This chapter considers the concept of permanent sovereignty over natural resources as articulated in the New International Economic Order (NIEO) project. At the NIEO’s core was the push to consolidate the legal status of ‘permanent sovereignty’ over natural resources. This idea’s champions argued that ownership and control of resources is an essential and necessary element of statehood, one that involves the right to nationalize foreign-held property. By contrast, its critics contended that no state could lawfully seize assets of foreign investors without compensation. They also insisted that the quantity of such compensation should be determined by international law, or through international arbitration, in the event of disagreement. While most aspects of the NIEO, including resource sovereignty, had been debated for some time, partly during broader discussions of neocolonialism and uneven development within the UN Conference on Trade and Development, it was only in 1974 that the project was formalized in a set of General Assembly resolutions. This project was largely the expression of a desire on the part of political and legal elites in the global South to renegotiate their roles in the world capitalist system, reforming rather than repudiating the existing international order.

Critics of international law have traditionally focused on the weakness of its enforcement mechanisms. On this view, the main problem with international law is that it lacks the sort of effective power needed for its ‘normative authority’ to mean something in a world of bullets and borders. The problem, in other words, is that international law is not ‘really law’, at least not of a sort that is likely to be backed up with coercive force. Other critics have focused on the question of whether international law is anywhere as ‘international’ as its champions have made it out to be. From this perspective, the real difficulty stems not so much from a lack of real enforcement, nor even from the problem of determining what kind of legal status should be ascribed to ‘rules’ that are often anything but rule-like and ‘norms’ that do not appear to be especially normative. Rather, the difficulty is that international law often falls short of the universality its supporters and detractors both ascribe to it. International law may well be ‘law’, whatever precisely that means, but it cannot justifiably be characterized as ‘international’.

This chapter analyzes the negotiations for the 1970 Friendly Relations Declaration, the high-water mark of efforts by socialist and non-aligned states to win support for an expansive interpretation of national self-determination. Lawyers and diplomats from industrialized states typically argued that the right to self-determination could be exercised in a number of different ways, including loose association or confederation. They also maintained that self-determination, understood as a human right, could be secured through adequate recognition within states and did not necessarily require secession. By contrast, those speaking on behalf of the states and peoples of Asia, Africa, and other zones of decolonization framed self-determination in more capacious terms, as a right to ‘economic’ no less than ‘political’ sovereignty. Arguing that formal independence meant little if decolonized states remained hampered by earlier arrangements, they called for an international redistribution of rights and resources. They also stressed that the right to self-determination permitted armed struggle against colonial and occupying powers. Crafted through close engagement with such arguments, the 1970 resolution formalized an unsteady compromise between these two approaches, encouraging self-determination but never so far as to destabilize a fragile interstate system undergoing extensive reconfiguration.

This chapter considers debates about the ‘common heritage of mankind’ during the 1973–82 UN Conference on the Law of the Sea. Postwar jurisdictional claims over ever-larger portions of the world’s oceans raised the possibility of an unregulated and destabilizing scramble for maritime rights, resources, and territories, culminating in what was often described as the enclosure of the oceanic commons. It also lent urgency to developing countries’ calls for a new law of the sea treaty that would reflect their own rights claims. The result was a series of fractious negotiations spanning nine years, at the centre of which was the question of how the deep seabed and its resources would be managed. Third World states sought an international organization authorized to oversee the deep seabed’s exploration and exploitation, coordinating the global distribution of resulting benefits. Industrialized states proposed a licensing system in which states and corporations would be granted concessions to mine in the international zone. Ultimately, ‘common heritage’ rhetoric proved central to the resulting treaty, but the ‘parallel’ system of seabed mining it legalized had the effect of ensuring that the ocean floor’s resources would be controlled largely by those with financial wealth and technological means.

On 24 October 1945, when the UN Charter entered into force, an estimated 750 million people, nearly a third of the world’s population, lived in territories under direct or indirect foreign rule. By the end of 1990, thirty years after it adopted the landmark Declaration on the Granting of Independence to Colonial Countries and Peoples and established a special committee to oversee the process of decolonization,1 this number had cratered to a few million and the UN General Assembly felt enough pride in its track record to celebrate the inception of an ‘International Decade for the Eradication of Colonialism’.2 Today, roughly 70 per cent of the world’s population is descended from colonizers or colonial subjects, in many cases from both.3 The experiences of countless occupied territories, oppressed nations, unrecognized states, secessionist movements, and Indigenous peoples, to say nothing of those struggling against ongoing neocolonialism, make it clear that colonialism has not come to an end – and that it certainly cannot be reduced to the formal processes of decolonization coordinated by states and international organizations. But the fact remains that over eighty states gained their independence within a single generation after the Second World War, with most colonial territories thereby reconstituted as states possessed of de jure sovereignty. Fewer than two million now live in the seventeen territories that continue to be designated as ‘non-self-governing’ on the United Nations’ admittedly incomplete and controversial list.4

This chapter examines the process whereby the concept of jus cogens was introduced into international law during the 1968–69 Vienna Conference on the Law of Treaties. The 1969 Vienna Convention on the Law of Treaties, the conference’s final product, declared that some rules of international law command universal authority, with Article 53 recognizing ‘peremptory norms of general international law’ (without specifying which norms counted as such). Yet the negotiations through which jus cogens entered into the law of treaties were marked by wide-ranging debates about the nature and limits of the treaty-making power, and ultimately about the basic structure and orientation of international law more generally. On the one hand were lawyers and diplomats from socialist and nonaligned states for whom the concept was potentially useful as a means of undercutting the legality of unequal treaties, colonial concession agreements, and other substantively unjust instruments. On the other hand were lawyers and diplomats from industrialized countries who were committed to the traditional principle of pacta sunt servanda—the ‘sanctity of compacts’—and deeply skeptical of any attempt to introduce a normative spectrum in which a select group of rules would have controlling authority over all others.