Part VI Emerging Areas?, Ch.50 The Changing Environment and Emerging Resource Conflicts
Edited By: Marc Weller
- Armed conflict, non-international — Self-defence — Armed conflict, international — Coastal states — UN Charter
The existence of a relationship between the environment and conflicts may seem intuitive. Indeed, ‘environment’ and ‘conflicts’ are so loosely defined concepts that merely acknowledging some form of interaction between them risks being considered as a truism. Suffice it to note that the environment is our ‘living space’,1 the stage on which every form of human relationship—and conflicts are no exception—takes place. It is no wonder that a phenomenon can be influenced by the context in which it occurs. The debate on ‘resource conflicts’, however, has long gone beyond the observation that conflicts are context-related. Starting from the end of (p. 1078) the 1980s, several authors have dissected the relationship between the environment and conflicts.2 Political scientists and economists have led the debate whereas legal scholars have stood on the sidelines.3
Within the debate on the aetiology of conflicts, the environment has been mainly investigated with reference to the cognate concept of ‘natural resources’, the components of the environment that are perceived as having economic value. A number of studies have highlighted how natural resources, such as water, hydrocarbons, and diamonds, may influence the origin and the development of conflicts.4 For reasons probably related to the numerical preponderance of non-international armed conflicts, attention has focused on armed conflicts occurring within states, that is, civil wars. Conversely, the linkage between natural resources and interstate conflicts has been overlooked.
The theoretical underpinnings of the debate are based on common sense. The observation of reality seems to reveal that countries that are rich in natural resources suffer from instability and underdevelopment. The reasons for the existence of an inverse relationship between the availability of natural resources and the degree of economic development have been questioned by authors, who have investigated the paradox of the ‘resource curse’ question.5 A recent stream of literature points out that the scarcity of natural resources is exacerbated by the fact that the environment itself is changing.6 Climate change is perceived as a factor amplifying the problem of resource scarcity and favouring the occurrence of conflicts over natural resources. Within this context, the assumption is made that the confrontation between human groups to gain control over natural resources may be based either on greed or on grievances generated by questions of allocation, revenue-sharing, and negative externalities.7 However, one of the main acquisitions of the contemporary debate on resource conflicts is that monocausal theories on the origin of conflicts have been generally abandoned. The idea that natural resources can be the exclusive cause of (p. 1079) a conflict is rejected in favour of more elaborated theories. Rather than merely being considered as a cause of conflicts, natural resources are also regarded as an essential element for their continuation.
Against this background, the objective of this chapter is to describe some of the international rules having a bearing on the relationship between natural resources and conflicts. Attention will be paid to the rules pertaining to the jus ad bellum. Resource conflicts will thus be primarily assessed in their interstate dimension, with reference to the legal framework for the use of force in international relations. It will be considered, however, that resource conflicts that can be classified as civil wars have a strong tendency to become internationalized and have been addressed by the UN Security Council.
The linkage between natural resources and interstate conflicts is more than evident in practice. Although the significance of the issue has been overlooked in the literature, in a number of interstate conflicts the declarations of state authorities reveal a significant inflammatory role for natural resources. The words and the behaviour of the main actors demonstrate that natural resources have been a determinant of the decision to wage war and/or an important factor in the persistence of the conflict. Some examples are the Iran–Iraq war over the Shatt-al-Arab,8 the war between Libya and Chad over the Aouzou Strip,9 the Iraq invasion and occupation of Kuwait,10 the (p. 1080) Anglo-Australian-US invasion of Iraq in 2003,11 the ongoing border conflict between Sudan and South Sudan,12 the intervention of Uganda, Burundi, and Rwanda in the civil war in the Democratic Republic of the Congo (DRC),13 and the Christmas war between Burkina Faso and Mali over the Agacher Strip.14 There is an abundance of other possible examples.
Due to climate change and technological innovations, the unprecedented accessibility of natural resources in the Arctic has generated a race to the militarization of the region.15 Tensions on sovereignty over the Falkland Islands have resurfaced when the British administration of the Islands has awarded concessions for the exploitation of offshore oil fields to private contractors.16
Besides traditional interstate conflicts, some of the conflicts related to decolonization, such as the Moroccan occupation of Western Sahara,17 the Angolan civil war,18(p. 1081) and the South African ‘border conflict’19 were, and in the first case are, intertwined with the struggle to gain control over natural resources. Assessing how the law on the use of force interacts with this typology of conflicts is thus a significant legal issue. Before doing so, some preliminary remarks on the allocation of natural resources under international law are in order.
When approaching the international legal regulation of resource conflicts it is worth remembering that, whereas the phenomenon of armed conflicts is thoroughly regulated, natural resources are not the object of a coherent legal regime. Traditionally, the exclusive function of international law with regard to natural resources lies in regulating their allocation among states through the medium of territorial sovereignty. As indirectly demonstrated by a consistent practice on transboundary agreements, the allocation of natural resources is regulated by territorial sovereignty and by the existence of a title to territory or to the maritime zone in which the resources are located.20 This is confirmed by the UN General Assembly resolutions that have proclaimed the existence of the principle of Permanent Sovereignty over Natural Resources (PSNR). These resolutions clarify beyond doubt that sovereignty over natural resources is both a right of peoples and a prerogative of states: it is not only a corollary of self-determination, but also an essential component of state sovereignty.21
As a matter of fact, natural resources are part of the territory of a state in several cases. Territory itself, if conceived of as a physical entity—as land—is a natural resource. Even when natural resources are not strictly territorial, states may extend a claim over them by virtue of their relationship with territory. Coastal states may claim natural resources within the exclusive economic zone (EEZ) or on their continental shelf, but such claim is linked to a legal relationship with territory, a portion of the lands above the sea.22 An exception to this default rule on the allocation of (p. 1082) natural resources concerns the areas of the globe that are not subject to the jurisdiction of any state such as the high seas and the Antarctic region. In principle, natural resources located therein are freely appropriable.
