Abstract

Certain patterns in history seem so stubbornly persistent as to resemble the laws of nature. One of these patterns with such enduring permanence is the role of scarcity in natural resources in the evolution of the political economy of the world and international law. It was scarcity in spices, silk, emeralds and other precious stones that inspired the evolution of exchange relations between Europe and the Far East through the famous Silk Routes. Interruptions to trade along the Silk Routes and the compounding effects of scarcity in other natural resources in Europe further inspired the age of discovery, imperialism and colonialism mostly at the end of the barrel of the gun. International law evolved in tandem with this outward push from Europe to provide the necessary legitimization of occupation, acquisition and subjugation of foreign territories and peoples to gain access to their natural resources for the advancement of the metropolitan powers. In the post-colonial era the grip of scarcity on various natural resources, particularly in biodiversity, has continued with its unyielding tenacity. Fortunately, the old regime of blatant forcible occupation of foreign territories is no longer an acceptable solution under international law and the United Nations Charter. Access to scarce biodiversity resources to support an unrestrained development model required yet again the instrumentality of an international normative regime based on the consent of resource-holding states. The Biodiversity Convention became the legitimizing instrument for access to biodiversity resources located mostly in states that were the victims of the old colonial and imperial systems. Given the untimely demise of the New International Economic Order (NIEO), the history of persistent unequal exchange, and the importance of biodiversity resources to the states in which they are located, significant questions relating to ownership, control, and exploitation of those resources remain unanswered. In a world of diverse human cultural, social, and political organization the concept of property is necessarily complex, ideological and deeply textured. The Biodiversity Convention did not and could not have resolved the critical question of property rights in those resources. Relying on established tools of international diplomacy such as polysemy and hyponymy, the Convention left the determination of property rights and their varying incidents to the municipal laws of signatory states. This article argues that there is no international law concept of property rights applicable to biodiversity resources. Neither the concept of the “commons” nor that of the “common heritage of humanity” is clearly applicable under the Convention or international law. Moreover, the concept of permanent sovereignty over natural resources including biodiversity resources rises to the level of jus cogens under international law. Thus, notwithstanding the Convention and given the protections of the United Nations Charter and various General Assembly Resolutions on sovereignty over natural resources, control over and the exploitation of biodiversity resources resides in the countries in which they are located. However, many significant global strategic issues remain. Resource-holding states must maintain active vigilance over an erosion of their property rights by subsequent international agreements and treaties. Moreover, the lessons of the dashed hopes and aspirations that perished with the demise of the NIEO should not be swept away with the dust of history. Resource holding states must develop purposeful local self-determining strategic countervailing structures to ensure that the exploitation of their biodiversity resources is directed towards addressing the fundamental needs of their societies.