"I Can Resist Everything except Temptation."1 an International Solution to African Resource Corruption

By Darling, Michael R. | Texas International Law Journal, October 1, 2017 | Go to article overview

"I Can Resist Everything except Temptation."1 an International Solution to African Resource Corruption


Darling, Michael R., Texas International Law Journal


TABLE OF CONTENTS

INTRODUCTION................422

I. OVERVIEW OF RESOURCE CORRUPTION IN AFRICA.......423

A. Coltan Corruption...............423

B. Oil Corruption............425

II. FAILURE OFEXISTING ANTI-CORRUPTION EFFORTS............427

A. African National Anti-Corruption Efforts.............427

B. African Regional Anti-Corruption Efforts...............429

C. American Anti-Corruption Efforts...............................432

III. OVERVIEW OF THE PROPOSED IACC. ......434

A. The Case for a Civil Component of the IACC..............435

B. Criminal IACC Recommendation: International Anti-Corruption Law............435

IV. DETAILED ARCHITECTURE OF THE IACC: ENFORCEMENT AND INTERNATIONAL CIVIL STATUTE..............436

A. Wisdom from the Experience of the ICC: More Muscle Behind Enforcement.......................437

B. The Case for an International, Civil, Private Right of Action.441

V. INTERNATIONAL LAW ISSUES RAISED BY THE IACC AND POTENTIAL SOLUTIONS..................444

CONCLUSION..............446

INTRODUCTION

Grand corruption2 is a massive issue throughout the world, exhibited with particularly-gruesome clarity in Africa.3 This corruption persists despite many disparate efforts aimed at ameliorating it in nations throughout Africa, which have been undertaken on national,4 regional,5 and international6 scales. Due to the apparent entrenchment of corruption within governments around the world, particularly in Africa, some commentators have called for the establishment of an International Anti-Corruption Court ("IACC"), which would operate either as part of, or alongside, the International Criminal Court ("ICC") in The Hague, Netherlands.7

This Note will explore the architecture and mechanisms of the IACC in the context of African resource corruption, and evaluate the IACC's potential to reduce corruption in Africa. In order to appropriately narrow the analytical focus of this Note, two resources closely tied to corruption in Africa will be examined: oil and coltan.8 In fleshing out the analysis of the IACC and its application to resource corruption in Africa, this Note will be organized as follows: (I) Overview of Resource Corruption in Africa; (II) Failure of Existing Anti-Corruption Efforts; (III) Overview of the Proposed IACC; (IV) Detailed Architecture of the IACC: Jurisdiction and International Civil Statute; (V) International Law Issues Raised by the IACC and Potential Solutions; and (VI) Conclusion.

I. OVERVIEW OF RESOURCE CORRUPTION IN AFRICA

In order to understand the necessity of an IACC, this Note will first provide an overview of the corruption associated with the extraction of minerals and natural resources that persists in Africa despite national, regional, and international anticorruption efforts which appear facially robust. In particular, this Part of the Note will address, first, the corruption surrounding the mineral resource known as coltan in the Democratic Republic of the Congo (DRC), and, second, the corruption surrounding the vast oil reserves underlying Sub-Saharan Africa. The second subsection of this Part focuses, specifically, on oil reserves in Equatorial Guinea and Nigeria.

A. Coltan Corruption

From a high-altitude perspective, the DRC is an extremely mineral-rich nation, and it contains a majority of the world's supply of coltan.9 Despite this mineral wealth, however, the DRC is among the top three most resource-poor nations in the world; the country had a "$434 nominal GDP per capita in 2015" and, in the same year, "a mere 52 percent of the DRC's population had access to clean water, while Africa's average was 76 percent."10 The massive disparity between the nation's wealth as measured by mineral deposits and the economic status of its citizens begs a closer examination of the power structures that keep this disparity in place.

By way of an introductory illustration of the scope of resource corruption surrounding coltan in the DRC, a 2002 UN Security Council Panel of Experts found that 60 to 70 percent of coltan had "been mined under the direct surveillance of [Rwandan Patriotic Army] mining detaches. …

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