Realizing the People's Right to Natural Resources

Article excerpt

In Armed Activities on the Territory of the Congo (Dem. Rep. Congo v, Uganda), the international court of justice declared unequivocally that the principle of permanent sovereignty over natural resources (PSNR) is a part of customary international law, that is, the form of international law developed from the practice of states, instead of treaties.1 However, the decision also ruled the principle of PSNR inapplicable to the specific situation of looting, pillage, and exploitation of natural resources by the army of a state that is intervening militarily in another state.2 This declaration is an important milestone in the half-century evolution of the concept of PSNR from a political claim to an accepted principle of customary international law.3 Almost six decades ago, the United Nations General Assembly passed Resolution 626 (VII) of 1952. The preamble to the resolution proclaimed, "the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty."4 Additional resolutions emerged over the years, declaring and further strengthening the sovereignty of people over their natural resources.

Yet, the ensuing decades have witnessed the mismanagement of these resources, resulting in the transformation of the natural endowment into a crippling curse, instead of the envisaged and deserved blessing.5 It has been unnerving to watch as the political leadership in many developing countries continues to corner the natural resource wealth to its benefit, and to the detriment of the general population. Perhaps this predicament is precipitated by, and predicated on, the lack of precision that characterizes the formulation of the right and its scope. Indeed, international legal scholars have variously viewed the right to PSNR as the right of entire populations or a part thereof, or as residing in states, or as belonging jointly to states and peoples. Nonetheless, while there may be legitimate scholarly, political, and judicial disputes as to the right repository of the sovereign right over natural resources - between the state and the people - there is hardly any question that the people have a right to the proper management of natural resources to their benefit.6

This article therefore argues that the realization of the people's right to natural resources necessitates a de-concentration of the right to the management of the resources from the government, particularly in those countries where political leaders have consistently demonstrated an inability to manage the resources for the public good. Accordingly, this article proposes a tiered process of citizen involvement in the management and ownership of the resources in the domestic legal context. This process involves equity participation and ultimately private ownership. This article situates aspects of the discussion in the context of Nigeria, a leading oil producer that evidences many of the pathologies of inequitable petroleum development, although the experiences, lessons, and suggestions are applicable to many developing countries that have a rich endowment of natural resources.

The remainder of the article proceeds as follows. First, it revisits the question of the appropriate holders of the right to natural resources under international law, maintaining that the right belongs to the entire population within a country. Secondly, it examines the case for realizing and operationalizing the people's right to natural resources through a system of private ownership. This part places focus especially on countries that experience poor and unresponsive leadership, and the vast majority of citizens have no meaningful participation in the formulation of national economic and social policy that would assure a just distribution of the benefits and burdens of natural resource exploitation.

After exploring and examining various arguments and proposals, this article will present a set of policy choices that can vastly enhance natural resource management for the public benefit. …