Wenar’s New Right to Democracy Through Peoples’ Sovereignty over Natural Resources

A substantial portion of the natural resources we consume are stolen. My own thinking about this problem emerged from the ground-up, so to speak, as I realised that certain atrocities I was involved in investigating for an international criminal tribunal almost two decades ago were facilitated by resource predation that was completely devoid of any legal authority. This initial sense of shock was later followed by an unwelcome realisation that the same was true for a substantial body of resource transactions in wars throughout the world, and that in large part, these realities represent a continuation of practices instantiated in colonialism. Initially, my scholarly work involved thinking about how the war crime of pillage might apply to these wartime transactions,[1] and after a long period away from the topic working on tangential themes, I am now completing a second project considering how using pillage of natural resources to address resource wars might bolster (or undermine) the passivist ambition behind the prohibition on the use of force in international law. It is a pleasure to host a discussion of Wenar’s overlapping work, and to present a set of criticisms that apply to my earlier thinking to some extent too.

Wenar’s book starts with similar intuitions to my own, but he takes matters in a narrower, broader then different direction altogether. His focus is narrower than mine in that he is preoccupied with the theft of oil and oil alone. Although many of his insights might be easily transposed to other natural resources, his analysis reasonably selects one of the most spectacular exemplars. Yet his focus is broader than mine because, even though he certainly takes resource predation in war into account and references plunder on occasion, his analysis is not tied to warfare in any meaningful way. On the contrary, Blood Oil is a text that highlights how deference to “might makes right” in international law enables the theft of natural resources the world over by conferring title in natural resources on whatever actor is able to forcibly control them. For Wenar, this control need not necessarily be achieved through warfare, providing his arguments with far wider normative sweep. By implication, Wenar’s project is considerably more ambitious than my own, but this comes at the price of increased exposure to arguments from a critical perspective that I hoped he might react to.

Blood Oil’s most significant contribution lies in its recourse to democracy as a solution to the underlying problem, indeed it may be that democracy is Wenar’s central pre-occupation. I have set out how Wenar gets to democracy through natural resources in my introduction to this symposium,[2] but I summarize my reading of that trajectory again here briefly. Reflecting earlier work in the philosophical tradition, Wenar argues that international law’s willingness to recognize political groups that forcibly acquire control over natural resource endowments makes international law complicit in the collapse of domestic institutions, the ubiquity of coup cultures, the predominance of patronage networks as forms of political governance, and the catastrophic consequences these phenomena entail for local populations. In his own words, “[r]ewarding violence with rights makes a nonsense of property.”[3] Doing so “violates rights on a massive scale, and it causes enormous suffering;”[4] and it undermines democracy since “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5]

Wenar’s solution is to turn international law against itself by formally insisting on the pre-existing rights of peoples to their natural resources in international human rights treaties, then declaring stolen resources that are alienated in violation of the four principles he announces to ascertain whether peoples have demonstrated meaningful consent to the sale of their resource wealth.[6] Through this method, he ties what he calls “bare-bones civil liberties and basic political rights”[7] to the ability of states to pass good title in resources harvested from within their territory. The implications of the legal construction he supports are stark: non-democratic states cannot sell natural resources. As Wenar puts it, “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[8] Thus, peoples’ ownership over natural resources acts as a mechanism to ratchet up global democracy. Although much moral and political philosophy would support this goal, I here invite Wenar to reflect on analogies with areas of international law that also suggest the danger of important unintended consequences.

A perspective that draws on a critical history of international law seems particularly germane since international law has a long history of: (a) attempting to use international human rights law to leverage democracy; (b) making international recognition conditional upon a putative government’s democratic credentials; and (c) ostracizing communities from global trade based on their government’s deficiencies. I wonder, therefore, if engaging with this history alongside Wenar’s innovative new argument also reinforces the value of an intellectual dialogue between philosophy and international law.[9] At a certain juncture in this brilliant text, Wenar is critical of “international lawyers” as part of the problem. I want to disaggregate that group slightly by demonstrating some diversity of opinion amongst them and, in keeping with the focus of this blog, show how the history of international law offers different vantage points that may be intellectually useful to this global justice project. As I say, I am also motivated to ask Wenar to respond to criticisms that, to some extent, are also applicable to my own earlier work.