As a consequence of this legal framework, when states entertain cooperative or conflictual relations with respect to natural resources, when they enter into economic dealings or wage war over natural resources, they do so on the assumption that the state, which has title to territory or to a maritime zone, also has title to the resources therein. It is no wonder that in a number of the boundary disputes referred to the International Court of Justice (ICJ) or to arbitrations the issue at stake is control over natural resources.23 Under international law territorial and boundary disputes tend to subsume disputes over natural resources. Conflicts over territory and issues of delimitation are the most typical example of international resource conflicts.
The law on the use of force in international relations does not take natural resources directly into consideration. Nonetheless, some of the very pillars of the legal framework, such as the prohibition of the use of force, the prohibition of aggression, and the prohibition of annexation, have a significant territorial dimension that can be relevant for resource conflicts.
Article 2(4) of the UN Charter specifies that the territorial integrity of member states, along with their political independence, is the value to be preserved from the use of force in interstate relations. In the light of the text and the drafting history of this provision, territorial integrity can be read as ‘territorial inviolability’: an absolute prohibition of any unauthorized intervention in the territory of a state.24 Furthermore, the definition of aggression approved by the General Assembly clarifies that the occupation of foreign territory is a prominent example of aggression.25
(p. 1083) Apart from the traditional exceptions of self-defence26 and Security Council authorization,27 there is no legal justification for the forcible occupation of foreign territory. Territory may be occupied during an action in self-defence to repel an armed attack. The lawfulness of the occupation under the jus ad bellum will then be tested against the requirements of the occurrence of an armed attack, proportionality, and necessity.28 Territory may also be occupied during an enforcement action authorized by the Security Council. The lawfulness of the occupation will then be assessed in the light of the mandate expressed by the relevant Security Council resolutions. In any case, the de facto situation created by the occupation does not establish a title to foreign territory. The General Assembly Declaration on Friendly Relations mirrors a customary rule: ‘No territorial acquisition resulting from the threat or use of force shall be recognized as legal’.29 The use of the future tense clarifies that conquest may not be cured by unilateral annexation.30 This is so not only when a unilateral proclamation of sovereignty (annexation) perpetuates the infringement of the territorial integrity of another state and the unlawfulness of the previous use force. In this respect, the principle of self-determination constitutes an additional parameter of legality. It postulates that even in cases of lawful use of force and in cases of debellatio, territories may not be conquered against the will of the people.31
The legal framework is completed by the principle of PSNR. The essential content of the principle, even if vague, coincides with the ‘prerogative of peoples to (p. 1084) determine how their resources will be developed, used, preserved and the “inalienable” right of each State to full exercise of authority over its natural wealth with the correlative right to dispose of its resources fully and freely’.32 In the light of the text of the codifications of the principle and of the practice of the UN Security Council, it may be argued that the principle of PSNR covers not only situations related to the process of decolonization, but also interstate conflicts where the use of force is aimed at or may result in appropriating the resources of a foreign country.33
It should, however, be remembered that the acquisition of physical control over foreign territory and natural resources is not the only strategic option for states. Inducing a regime change and the liberalization of investments in a foreign state and/or in an occupied territory is an alternative course of action. After the initial use of force at the interstate level—formally justified with reference to the traditional exceptions—the acquisition of control over natural resources may be the result of the action of private juridical persons in a reformed internal legal order.34 A similar scenario occurs when the intervention of foreign states in a civil war is aimed at subverting the government to induce the liberalization of the legal order of the targeted state. Such conduct is at odds with the principle of non-intervention, the principle of self-determination, and (when applicable) the law of occupation, but the enforcement of the relevant rules is problematic.
In this respect, the occupation of Iraq by a coalition of states, after the 2003 invasion, prompted some debate on whether the reform of the economic order and the legal regime of foreign investments of the occupied territory had been authorized by the Security Council, possibly setting aside the obligation to respect the laws in force in the occupied territory and the principle of economic self-determination.35(p. 1085) The view may be taken that the ambiguous language of the relevant Security Council resolutions, which however made reference to the principle of self-determination and to PSNR, did not authorize the adoption of sweeping economic reforms.36 Moreover, it may be argued that the power to impose the adoption of a specific economic order on a people is scarcely compatible with the attributions of the Security Council under the UN Charter, which are essentially related to the maintenance of peace and security.
D. The Exploitation of Natural Resources in Occupied Territories: The Interaction Between Jus ad Bellum and Jus in Bello
When the use of force at the interstate level results in the de facto control of foreign territory, the law of occupation, a branch of the jus in bello, grants to the occupying power some limited powers of exploitation of natural resources.37 However, the law of occupation does not transfer any sovereign rights to the occupier. Pending a final determination of the status of the territory at the end of the conflict, the latter is merely required to administer the territory on a temporary basis and to respect—unless prevented—the laws in force in the country.
In such legal framework, natural resources can be inscribed in the categories of property protected by the Hague Regulations. When they qualify as ‘public immovable property’—arguably the majority of cases—the occupying power will exercise the limited powers of the ‘administrator and usufructuary’.38 Even more restrictive is the regulation of natural resources classified as private property. An absolute prohibition of confiscation39 is complemented by the prohibition of pillage,40 by specific provisions on requisitions in kinds and services,41 and on the seizure of munitions of war.42 For all of the typologies of property, the exploitation of natural resources in (p. 1086) occupied territories is subject to limitations related to the purpose of such activities. A systemic interpretation of the Hague Regulations demonstrates that the exploitation of natural resources in occupied territories is acceptable only for the following purposes: defraying the costs of the occupation, benefiting the population of the occupied territory, and ensuring the security of the occupying power.43 The prohibition of exploiting the resources of the occupied territory to sustain the general war effort or for the benefit of the occupying power is well established.44 In this perspective, the jus in bello mirrors the unlawfulness of wars of conquest and depredation.
