Fighting the Resource Curse: The Rights of Citizens Over Natural Resources (original) (raw)
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Fighting the Resources Curse: The Rights of Citizens over Natural Resources
Northwestern Journal of Human Rights, 2021
Respect for the rights of peoples over natural resources is crucial for the flourishing of communities and states. This article confirms that international law ascribes robust resource rights both to indigenous peoples and to citizens of independent states. These resource rights include indigenous peoples' right to free, prior, and informed consent and citizens' rights that resource revenues are never used corruptly but are used first to secure their means of subsistence. Resource rights are human rights, respect for which requires substantial reforms in the practices of corporations and investors as well as in the laws of resource-importing and resource-exporting states.
The version of record is available at: http://www.brill.com/products/book/natural-resources-grabbing cheap resource-rich land. This global 'resources grabbing' is driven not only by the higher demand for natural resources but also by the increased marketization of natural resources. This results from a number of related phenomena including the globalisation of agricultural production, the strive for investment in energy and biofuel ventures, and recent demands for resources from newer hubs of global capital. 3 Resources grabbing often negatively affects local populations, especially indigenous communities. Evidence is increasingly showing that instead of benefiting from the exploitation of natural resources, local indigenous communities may face forced eviction or degradation of their lands resulting in a dramatic loss of access to traditional livelihoods. 4
Melbourne Journal of International Law, 2014
Permanent sovereignty over natural resources has emerged as a fundamental principle in international law, allowing postcolonial states to assert full sovereignty or 'sovereign rights' over natural resources found within the limits of their jurisdiction. Despite the postcolonial context in which the first United Nations General Assembly resolutions in the field were adopted, there has been an increasing recognition that the right to permanent sovereignty should be given a wider scope and could start to legitimise the claims of non-state actors and communities in defining ownership and usage rights over the natural resources within a state. Indeed, international law has evolved to recognise a number of substantive and procedural rights for indigenous peoples, including: ownership rights over natural resources; the right to participate in decision-making and to prior and informed consent in the context of natural resources extraction projects; and the sharing of benefits arising from the exploration and commercial exploitation of natural resources in indigenous lands. This paper argues that the principle of permanent sovereignty over natural resources complements and further refines the right of self-determination of 'peoples' under international law while establishing important parameters for the allocation of property rights in natural resources. Moreover, by implementing substantive and procedural rights that allow indigenous peoples to exercise resource rights, it is suggested that states have transferred sovereign powers over natural resources to non-state actors, thus upsetting the notion of permanent sovereignty as a right belonging to states.
Rights to natural resources and human rights
Exclusive authority over natural resources is one of the most prized rights attached to sovereignty, according to current international law. It implies a set of powers, prerogatives, and immunities the most consequential of which is the right to legislate and adjudicate property rights over natural resources, including nationalization of foreign property, permission/power to decide on terms of foreign investment or extraction contracts, and control of the sales of natural resources. Allocated to states and their people in the process of decolonisation and the postwar transformation of international law, the sovereign right to natural resources was meant to correct – and indeed corrected – the injustice of colonial dispossession of natural resources. Simultaneously, it was meant to secure economic benefits arising from the exploitation of natural resources for the people of developing and newly independent states. The principle that states have an exclusive right to use natural resources occurring on their territories so that they can fully realize the right to self-determination and provide well-being and development to their people lies at the foundation of the new system of the distribution of rights to natural resources. 1 Yet many countries have failed to use their natural endowments for national development and the well-being of the people. Often, natural resources have been used for the private benefits of ruling elites and oligarchs, to sustain repression, authoritarianism, military rule, and even to wage an unjust war (Ross 2004). In current conditions of growing scarcity and high demand – and hence very high economic value of many natural resources – , the right over natural resources can easily be turned into an ability to accumulate private wealth and sustain unjust rule. The case of Equatorial Guinea described by Leif Wenar has become notorious: its president Teodoro Obiang, who came to power unconstitutionally, is continuously capable of selling the country's oil and using the revenues to sustain absolute repression of his people, and the lavish lifestyle of his family. And yet, millions of gallons of Equatorial Guinea's oil keep arriving in the United States and other countries with unquestioned legal title to these resources – a title which is anchored in the fact of Obiang's sheer might and violent coercion. In this and many similar cases, the recognition of the right to natural resources seems to follow the old rule of international law – the so called principle of " effectiveness " – according to which an entity is recognized as a sovereign state and hence entitled to all the powers, rights, privileges, and immunities ascribed to states by international law if it has an effective control over the population and the territory. The principle of effectiveness, however, is no longer a valid principle (Buchanan 2004, 6). According to current international law, the capacity to sustain control over a population and a territory by means of military force and repression is not considered as the adequate basis for the recognition of this political entity's exercise of power as internationally legitimate. Today, no state is internationally recognized as legitimate which came into being through aggressive war and violation of territorial integrity. No foreign occupation can deprive peoples of their right to self-determination and sovereignty. No government can be recognized as legitimate if it institutionalizes apartheid or engages in ethnic cleansing and genocide (Cassese 2011, 12-13).
