International Natural Resources Law, Investment and Sustainability

490 Pages·2017·4.914 MB·English

by  Shawkat Alam (editor), Jahid Hossain Bhuiyan (editor), Jona Razzaque (editor)

International Natural Resources Law,
Investment and Sustainability
International Natural Resources Law, Investment and Sustainability provides a
clear and concise insight into the relationship between the institutions that
govern foreign investment, sustainable development and the rules and regula-
tions that administer natural resources. In this book, several leading experts
explore different perspectives in how investment and natural resources come
together to achieve sustainable development in developing countries with exam-
ples from water, oil and gas, renewable energy, mineral, agriculture and carbon
trading. Despite varying perspectives, it is clear that several themes are central in
considering the linkages between natural resources, investment and sustainabil-
ity. Specifically, transparency, good governance and citizen empowerment are
vital conditions which encourage positive social, economic and environmental
outcomes for developing countries. In addition, this book provides new insights
into key concepts which underpin international law, including sovereign rights
and state responsibility principles. It is clear from this book that in the attempt
to reconcile these concepts and principles from separate legal regimes, complex
policy questions emerge whereby it is difficult to attain mutually beneficial or
succinct outcomes. This book explores how countries prioritise their policy
objectives to achieve their notion of sustainable natural resource use, which is
strongly influenced by power imbalances that inform North–South cooperation,
as well as South–South cooperation in the international investment regime.
This book will be of great interest to students, academics and researchers of
international environmental law, international human rights law, international
investment law and international economic law. This book may also be of rele-
vance to environmentalists, policy-makers, NGOs, and investors working in the
natural resources field.
Shawkat Alam is a Professor of Law and Director of the Centre for Environ -
mental Law at Macquarie University, Australia.
Jahid Hossain Bhuiyan is an Associate Professor in the Department of Law,
Northern University, Bangladesh.
Jona Razzaque is a Professor of Environmental Law at Bristol Law School,
University of the West of England, Bristol, UK.
Routledge Research in International Environmental Law
A full list of titles in this series is available at:
www.routledge.com/Routledge-Research-in-International-Environmental-
Law/book-series/INTENVLAW
International Environmental Law-making and Diplomacy
Insights and Overviews
Edited by Tuomas Kuokkanen, Ed Couzens, Tuula Honkonen and
Melissa Lewis
Responsibilities and Liabilities for Commercial Activity in the Arctic
The Example of Greenland
Edited by Vibe Ulfbeck, Anders Møllmann and Bent Ole Gram Mortensen
Ecological Integrity and Global Governance
Science, Ethics and the Law
Laura Westra
Environmental Law and the Ecosystem Approach
Maintaining Ecological Integrity through Consistency in Law
Froukje Maria Platjouw
Stratospheric Ozone Damage and Legal Liability
US Public Policy and Tort Litigation to Protect the Ozone Layer
Lisa Elges
Ecological Restoration in International Environmental Law
Anastasia Telesetsky, An Cliquet and Afshin Akhtar-Khavari
Sustainable Development Principles in the Decisions of International
Courts and Tribunals
1992–2012
Marie-Claire Cordonier Segger and H.E. Judge C.G. Weeramantry
Culture and International Economic Law
Valentia Vadi and Bruno de Witte
International Natural Resources Law, Investment and Sustainability
Edited by Shawkat Alam, Jahid Hossain Bhuiyan and Jona Razzaque
Protecting Traditional Knowledge
The WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore
Edited by Daniel F. Robinson, Ahmed Abdel-Latif and Pedro Roffe
International Natural
Resources Law, Investment
and Sustainability
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
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 selection and editorial matter, Shawkat Alam, Jahid Hossain Bhuiyan
and Jona Razzaque; individual chapters, the contributors
The right of the editors to be identified as the authors of the editorial
material, and of the authors for their individual chapters, has been asserted in
accordance with sections 77 and 78 of the Copyright, Designs and Patents
Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
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ISBN: 978-1-138-84870-2 (hbk)
ISBN: 978-1-315-72607-6 (ebk)
Typeset in Galliard
by FiSH Books Ltd, Enfield
Contents
Notes on contributors viii
List of acronyms and abbreviations xv
Acknowledgements xxi
Preface xxii
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
1 International natural resources law and sustainable
investment: Principles and practices 15
SHAWKAT ALAM, JAHID HOSSAIN BHUIYAN AND JONA RAZZAQUE
2 Sovereign rights, state obligations and natural resources 45
UPENDRA BAXI