It is important to note that the law of occupation does not interfere with the jus ad bellum qualification of the legality of an occupation. As a consequence of the principle of equal applicability of international humanitarian law, jus ad bellum and jus in bello are conceived of as two separate parameters of legality that do not interact with each other. If an occupation of foreign territory amounts to aggression under the jus ad bellum, the law of occupation does not influence such qualification. Conversely, the law of occupation attributes to the aggressor the same rights and duties of a state that is occupying a territory in self-defence. When it comes to the exploitation of natural resources, as an effect of such separateness of these two bodies of law, it may well be the case that the activities of the occupying power, albeit in compliance with the law of occupation, constitute nonetheless a breach of the jus ad bellum as they take place in a war of aggression.45 At the end of the conflict, the aggressor will have to provide reparations also for the exploitation or the depletion of natural resources carried out in compliance with the law of occupation.46
This is, however, a rather theoretical point. With the exception of the Israeli occupation of the Palestinian territory and of the multinational occupation of Iraq after the invasion of 2003, the law of occupation has rarely been applied before the end (p. 1087) of the conflict as the intervening states tend to adopt alternative legal qualifications. They would claim that they are restoring their sovereignty on a territory that originally belonged to them or they would maintain that they are supporting a national liberation movement and then install a puppet government in the occupied territory. Albeit weak, these legal arguments imply a total rejection of the applicability of the law of occupation. When confronted with a strong stance of the intervening state on arguments of jus ad bellum, the law of occupation becomes practically irrelevant during the conflict and tends to resurface afterwards as law of individual and state responsibility. The logical consequence of these approaches is that the aggressor or the puppet government will claim the full prerogatives of sovereignty over the natural resources located in the territory. For natural resources, the most delicate phase of an interstate conflict is when an unlawful territorial situation consolidates itself. In such a situation, the prospects of enforcement of the relevant norms are mainly related to the behaviour of third parties and, more precisely, to their duty of non-recognition of unlawful territorial situations.
E. The Exploitation of Natural Resources in Unlawful Territorial Situations: The Duty of Non-Recognition and Natural Resources
Annexation does not establish a valid title to the territory forcibly seized and to the natural resources therein. However, as a matter of fact, one cannot ignore that physical control over territory makes the exploitation of natural resources possible. Morocco in Western Sahara,47 Indonesia in East Timor,48 South Africa in Namibia,49 Iraq in Kuwait,50 Israel in East Jerusalem and the Golan Heights:51 all of those states exploited the resources of an occupied territory claiming more or less openly to (p. 1088) exercise their ‘sovereign rights’. Puppet governments established by Armenia in Nagorno-Karabakh52 and by Turkey in northern Cyprus53 have been doing the same.
Such conduct originates from unlawful territorial situations, emanating from an act of aggression, a breach of the right to self-determination of a people, or both. In addition, they constitute a violation of the PSNR of a state or a people, depending on the circumstances. The crucial issue is how the relevant norms may be enforced, when the usual pattern of unlawful territorial situations—the physical control of territory coupled with the alteration of its demographic equilibrium—perpetuates itself. In this respect, pending a potentially never-ending dispute on title to territory and in the absence of significant action by the collective security system, the attitude of third parties becomes determinant. According to Article 41(2) of the International Law Commission (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 the prohibition of aggression and the principle of self-determination.54 As confirmed by the General Assembly resolution on the definition of aggression and by the Declaration on Friendly Relations,55 states shall not recognize explicitly or implicitly any sovereign rights of the unlawful occupier. Given that title to natural resources is generally subsumed by title to territory and sovereignty, the duty of non-recognition of unlawful territorial situations finds in economic dealings on natural resources one of its most relevant fields of application. States shall not enter into any dealings concerning the natural resources of the territory with the unlawful occupier. Albeit with hesitations and contradictions, the essence of Article 41(2) is confirmed by some notable examples concerning natural resources. A thread in the practice connects the UN action on the South African occupation of Namibia,56 the reaction of Portugal to the Timor Gap Treaty between Australia and Indonesia,57 the decision of the European Parliament to temporarily reject the conclusion of a protocol implementing the European Union (EU)–Morocco Fisheries Partnership (p. 1089) Agreement,58 the non-application of the Morocco–European Free Trade Association (EFTA)59 and the Morocco–US60 free trade agreements to the goods originating from Western Sahara, the non-application of the Israel–EU Association Agreement to the goods produced in the Israeli settlements in the Occupied Palestinian Territory,61 the objection of a number of states to considering the products of the Israeli settlements in the Occupied Palestinian Territory as ‘made in Israel’,62 the decision of the Council of the EU to prohibit the import of goods originating from Crimea after the illegal annexation of the region to the Russian Federation.63 The effect of the duty of non-recognition on the exploitation of natural resources in unlawful territorial situations is potentially very significant at the interstate level. Nonetheless, it is worth remembering that the activities of exploitation of natural resources are seldom carried out directly by states and that the duty of non-recognition does not bind private enterprises and individuals.
In addition, at the interstate level a treaty related to natural resources concluded with an unlawful occupier may be held to be invalid for breach of the general (p. 1090) principle nemo dat quod non habet.64 According to this principle, a cession of rights over things may only be effectuated by the natural or juridical person who has an appropriate legal title to such things.65 It is here submitted that the principle nemo dat quod non habet is not (only) based on ‘legal logic’, but is confirmed by a consistent practice of treaties over natural resources.66 Considering that treaties on transboundary resources are predicated upon the existence of a title to territory or to a maritime zone, there is no legal basis for an agreement on natural resources over which the ceding party does not have any legal title.
