The principle of Permanent Sovereignty over Natural Resources is a well-established and widely recognized concept in international law. It originated from two core pillars: the sovereignty of states and the self-determination of peoples. However, both of these fundamental principles of international law have been challenged and reshaped over the past few decades.
First, let us focus on state sovereignty. While states have historically strived to preserve their sovereignty, emphasizing its absolute nature, contemporary challenges such as globalization and climate change have increasingly placed this sovereignty under pressure. Issues like climate change and environmental degradation often cannot be resolved by individual states alone. These challenges demand collective action and solutions that are better addressed by the international community as a whole. This raises the question: Have we moved toward a new form of sovereignty—pooled sovereignty—that allows for more effective solutions than the traditional, absolute notion of state sovereignty? Examples such as the plight of disappearing island states suggest that a more collaborative approach might be more effective.
On the other hand, the right to self-determination has undergone significant evolution, particularly in the past few decades. Originally rooted in the context of decolonization, this right was initially viewed primarily as a collective right of peoples. Over the course of the 20th century, however, the right to self-determination increasingly shifted toward a focus on the rights of states, i.a., driven by the New International Economic Order (NIEO) initiated by the newly liberated developing states. In the late 20th and early 21st centuries, the empowerment of indigenous peoples and minority groups—such as through the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)—has reshaped the understanding of self-determination. People are no longer seen merely as the subjects of states, but as distinct entities, sometimes in opposition to the state.
So, the principle of permanent sovereignty over natural resources is no longer solely defined by state sovereignty as an absolute symbol of power over territory and its resources. Instead, the people living in these territories, who rely on the resources for their daily lives, now equally influence this principle. While resource management remains within the purview of the state, the «holdership» of these resources inherently entails a responsibility to manage them thoughtfully and sustainably, particularly given the global impact of their exploitation.
This is in particular the case by making «commitments in terms of climate change law and, by doing so, alienates or alters its right to freely use, dispose and exploit its natural resources by placing an encumbrance on its right».(2) Consequently, the dictum of sovereignty, similarly set in the Lotus case nearly 100 years ago in 1927, is still valid, «free to dispose of the resources under their jurisdiction at their pleasure, unless a contrary international norm was proved», but has to be set into a broader context. In conclusion, for the sake of international principles such as sustainability and environmental protection, those who hold the sovereignty over these resources bear a global, intergenerational responsibility to use and exploit them consciously and respectfully, led by «the international invisible hand».(3) That can be a state, but also a different institution.
Taking a closer look at the disappearing islands, the criteria for statehood under the Montevideo Convention are in question; the others are shaking. In the case of the disappearing islands, the territory as land mass is at stake, which is not only considered «a portion of the earth’s surface», but rather «the physical basis that ensures that people can live together as organized communities».(4) However, it does not stand or fall completely with this definition, as the decision of the Sealand case from the 1970s shows us, according to which «territory which was once connected to the land and then submerged by the sea can continue to be regarded as a connected part of State territory».(5)
Hence, the second criterion of a permanent population is equally important. Thus, the criterion determines the qualification as an island as opposed to a mere rock according to Article 121 paragraph 1 UNCLOS, which determines whether the landmass in question can claim a maritime zone or not. Hence, for disappearing island states like Tuvalu, with a land area of only 26 km2 but an EEZ of approximately 900,000 km2, not only the landmass as such is at stake, but also 99% of their territory.(6) However, for this criterion, neither a minimum population nor a majority of the population living within the territory is required.(7) The population must have «a corporate feeling of common ownership».(8) Consequently, the connection to people's self-determination is evident; peoplehood is a crucial topic in the definition of the disappearing island states.(9)
Fortunately, the populations of the disappearing island states are highly homogeneous, all rooted in Polynesian and Micronesian heritage.(10) Consequently, not only is the bond between people who share the same identity and culture strong, but also the bond to the territory — whether land or sea — as an integral part of their homeland.(11) This is also underlined in the IPCC, which affirmed that the population has «a long developed and maintained unique lifestyle, adapted to their natural environment».(12 )That the inhabitants can be considered people of this territory is not debatable, nor is their firm attachment and interest in the control over the resources of the territory.(13) In sum, the inhabitants of the island states comply with all requirements, which might be requested for the definition of peoplehood.
As discussed earlier, both states and peoples are considered initially equal «holders» of the principle of permanent sovereignty over natural resources. While the significance of people's standing diminished following decolonization, it has gained increasing importance in recent decades. Today, people —whether indigenous groups, minorities, or entire populations — play a crucial role in international law.
This trend is particularly evident in climate change litigation and climate action cases—so–called «transboundary environmental cases».(14) In these instances, groups or associations of individuals — such as indigenous peoples or citizens — often represented by Non-Governmental Organizations (NGOs), file lawsuits against states or large corporations to enforce «democratic accountability» of governments to their citizens.(15) Their goal is to enforce climate protection laws, hold entities accountable for climate-related misconduct, and demand more decisive action to safeguard the environment.(16).
A «powerful illustration of the Convention» in the realm of climate change litigation is the Advisory Opinion issued by the International Tribunal for the Law of the Sea (ITLOS).(17) Thirty-one different groups and associations, along with eight NGOs, including the Small Island Developing States (SIDS), who initiated the claim, brought the case before the tribunal.(18) The tribunal was tasked with determining whether the member states of the Convention are responsible for addressing the effects of climate change on the seas, such as rising sea levels and ocean acidification.(19) The court affirmed that member states are indeed accountable for these impacts,(20) although it refrained from addressing questions related to statehood or the freezing of baselines (21).
