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The growing dynamism in the demand for raw materials and natural resources resulting from pressures exerted by dominant market economies has been on a dramatic increase.1 While this may look like a global phenomenon, Africa appears to bear the pressure a bit more disproportionately compared to other regions of the world. Despite the series of international treaties, resolutions and declarations that recognise and protect a peoplesā permanent sovereignty over their natural resources, the race for Africaās resources, dating several centuries back remains unprecedented.2 Africa is indeed, abundantly endowed with an avalanche of natural resources, which in spite of the rate at which they are abusively exploited, more and more continue to be discovered in increasing quantities. As the principal drivers to economic growth and development, Africa should by virtue of its natural resource endowments, stand out prominently as a development hub in the world but unfortunately, the natural resources extracted from the continent have largely only been shipped abroad to fuel the pace of economic growth and technological advancement in more developed and industrialised parts of the world, leaving the peoples on the continent (unfortunately) only with a long-term aspiration to ā[t]ransform, grow and industrialise our economies through beneficiation and value addition of natural resourcesā by 2063.3
In the broadcast of the programme Africa Debate on 15 October 2012, the British Broadcasting Corporation noted that
[w]hether Africa will ever benefit from its natural resources is a question that is more relevant now than ever, as new discoveries of coal, oil and gas across East Africa look set to transform global energy markets andāpeople hopeāthe economies of those countries.4
Although the academic literature and other commentaries on the relevance and need to more productively rationalise Africaās natural resources continue to grow, policy direction appears glaringly lacking. With illustrations from countries in Latin America where the exploitation of natural resources has had a positive impact on development in the long term, Jeffrey Sachs and Andrew Warner write that āIf low-income equilibrium traps are important in economic developmentāso that a big push is necessary for developmentāthen natural resource booms can be potentially important catalysts for growth and developmentā.5 Envisaging the abundance of natural resources to accelerate development in Africa, the reversal of it creates a scenario that remains unideal with regard to the extremely low standards of living that the populations are subjected to. In order that natural resources effectively contribute to the realisation of the right to development on the continent of Africa, the scenario demands more comprehensive ways of shifting the dynamics. The question is how?
Natural resource sovereignty and the right to development under international law
The law provides an interesting angle to redressing the natural resource and right to development dilemma in Africa which, shifting from the controversies that have shaped the debates on the subjects; both need to be explored more in-depth as the chapters in this book provide direction to. Sovereignty over natural resources as it is sanctioned by law for the achievement of human rights in general and the right to development in particular, cannot be over emphasised. This has been acknowledged over the years by the international community, which has put in place a robust legal normative framework on the right to self-determination and permanent sovereignty over natural resources and anevolving framework on the right to development. Sovereignty over natural resources is principally defined by United Nations (UN) General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources adopted on 14 December 1962, which though not legally binding, provides a solid basis for absolute autonomy in asserting natural resource ownership rights, which should be exercised in the interest of national development and of the well-being of the peoples concerned. Sovereignty over natural resources is also codified in the twin covenants on human rights, which guarantee that all peoples may freely dispose of their natural resources, which they may in no instance be deprived of, considering that the resources constitute a means of subsistence and thus, forbid the interpretation of any provision in the covenants as impairing the right to utilise and enjoy the benefits obtained from the exploitation of natural resources.6
These provisions cascade down to regional human rights instruments. For instance, the principle of permanent sovereignty over natural resources is infused in article 21 of the American Convention on Human Rights under the right to property as vindicated in the Mayagna (Sumo) Awas Tingni Community v Nicaragua case.7 In Africa, āthe right to free disposal of wealth and natural resourcesā is unambiguously enshrined in article 21 and reiterated in article 22 of the African Charter as interconnected to the enjoyment of the right to development.8 On the basis of these provisions, both rights have concurrently been recognised in case law (discussed in some of the chapters) wherein, the African Commission9 and the African Court on Human and Peoplesā Rights found the defendant states in contravention of the substantive rights or of the obligation to protect the interest of the peoples involved.10 The direct connection between the right to natural resources and the right to development is contained in the UN Declaration on the Right to Development, formulated in these terms:
The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.11
This is to say that to deprive a people of their natural resources would amount to a violation of their right to development. Therefore, achieving the right to development requires a sustainable governance of and management of natural resources, entailing as Nicolaas Schrijver posits, āimposing accountability at the national and international levelsā12 to ensure that the exploitation of natural resources effectively translate into the enjoyment of the right to development. As Schrijver further observes, ā[t]he challenge is how to inject these established principles of self-determination of peoples and sovereignty over natural wealth and resources into the basic tenets of the right to developmentā.13
Conceptual framing
The discourses in this book are based on the interconnected conceptual framing of the international law principle of permanent sovereignty over natural resources and the concept of the right to development, which are both envisioned to equip the peoples in developing countries, particularly in Africa against dominant political stakeholders and the exploitative practices of the extractive industry. The right to development, which incorporates the right to self-determination and permanent sovereignty over natural wealth and resources is understood universally as a composite entitlement that provides the framework for the realisation of all other human rights; requiring every human person and all peoples to participate in, contribute to and equitably benefit from the processes of socio-economic and cultural as well as political development.14 It implies the right to own, control and utilise natural resources not only for purposes of economic growth or technological advancement but importantly, as situational exigencies may necessitate, for survival, well-being and livelihood sustainability. It is stated in common article 1(2) of the international covenants on human rights and in article 21(1) of the African Charter that all peoples may, for their own purposes, freely dispose of their natural resources, conceived as a means of subsistence, which they may not be deprived of.15
While in the context within which the book is written, some of the chapters focus on particular resources, natural resources are conceived herein, in the broadest sense as comprising of the lands, minerals, gas and fossil fuels, fauna and flora and aquatic resources among others, which are recognised as a collective entitlement belonging to the peoples of Africa and envisaged to facilitate realisation of their right to development. Use of the description ācommon heritageā in the African Charter denotes the fact that natural resources are a collective possession, which must be shared equitably to the exclusive collective benefit all of the peoples on the continent. Although the pressure on natural resources in Africa also emanates from an ever-increasing population and the failing resilience to confront environmental hazards and climate risk factors, this book overlooks these natural phenomena and focuses on the human-induced factors that dispossess the peoples of Africa of the right to sovereignty over their natural resources as a means to achieve the right to development.