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 UN, where the issue has been addressed by almost all of its principal organs.67
(p. 1091) In 2004, the Secretary-General’s High-Level Panel Report on Threats, Challenges and Change suggested that a strategy for the prevention of wars should be based inter alia on ‘new legal mechanisms’ and on ‘norms governing the management of natural resources for countries emerging from or at risk of conflict’.68 A number of subsequent reports of the Secretary-General have dealt with specific aspects.69 The General Assembly and the Security Council have acknowledged the problem in open debates70 and in resolutions formulated both in general terms71 and with reference to specific cases.72 Moreover, they have endorsed civil society voluntary initiatives such as the Kimberley Process for the certification of ‘conflict diamonds’73 and the Extractive Industry Transparency Initiative (EITI) on the transparency of payments from natural resources.74
The Security Council has taken operational measures of three typologies.75 First, it has adopted commodity sanctions76 and targeted sanctions77 aimed at breaking the link between armed conflicts and natural resources. Secondly, it has incorporated tasks related to natural resources in the mandate of peacekeeping operations.78 Thirdly, it has established panels of experts, which have publicly disclosed (p. 1092) the names of private enterprises, governments, and individuals allegedly involved in the ‘illegal exploitation of natural resources’.79
The most significant measures adopted by the Security Council are commodity sanctions directly related to 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,80 Liberia,81 Sierra Leone,82 Côte d’Ivoire,83 and Cambodia84 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 measures on natural resources, the Security Council imposed targeted measures on individuals and groups involved in the trafficking of natural resources.85
The Security Council has frequently intervened in internationalized civil wars, taking the view that such conflicts constituted threats to the peace and acknowledging the role of natural resources in fuelling them and in favouring their continuation. Perhaps the most relevant aspect of the practice of the Council lies in the fact that sanctions over natural resources often target only one of the parties in the war, which is identified as the main obstacle to the peace. In the cases of Angola, Sierra Leone, and Côte d’Ivoire the Council adopted the sanctions with a view to favouring the implementation of peace plans by pushing the recalcitrant party to respect and implement them.86 In the cases of Sierra Leone and Angola resources under the control of the government were excluded from the embargo and governmental authorities were invited to establish a certification scheme to ensure that trade in the resources respected the laws in force in the country.87 In such cases, the intervention of the Security Council on natural resources aggregates the reaction of member states against one of the warring parties. 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. At times the ban on natural resources arguably favoured (p. 1093) the weaker party, the one that was on the verge of being defeated, thus prolonging the duration of the conflict.88
Finally, the role of the ICJ should not be overlooked. The judicial organ of the UN has settled several territorial and boundary disputes that were clearly related to natural resources. States resorted to a judicial body to put an end to protracted resource conflicts that had become unsustainable.89 The decision of a third party is easier to accept for domestic public opinion, especially when issues of sovereignty are at stake, overloaded with sentiments of national pride.90 In other cases, the decisions of the ICJ have arguably prevented the eruption of a conflict over territory, boundaries, and, in the end, natural resources.91
The most significant decision related to international resource conflicts is undoubtedly the Armed Activities case, in which the ICJ made two significant statements. First, with reference to the exploitation of natural resources in occupied territories, the Court held that an occupying power has a duty of vigilance not only over its armed forces, but also over ‘private persons’.92 This is based on a teleological interpretation of Article 43 of the Hague Regulations and is unassailable.93 Secondly, with reference to the application of the principle of PSNR in the case under consideration, the Court cryptically stated that ‘there is nothing’ in the General Assembly resolutions that proclaimed the principle ‘which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State’.94 The position of the Court may be read either as an abstract rejection of the applicability of the principle of PSNR during armed conflicts or as a statement limited to the facts of the case. The second interpretation is more persuasive. In previous paragraphs, the Court found that it did not dispose of ‘credible evidence to prove that there was a governmental policy of Uganda directed at the exploitation of natural resources of the DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources’.95 Under this perspective, only campaigns of depredations organized by governmental authorities would be covered by the principle of PSNR, whereas cases of looting attributable to the army and individual soldiers (p. 1094) would not. This interpretation is in line with the idea that PSNR, given its origin and function, is a principle dealing with the aggregate relationship between peoples and states and not with the micromanagement of the conduct of individuals. It is also to be considered that there are no textual elements in support of the thesis that the principle would not be applicable to situations of armed conflict. As has been said, according to the Security Council, the principle of PSNR may be relevant in conflict and post-conflict situations even beyond the context of the decolonization.96
The logic of violent confrontation over natural resources between human groups, be they organized in an entity called a state or not, is often the same. The statements and the behaviour of governmental authorities demonstrate that not only civil wars, but also international conflicts, may be motivated, at least in part, by the desire or the need to gain control over natural resources. Natural resources are also a determinant factor for the duration of conflicts as they can be traded for weapons and the economic needs of the warring parties.
Against these facts, international law does not address the linkage between armed conflicts and natural resources directly. The legal regulation of the jus ad bellum aspects of the issue is the result of the application of the traditional rules on the use of force, as complemented by the prohibition of annexation, the principle of self-determination, and the principle of PSNR. The enforcement of such rules is achieved somewhat haphazardly through the adoption of sanctions by the Security Council and the action of third parties that are bound by the duty of non-recognition of unlawful territorial situations.
