The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development

Article excerpt

ABSTRACT

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. This Article fills a gap in the existing literature by identifying and analyzing emerging international law approaches that impact the intrastate allocation of land and natural resources to historically marginalized communities, and thereby, carve away at states' top-down decision-making authority over development. It argues that while international law may have only been originally concerned with the allocation of land and natural resources in an interstate context, it plays a distributive role today in an intrastate context. Ultimately, this Article proposes that an emerging human rights approach to the allocation of land and natural resources supports a peoples-based development model potentially capable of more readily alleviating conditions of inequity and continued subordination for historically marginalized communities.

TABLE OF CONTENTS

I. INTRODUCTION
II. INTRASTATE NATURAL RESOURCE ALLOCATION
   AND THE DOCTRINE OF PERMANENT SOVEREIGNTY
   OVER NATURAL RESOURCES
   A. The Interstate Debate: Accounting for
      the Third World
      1. Permanent Sovereignty over Natural
        Resources and Decolonization
      2. Permanent Sovereignty over Natural
        Resources and the Promotion of
        Self-Determination
      3. Permanent Sovereignty over Natural
        Resources and the Promotion of Economic
        Development
   B. The Intrastate Debate: Accounting for
      the Fourth World
      1. Permanent Sovereignty over Natural
        Resources by Peoples of a State
      2. Permanent Sovereignty over Natural
        Resources by Indigenous Peoples
        and Other Historically Marginalized
        Communities
III. INTRASTATE NATURAL RESOURCE ALLOCATION
   AND HUMAN RIGHTS
   A. Substantive Land and Resource Rights
      of Indigenous Peoples and Other
      Historically Marginalized Communities
   B. Procedural Land and Resource Rights
      of Indigenous Peoples and Other
      Historically Marginalized Communities
IV. INTRASTATE NATURAL RESOURCE ALLOCATION
AND GOOD GOVERNANCE
V. INTRASTATE NATURAL RESOURCE ALLOCATION
   AND THE DEVELOPMENT OF PEOPLES
   A. Natural Resource Allocation Beyond
      State Sovereignty
   B. Natural Resource Allocation Based on
      Peoples' Human Rights: Toward a
      Peoples-Based Model of Development?
VI. CONCLUSION

I. INTRODUCTION

During the past decade, Brazil has been actively pursuing, in conjunction with a consortium of private business actors, a hydroelectric dam project of massive proportions along the Xingu River: the Belo Monte Dam project. (1) Belo Monte constitutes the second largest dam project in Brazil and the third largest dam project in the world. (2) Brazil proposes that the dam will produce 11,233 megawatts of primarily clean energy by diverting water to regions in need of access, thereby furthering economic development and contributing to a higher standard of living for the nation as a whole. (3) Multiple communities living along the river--some who claim an indigenous identity, (4) others who live off the river in conditions of poverty, and others who use nearby land for agricultural purposes--have voiced significant concerns about the impact of the project on their local livelihood as well as their cultural and economic development. (5) It is projected that thousands of people will be displaced and that approximately 500 square kilometers will be flooded as a result of the project. (6) Critics also suggest that damming the river could diminish fisheries and ultimately contaminate the water used by local communities. (7)

In the context of such a large-scale development project, multiple communities have potentially legitimate interests with respect to ownership or occupancy of land near the river and access to the river as a natural resource. …