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Global Governance of Oil and Gas Resources in the International Legal Perspective

by Joanna Osiejewicz (Author)
Monographs 412 Pages

Summary

The principle of permanent sovereignty over natural resources was originally intended to protect economic independence and development of resource-rich countries. Now, it is heading towards fair and equitable distribution of resources. The complex of regimes for global governance of oil and gas resources includes trade, investment protection, maritime areas, environmental issues, transparency and accountability of oil and gas sector, human rights and protection of local communities. Despite the fact that it is national states who are traditionally perceived to be central actors in the governance of natural resources, the issue is currently the object of multidimensional global interest. The key to sustainable development in this area is intersectoral and transnational cooperation.

Table Of Contents

  • Cover
  • Series Page
  • Title Page
  • Copyright Page
  • Epigraph
  • About the author
  • About the book
  • Citability of the eBook
  • Content
  • Abbreviations
  • 1. Introduction
  • 2. The principle of permanent sovereignty over wealth and natural resources
  • 2.1 The historical context and evolution
  • 2.2 Principle of permanent sovereignty over natural resources as a source of international law
  • 3. Rights and obligations resulting from the principle of permanent sovereignty over natural resources
  • 3.1 The management of natural resources
  • 3.1.1 The right to freely dispose of natural resources
  • 3.1.2 The right to free exploration and exploitation of natural resources
  • 3.1.3 The right to regain effective control and compensation
  • 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
  • 3.2.2 The duty to exercise the nation’s sovereignty for the development and prosperity of nations
  • 3.2.3 The duty to respect the rights and interests of indigenous peoples
  • 3.3 Environmental protection
  • 3.3.1 The right to manage natural resources in accordance with the national environmental policy
  • 3.3.2 The duty of protection and sustainable use of natural wealth and resources
  • 3.4 International cooperation
  • 3.4.1 The duty to cooperate internationally for development
  • 3.4.2 The right to a fair share of the benefits of cross-border natural resources
  • 3.4.3 The duty to distribute cross-border natural resources equitably
  • 3.5 Investment protection
  • 3.5.1 The right to regulate foreign investments
  • 3.5.1.1 The right to regulate foreign investments as such
  • 3.5.1.2 The right to regulate acceptance of foreign investments
  • 3.5.1.3 The right to exercise power over foreign investments
  • 3.5.2 The right to expropriate or nationalize foreign investments
  • 3.5.2.1 The right to take ownership as such
  • 3.5.2.2 The right to freely determine the conditions of nationalization
  • 3.5.2.3 The right to refuse to pay compensation or to determine it freely
  • 3.5.2.4 The right to freely choose the means of settling disputes concerning nationalization
  • 3.5.2.5 The right to resolve disputes based on national law
  • 3.5.3 The duty to respect international law and treat foreign investors fairly
  • 3.5.4 Obligations related to the right to take over foreign ownership
  • 3.5.4.1 The requirement of acting in the public interest
  • 3.5.4.2 The requirement of acting without discrimination
  • 3.5.4.3 The requirement to pay compensation
  • 3.5.4.4 The requirement to maintain the compensation standards
  • 3.5.4.5 The requirement to perform a reliable procedure
  • 4. Global governance of oil and gas resources
  • 4.1 The concept of global governance
  • 4.2 The characteristics of governance of oil and gas resources
  • 4.3 Sustainable development in the governance in the oil and gas sector
  • 4.3.1 World Bank Group594
  • 4.3.2 Equator Principles
  • 4.3.3 Global Compact
  • 4.3.4 Global Reporting Initiative
  • 4.3.5 Extractive Industries Transparency Initiative
  • 4.3.6 Voluntary Principles on Security and Human Rights
  • 4.3.7 Mining and protected areas
  • 4.4 Institutional architecture
  • 5. Regimes of governance of oil and gas resources
  • 5.1 Trade
  • 5.1.1 Transit
  • 5.1.2 Institutional regimes
  • 5.1.2.1 World Trade Organization (WTO)
  • 5.1.2.2 Conference on the Energy Charter Treaty
  • 5.1.2.3 Preferential trade arrangements
  • 5.1.2.4 Organization of the Petroleum Exporting Countries (OPEC)
  • 5.1.2.5 Gas Exporting Countries Forum (GECF)
  • 5.2 Investment protection
  • 5.2.1 Investment agreements
  • 5.2.2 Expropriation
  • 5.2.3 Conditions for legality of expropriation
  • 5.2.3.1 Public purpose
  • 5.2.3.2 Prohibition of discrimination
  • 5.2.3.3 Due process
  • 5.2.3.4 Compensation
  • 5.2.3.5 Proportionality
  • 5.2.3.6 Fair and equitable treatment
  • 5.2.3.7 Nonabuse of rights
  • 5.2.3.8 No direct benefit to the state
  • 5.2.4 Specificity of investments in the mining sector
  • 5.3 Environmental protection
  • 5.3.1 Climate
  • 5.3.1.1 United Nations
  • 5.3.1.2 WTO
  • 5.3.1.3 Energy Charter Conference
  • 5.3.1.4 European Union
  • 5.3.1.5 NAFTA
  • 5.3.2 Sustainable and equitable governance of the extractive industry
  • 5.3.3 Biodiversity
  • 5.3.4 Strategic environmental impact assessment
  • 5.4 Extractable resources in marine areas
  • 5.4.1 Establishment of sovereignty over the resources of the subsoil and seabed of the continental shelf
  • 5.4.2 Exploitation of mining resources based on the UN Convention on the Law of the Sea
  • 5.4.3 Regional conventions
  • 5.5 Transparency and accountability
  • 5.5.1 International initiatives
  • 5.5.2 Creating global norms and standards
  • 5.5.3 Transparency and public control in investment and arbitration agreements
  • 5.5.4 Anti-corruption regulations
  • 5.6 Protection of local communities
  • 5.6.1 Community development agreements
  • 5.6.2 The principle of free, prior and informed consent of indigenous peoples
  • 5.6.2.1 International human rights law
  • 5.6.2.2 International environmental law
  • 5.6.2.3 The procedure for obtaining consent
  • 5.6.3 Due diligence
  • 5.6.3.1 The state duty to protect human rights
  • 5.6.3.2 Corporate responsibility in the field of respect for human rights
  • 5.6.3.3 Remedial mechanisms
  • 5.6.3.4 Reporting
  • Summary
  • Bibliography
  • 1.   Legal acts
  • 2.   Monographs
  • 3.   Articles
  • 4.   Rulings
  • 5.   Documents
  • Index