Under the relevant legal framework, the appropriation of natural resources is not a valid justification for the use of force. Conquest and annexation do not transfer a title, neither to territory nor to the natural resources therein. International resource conflicts are therefore rationalized by the intervening states with reference to the traditional legal bases for the use of force, but in several cases the appropriation of natural resources is quite likely among the motives that induced them to act. In practice, there seems to be a huge gap between the legal justifications offered for the use of force and the reasons for the basis of the conduct of governmental authorities. As a result, in this context, one is left with the impression that only rarely does international law contribute ex ante to the elaboration of public policies. Rather, it seems to be used as a linguistic construction to legitimize decisions that are based on strategic considerations.
2 Arthur Westing (ed), Global Resources and International Conflict: Environmental Factors in Strategic Policy and Action (New York: Oxford University Press, 1986); Michael T. Klare, Resource Wars—The New Landscape of Global Conflict (New York: Henry Holt, 2001); Ian Bannon and Paul Collier (eds), Natural Resources and Violent Conflict—Options and Actions (Washington DC: The World Bank, 2003).
3 With some significant exceptions in recent times: Mara Tignino, L’eau et la guerre—éléments pour un régime juridique (Brussels: Bruylant, 2011); Nico Schrijver, Development without Destruction (Bloomington, IN: Indiana University Press, 2010).
4 Nurit Kliot, Water, Resources and Conflict in the Middle East (London: Routledge, 1994); Bannon and Collier, Natural Resources and Violent Conflict; Michael Ross, ‘A Closer Look at Oil, Diamonds, and Civil War’ (2006) 9 Annual Review of Political Science 265.
6 James R. Lee, Climate Change and Armed Conflict (Abingdon: Routledge, 2009); Donald A. Mwiturubani et al (eds), Climate Change and Natural Resources Conflicts in Africa (Pretoria: Institute for Security Studies, 2010).
7 Paul Collier and Anke Hoeffler, ‘Greed and Grievance in Civil War’, Policy Research Working Paper No 2355, The World Bank, 2001. For a critical analysis, see Jack S. Levy and William R. Thomson, Causes of War (Chichester: Wiley-Blackwell, 2010), 186–201.
8 On 17 Sept 1980, in a statement addressed to the Iraqi parliament, the President of Iraq, Saddam Hussein, declared that the 1975 Algiers Agreement on the Shatt-al-Arab had to be considered null and void due to persistent Iranian violations of the sovereignty of Iraq: ‘This river must have its Iraqi–Arab identity restored as it was throughout history in name and in reality with all the disposal rights emanating from full sovereignty over the river’. Quoted in Jasim M. Abdulghani, Iraq and Iran—The Years of Crisis (Beckenham: Croom Helm, 1984), 202.
9 According to the authorities of Chad, the presence of uranium in the region was among the reasons for the Libyan invasion of the Aouzou Strip. Mémoire du Gouvernement de la République du Tchad, Livre 1, Différend territorial (Jamahiriya arabe libyenne c Tchad), 26 Aug 1991, 28, para 49, available at <http://www.icj-cij.org/docket/files/83/6688.pdf>.
10 Among the political rationales that motivated the Iraqi invasion of Kuwait were allegations that Kuwait and the United Arab Emirates were overproducing oil, thus driving down prices and a boundary dispute concerning the transboundary oil fields of Rumayla. Jacob Goldberg and Joseph Kostiner, ‘Kuwait’ (1990) 14 Middle East Contemporary Survey 507.
11 In the initial phase, the intervening states denied that the invasion of Iraq was connected to petroleum resources. Subsequently some of them acknowledged that energy security had been a political factor at the basis of their decision. See eg the statement of the Australian Defence Minister Brendan Nelson: ‘Nelson: Oil a factor in Iraq deployment’, The Age, 5 July 2007, available at <http://www.theage.com.au/news/national/howard-links-iraq-war-to-oil/2007/07/04/1183351291906.html> and the 2007 statement of Alan Greenspan, former Chairman of the US Federal Reserve: Bob Woodward, ‘Greenspan: Ouster of Hussein Crucial for Oil Security’, The Washington Post, 17 Sept 2007, available at <http://www.washingtonpost.com/wp-dyn/content/article/2007/09/16/AR2007091601287_pf.html>.
12 The issues of contention between Sudan and South Sudan are the sharing of oil revenues and the determination of the territorial boundary. Talks between the two countries collapsed when South Sudan occupied the town and the oil fields of Heglig. Mike Pflanz, ‘Sudan and South Sudan inch closer to all-out war’, The Telegraph, 19 Apr 2012.
13 ICJ, Application instituting proceedings (DRC v. Burundi), 13, available at <http://www.icj-cij.org/docket/files/115/7127.pdf>; ICJ, Application instituting proceedings (DRC v. Rwanda), 15, at <http://www.icj-cij.org/docket/files/117/7071.pdf>; ICJ, Application instituting proceedings (DRC v. Uganda), 13, at <http://www.icj-cij.org/docket/files/116/7151.pdf>.
14 Frontier Dispute, Judgment, Memorial of Burkina Faso, ICJ Rep 1986, 38, para 80, available at <http://www.icj-cij.org/docket/files/69/16370.pdf>: ‘la zone revendiquée par le Mali se distingue peu des secteurs environnants sinon du fait de sa richesse—toute relative—en eau et de ses probable potentialités géologiques’.
18 The ability of the armed group UNITA to gain control of diamond-rich territories and exchange diamonds for weapons and political support was a critical factor in the prolongation of the conflict in Angola. See Report of the Panel of Experts on Violations of Security Council Sanctions against UNITA, S/2000/203 (10 Mar 2000). Conversely, the Angolan government was able to shift military power in its favour by hiring a private security company with revenues deriving from oil-resource exploitation. Khareen Pech, ‘Executive Outcomes—A Corporate Conquest’ in Jakkie Cilliers and Peggy Mason (eds), Peace, Profit or Plunder? The Privatisation of Security in War-Torn African Societies (Pretoria: Institute for Security Studies, 1999), 86.