2018
Natural resources formed a greater part of literature on development issues around poor countries in recent times, our findings showed this erudition has been so fascinating about the crisis emanating from the presence of these resources, we are obliged to agree that resource rich countries are rather "cursed" especially in the African continent, i the text shows that problems are sparked by the pervasiveness in resources management and governance. ii Poor political leadership, economic mismanagement, and social upheaval are the various concerns which significantly form the basis for recurrent cases of natural resources abuse, no doubt these have negatively crushed economic growth and human development, iii one would expect that a more serious and efficient government should attempt to balance economic improvement and social difficulties of stealing, siphoning and starching abroad of the common wealth of the people who heavily rely on the resources in the country for every measure of growth. But what is common amongst these resources rich nations is that, resource reliance tends to influence governments themselves, making them care and unable to resolve disagreements within their territories and so the nation becomes more prone to aggravated conflicts that could led to full blown wars. Corporate romance, corruption, state weakness, and lack of accountability, iv have been prevalent among the Nations, it is not unexpected that individuals and groups are more likely to rise up, some in arms and others mere agitations against their government when their economic state is bad and getting sadder. These cases are replete with indigenous people who complain about marginalization and abuse of human rights, for example the people of Ogoni in the oil rich region of Nigeria, once poverty and unemployment are prevalent, the possibility of hostility, kidnapping and plundering appears more attractive by comparison, this pattern is worrisome, but this is the case with countries like Nigeria. 2. Indigenous People's Rights and Conflict Several countries with extractive industry that requires sophisticated technologies and expertise for the resource exploration have had to rely on transnational corporations to supply the know-how. Indigenous groups, comprising of people predominantly around the resource location, suffers the effect of the reckless exploration activities, studies have shown that these people experience abject poverty and diseases, v the people out of frustration have resorted to targeting the facilities of
Human Rights and Rights to Natural Resources
The paper Human Rights and Rights to Natural Resources explores the historical affinity between international law of human rights and rights of states to natural resources and the aim of both systems to realize the international justice. The paper assumes a practice-based approach to human rights and argues that the chief purpose of human rights is to provide a universal standard for regulating the behavior of states, to limit their sovereignty for the sake of promoting welfare and protecting equal moral status of individuals. The key point of the paper is then to show that due to the historical co-originality and due to the transformative impact human rights have had on state sovereignty, international human rights law has direct implication for how we should interpret the states’ rights to natural resources – the scope of resource rights, the conditions of their rightful and legitimate exercise by states, the substantive limits on those rights, and finally how we might envision the international system of natural resource governance.
Etikk i praksis - Nordic Journal of Applied Ethics, 2014
The article combines Elinor Ostrom's design principles for common-pool resources and human rights provisions, including subsequent clarifications and jurisprudence. It analyses whether stronger local self-governance, embedded in the natural resource dimension of peoples' rights to self-determination is a recommendable approach. Two changes in understanding are noted. First, the universal approval of indigenous peoples' right to self-determination as specified in the UN Declaration on the Rights of Indigenous Peoples. Second, the wide endorsement of the specific principle of free and prior informed consent (FPIC)
Arctic Review on Law and Politics, 2017
The right to Permanent Sovereignty over Natural Resources (PSNR) emerged in the era of decolonization. As a reaction to the irresponsible exploitation of natural resources by colonial powers, peoples under colonial rule and newly independent developing states asserted the right to control and dispose of their own natural resources. The UN General Assembly recognized and reinforced these claims by adopting a series of resolutions relating to the right to PSNR so as to facilitate the process of decolonization. However, the subjects of the right to PSNR have expanded to include 'all peoples' due to legal developments in international law pertaining to the right to self-determination of peoples and other human rights standards. This article explores the contemporary application of the right to PSNR for indigenous peoples, by virtue of their being 'peoples', tracing various developments in international law relating to indigenous peoples since the inception of PSNR in the 1950s.
International Journal on Minority and Group Rights, 2017
The Inter-American Court of Human Rights (I-ACtHR) has developed remarkable jurisprudence for the protection of the right to communal property of indigenous and tribal communities with respect to the ancestral lands that they possess and traditionally used-natural resources, in order to guarantee their cultural and economic survival in the Americas. This article critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas, its connection with their right to cultural identity, and the right to a dignified life. In particular, it pays specific attention to the right to effective participation and consultation of the indigenous communities affected; the obligation to share reasonable benefits with these communities; and the elaboration of a prior environmental and social impact assessment of any development investments, exploration or extraction plans.
2016
This summary critically analyses the legal regime that protects the ancestral lands and natural resources traditionally used, the so-called traditional communal property, of indigenous and tribal peoples in the Americas. It also analyses the legal regime’s connection with indigenous and tribal people’s right to cultural identity and the right to a dignified life.The Inter-American Court of Human Rights (I-ACtHR, or the Court) has developed safeguards to establish a fair balance between potentially conflicting interests over these lands.Three specific safeguards are highlighted in this summary:• the effective participation and consultation of the affected communities• the obligation to share reasonable benefits with them• the elaboration of a prior environmental and social impact assessment of any development investment, exploration or extraction plans that could directly affect their landsThe author goes beyond this innovative jurisprudence on indigenous peoples’ lands andargues tha...