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International Natural Resources Law,
Investment and Sustainability
Shawkat Alam is a Professor of Law and Director of the Centre for Environ -
mental Law at Macquarie University, Australia.
Edited by
Shawkat Alam, Jahid Hossain Bhuiyan
and Jona Razzaque
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
© 2018 selection and editorial matter, Shawkat Alam, Jahid Hossain Bhuiyan
and Jona Razzaque; individual chapters, the contributors
Typeset in Galliard
by FiSH Books Ltd, Enfield
Contents
Introduction 1
SHAWKAT ALAM, JAHID HOSSAIN BHUIYAN AND JONA RAZZAQUE
PART I
Natural resources law and investment law: Interactions 11
Foreword 13
ELIZABETH MARUMA MREMA
PART II
Balancing competing interests 83
Foreword 85
KAMAL HOSSAIN
PART III
Changing dynamics 235
Foreword 237
PHILIPPE CULLET
PART IV
Conflict, corruption and liability 391
Foreword 393
BENJAMIN J. RICHARDSON
Index 453
Notes on contributors
Shawkat Alam is Professor of Law and Director of the Centre for Environ -
mental Law at Macquarie University, Australia. His research and teaching
explore the relationship between international law, international environ-
mental law and international trade and sustainable development. Professor
Alam holds an LLB (Hons) from Rajshahi University, Bangladesh, an
LLM from Dhaka University, Bangladesh, and a PhD from Macquarie
University. He has recently co-edited International Environmental Law
and the Global South (Cambridge University Press, 2015), International
Trade Law and the WTO (Federation Press, 2013) and Routledge
Handbook of International Environmental Law (Routledge, 2012) and
has authored several other books and scholarly articles. Professor Alam is
a member of the IUCN Academy of Environmental Law and is engaged
in its Teaching and Capacity Building Committee.
Rebecca Bates is a Lecturer in Environmental Law at Queen Mary College,
University of London, UK. Dr Bates holds a PhD from the University of
Sydney, examining the governance of privatised water markets in both
domestic and international contexts. Her area of research has focused on
international environmental law with a particular interest in international
water law and governance.
Upendra Baxi is Professor of Law in Development Emeritus at University of
Warwick, UK. He was previously President of the Indian Society of Inter-
national Law, Honorary Director of Research at the Indian Law Institute
and served as Vice-Chancellor at the University of South Gujarat, India,
and the University of Delhi, India. Professor Baxi holds LLM degrees from
the University of Bombay, India, and the University of California, Berkeley,
USA. Professor Baxi has also been awarded a Doctorate in Juristic Sciences
from University of California, Berkeley.
Jahid Hossain Bhuiyan teaches law at Northern University, Bangladesh,
and was a visiting scholar at the University of Oxford, UK; Cardiff Univer -
sity, UK; Emory University, USA; University of British Columbia, Canada
and Abo Akademi University, Finland. He holds a PhD in law from the
Contributors ix
holds a LLB (1st class Hons) and a BA from the University of Canterbury,
New Zealand, and has developed an extensive body of work at the Ngāi
Tahu Research Centre, University of Canterbury and the National
Aboriginal and Torres Strait Islander Legal Services (NATSILS), Australia.
x Contributors
We are very thankful to Olivia Manley from Routledge for the support from
the inception through to the completion of the book. We would like to
thank all the experts who contributed in this book with commitment and
enthusiasm. Our sincere thanks also go to Samuel Voller for his diligent and
thorough editorial assistance.
We would like to extend our special thanks to Ms Elizabeth Maruma
Mrema, Dr Kamal Hossain, Professor Philippe Cullet and Professor Benjamin
Richardson for their willingness, enthusiasm and endorsement of the book.
Shawkat Alam would like to thank Macquarie University for granting him a
sabbatical to complete this project. Shawkat Alam also extends his special
thanks to friends and colleagues of the Centre for Environmental Law for their
suggestions, sustained interest and moral support throughout the project.
Jahid Hossain Bhuiyan is thankful to the Department of Law, Northern
University, Bangladesh for giving him considerable professional freedom in
undertaking this project.
Jona Razzaque wishes to thank the Faculty of Business and Law and the
Department of Law of the University of the West of England for providing
research time to edit the manuscript.