19 In 1975 the direct involvement of South African troops in the Angolan civil war coincided with the decision ‘to secure the Cunene river hydroelectric facilities at Calueque’. Stephen L. Weigert, Angola—A Modern Military History, 1961–2002 (New York: Palgrave Macmillan, 2011), 60.
20 Treaties on subjects such as fluvial regimes, freshwater aquifers, environmental protection, hydrocarbons, and fisheries, and joint development agreements on trans-boundary resources are always stipulated on the assumption that each party has a legal title to the zone or the territory on which the resources are located. See also fn 66 below.
21 A/RES/1803 (XVII) (1962), para 5; A/RES/1515 (XV) (1960), para 5; A/RES/3202 (S-VI) (1974), under Chapter VII; A/RES/3281 (XXIX) (1974), Art 2. Blaine Sloan, Study of the implications, under international law, of the United Nations resolutions on permanent sovereignty over natural resources, in the occupied Palestinian and other Arab territories and on the obligations of Israel concerning its conduct in these territories, A/38/265 (21 June 1983), 12–15.
23 Among the decisions of the ICJ see eg Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Rep 1994, 6; Frontier Dispute (Burkina Faso v. Mali), Judgment, ICJ Rep 1986, 554; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Rep 2002, 625; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Rep 2002, 303; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment, ICJ Rep 2008, 12. Among arbitral decisions see eg The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan, Award of 19 February 1968, XVII RIAA 1; Case concerning the delimitation of maritime boundary between Guinea-Bissau and Senegal, Decision of 31 July 1989, XX RIIA 119; Eritrea/Yemen, Award of the Arbitral Tribunal in the First Stage—Territorial Sovereignty and Scope of the Dispute, Award of 9 Oct 1998, available at <http://www.pca-cpa.org>. See also Schrijver, Development without Destruction, 188–211.
27 Starting from the war in Korea (S/RES 83 (1950)), and then in a number of cases from the beginning of the 1990s, the UN Security Council has authorized member states or multinational forces to adopt coercive measures in situations amounting to a threat to the peace or a breach of the peace. See eg S/RES/678 (1990), para 2 (Iraq), S/RES/794 (1992), para 10 (Somalia), S/RES/940 (1994), para 4 (Haiti), S/RES/1264 (1999), para 3 (East Timor). The legal basis of such delegation of the power to take coercive action may be found in a flexible interpretation of Arts 42 and 48(1). See Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart, 2004), 260–5.
28 In addition to the occurrence of an armed attack, the requirements of proportionality and necessity are widely considered as necessary elements of the right to self-defence. See the following decisions and opinions of the ICJ: Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Judgment, ICJ Rep 1986, 94, para 176; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996, 245, para 41; Case concerning Oil Platforms (Iran v. US), Judgment, ICJ Rep 2003, 183, para 43; Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, ICJ Rep 2005, 223, para 147. In state practice, prolonged occupations ‘in the name of self-defence’ have been regarded as not compatible with the requirements of necessity and proportionality. See Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2008), 154–5.
30 Roger Clark, ‘The Substance of the East Timor Case in the ICJ’ in Catholic Institute for International Relations and International Platform of Jurists for East Timor (eds), International Law and the Question of East Timor (London: CIIR/IPJET, 1995), 247.
33 The addresses of the principle of PSNR (Peoples and Nations) are mentioned in general terms by the relevant General Assembly resolutions and treaties (see resolutions quoted at n 21 and the International Covenant on Civil and Political Rights, Art 1(2); International Covenant on Economic, Social and Cultural Rights, Art 1(2)). There are no consistent indications that the subjective scope of the right is limited to situations of decolonization. Moreover, the Security Council has made reference to PSNR in cases that are not related to the context of decolonization. See eg S/RES/1483 (2003): ‘Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources’; S/RES/1457 (2003): ‘Reaffirming also the sovereignty of the Democratic Republic of the Congo over its natural resources’.
34 The foreign minister of Poland stated the objectives of its country in Iraq: ‘We have never hidden our desire for Polish oil companies to finally have access to sources of commodities’ and added that access to the oilfields ‘is our ultimate objective’ (‘Poland seeks Iraq Oil Stakes’, BBC News, 3 July 2003, available at <http://news.bbc.co.uk/2/hi/europe/3043330.stm>).
35 Under Art 43 of the Hague Regulations (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) the occupying power is required to respect the laws in force in the country ‘unless absolutely prevented’. See Eyal Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012), 268–75; Marco Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 681–2; Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation’ (2004) 86(856) International Review of the Red Cross 759; Conor McCarthy, ‘The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq’ (2005) 10 Journal of Conflict and Security Law 43.
36 On the one hand, the resolutions reaffirmed the sovereignty and territorial integrity of Iraq, the right to self-determination of the Iraqi people and their right to control their natural resources, and demanded full respect for the law of occupation, on the other, they seemed to acknowledge in general terms the transformative agenda of the occupying powers. See S/RES/1483 (2003), Preamble, paras 1, 5, 8; S/RES/1511 (2003), Preamble, paras 1, 8, 20, 24; S/RES/1546 (2003), Preamble, paras 1–4.
37 Iain Scobbie, ‘Natural Resources and Belligerent Occupation’ in Susan Musarrat Akram et al (eds), International Law and the Israeli–Palestinian Conflict (Abingdon: Routledge, 2011), 229–36; Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Leiden: Martinus Nijhoff, 2009), 209–16.
43 Antonio Cassese, ‘Powers and Duties of an Occupant in Relation to Land and Natural Resources’ in Emma Playfair (ed), International Law and the Administration of Occupied Territories (Oxford: Clarendon Press, 1992) reprinted in Antonio Cassese, The Human Dimension of International Law—Selected Papers (Oxford: Oxford University Press, 2008), 257–60.
