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Natural Resources and Armed Conflicts under International Law: Rationalizing a Heterogenous Legal Framework

Final Report Summary - NATRESACIL (Natural Resources and Armed Conflicts under International Law: Rationalizing a Heterogenous Legal Framework)

Building upon the results of the current political debate on resource conflicts, the project NATRESACIL addressed the main international rules regulating the linkage between natural resources and armed conflicts. A first objective was to identify the antinomies and understand the interaction between the relevant legal regimes. Another objective lay in applying a coherent set of interpretive and systemic tools with the aim of reducing fragmentation and inconsistencies. Finally, the Project aimed at highlighting possible legal solutions to the problem, assessing whether international law and international institutions are capable of addressing the phenomenon.
The analysis started from the assumption that the logic of violent confrontation over natural resources between human groups, be they organised in an entity called State or not, is often similar. International conflicts may be motivated by the decision of a State to gain control, directly or indirectly, over the natural resources of another State. In civil wars, political groups within the State may have recourse to violence to bring about a regime change and control natural resources. Secessionist groups may be induced to initiate a conflict by the fact that valuable natural resources are predominantly located in a certain region. In addition, natural resources are a determinant factor in the duration of conflicts as they can be traded for weapons and the economic needs of the warring parties.
Despite the fact that resource conflicts can be seen as a unitary phenomenon, the legal regimes for international and non-international conflicts are significantly different. Sovereignty may still function as an ‘iron cage’ for issues related to the allocation of natural resources and the legal dichotomy international/non-international conflicts results in treating similar situations differently. Such diversified legal framework may arguably influence the behaviour of the parties to the conflict and of third States.
The main results of the project can be summarised as follows. At the inter-state level, international law radically prohibits wars of depredation, which are clearly covered by the prohibition of the use of force in international relations. Along the same lines, transformative conflicts over natural resources are also prohibited. The continuous debate on the scope of the prohibition of the use of force has never even approached the issue of the legality of forcible interventions aimed at subverting the economic order of a foreign country. Land/boundary conflicts over natural resources are a common phenomenon in international relations. However, international law provides for a number of flexible tools to address this typology of conflicts. If sovereignty sets the default rule for resource allocation, it is worth remembering that such rule is negotiable. States continuously negotiate the scope of their jurisdiction over natural resources through agreements on transboundary resources or joint development agreements. In other cases they resort to arbitration or to judicial bodies to settle territorial and boundary disputes that are clearly related to natural resources.
Conversely, the law of non-international resource conflicts is underdeveloped and patchy. The rules focus on the position of third parties, preventing them from financing the conflict through the acquisition of natural resources. As to this, a significant result of the present Project regards the study of the possible existence of a duty of vigilance for States on the activities of transnational corporations. In some limited cases, for behaviors of extreme gravity, such as the financing of the subversion of a government, it can be argued that the State of incorporation has a duty of vigilance on the activities of private individuals and corporations. The relevant cases that were examined include the attempted secession of Katanga (1960), the coup d’état attempt in Equatorial Guinea (2004), and the occupation of the Democratic Republic of the Congo by Uganda and Rwanda during the Second Congo War (1998-2003).
Another example of the asymmetry between international resource conflicts and non-international resource conflicts is related to the law of belligerent occupation. Indeed, the law of occupation represents an anomaly in the legal framework, as it attributes to a State a number of rights of exploitation of the natural resources of a given territory irrespective of sovereignty. However, such legal regime is inherently related to international conflicts and is not applicable to non-international conflicts. The study of occupations, which was carried out mainly with reference to the occupation of Iraq after the 2003 invasion and to the situation of the Occupied Palestinian Territory, was complemented by an assessment of the legal regime regulating unlawful territorial situations. In such cases, States tend surreptitiously to merge the evaluation of the legality of their use of armed force under the jus ad bellum, with the legal qualification of their subsequent behavior under the jus in bello. In this respect, the Researcher came to the conclusion that the main prospects for the enforcement of the legal framework are dependent upon the behavior of third parties and, specifically, on the duty of non-recognition of unlawful territorial situations. Under article 41(2) of the ILC Articles on State responsibility, States are under a duty of non-recognition of de facto territorial situations originating from serious breaches of peremptory norms, such as an aggression or a violation of the principle of self-determination. A number of cases, such as, for instance, the refusal of some States to entertain any dealings with Morocco with respect to Western Sahara, or the refusal of some other States to treat the goods originating in the Israeli settlements in the West Bank as ‘made in Israel’, seem to demonstrate that an emerging customary norm prohibits, subject to a humanitarian exception, any economic dealings with the unlawful occupier. However, one should consider that such rule is exclusively applicable to inter-state relations and that the activities of exploration and exploitation of natural resources are seldom implemented directly by States. States generally create the legal framework for activities of exploitation that are carried out by private juridical persons.
