The Protection and Promotion of a People’s Right to Mineral Resources in Africa: International and Municipal Perspectives

2018 ◽  
Vol 11 (2) ◽  
pp. 739-755
Author(s):  
Johan Van Der Vyver
Keyword(s):  
Natural Resources ◽  
International Law ◽  
South African ◽  
Annual Report ◽  
Mineral Resources ◽  
African Countries ◽  
Economic Rights ◽  
The People ◽  
Petroleum Resources ◽  
The Right

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.

Land Grabbing as a Threat to the Right to Self-Determination: How Permanent Sovereignty over Natural Resources Limits States’ Involvement in Large-Scale Transfers of Land

2014 ◽  
Vol 18 (1) ◽  
pp. 507-531
Author(s):  
Elisa Freiburg
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Large Scale ◽  
Self Determination ◽  
Land Grabbing ◽  
Human Right ◽  
Basic Premise ◽  
Planning Stage ◽  
The People ◽  
The Right

This article examines the legal connections between the modern phenomenon of ‘land grabbing’ – large-scale acquisitions of land rights by foreign investors – and the human right to self-determination. It is argued that the right to self-determination and in particular the principle of permanent sovereignty over natural resources cannot only be invoked by one State against another, but also by the people against its own government, thus legally binding all States involved in the process. The basic premise shall not be that land grabbing is per se illegal; it depends on how it is performed. The right to self-determination and the principle of permanent sovereignty over natural resources bring along important restrictions that States have to honour. Governments should develop their foreign investment relations in a way that ensures the human rights of their populations, especially given the fact that in this respect business corporations are not bound by any hard international law. The regulation of the investment is an important factor: transparency and involvement of local authorities at the planning stage, as well as the participation in the investment’s benefits help to ensure that a people is not deprived of its own means of subsistence.

scholarly journals International Development Law: Resolving the Contentious Question of State Sovereignty and Right to and Ownership of Natural Resources

2019 ◽  
Vol 6 (12) ◽  
pp. 5759-5764
Author(s):  
Dr. Matthew Enya Nwocha
Keyword(s):  
Natural Resources ◽  
International Law ◽  
International Development ◽  
Mineral Resources ◽  
Self Determination ◽  
State Sovereignty ◽  
Land Area ◽  
Ultimate Ownership ◽  
Domestic Jurisdiction ◽  
The Right

This work came up against the background of the contentious question and multiplicity of claims of ownership of natural resources located within a given state territory. The paper has addressed the question whether this claim legitimately inheres in the state as a sovereign or in the native inhabitants of the land area where the mineral resources are domiciled pursuant to the international right to self-determination. It is the finding that, among other things, the right to permanent sovereignty over natural resources is a legitimate one in international law. Notwithstanding, as the paper has concluded, only the legislature and the courts in any particular domestic jurisdiction can determine with finality the specific entity, institution, or unit within a state sovereign in whom this ultimate ownership resides.

scholarly journals The Agrarian Law Policy in the Control of Residence by Expatriates in Indonesia

Notaire ◽  
2020 ◽  
Vol 3 (1) ◽  
pp. 27
Author(s):  
Corina Ealen Meilan Danu ◽  
Ketut Ketut Briliawati Permanasari ◽  
Wilujeng Wilujeng Jauharnani ◽  
Ria Ria Yunita Sari
Keyword(s):  
Property Rights ◽  
Natural Resources ◽  
International Law ◽  
The State ◽  
The Other ◽  
State Responsibility ◽  
Place Of Residence ◽  
The People ◽  
The Republic ◽  
The Right

The state has the right to control the land, waters and natural resources contained therein to achieve the greatest benefit of the people. According to the provisions of Article 9 paragraph (1) and Article 26 paragraph (2) of the Law of the Republic of Indonesia Number 5 of 1960 concerning Basic Regulations on Agrarian Principles, property rights may only be owned by Indonesian citizens. Based on these conditions, expatriates cannot have a residence in Indonesia. On the other hand, Indonesia as a subject of international law has the responsibility in protecting the right of expatriates to dominate residence in Indonesia. In this study, the state responsibility for the provision of residence for foreigners and the regulations that provide space for expatriates in the mastery of residence in Indonesia will be discussed. In international law, there are principles of state responsibility. This principle mandates that the state guarantees protection of foreigners, including the place of residence for foreigners. The development of regulations in Indonesia provides a solution to the control of residence by expatriates. The legal solution offered is the control of residence with a tenancy agreement between expatriates and homeowners who are Indonesian citizens or by using the right of use. The right of use a residence given to the expatriates is in the form of a single house and apartment units that are limited by the price and area of land in accordance with the applicable regulations.