44 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 Nov 1945–1 Oct 1946, 238–9; The United States of America against Friedrich Flick et al, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Nuremberg, Oct 1946–Apr 1949, 1204–12.
46 S/RES/687 (1991), adopted after the conclusion of the Gulf War, did not distinguish between violations of the jus in bello and violations of the jus ad bellum and affirmed that Iraq was ‘liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign governments, nationals and corporations as a result of Iraq’s unlawful invasion and occupation of Kuwait’ (para 16). See Hazel Fox, ‘Reparations and State Responsibility: Claims Against Iraq Arising Out of the Invasion and Occupation of Kuwait’ in Peter Rowe (ed), The Gulf War 1990–91 in International and English Law (London: Routledge, 1993), 219–21. With reference to the practice of war reparations after the Second World War: D’Argent, Les réparations de guerre en droit international public, 481–6; Andrea Gattini, Le riparazioni di guerra nel diritto internazionale (Padua: CEDAM, 2003), 533.
47 Toby Shelley, ‘Natural Resources and the Western Sahara’ in Claes Olsson (ed), The Western Sahara Conflict: The Role of Natural Resources in Decolonization (Uppsala: Nordiska Afrikainstitutet, 2006), 17–21.
48 Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste, 2005, Part 4, para 156, available at <http://www.cavr-timorleste.org/en/chegaReport.htm>.
50 Michael Schmitt, ‘Iraq-Kuwait War (1990–1991)’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008), available at <http://www.mpepil.com>, para 24.
51 See eg Report prepared by the Economic and Social Commission for Western Asia on the economic and social repercussions of the Israeli occupation on the living conditions of the Palestinian people in the occupied Palestinian territory, including Jerusalem, and of the Arab population in the occupied Syrian Golan, A/64/77, paras 59–63 and A/RES/66/225 (2012).
52 Annex to the letter dated 11 November 2004 from the Permanent Representative of Azerbaijan to the United Nations addressed to the President of the General Assembly, A/59/568 (11 Nov 2004). The Report of Azerbaijan is also based on information published by Armenian newspapers.
54 Art 41(2), Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol II (2), 26 at 29. See also the commentary by James Crawford on Art 41(2), 114–15. According to Judge Skubiszewski, the duty of non-recognition of unlawful territorial situations is a ‘corollary’ of the principle of non-use of force and ‘does protect the rights to self-determination and to permanent sovereignty over natural resources’. East Timor (Portugal v. Australia), Judgment, ICJ Rep 1995, Dissenting Opinion of Judge Skubiszewski, 224, para 131. The existence of the duty was confirmed by the ICJ in two advisory opinions: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep 2004, 136, para 159; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council, Resolution 276(1970), Advisory Opinion, ICJ Rep 1971, 16, paras 119, 125–6.
58 In 2011, the EU Parliament rejected the conclusion of the protocol, which had already entered into provisional application, on the ground that it was, among other things, incompatible with international law. In fact, such agreement did not clearly exclude from its scope the waters offshore Western Sahara, a non self-governing territory occupied by Morocco in 1975. See 2012/15/EU, Council Decision of 20 Dec 2011 repealing Council Decision 2011/491/EU, OJ L 6/1, 10/01/2011–2. However, in 2014 the EU and Morocco concluded another protocol, not substantially different from the previous one and potentially in breach of the duty of non-recognition (see OJ L 328, 07/12/2013, 2-21). It is to be added that Russia concluded similar agreements with Morocco, which, despite being formally limited to Morocco’s Exclusive Economic Zone, are also applied offshore Western Sahara. An unofficial translation of the 13 February 2013 agreement is available at: <http://www.wsrw.org/files/dated/2013-04-30/russia-morocco_fisheries_agreement_2013.pdf.> On the legality of EU fisheries agreements with Morocco, see Enrico Milano, ‘The New Fisheries Partnership Agreement Between the European Community and the Kingdom of Morocco: Fishing Too South?’ (2006) 22 Anuario español de derecho internacional 413.
59 Norway and Switzerland interpret the Morocco–EFTA agreement as non-applicable to goods originating from Western Sahara. See Email of 6 April 2007, Martin Zbinden, Head Free Trade Agreements/EFTA—State Secretariat for Economic Affairs (SECO), Switzerland, to the Swiss Western Sahara Committee, available at <http://www.vest-sahara.no/a1x1489>; Statement by the Norwegian Minister of Foreign Affairs, Mr Jonas Gahr Støre, in the Norwegian Parliament, 11 May 2010, unofficial translation at <http://www.wsrw.org/a105x1411>.
60 Letter by R. B. Zoellick, United States Trade Representative, to Congressman Pitts of 20 July 2004, available at <http://www.vest-sahara.no/files/pdf/Zoellick_FTA_2004.pdf>.
61 Reply to written question P-2747/00 by Alain Lipietz (Verts/ALE) to the Council, Irregular application of the EC–Israel Agreement, OJ 113 E, 18/04/2001, 163–4. See also ECJ, C-386/08, Firma Brita GmbH v. Hauptzollamt Hamburg-Hafen, Judgment of the Court of 25 Feb 2010, para 53.
62 See eg the position of South Africa: Department of Trade and Industry, Notice 379 of 2012, Labelling of products originating from Occupied Palestinian Territory wrongly labelled as originating in Israel, available at <http://www.info.gov.za/view/DownloadFileAction?id=165066> and the United Kingdom: Department for Environment, Food and Rural Affairs, Technical advice: labelling of produce grown in the Occupied Palestinian Territories, 10 December 2009, at: <http://archive.defra.gov.uk/foodfarm/food/pdf/labellingpalestine.pdf>; Denmark: Phoebe Greenwood, ‘Denmark and South Africa protest at “made in Israel” goods’, The Telegraph, 21 May 2012, and Belgium: Robert-Jan Bartunek, ‘Belgium advises retailers to label products from Israeli settlements’, Haaretz, 29 July 2014.