Literature on the principle of permanent sovereignty over natural resources is inexhaustive, and although characterised by an unsettled polarised debate on whether sovereignty pertains to peoples or to states, is fundamentally undergirded by the universal guarantee that every state is obligated to exercise absolute legitimate control over its natural resources to the ultimate exclusive benefit of their peoples.16 Indeed, international law has evolved in this direction to recognise a number of substantive and procedural rights for local communities and indigenous peoples, including ownership rights over their natural resources; the right to participate in decision-making and to free prior informed consent and the sharing of benefits arising from the commercial exploitation and extraction of the natural resources on their territories.
As opposed to economic growth models that promote the exploitation of natural resources on an unfettered scale, often without consideration of the adverse impact on human livelihood and sustenance, the contributions in this book explore from a rights-based point of view with emphasises on the human aspects of development and hence, peoplesā sovereign ownership rights over their natural resources as a determining factor for the attainment of development objectives. It is of essence for the purpose of clarity, to highlight that the right to permanent sovereignty over natural resources is by nature, just like the derivative right to self-determination and the right to development, recognised fundamentally as a collective entitlement. Seen in this light, the book is centred on the overarching argument that sovereignty over natural resources pertains to peoples as a collective and therefore, they are entitled to reap exclusive benefits from the free disposal or exploitation of the resources.
The interconnectedness between natural resource sovereignty and the right to development as it is articulated in this book, is to the effect that their combined realisation should culminate into improved standards of living, where the benefits obtained from the development process are shared equitably and all human rights are fulfilled in the process. While Africa is yet to demonstrate genuine commitment to the right to development, with regard to natural resource sovereignty, the prevailing trend across the continent is that natural resources are not only exploited almost on a gratis basis without commensurate benefit to local populations, but in most instances, the latter are forcibly displaced and their livelihoods disrupted. The arguments advanced in this regard are to the effect that a reversal of the trend is envisaged to significantly transform the development landscape on the continent.
Approach and scope of the book
Taking a shift away from the controversy over the conceptual nature of the right to development and the discourse that portrays the overabundance of natural resources in Africa as a curse, this book adopts a pragmatic approach in exploring the nexus between the international law principle of permanent sovereignty over natural resources and the concept of the right to development, which are both envisioned to equip the peoples in developing countries, particularly in Africa against dominant political stakeholders and the exploitative practices of the extractive industry and thus, guarantee sustainable socio-economic and cultural development. These are the thought patterns that formed the core of the discussions at the 3rd International Conference on the Right to Development hosted by the University of the Free State in Bloemfontein, South Africa from 25 to 27 September 2019 under the auspices of the Free State Centre for Human Rights, University of the Free State; Centre for Human Rights, University of Pretoria and Thabo Mbeki African Leadership Institute (now Thabo Mbeki African School of Public and International Affairs) and the University of South Africa on the theme āNatural Resources Ownership and the Right to Development in Africaā. The chapters in this book were selected from the papers presented at the conference and rigorously peer reviewed.
While three of the contributions are based on empirical findings, the rest are more analytical in approach wherein, the reading of legal texts, cases and related literature are comprehensively juxtaposed to illustrate how entitlement to natural resource sovereignty could contribute to actualising the right to development in Africa. The purpose of accentuating the law and the legal dimensions to natural resource sovereignty and the right to development are to the effect that when the law is contravened, remedy could be sought and indeed, as the African jurisprudence illustrates, has happened in a couple of instances with positive rulings in favour of dispossessed communities. Even as the central theme is anchored on the law, the limits of law in redressing the political questions relating to natural resource sovereignty and sustainable development is acknowledged, which is reflected in the bookās multidisciplinary blend with chapter contributions from authors with diverse academic inclinations and thus, is intended to serve a broad academic audience among others who may equally find the book resourceful.
While the book zooms in on Africa as a whole, specific cases and illustrations are drawn from Nigeria, Angola, South Sudan, South Africa, Kenya, Ghana, the Democratic Republic of Congo (DRC), Ethiopia, Zanzibar, The Gambia, Botswana, Uganda and Zimbabwe. Greater attention is also directed more at indigenous peoples, discussed in some of the chapters, rather than on other groups of peoples in Africa. The contributions in Part 1 and Part 2 are mainly theoretical, based on interpretations of relevant texts of the law, policies, jurisprudence and related literature and commentaries. Three of the contributions in Part 3 are empirical in natureāinvolving case studies of specific communities in Addis Ababa in Ethiopia; Kenyasi No 2 in Ghana and Mutasa District in Zimbabwe. The three other chapters in Part 3 are more socio-legal in the analysis relating to benefit sharing in communities hosting mining operations in the DRC and South Africa.
Overview of the chapters
The book is divided into three main parts. The first part explores the normative considerations on ownership rights over natural resources and the right to development in Africa. It combines a reading of the law with theoretical reasoning and practical understanding of the entitlement to natural resource sovereignty and the right to development. The second part delves into more technical the matic issues relating to natural resource sovereignty guaranteed to the peoples of Africa, which however, is impacted by the rush for the resources located in their communities. Part 3 looks at specific case studies on collective benefit sharing of natural resources in sustaining the right to development.