The law and policy developments throughout this book are reflected as
they were on 31 March 2017.
Preface
Historically, resource abundant nations have been plagued with issues con-
cerning poor environmental, social and economic outcomes that are often
dubbed as the ‘resource curse’. Despite an abundance of natural resources
which can facilitate development, weak governance and institutional capacity
have often resulted in inequitable economic growth at the expense of local
communities and the environment. However, with the rise of developing
countries as new sites for global investment, coupled with the many natural
resources that provide developing countries with comparative advantages,
there is renewed impetus to explore how natural resource investment and its
supporting legislative and policy frameworks can contribute to more sustain-
able outcomes in developing countries.
In addition, there is growing consensus that a traditional view of exclud-
ing natural resource use in favour of improving environmental objectives
does not fully address the development concerns of the Global South, such
as the need to alleviate poverty. With the recognition of the revised Sustain-
able Development Goals to include stronger investment in developing
countries as a key mechanism to deliver sustainable development, the issue
turns to how developing countries can utilise their natural resources effec-
tively to attract foreign investment, without sacrificing long term goals of
improving environmental performance and equitable economic growth.
International Natural Resources Law, Investment and Sustainability
provides a clear and concise insight into the relationship between the institu-
tions that govern foreign investment, sustainable development and the rules
and regulations that administer natural resources. From the outset, the purpose
of this book is not to provide a single narrative regarding the relationship
between natural resource law, investment and sustainable development. Rather,
this book embraces the expertise of several leading experts to explore different
perspectives in how investment and natural resources come together to achieve
sustainable development in developing countries.
Despite varying perspectives, it is clear that several themes are central in
considering the linkages between natural resources, investment and sustain-
ability. Specifically, transparency, good governance and citizen empowerment
are vital conditions which encourage positive social, economic and environ-
Preface xxiii
The basis for human continuation in a modern society relies on the sustain-
able use and exploitation of natural resources. However, the question of
sustainable use inevitably raises the issue of how competing interests might be
balanced between resource-rich countries, keen to conserve their natural
resources even while they exploit them, and resource-hungry nations desirous
of investing in natural resources extraction and importation. It is now
accepted that the unsustainable extraction and export of natural resources can
drive economic growth, but can also ultimately lead to increased poverty and
conflict. This link between resource abundance, poor governance, corruption
and deteriorating social, environmental and economic outcomes, dubbed the
‘resource curse’,1 is a central theme of this book. The shift of economic power
toward developing countries such as Brazil, India, China, South Africa, along
with growing South–South cooperation, have provided renewed impetus for
reassessing the legitimacy and efficacy of the international regulation of natu-
ral resources and whether this balance between interests has been sufficiently
achieved, both under international instruments and within domestic legisla-
tive and policy frameworks.
The diversity of perspectives contained within this book demonstrates that
there is no one-size-fits-all approach to achieving sustainability in the natu-
ral resources sector. Nevertheless, an overarching argument of the
discussions within these pages is that transparency, good governance and citi-
zen empowerment are central to transforming resource–investment–
sustainability dynamics, especially for developing countries. The aim of this
book is to provide a background to the law governing natural resources and
to explore the relationship of natural resources law with key concepts such as
sustainable development, sovereign rights and state responsibility principles,
all of which are now central to international law. The book’s chapters exam-
ine the existing legal structures for conserving, preserving, using and
extracting natural resources at an international level, and also discuss the
inter-linkage between investment and international natural resources law.