64 Roger Clark, ‘The Timor Gap: The Legality of the “Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Western Australia”’ (1992) 69 Pace Yearbook of International Law 92–4. On the principle nemo dat quod non habet: Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Rep 2002, para 204; Island of Palmas (Netherlands v. US), 4 Apr 1928, II RIAA 842–3; Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2008), 121–2.
66 See eg the practice of unitization agreements on hydrocarbon resources: a hydrocarbon deposit on the continental shelf of one of the parties will be exploited as a unit if it extends to the continental shelf of the other party (eg Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 Sept 2010, available at <http://www.regjeringen.no>). The agreements on trans-boundary watercourses and aquifers are based on the same logic of cooperation between states having a sovereign title on a part of the resource (eg Indus Water Treaty, India/Pakistan, 19 Sept 1960, at <http://siteresources.worldbank.org>; Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, between The Kingdom of Cambodia, The Lao People’s Democratic Republic, The Kingdom of Thailand, and The Socialist Republic of Viet Nam, 5 Apr 1995, at <http://www.mrcmekong.org>). Similar considerations apply to the agreements on fisheries. In the fisheries partnership agreements stipulated by the European Community (EC) with a number of countries, eg, the EC grants financial contributions in exchange for fishing rights in the areas over which such countries exercise jurisdiction or sovereign rights (eg Fisheries Partnership Agreement between the European Community and the Republic of Cape Verde, 30 Dec 2006, OJ L 414/3).
67 At the regional level, in May 2000 the Economic Community of West African States (ECOWAS) launched ‘a regional inquiry into the illegal trade of diamonds’ (S/RES/1306 (2000), Preamble). Moreover, the 11 African states of the International Conference on the Great Lakes adopted a Protocol on the Illegal Exploitation of Natural Resources International Conference on the Great Lakes Region and a regional initiative aimed at the creation of a certification scheme for resources such as coltan, cassiterite, wolframite, and gold. See Protocol Against the Illegal Exploitation of Natural Resources, 30 Novr 2006, available at <https://icglr.org/IMG/pdf/Protocol_against_the_Illegal_Exploitation_of_Natural_Resources.pdf>.
69 The causes of conflict and the promotion of durable peace and sustainable development in Africa—Report of 13 April 1998, A/66/214–S/2011/476; Climate Change and its possible security implications—Report of 11 September 2009, A/64/350; Implementation of the recommendations contained in the report of the Secretary-General on the causes of conflict and the promotion of durable peace and sustainable development in Africa—Report of 1 August 2011, A/66/214–S/ 2011/476.
70 S/PV/4113 (2000) (Security Council debate on the situation in Angola); S/PV/5359 (2006) (Security Council debate on peace, security and development in the Great Lakes region); S/PV/5705 (2007) (Security Council debate on natural resources and conflict).
72 S/RES 1306/2000, under A (Sierra Leone); S/RES/1343 (2001), paras 2(c), 6 (Liberia); S/RES/1457 (2003) (DRC), paras 3–4; S/RES/1756 (2007), Preamble (DRC); S/RES/1807 (2008), Preamble (DRC); S/RES/1856 (2008), para 3(j) (DRC); S/RES/1952 (2010), paras 7–9 (DRC).
76 S/RES/1343 (2001), para 2(c) (sanctions on diamonds—Liberia); S/RES/1643 (2005), para 6 (sanctions on diamonds—Côte d’Ivoire); S/RES/864 (1993), para 19 (sanctions on oil—Angola); S/RES/1132 (1997), para 6 (sanctions on oil—Sierra Leone); S/RES/1173 (1998), para 12(b) (sanctions on diamonds—Angola); S/RES/1306 (2000), para 1 (sanctions on diamonds—Sierra Leone); S/RES/1521 (2003), paras 6–13 (sanctions on timber—Liberia).
79 S/RES/1643 (2005), para 9(b) (Côte d’Ivoire); S/RES/1643 (2005), para 9 (Côte d’Ivoire); S/RES/1237 (1999), para 6 (Angola); S/RES/1343 (2001), para 19 (Liberia); S/RES/1306 (2000), para 19 (Sierra Leone); S/PRST/2000/20 (DRC).
84 S/RES/792 (1992), paras 13–14. In the case of Cambodia, the Security Council merely supported the decision of the Cambodian authorities to set a moratorium on the export of logs and requested that a similar moratorium be established ‘on the export of minerals and gems’.
86 S/RES/864 (1993), para 6 (sanctions on oil—Angola); S/RES/1173 (1998), paras 1–2 (sanctions on diamonds—Angola); S/RES/1306 (2000), para 1 (sanctions on diamonds—Sierra Leone); S/RES/1643 (2005), paras 2–3 (sanctions on diamonds—Côte d’Ivoire).
88 In 1992–3, when sanctions on oil against UNITA were adopted, the rebel group controlled 70 per cent of the territory of Angola. Michael Ross, ‘Booty Futures’, unpublished working paper, 6 May 2005, 17–18, available at <http://www.sscnet.ucla.edu/polisci/faculty/ross/bootyfutures.pdf>.
91 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, 625; Land and Maritime Boundary between Cameroon and Nigeria, Judgment, 303; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Judgment, 12.
95 Armed Activities, Judgment, para 242. In this sense see the position of the government of Uganda in the case: Public sitting held on Wednesday 27 April 2005, at 3 p.m., at the Peace Palace, CR 2005/15, 22-23.