scholarly journals The International Law Principle of Permanent Sovereignty over Natural Resources as an Instrument for Development: The Case of Zimbabwean Diamonds

2013 ◽  
Vol 6 (1) ◽  
pp. 69-101 ◽  
Author(s):  
Yolanda T. Chekera ◽  
Vincent O. Nmehielle
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Mineral Resources ◽  
Research Literature ◽  
Development Research ◽  
Legislative Reform ◽  
The People ◽  
Resource Endowment ◽  
Mining Legislation ◽  
Good Living

Abstract Extensive research has shown that revenue from the exploitation of natural resources can sustain development. Conversely, development research literature has shown that many developing countries have failed to use the natural resources to improve and sustain good living for their citizens. In most cases, those in political offices have squandered the resources and benefits that have accrued from the country’s natural endowments. This article explores how the international law principle of permanent sovereignty over natural resources (PSNR) could be used as a vehicle for development, particularly looking at the case of Zimbabwean diamonds. While the principle could be an instrument for development, this article argues that legislation governing mining in Zimbabwe is not facilitative of a people-centred interpretation of the principle. Mining legislation vests the custodial right over the country’s mineral resources in the President. This creates an opportunity for abuse, as it limits the extent to which the people, as beneficiaries of the principle, can lay claim to the content of the principle. It also effectively limits any say the people may have on how revenue from the sale of diamonds is utilised, and how they would want to benefit from the resource. The article concludes that there is a need for legislative reform that speaks to development that is people-centred without which the majority of the people will keep sinking into the doldrums of extreme poverty, despite the country’s resource endowment. The hope is that the new Zimbabwean constitution will provide the impetus in this regard.

Sovereignty, Self-Determination, and Natural Resources

2018 ◽  
Author(s):  
Jérémie Gilbert
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Indigenous Peoples ◽  
Potential Role ◽  
Food Sovereignty ◽  
Self Determination ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Ambivalent Relationship ◽  
The Right

The issue of sovereignty over natural resources has been a key element in the development of international law, notably leading to the emergence of the principle of States’ permanent sovereignty over their natural resources. However, concomitant to this focus on States’ sovereignty, international human rights law proclaims the right of peoples to self-determination over their natural resources. This has led to a complex and ambivalent relationship between the principle of States’ sovereignty over natural resources and peoples’ rights to natural resources. This chapter analyses this conflicting relationship and examines the emergence of the right of peoples to freely dispose of their natural resources and evaluates its potential role in contemporary advocacy. It notably explores how indigenous peoples have called for the revival of their right to sovereignty over natural resources, and how the global peasants’ movement has pushed for the recognition of the concept of food sovereignty.

scholarly journals PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
The State ◽  
Mining Operations ◽  
South Africans ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease. 

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

“Defend your right!” How the populist radical right uses references to rights and freedoms to discursively construct identities

2021 ◽  
pp. 2336825X2110529
Author(s):  
Alexander Alekseev
Keyword(s):  
Radical Right ◽  
Social Rights ◽  
Economic Rights ◽  
Social Actors ◽  
Populist Radical Right ◽  
The People ◽  
Marine Le Pen ◽  
The Individual ◽  
The Right ◽  
Discourse Historical Approach

The article explores how the European populist radical right uses references to rights and freedoms in its political discourse. By relying on the findings of the existing research and applying the discourse-historical approach to electoral speeches by Marine Le Pen and Jarosław Kaczyński, the leaders of two very dissimilar EU PRR parties, the Rassemblement National and the Prawo i Sprawiedliwość, the article abductively develops a functional typology of references to rights and freedoms commonly used in discourses of European PRR parties: it suggests that PRR discourses in Europe feature references to the right to sovereignty, citizens’ rights, social rights, and economic rights. Such references are used as a coherent discursive strategy to construct social actors following the PRR ideological core of nativism, authoritarianism, and populism. As the PRR identifies itself with the people, defined along nativist and populist lines, rights are always attributed to it. The PRR represents itself as the defender of the people and its rights, while the elites and the aliens are predicated to threaten the people and its rights. References to rights in PRR discourses intrinsically link the individual with the collective, which allows to construct and promote a populist model of ethnic democracy.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

scholarly journals Consent, custom and international law in South Africa: What Australian lawmakers could learn

2019 ◽  
Vol 44 (3) ◽  
pp. 197-202
Author(s):  
Stephen Young
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Mineral Resources ◽  
Bill Of Rights ◽  
Customary Laws ◽  
Traditional Communities

This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.

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