1. Introduction

Oil and gas, as the main sources of global energy supply, have always been heavily influenced by political activities. Due to their fundamental importance to states, they were also often excluded from legal activities. The forecasts for 2035 allow us to expect that oil and gas will remain the dominant sources of the world’s primary energy.2 In the near future, reliable consumer access to oil and gas at reasonable prices will still be a key strategic value. For producing countries, oil and gas will remain important sources of income and key drivers for the growth of their economies. Examining the issues of global governance on oil and gas resources under international law is justified by the importance of these resources for the entire global community as the dominant sources of global primary energy.

The conceptualization of global governance issues has led to the emergence of the concept of a “regime complex” and then to exploring its temporal changes.3 This expression is described by a number of overlapping and non-hierarchical institutions regulating a given substantive area,4 and its conceptual scope is similar to the scope of the conceptual term “global governance architecture” defined as the superior system of public and private institutions that are important and active in a given sphere of world politics.5 World law is characterized by a dynamic multiplicity of operations, in the course of which parallel normative systems of different origins stimulate, interlock, and interfere with each other.6 However, they do not create uniform superior orders that would absorb their parts, but still coexist in a heterarchic manner. It is no longer the policy of states to determine the differentiation of world law, but the expansion of international organizations and regulatory regimes that, despite their origin in international agreements, have grown into independent legal orders.7 The emergence of global regimes does not therefore mean the harmonization of legal orders, but is related to the creation of a new form of internal differentiation and the shaping of a new fragmentation8 that differentiates world law according to transnational homogeneous legal regimes specific to the regulated subject. As a consequence, there is a whole range of regimes in which national, international, and supranational legal acts are visible. For the purposes of this publication, it was hypothesized that in the area of global governance, a regime complex can be distinguished that is a series of overlapping and non-hierarchical institutions regulating a given substantive area, which is related specifically to the extraction of oil and gas resources and which serves the interests of nations as members of the international community.

The research method of this work is based on the concept of G. Teubner and A. Fischer-Lescano, who, inspired by the systems theory of N. Luhmann,9 described the process of spreading international law by referring to the multi-faceted fragmentation of world society law, that is, a global space that differentiates itself into countless autonomous systems. In their opinion, the aim of law research should be to identify specific regulatory systems, and then to study their creation and inter-systemic interaction, in search of a general model. At the same time, they considered it legitimate to ask questions about what constitutes a given system, how systems change and how they interact, how conflicts between systems are resolved, and how these systems are protected.10

The research objective is to identify the regulatory system for global oil and gas resources governance in international law. This objective was focused on specific issues concentrating on examining the origin of this system, its evolution and structure, as well as on identifying the goods protected by this system and the scope of their protection in the area in question.

The research problem is based on the following assumptions:

(1) oil and gas resources are globally located in both state and non-state territories;

(2) oil and gas resources are covered by the principle of permanent sovereignty over natural wealth and resources;

(3) the principle of permanent sovereignty over natural wealth and resources is open to changes that may affect the scope and methods of using oil and gas resources;

(4) due to the coexistence, infiltration and overlapping of legal regimes, it is not possible to clearly identify the circle of institutions involved in global governance on oil and gas as energy sources, or explicitly indicate the goods protected by these regimes, but only to make them a more or less accurate choice.

Details

Pages
412
ISBN (PDF)
9783631815854
ISBN (ePUB)
9783631815861
ISBN (MOBI)
9783631815878
ISBN (Hardcover)
9783631812006
Language
English
Publication date
2020 (May)
Tags
Global governance International law Transnational law Natural resources Human rights Environment Transparency Accountability
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 412 pp.

Biographical notes

Joanna Osiejewicz (Author)

Joanna Osiejewicz - PhD with habilitation in law and PhD in applied linguistics; associate professor and director of the International Legal Communication Research Center at the University of Warsaw. Sworn translator and interpreter for German in Poland. Attorney-at-law at the Bar Association in Warsaw.

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Title: Global Governance of Oil and Gas Resources in the International Legal Perspective