3 Evolution of the permanent sovereignty over natural
resources in the context of the investment regime 62
JAHID HOSSAIN BHUIYAN
vi Contents
PART II
Balancing competing interests 83
Foreword 85
KAMAL HOSSAIN
4 Natural resources management and sustainable
development in the WTO legal system: Implications for
the investment regime 86
ILARIA ESPA
5 Natural resource protection in regional and bilateral
investment agreements: In search of an equitable balance
for promoting sustainable development 108
SHAWKAT ALAM
6 Arbitration and natural resource protection 132
MARIEL DIMSEY
7 Expropriation, nationalisation and resource protection –
‘resource nationalism’ and international law 162
JÜRGEN BRÖHMER
8 Regulatory strategies, CSR and resource protection 183
PAOLO GALIZZI AND EMILY SMITH EWING
9 State owned oil companies, North–South and South–South
perspectives on investment 203
ELENA MERINO BLANCO
PART III
Changing dynamics 235
Foreword 237
PHILIPPE CULLET
10 Water, investment and sustainability 242
REBECCA BATES
11 Sustainable agricultural investment and the Global South 263
JONA RAZZAQUE AND PHUONG LE
Contents vii
12 Sustainable mining, human rights and foreign investment:
Nexus and challenges 287
ABDULLAH AL FARUQUE
13 International indigenous rights, investment and
sustainability in the mining sector 310
ANDREW ERUETI, SARAH DOWN AND JACINTA RURU
14 Financing energy resources and sustainable development 329
PRISCILLA SCHWARTZ
15 Carbon trading as a climate change mitigation tool 350
BEATRIZ GARCIA
16 Modern biofuels: The road to integrated sustainability 371
FEJA LESNIEWSKA
PART IV
Conflict, corruption and liability 391
Foreword 393
BENJAMIN J. RICHARDSON
17 Natural resources, conflict and investment: Conflict
minerals in the Democratic Republic of Congo and the
challenges to sustainable investment 395
ONITA DAS
18 Corruption, investment and natural resources 416
ADAM SIMPSON
19 Criminal liability for exploitation of natural resources 435
MICHAEL FAURE
Index 453
Notes on contributors
Shawkat Alam isProfessorofLaw andDirectorofthe Centrefor 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. Hehas 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 Batesis 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 Baxiis 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
University of Queensland, Australia, and an LLM from Vrije Universiteit
Brussel, Belgium. He has recently co-edited International Trade Law and
the WTO (Federation Press, 2013), An Introduction to International
Refugee Law (Brill, Martinus Nijhoff Publishers, 2013), Globalization,
Inter national Law, and Human Rights (Oxford University Press, 2012)
and Routledge Handbook of International Environmental Law
(Routledge, 2012), amongst other scholarly articles and texts.
Jürgen Bröhmer is Professor and Dean of Law at Murdoch University,
Australia. Professor Bröhmer is a world leading expert in German consti-
tutional law, European law and public international law with an emphasis
on human rights and state immunity issues. He has authored numerous
mono graphs, chapters and articles on public international, constitutional
and European Union law and holds a PhD from Saarland University,
Germany.
Philippe Cullet is Professor of International and Environmental Law at the
School of Oriental and African Studies(SOAS), University of London and
a Senior Visiting Fellow at the Centre for Policy Research in New Delhi.
His main areas of interest include environmental law, natural resources,
human rights and the socio-economic aspects of intellectual property. His
latest book (with S. Koonan eds) is Water Law in India – An Introduction
to Legal Instruments (Oxford University Press, 2nd edition, 2017).
Onita Dasis Senior Lecturer at the University of the West of England, Bristol,
UK, where her primary research area focuses on sustainable development,
environmental protection during armed conflict and land grabbing. She was
a visiting fellow at the Lauterpacht Centre for International Law, Cambridge
University and is Head of Environmental Law Research at the University of
the West of England. Dr Das is also a member of the Global Network on
Human Rights and the Environment (GNHRE).
Mariel Dimsey is an international commercial and investment arbitration
specialist currently practicing in Hong Kong. Her previous roles include
practicing at leading international law firms in Germany and working at the
Secretariat of the ICC International Court of Arbitration in Paris. Dr Dimsey
holds an LLM from the University of Cologne, Germany, and has a doctor-
ate in law (summa cum laude) from the University of Basel, Switzerland. She
has taught international arbitration and international commercial law at the
University of Bonn and University of Frankfurt, Germany.
Sarah Down is a PhD candidate at the Australian National University,
Australia, where she is undertaking research on M ori mineral rights. She
ā
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 Ng i
ā
Tahu Research Centre, University of Canterbury and the National
Aboriginal and Torres Strait Islander Legal Services (NATSILS), Australia.