Academic journal article Global Governance

The Resource Curse: A Legal Perspective

Academic journal article Global Governance

The Resource Curse: A Legal Perspective

Article excerpt

This article analyzes the different dimensions of the so-called resource curse hypothesis from the perspective of international and domestic law. The analysis is structured as a commentary of the views of the UK-based philosopher Leif Wenar and the Swiss philosopher Peter Schaber on this issue. The article concludes that, under current legal arrangements, states remain the main guarantors of the public good of the people living under their sovereignty. Thus, for better or worse as long as, from a political or an ethical standpoint, peoples are sovereign, they will also continue to assume the main responsibility for their own development even when their house is not in order. KEYWORDS: resource curse, resource ownership, international law, domestic law, Ogoni, Equatorial Guinea.

The superfluous of the rich should serve for the necessity of the poor; yet, quite to the contrary, the necessity of the poor serves for the superfluous of the rich.--Jean Domat

IN TWO RECENT CONTRIBUTIONS TO THE PHILOSOPHY LITERATURE, ONE BY THE UK-based philosopher Leif Wenar(1) and the other by the Swiss philosopher Peter Schaber, (2) these authors engage in an interesting discussion over who is the proper owner of natural resources as well as on the ensuing consequences from an ethical perspective.

Wenar's argument is, in essence, that natural resources belong to peoples and, as a result, cannot be sold by authoritarian governments to foreign acquirers without proper authorization from the true owners. Moreover, according to Wenar, we would all be responsible for maintaining this situation, to the extent that we buy goods made of such "stolen" resources. Schaber objects to Wenar's argument on the grounds that it is not the authorization to sell the resources that makes such a hypothesis unethical, but rather the fact that authoritarian rulers use the proceeds of the sales for their own private benefit. As for Wenar's second argument, Schaber argues that multinational corporations' purchases and subsequent transfers of money to dictatorial rulers should only be seen as a basis for responsibility when there is a relation of complicity. According to Schaber, enabling a situation is not the same as contributing to it. For instance, producers and consumers of knives cannot, absent specific circumstances, be held responsible for the potential stabbing of people with those knives. Furthermore, Schaber notes that to stop buying natural resources from authoritarian regimes would likely not help the affected people.

From the perspective of a lawyer, the debate between Wenar and Schaber provides an interesting set of propositions against which to assess what the international and domestic legal architecture has to offer to address the problem often referred to as the resource curse; that is, that countries where there is an abundance of natural resources tend to do worse in terms of human and economic development than countries with fewer natural resources. From a legal standpoint, the issues underlying the debate between Wenar and Schaber can be pinned down to two basic legal questions; namely, (1) who owns natural resources, and (2) what legal consequences are attached to spoliation or misuse. After some initial clarifications, the following discussion seeks to address the main aspects of these two questions from the perspective of international and domestic law, before providing a concise assessment of the current state of the law on these issues. Because the article is not primarily intended for an audience of international lawyers, I have endeavored to discuss the relevant legal concepts and mechanisms without going into unnecessary technical details.

Framing the Discussion

Before undertaking the analysis, I would like to make three clarifications that will be useful for framing the discussion.

First, there is an important difference between the philosophical analyses provided by Wenar and Schaber and the legal analysis provided here, and that is the need for a lawyer to take into account the existing legal framework applicable to a given issue, whether one agrees or not with the current state of the law. …

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