protections for Māori interests. However, in some respects, the existing regu-
regulation and the regulation of the extractive industry, one that includes
Introduction
Natural resources are important for both developing and developed coun-
tries given their significant contribution to economic activity.1 States need to
use and manage natural resources carefully to achieve sustainable develop-
ment. Sustainable use and management of natural resources are also
necessary to reduce the potential for resource depletion and environmental
degradation. The International Union for the Conservation of Nature
(IUCN) in its report World Conservation Strategy provides three fundamen-
tal objectives in relation to development and environmental limits:
1 ‘Natural resources are actual or potential sources of wealth that occur in a natural state,
such as timber, water, fertile land, wildlife, minerals, metals, stones, and hydrocarbons. A
natural resource qualifies as a renewable resource if it is replenished by natural processes
at a rate comparable to its rate of consumption by humans or other users. A natural
resource is considered non-renewable when it exists in a fixed amount, or when it cannot
be regenerated on a scale comparative to its consumption’. United Nations Environmental
Programme 2009, From Conflict to Peacebuilding – The Role of Natural Resources and the
Environment Policy Paper No. 1, UNEP, 7
2 IUCN, World Conservation Strategy, Gland, Switzerland, 1980
16 Alam, Bhuiyan and Razzaque
for the exploitation and production from forest holdings, agricultural land,
hydrocarbon resources and minerals. Such an initiative would help foster
inclusive as well as sustainable economic development.7
The value in pursuing sustainable development was recognised in the
Stockholm Declaration on the Human Environment, adopted at the 1972
UN Conference on the Human Environment,8 which states ‘[m]an is both
creature and moulder of his environment, which gives him physical
sustenance and affords him the opportunity for intellectual, moral, social and
spiritual growth’.9 Consequently, ‘[t]he natural growth of population
continuously presents problems for the preservation of the environment, and
adequate policies and measures should be adopted, as appropriate, to face
these problems’.10 Again, recognising the intrinsic importance of economic
development to the capacity for increased environmental protection, the
Declaration acknowledges that ‘[e]conomic and social development is essen-
tial for ensuring a favourable living and working environment for man and
for creating conditions on earth … essential for the improvement of the qual-
ity of life’.11 Meanwhile, it was accepted that the onus was on host states to
ensure that economic growth arising from investment in natural resources
occurred in the context of appropriate measures taken for the protection of
those resources and the environment impacted by their exploitation, but that
these should not be excessively restrictive. Accordingly, the Declaration also
states that ‘[t]he environmental policies of all States should enhance and not
adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment of better living conditions
for all’.12
Sustainable development has received worldwide attention following the
publication of the report Our Common Future, known as the Brundtland
Report, by the World Commission on Environment and Development
(WCED) in 1987. The report defined sustainable development as ‘develop-
ment that meets the needs of the present without compromising the ability
of future generations to meet their own needs’.13 It explained sustainable
development in the following terms, as: ‘a process of change in which the
exploitation of resources, the direction of investments, the orientation of
technological development, and institutional change are all in harmony and
7 Ibid
8 Stockholm Declaration on the Human Environment, UN Doc A/CONF.48/14 and
Corr. 1 (1972)
9 Section 1, ibid
10 Section 5, ibid
11 Principle 8, ibid
12 Principle 11, ibid
13 Chapter II, Article 1, World Commission on Environment and Development, Our
Common Future: Report of the World Commission on Environment and Development
[Brundtland Report 1987] <www.un-documents.net/wced-ocf.htm> accessed 27
February 2017
18 Alam, Bhuiyan and Razzaque
enhance both current and future potential to meet human needs and aspira-
tions’.14 A crucial component of sustainable development defined in this way
is the inclusion of the concept of ‘needs’, both those of the present and also
future generations. In emphasising this concept, the WCED acknowledged
that the vital requirements of the majority of individuals over the world, in
both developed and developing states, are in danger of not being met in an
adequate manner, where these needs are ignored in the pursuit of the
economic benefits arising from natural resource exploitation and invest-
ment.15
A little over a decade after the Brundtland Report, at the World Summit
on Sustainable Development (WSSD) in Johannesburg, South Africa, in
2002, Summit President and President of South Africa Thabo Mbeki
acknowledged the increasing global importance of sustainable development
throughout both the developed and developing world:
18 Ibid, Preamble
19 Ibid, para 1.1
20 Ibid, para 2.1
21 Ibid, para 3.1
22 Ibid
23 Ibid, para 4.1
24 Ibid, para 5.1
25 Ibid, para 6.1
20 Alam, Bhuiyan and Razzaque
6 §.
Tuntematon mies astui tämänjälkeen puhemies Näppisen
kehoituksesta pöydän taakse ja piti mukaansariipaisevan valtiollisen
esitelmän, jota läsnäolevat kommunismin solut kuuntelivat
lämpimällä mielihalulla.
7 §.
Hyväksyttiin yksimielisesti.