In recent times the linkage between natural resources and armed conflicts has aroused the interest of civil society and the issue has thus been put on the agenda of international organizations. Besides some initiatives at the regional level, the organization that has taken a lead role is the United Nations, where the issue has been addressed by almost all of its principal organs. The General Assembly and the Security Council have acknowledged the problem in open debates and in resolutions, endorsing civil society initiatives such as the Kimberley Process for the certification of ‘conflict diamonds’ and the Extractive Industry Transparency Initiative (EITI) on the transparency of payments from natural resources.
The Security Council has taken operational measures of three typologies: a) it has adopted commodity sanctions and targeted sanctions aimed at breaking the link between armed conflicts and natural resources; b) it has incorporated tasks related to natural resources in the mandate of peacekeeping operations; c) it has established panels of experts, which have disclosed the names of private enterprises, governments and individuals allegedly involved in the ‘illegal exploitation of natural resources’.
The most significant measures adopted by the Security Council are commodity sanctions on natural resources and sanctions targeting individuals and groups involved in the exploitation of natural resources in the context of armed conflicts. In the cases of Angola, Liberia, Sierra Leone, Côte d’Ivoire, and Cambodia the Council imposed bans on trade in resources such as rough diamonds, timber, and oil. In the case of the DRC, while not adopting specific sanctions on natural resources, the Security Council imposed targeted measures on individuals and groups involved in the trafficking of natural resources.
The Security Council has frequently intervened in internationalized civil wars, qualifying such conflicts as threats to the peace and acknowledging the role of natural resources in fuelling them. However, sanctions over natural resources often seem to target only one of the parties in the war, which is identified as the main obstacle to the peace (see, for instance, the cases of Angola, Sierra Leone and Côte d’Ivoire).
In conclusion, it is here submitted that, although multifaceted in nature, the linkage between natural resources and armed conflicts should be addressed as a unitary phenomenon. The double standards in the legal framework and the objectives of the standard setting and the operational activities should be made explicit from the beginning. Rather than addressing the incendiary role of natural resources neutrally with a view to bringing resource conflicts quickly to an end, initiatives such as the Kimberley process and the commodity sanctions adopted by the Security Council reveal a certain degree of State bias. Such measures are designed to counter the financing of rebels through natural resources rather than to address the linkage between natural resources neutrally. Sanctions are employed to deprive one of the parties of the means to sustain the war effort, but not necessarily as a tool to bring the conflict quickly to an end.
In the light of the outcome of the present project, it is submitted that the main challenges for the achievement of an effective regulation of resource conflicts under international law are:
- The development of a predictable legal regime for the exploitation of natural resources in territories controlled by insurgents in civil wars;
- The revision of the definition of ‘conflict diamonds’ in the Kimberley process so as to include diamonds that finance governments responsible of gross violations of human rights;
- The introduction within the debates at the Security Council and in the wider discourse at the United Nations of the distinction between measures aimed at countering the nexus natural resources/armed conflicts and measures aimed at preventing the financing of insurgents through natural resources;
- The consolidation of the scope of the duty of vigilance of States over extreme forms of participation of transnational corporations in resource conflicts;
- The adoption of measures favouring the conclusion of joint development agreements and recourse to international arbitration and adjudication in the case of inter-state disputes over natural resources;
- The consolidation of the scope of the obligation not to recognize unlawful territorial situations and of its effects on natural resources.
In general terms, the double standards in the legal framework should be openly acknowledged with a view to assessing whether they are the unintended consequences of genuine loopholes or rather the effect of a choice of the actors. The objectives of the standards setting activities, the initiatives of civil society and the operational measures of the Security Council should be assessed in the light of their possible effect on the linkage between natural resources and armed conflicts. The awareness of the origin of the legal framework, of the objectives pursued and of the possible consequences is a necessary precondition for any proposals de lege ferenda. In this respect, the outcome of the present project is of particular interest to academics, civil society (members of NGOs, managers of the extractive industry), practitioners (employees of intergovernmental organizations, diplomats) and, in general, any student of the causes of conflicts and their legal regime.