As a result, the legal solution for disappearing island states — the global community can only find an issue that arises solely due to climate change — through collective action (22). The capacities and resources of the island states themselves are too limited to address the vanishing territory and the displacement of their populations. For an island state facing the threat of losing its territorial integrity and existence, the model of pooled sovereignty – like in a “community-based management”- offers a better chance of survival (23). Here are several models that might be the creation of a community or union, akin to the United Nations or the European Union,(24) the establishment of a public trusteeship, with the population as trustee and another state serving as the trustor,(25) or the recognition of an entirely new legal personality, often referred to as the “deterritorialized nation-state”?
Without delving into these solutions or prioritizing one, the role of the people—specifically the populations of these states—in defining a new legal personality remains uncertain. However, given developments over the past few decades, it is clear that the island states' populations must play a crucial role in this process. Their bond to their territory, even if it remains a maritime one, so that they “appear resigned to the fact that they might have to leave the island in the future, they are hoping to return to have a connection to their heritage periodically” (26). As a result, the idea of governance by the people over the remaining maritime territory – e.g., as a “Blue Pacific Continent” – is not unrealistic in the case of island states (27).
It is difficult to predict what this governance of the territories of these island states might ultimately look like. One thing is clear: international principles, such as permanent sovereignty over natural resources, can certainly play a role in shaping a solution through reinterpretation as this journey unfolds.
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1 Ph.D. graduate of the University of Kiel, Germany. LL.M. graduate of the Universidad de Chile, Chile, and the Universität Heidelberg, Germany. LL.M. graduate of the University of Miami, United States.
2 S. VAN WYK, The impact of Climate Change Law on the Principle of State Sovereignty over Natural Resources, p. 76.
3 E. BENVENISTI, Management of Transboundary Resources. International Law and Optimal Resource Use, pp. 22–23.
4 J. GROTE STOUTENBURG, p. 61.
5 Administrative Court of Cologne (Verwaltungsgericht Köln), Case "Sealand", 1978, Deutsches Verwaltungsblatt.
6 A.J. TILLING, E. FIHAKI, Tuvalu National Biodiversity Strategy and Action Plan. Fourth National Report To the Convention on Biological Diversity, 2009, pp. 6–7 ; C. BLANCHARD, « Evolution or revolution? Evaluating the Territorial State-Based Regime of International Law in the Context of the Physical Disappearance of Territory Due to Climate Change and Sea-Level Rise », Canadian Yearbook of International Law 53 (2015), 66–118, p. 81.
7 J. MCADAM, Climate change, forced migration, and international law, Oxford Univ. Press, Oxford, 2013, p. 131.
8 J. MCADAM, Climate change, forced migration, and international law, p. 131 ; M.N. SHAW, International law, Cambridge Univ. Press, Cambridge [u.a.], 2014, p. 199; GA-Res. 2869 (XXVI) (1971).
9 M.A. BRINKER, The Right of Self-Determination in the context of Climate Change. How to deal with the disappearing islands in the exemplary case of the Atoll State Kiribati under the International Law, GRIN, 2020, p. 19.
10 Encyclopedia Britannica.
11 C. BLANCHARD, p. 80 ; J. MCADAM, Climate change, forced migration, and international law, p. 156.
12 R. PACHAURI et A. REISINGER, IPCC - AR4 Synthesis Report - Climate Change 2007, p. 59.
13 O. ANGELI, « Self-Determination and Sovereignty over Natural Resources », Ratio Juris (2017), 290–304, p. 303.
14 P.H. SAND, pp. 53-54.
15 P.H. SAND, p. 54.
16 P.H. SAND, p. 54.
17 A.J. HOFFMANN, ITLOS Advisory Opinion on the Request submitted by the Commission of Small Island States on Climate Change and International Law, coll. « Rhodes Academy of Oceans Law and Policy 2024 », Rhodes, Greece, 2024, p. 4 ; INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request For an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, 2024, https://www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisory-opinion-submitted-by-the-commission-of-small-island-states-on-climate-change-and-international-law-request-for-advisory-opinion-submitted-to-the-tribunal/.
18 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request For an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law ; I. PAPANICOLOPULU, A. ROCHA, « Oceans, climate change and non-state actors », in Jan MCDONALD, Jeffrey MCGEE, Richard BARNES (éd.), Research handbook on climate change, oceans and coasts, 2020, 193–208, pp. 199-200.
19 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, 2023, https://www.itlos.org/fileadmin/itlos/documents/cases/31/Oral_proceedings/ITLOS_PV23_C31_15_E.pdf ; INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request For an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, paras. 138-150.
20 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request For an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, paras. 128-134, 180 et. seqq.
21 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Request For an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, para. 149.
22 D.B. HUNTER, « The Implication of Climate Change Litigation: Litigation for International Environmental Law-Making », in Hari M. OSOFSKY, William C.G. BURNS (éd.), Adjudicating climate change. State, national, and international approaches, Cambridge University Press, Cambridge, New York, 2009, 357–374, p. 370.
23 M. BINKLEY, A. GILL, P. SAUNDERS, G. WESCOTT, « Community involvement in marine and coastal management in Australia and Canada », in D. L. VANDERZWAAG (éd.), Towards Principled Oceans Governance, Taylor and Francis, 2006, 249–280, p. 250.
24 C.R. BEITZ, Political theory and international relations, coll. « Princeton paperbacks », Princeton Univ. Press, Princeton, NJ [u.a.], 1999, p. 112.
25 M. BURKETT, pp. 363–364.
26 L. YAMAMOTO, Atoll island states and international law, p. 176.
27 R. STRATING et J. WALLIS, p. 6.
