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Popular sovereignty over natural resources: A critical reappraisal of Leif Wenar’s Blood Oil from the perspective of international law and justice

Published online by Cambridge University Press:  11 June 2018

PETRA GÜMPLOVÁ
PETRA GÜMPLOVÁ*
Affiliation:
Max-Weber-Kolleg für kultur- und sozialwissenschaftliche Studien, Universität Erfurt, Postfach 900221, 99105Erfurt, Germany
*
†Email: [email protected]
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Abstract:

The article discusses the concept of popular sovereignty over natural resources and its possible applicability to a broader account of natural resource justice based on a moral interpretation of international law. Leif Wenar’s recent proposal to entrench popular resource sovereignty as a counterclaim to illegitimate uses of natural resources by corrupt and authoritarian regimes serves as the starting point for the discussion of the possible meaning of popular resource sovereignty and its role in an account of natural resource justice. Three key aspects of Wenar’s conception are in focus: 1) the framing of popular resource sovereignty within the current system of sovereign territoriality, 2) the notion of collective ownership of natural resources as the content of popular resource sovereignty, and 3) civil and political rights as the key set of norms determining the conditions of legitimate exercise of resource sovereignty. The article argues that collective sovereignty claims over natural resources can neither be framed exclusively through boundaries of current sovereign states, nor understood in terms of full and unlimited property rights. Concerning civil and political rights, I argue we need to move past the liberal conception of legitimacy toward a more comprehensive human rights-based conception of justice serving as a standard for assessment of legitimacy of both sovereign and non-sovereign entities which have rights over natural resources.

Keywords

popular sovereigntyhuman rightsnatural resourcesself-determinationownership and property
Type
Research Article
Information
Global Constitutionalism , Volume 7 , Issue 2 , July 2018 , pp. 173 - 203
Copyright
Copyright © Cambridge University Press 2018 

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Footnotes

*

This article was written while I was a Fellow at Käte Hamburger Kolleg/Centre for Global Cooperation Research, University Duisburg-Essen and I thank the Centre for the generous support.

References

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3 By ‘practice-dependence’ I mean a methodological tenet of normative theorising which suggests we take existing institutions as a starting point for moral analysis. See Sangiovanni, A, ‘Justice and the Priority of Politics to Morality’ (2007) 16(2) The Journal of Political Philosophy 137.CrossRefGoogle Scholar

4 See (n 1) 210–17.

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15 These include The Declaration on the Granting of Independence to Colonial Countries and Peoples, The Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, and both human rights Covenants.

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25 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295, 46 ILM 1013 (13 September 2007). Available at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>..>Google Scholar

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27 See (n 1) 203.

28 See (n 1) 203–4.

29 See (n 1) 202–3, 206.

30 The Declaration on Permanent Sovereignty recognises that it is ‘the inalienable right of all states to freely dispose of their natural wealth and resources’ in the preamble and that ‘the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people of the State concerned’ in the first article. Permanent Sovereignty over Natural Resources, GA Res 1803 UN Doc A/5217 (14 December 1962). Available at <http://www.ohchr.org/Documents/ProfessionalInterest/resources.pdf>.

31 This distinction can be considered akin to the distinction between legal ownership and beneficial ownership known in common trust law. In common law of trust, the legal owner is not the true owner of the property and holds the legal title for the beneficial owner who is the ‘real’ property owner entitled to receive benefits from the property and make decisions with respect to all aspects of the property.

32 See (n 10) 260–305.

33 Art 26 of UNDRIP states that ‘indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’ and that ‘indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use’. The United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 UN Doc A/RES/61/295, 46 ILM 1013 (13 September 2007) available at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>. Relying on the art 21 of the American Convention on Human Rights (which establishes a right to use and enjoy property), the Inter-American Court of Human Rights has in its several decisions recognised that indigenous communities have the right to ownership of natural resources within their territories. For an overview, see (n 26) 523–6.

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36 For the most recent argument against framing resource rights within the current system of sovereign territoriality and on the basis of claims to self-determination, see Armstrong, C, Justice and Natural Resources (Oxford University Press, New York, NY, 2017) 132–49.CrossRefGoogle Scholar Armstrong argues that sovereign territoriality as a way of framing of rights to natural resources undermines the egalitarian distribution of benefits and burdens flowing from natural resources.

37 John Christman called it ‘private liberal ownership’ or ‘sovereignty model of ownership’. Christman, J, The Myth of Property: Toward an Egalitarian Theory of Ownership (Oxford University Press, New York, NY, 1994) 7.Google Scholar

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39 The colonial system of foreign investment had in essence been a system of non-reciprocal, ex-territorial rights and privileges granted to ‘investors’ who made natural resources private property and required that they and their property would remain under the jurisdiction of their home state. See (n 10) 174.

40 See (n 10) 263.

41 Constitutions with these provisions include Angola, Vietnam, Iraq and many more. See (n 1) 194.

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49 In a similar vein, Cassese argued that the internal self-determination is best explained as a manifestation of the totality of rights embodied in the Human Rights Covenants, with particular emphasis being given to the freedom of expression, the right to peaceful assembly, freedom of association, the right to vote, and the right to take part in the conduct of public affairs. See (n 13) 15.

50 Reus-Smit argues that the reinvention of the right to self-determination and its anticolonial normative foundations occurred in the context of the negotiation about human rights Covenants in the Commission on Human Rights. See (n 12) 169–70, 187. Samuel Moyn, on the other hand, insisted that decolonisation was not a struggle for individual rights. Moyn, S, The Last Utopia (Belknap Press, Cambridge, MA, 2010) 85–9.Google Scholar

51 Art 1 of Pt I of both Covenant states that ‘all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development’. Furthermore, ‘all peoples may, for their own ends, freely dispose of their natural wealth and resources …’ International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> and <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>.

52 On the connection between self-determination, human rights, and rights to natural resources, see Gümplová, P, ‘Rights to Natural Resources and Human Rights’ in Oksanen, M, Dodsworth, A and O’Doherty, S (eds), Environmental Human Rights: A Political Theory Perspective (Routledge, Abingdon, 2017) 85–104.CrossRefGoogle Scholar

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55 According to Buchanan, unlike moral rights, legal rights involve mechanisms of interpretation, compliance, and enforcement. See (n 53) 7–9.

56 See (n 1) 225–33.

57 Buchanan argued that consent is ill-suited to the political world not only because there are no existing entities that enjoy consent of most of their citizens, but also because politics is concerned with how to get along when consent is lacking. See (n 7) 243.

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