The Protection and Promotion of a People’s Right to Mineral Resources in Africa: International and Municipal Perspectives
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Johan Van Der Vyver
Abstract
Development programs in many African countries include the reallocation of land and the nationalization of mineral resources for the benefit of less privileged communities in those countries. Implementing these programs is, however, quite complicated. This paper pays special attention to the confiscation of the land of white farmers in Zimbabwe as part of a development program, and the rapid decline of the economy of that country in consequence of this program. It serves as a reminder that depriving landowners of their property rights is counterproductive and is therefore not a feasible development strategy. As far as the right to explore natural resources is concerned, the paper highlights the repeated resolutions of the United Nations proclaiming the “inalienable right of all states freely to dispose of their natural resources in accordance with their national interests” as an inherent aspect of sovereignty [e.g. G.A. Res. 626, 7 U.N. GAOR, Supp. (No. 20), at 18, U.N. Doc. A/2361 (1952).], with occasional reminders that developing countries were in need of encouragement “in the proper use and exploitation of their natural wealth and resources” [e.g. E.S.C. Res. 1737, 54 U.N. ESCOR, Supp., No. 1 (1973).]. These resolutions were adopted in the context of the decolonization policy of the United Nations and were mainly aimed at denouncing the exploitation of the mineral resources of African countries by colonial powers [G.A. Res. 2288, 22 U.N. GAOR, Supp. (No. 16), at 48, U.N. Doc. A/6716 (1967)., para 3]. The emphasis of international law relating to the natural resources over time also emphasized the right to self-determination of peoples. As early as 1958, the General Assembly, in a resolution through which the Commission on Permanent Sovereignty over Natural Resources was established, stated that the “permanent sovereignty over natural wealth and resources” of states is “a basic constituent of the right to self-determination” [G.A. Res. 1314, 13 U.N. GAOR, Supp. (No. 18), at 27, U.N. Doc. A/4090 (1958).]. The African Charter on Human and People’s Rights similarly provides “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it” [Art 21(1)]. This provision featured prominently in several judgments of courts of law, such as the one of the South African Constitutional Court in the case of Bengwenyama Minerals (Pty) Ltd & Others v Gemorah Resources (Pty) Ltd & Others [2011] (3) BCLR 229 (CC) (3) BCLR 229 (CC) and of the African Court of Human and People’s Rights in the case of Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report. AHRLR 60 (Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report.) Communication 155/96. In view of these directives of international law, the paper will critically analyze the South African Mineral and Petroleum Resources Development Act 28 of 2002, which deprived landowners of the ownership of unexplored minerals and petroleum products and proclaimed mineral and petroleum resources to be “the common heritage of all the people of South Africa” with the state as the custodian thereof.
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© 2018 Law and Development Review
Articles in the same Issue
- Frontmatter
- Introduction
- Mapping Law and Development from African Perspectives: An Overview
- Legal Pluralism and Effective Governance for Development in Africa
- The African Union Agenda 2063 and the Imperative of Democratic Governance
- Unpacking Legal Pluralism in Commonwealth Africa – Towards Strengthening Methods for Rule of Law Programming for Development
- Demand for Law in the African Private Sector
- OHADA and the Making of Transnational Commercial Law in Africa
- Corruption in Public Procurement in Lesotho
- Law and Industrial Promotion
- Law and Development: Lessons from South Korea
- Has it Reinvented Iron Law? South Africa’s Social Industrialisation, not Iron Industrialisation
- Law–Finance–Growth Nexus in the Context of Africa
- Inclusive Industrialization: The Interplay Between Investment Incentives and SME Promotion Policies in Sub-Saharan Africa
- Intellectual Property Rights for Development
- The Creative Industry and South African Intellectual Property Law
- Digital Rights Management System and Administration: A Wake-up Call for Nigeria!
- Enforcing Intellectual Property Rights in Nigerian Courts
- Poverty and Sustainable Development
- De-Growth and Sustainable Development: Rethinking Human Rights Law and Poverty Alleviation
- Macro Aid: Applying Microcredit’s Group Liability Principle to Foreign Aid
- Law as a Tool for Ensuring Contributions of Small-Scale Women Farmers to Food Security in Nigeria
- Law and Natural Resources
- The Protection and Promotion of a People’s Right to Mineral Resources in Africa: International and Municipal Perspectives
- Justifying Water Rights in Nigeria: Fiction or Achievable Panacea?
- Three Mining Charters and a Draft: How the Politics and Rhetoric of Development in the South African Mining Sector are Keeping Communities in Poverty
- Addressing Human Rights Concerns in the Extractive Resource Industry in Sub-Saharan Africa using the Lens of Article 46 (C) of the Malabo Protocol
- Wildlife Poaching and Rule of Law in Kenya
- Good Governance and Development in Botswana – The Democracy Conundrum
- Book Review
- Yong-Shik Lee: Reclaiming Development in the World Trading System
Articles in the same Issue
- Frontmatter
- Introduction
- Mapping Law and Development from African Perspectives: An Overview
- Legal Pluralism and Effective Governance for Development in Africa
- The African Union Agenda 2063 and the Imperative of Democratic Governance
- Unpacking Legal Pluralism in Commonwealth Africa – Towards Strengthening Methods for Rule of Law Programming for Development
- Demand for Law in the African Private Sector
- OHADA and the Making of Transnational Commercial Law in Africa
- Corruption in Public Procurement in Lesotho
- Law and Industrial Promotion
- Law and Development: Lessons from South Korea
- Has it Reinvented Iron Law? South Africa’s Social Industrialisation, not Iron Industrialisation
- Law–Finance–Growth Nexus in the Context of Africa
- Inclusive Industrialization: The Interplay Between Investment Incentives and SME Promotion Policies in Sub-Saharan Africa
- Intellectual Property Rights for Development
- The Creative Industry and South African Intellectual Property Law
- Digital Rights Management System and Administration: A Wake-up Call for Nigeria!
- Enforcing Intellectual Property Rights in Nigerian Courts
- Poverty and Sustainable Development
- De-Growth and Sustainable Development: Rethinking Human Rights Law and Poverty Alleviation
- Macro Aid: Applying Microcredit’s Group Liability Principle to Foreign Aid
- Law as a Tool for Ensuring Contributions of Small-Scale Women Farmers to Food Security in Nigeria
- Law and Natural Resources
- The Protection and Promotion of a People’s Right to Mineral Resources in Africa: International and Municipal Perspectives
- Justifying Water Rights in Nigeria: Fiction or Achievable Panacea?
- Three Mining Charters and a Draft: How the Politics and Rhetoric of Development in the South African Mining Sector are Keeping Communities in Poverty
- Addressing Human Rights Concerns in the Extractive Resource Industry in Sub-Saharan Africa using the Lens of Article 46 (C) of the Malabo Protocol
- Wildlife Poaching and Rule of Law in Kenya
- Good Governance and Development in Botswana – The Democracy Conundrum
- Book Review
- Yong-Shik Lee: Reclaiming Development in the World Trading System
