The case between Esther Kiobel and the Royal Dutch Petroleum Company was set for re-argument in the United States Supreme Court on Monday, October 1, 2012. If I understood it correctly, one of the two questions posed to the Court is the following:

Are foreign corporations immune from tort liability in the US courts for violations of international law committed abroad?

The US has little to do with the case, and thus it could be argued that the case should really be decided in Nigeria, where the alleged violations took place. In any case, the case will likely be about jurisdictional issues, especially universal jurisdiction. Plenty of bloggers will comment on this aspect of the case.

But what if the case actually reaches the merits? What type of disputes could then make their way to the US courts? The Oil Company’s liability will be based on particular acts, not the general scheme of things. Nonetheless, it might be interesting – even though the case will probably not deal with this explicitly – to look at fundamental underlying issues.

The case has a lot to do with the people’s right to exploit their natural resources for their own benefit. The question is whether it is up to a State – read: government – to decide what is to the benefit of the people, or whether the people, including minority peoples, have a right to be involved in such decision-making. The question is relevant because the government of Nigeria does appear to benefit from its contract with the Oil Company, but minority peoples clearly do not.

The General Assembly of the United Nations has often emphasized the right of peoples to exploit their own resources according to their own policies. In the beginning, these debates took place in the context of decolonization. In the Declaration on the Granting of Independence to Colonial Countries and Peoples, for example, the Assembly

affirm[ed] that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law.[1]

This right was formulated in a general sense, but the fact that it was included in the Decolonization Declaration made it especially – and perhaps even exclusively – applicable to colonial peoples. In 1967, the Assembly ‘reaffirm[ed] the inalienable right of the peoples of the colonial territories to self-determination and independence and to the natural resources of their territories, as well as their right to dispose of these resources in their best interests.’[2] It further ‘deplore[d] the policies of the colonial Powers which permit[ted] the exploitation of the natural resources of the Territories under their administration contrary to the interests of the indigenous population.’[3] It thus called upon all ‘colonial Powers’ to prohibit in particular the following practices:

The exploitation of human and natural resources contrary to the interests of the indigenous inhabitants;

The obstruction of the access of the indigenous inhabitants to their natural resources;

The promotion and tolerance of injustice and discrimination in the remuneration of labor and in the establishment of working conditions.[4]

It further ‘request[ed] the colonial Powers to stop immediately the practice of alienation of lands from the indigenous inhabitants and to take immediate action to return to them all such alienated lands.’[5] In 1980, all States were encouraged to ‘ensure that the permanent sovereignty of the countries and Territories under colonial, racist and alien domination over their natural resources shall be fully respected and safeguarded.’[6] In 1981, the Assembly stressed that ‘by their depletive exploitation of natural resources, the continued accumulation and repatriation of huge profits and the use of those profits for the enrichment of foreign settlers and the entrenchment of colonial domination over the Territories, the activities of foreign economic, financial and other interests operating at present in the colonial Territories […] constitute[d] a major obstacle to political independence and to the enjoyment of the natural resources of those Territories by the indigenous inhabitants.’[7] A few years later, the Assembly became ‘increasingly aware of the importance of economic, social and cultural development and self-reliance of colonial countries and peoples for the attainment and consolidation of genuine independence.’[8]

As time passed, the Assembly, instead of simply condemning exploitation of natural resources by foreign subjects, also began to stress the usefulness of international assistance and cooperation. For example, in 1996, the Assembly ‘affirm[ed] the value of foreign economic investment undertaken in collaboration with the people of the Non-Self-Governing Territories and in accordance with their wishes in order to make a valid contribution to the socio-economic development of the Territories.’[9] The difference between exploitation and the latter type of economic foreign investment is obvious. Clearly, exploitation was prohibited, but voluntary and mutually beneficial investment was welcomed.

The Assembly refers frequently to the indigenous population. But the question remains whether we are talking about a right belonging to peoples, or a right belonging to newly independent States. In the Human Rights Covenants, there is a relevant provision which proclaims that:

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.[10]

If the right mentioned above is truly a peoples’ right, then it ‘presumably limits the power of the national government freely to dispose of the natural resources […] without the consent (or against the wishes or contrary to the interests) of the “people”.’[11] If a government does not exploit the resources for the benefit of its own people, what should be done? Should the government be removed from power and be replaced by a government that does distribute the resources evenly over the population? If we pursue this reasoning to its very end, then, as Dam-de Jong pointed out, ‘the State, represented by its government, may only exercise the right to permanent sovereignty on behalf of its population [and must] be regarded as a trustee and not as holder of the right.’[12] And, presumably, trustees can be fired if they fail to do a good job. But instead of targeting the governments, in cases such as the Kiobel case, the multinational corporations are targeted.

In any case, it is not so clear whether the provision in the human rights covenant really intended to grant a right to peoples as opposed to States. Only a few years after the drafting of the human rights covenant provision was finished, in 1962, the Assembly adopted its resolution on permanent sovereignty over natural resources.[13] In that resolution, the Assembly proclaimed that

the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.[14]

The resolution stated this as a general principle, and did not explain what the consequences would be in case a local Government exploited the State’s natural resources for the benefit of a small group of individuals, as opposed to all the State’s inhabitants. In fact, the resolution’s prime aim was to emphasize the right of States over their own natural resources, and not to pose conditions on such
exclusive ownership.

[1] Preamble, Declaration on the Granting of Independence to Colonial Countries and Peoples.

[2] Para. 2 of the resolution with perhaps the longest name in the Assembly’s history: Activities of foreign economic and other interests which are impeding the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Southern Rhodesia, South West Africa and Territories under Portuguese domination and efforts to eliminate colonialism, apartheid and racial discrimination in southern Africa, General Assembly resolution 2288 (XXII), adopted 7 December 1967.

[3] Idem, para. 5.

[4] Idem, para. 7.

[5] Idem, para. 10.

[6] Para. 7, Plan of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 35/118, adopted 11 December 1980.

[7] Para. 1, Activities of foreign economic and other interests which are impeding the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Namibia and in all other territories under colonial domination and efforts to eliminate colonialism, apartheid and racial discrimination in southern Africa, General Assembly resolution 36/51, adopted 24 November 1981.

[8] Preamble, Twenty-fifth anniversary of the Declaration on the Granting of Independence to Colonial Countries and Peoples.

[9] Para. 2, Activities of foreign economic and other interests which impede the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Territories under colonial domination, General Assembly resolution 51/140, adopted 13 December 1996. Most of the resolution dealt with foreign exploitation.

[10] Article 1(2), International Covenant on Civil and Political Rights.

[11] Crawford, ‘The rights of peoples,’ p. 64.

[12] P. 34, Dam-de Jong, ‘International Law and Resource Plunder.’

[13] Declaration on Permanent Sovereignty over Natural Resources, GA resolution 1803(XVII), adopted 14 December 1962.

[14] Para. 1, Declaration on Permanent Sovereignty over Natural Resources.