Resource Conflicts and International Law

Conflict economies and the role of natural resource exploitation in fuelling conflict are the subject of an extensive literature. According to the received view, declining superpower patronage at the end of the Cold War led armed opposition groups to turn to a range of means to ‘self-finance' insurrections that became more numerous and more intensive in the conditions of weakened governance that characterized a number of sub-regions during the 1990s. Financing options include the exploitation of mineral resources (diamonds, gold, coltan, etc.) and of forest products, the leveraging of resources through ‘booty futures,' the cultivation and/or exploitation of agricultural products that in themselves are either licit (cocoa, rubber) or illicit (opiates, cocaine), and the trade in wildlife. Resources are exploited either directly by the armed group or (more commonly) indirectly, through the ‘taxation' of actors engaged in the extraction, collection, transportation or processing activities. Resource exploitation also informs the motivations and conduct of governments, their agents, proxies and sub-contractors in conflict situations; Charles Taylor's Liberia and the kaleidoscope of government-resource-militia linkages in the Democratic Republic of the Congo are only the most obvious examples. Societies affected by resource conflicts pay an enormous price in terms of human rights abuses, environmental degradation, destruction of traditional social forms and lost developmental opportunities. Conflict-related trade necessarily involves markets, companies, institutions and entrepreneurs both within the conflict-affected region and around the world.

Although political scientists, geographers and various organizations (governmental as well as inter- and non-governmental) have extensively documented and analyzed the financing mechanisms that allow conflict to arise or to continue, close examination of conflict financing from a legal perspective has been much less evident. Such financing nonetheless has numerous potential legal ramifications for economic actors, individuals, and States. Some of the most significant for individuals and companies arise from emerging regimes based on recently-adopted international instruments in the areas of international criminal law, targeted Security Council sanctions, transnational financial crimes (corruption, money-laundering, and organized crime), as well as terrorist financing. These mechanisms, while often untested, increasingly impose ‘hard' or coercion-based normative benchmarks on corporate actors engaged in zones of weak governance. In doing so they are complementary to but distinct from the strategies and norms deployed under the heading of ‘Corporate Social Responsibility,' which typically result in voluntary approaches, using codes of conduct and stakeholder processes with the aim of improving private-sector conduct over time. Increasing attention to human rights abuses in conflict settings and to the right to good governance as an appurtenance of citizenship have also resulted in the establishment of more robust, hybrid regimes grounded in multi-stakeholder initiatives (the Kimberley Process Certification Scheme, the Extractive Industries Transparency Initiative). Finally, in addition to the multi-layered norms applicable to individuals and companies, ‘host', ‘home' and intermediary States all face a range of duties and potential vulnerabilities based on their obligations under international law.

Notwithstanding the work needed to clarify the law and policy that frames existing or emerging norms related to conflict financing, a wider set of questions presents itself as background, as methodological precursor, and as auto-critique to this task. While networks of transnational legal activism increasingly mobilize governmental, inter- and non-governmental actors to turn existing or emerging norms to ‘creative' use in addressing conflict-fuelling economic activity, the question of the challenges facing any quest for policy coherence presents itself, not only because of the collective action problem arising from the uneven ratification, implementation and enforcement of norms across the international community, but also because of competing interests between the different international (sub-)regimes involved (e.g. trade, environment, human rights). The latter problem is highlighted in the debate surrounding the alleged fragmentation of the international legal order, and points towards the need for analysis of the structured character even of the tensions, gaps, and differential strengths of that order in South-North terms, in terms of the relationships between vulnerable peoples and States and between private-sector actors and States, and in terms of how norm-enforcement serves to further State consolidation in ‘weak governance' situations, underscoring the ongoing State-centricity of the sovereignty-based international system. The ultimate objective of norm implementation cannot effectively be furthered without addressing such questions.

Among other questions, the present project will examine: (1) the developing international law that addresses (or potentially addresses) economic activity in situations of conflict or ‘weak governance', and the relevant legal responsibilities of States, companies and individuals in this regard; (2) the way in which the international law of resource conflicts should best be situated within a wider understanding of the international legal order and the multilateral world system; and (3) the elements of a coherent policy framework at the multilateral level, and the opportunities and barriers with respect to adopting such a framework.

Professor Broomhall will conduct the project as both a CLPE Fellow and a Nathanson Centre Visiting Scholar. The project is situated in the context of his ongoing work in this area, in particular in the context of a grant from the Research Development Initiative program of the Social Science and Humanities Research Council.

Collaborators: 

Don Hubert, Associate Professor, Graduate School of Public and International Affairs, University of Ottawa, http://www.socialsciences.uottawa.ca/api/eng/profdetails.asp?login=dhubert;

Penelope Simons, Associate Professor, Faculty of Law – Common Law Section, University of Ottawa, http://www.commonlaw.uottawa.ca/index.php?option=com_contact&task=view&c...

Mark Taylor, Deputy Managing Director, Fafo Institute for Applied International Studies, Oslo, Norway,

http://www.fafo.no/pers/bio/mta.htm

Leader Profile: 
Professor Bruce Broomhall , Department of Law; Director, Centre for the Study of International Law and Globalization, University of Quebec at Montreal.
Publications: 

Bruce Broomhall, Illicit Private-Sector Engagement in Conflict Zones – International Norms and ‘Hard’ Remedies under National Law: Overview and Recommendations (Centre for the Study of International Law and Globalization [CÉDIM], 2007), on-line at

http://www.cedim.uqam.ca/EN/IENR/Conference/Publications/Overview_Recomm... s.