved over time?
Learning outcomes
By the end of this chapter and the relevant readings you should be
able to: explain the fundamental principles of international
economic law explain the importance of the economic
sovereignty of states and the PSNR.
4
For a recent leading work in this area, see Weiss, F., et al. (eds), International
economic law with a human face (The Hague: Kluwer Law International, 1998).
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Chapter 3: Fundamental principles of international economic law
35