While Wenar is eager to undercut international law’s deference to “might makes right,” he simultaneously relies on international law in order to call pre-existing and legal the peoples’ right to natural resources he uses to do that work. Stated differently, instead of arguing for people’s rights over natural resources as a purely normative matter, he places important weight on his view that the concept is already instantiated in international human rights treaties. Doctrinally, that view sides with some international lawyers,[10] and plays down the very numerous references to states as owners of natural resources alongside peoples in international law.[11] More importantly though, I wonder if this deference to human rights doctrine leaves a core philosophical question unanswered. Since reading his excellent book, it has struck me that on the normative plane, the distinction between states versus peoples as owners of natural resources may boil down to a contest between rule of law and democracy as primary objectives. Thus, I wonder if readers might benefit from a leading moral and political philosopher’s assessment of whether rule of law is a more viable target to shoot for in the global resource sector.

Relatedly, what constitutes a “people” for Wenar’s theory is of major importance. This is particularly true if the contest between states’ and peoples’ ownership over natural resources overlooks indigenous rights to resource wealth within established nation states.[12] The United Nations Declarations on Rights of Indigenous Peoples stipulates that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Likewise, an important body of caselaw is developing within human rights bodies affirming indigenous rights to natural resources.[13] Thus, I wonder if treating “peoples” as an abstraction leaves unaddressed a whole set of questions that will likely be crucial to an indigenous perspective on these questions, such as how to understand indigenous ownership of natural resources as against majoritarian preferences within the post-colonial state, and equally importantly, whether using self-determination to affirm peoples’ rights to natural resources also enables political autonomy.[14]

As for democracy, Wenar’s work has important analogs in international law’s attempts to promote democratic governance, which might also assist his work. Wenar’s use of people’s ownership of natural resources to promote global democracy is interesting and novel, but the method itself has a long pedigree. In 1992, for instance, Thomas Franck wrote an especially influential article entitled The Emerging Right to Democratic Governance, wherein he too appealed to aspects of international human rights law to bolster democracy building.[15] Whereas Wenar draws on the peoples’ right over natural resources contained within the human right to self-determination, Franck used a range of different civil and political rights in the construction of his equivalent. Self-determination was certainly one of Franck’s emphases, but in addition, he pointed to freedom of expression in human rights treaties, the right to a participatory electoral process in the Universal Declaration of Human Rights, and the right to peace enshrined in the UN Charter.[16] The particular human rights Franck and Wenar employ partially overlap, but their strategies are more or less identical.

In Franck’s earlier iteration of the argument, the risks of imperialism were a central concern, so I wonder how Wenar would address these risks. While Franck wrote between the fall of the Berlin Wall and September 11, when all things seemed politically possible, much of his article was dedicated to tempering the anxiety that this new right to democratic government would turn out to be a trojan horse for neo-colonialism. Franck couched this worry in international law terms too, by exploring how the imposition of democracy might transgress the international law norm of non-interference in the domestic affairs of a state.[17] As we will see, that countervailing principle offers something of a push-back to projections of political uniformity globally. For Franck, his democratic norm ultimately sailed on the safe side of these rocks in ways that may be helpful to Wenar’s argument, but as a reflection of the relative diversity of opinion in the field, other international lawyers saw far greater peril. Martti Koskenniemi, for instance, called the argument “messianic,”[18] objecting that it amounted to “a call for contextual management of far-away societies in reference to Western liberal policies.”[19]

In a similarly critical spirit, Susan Marks’ review of the whole democratic entitlement movement in international law warned that “dire consequences” could follow when legitimacy is denied non-democratic states.[20] Her concern that the deployment of human rights as a mechanism for pro-democratic intervention might end up having predominantly negative, even dire, effects points to a second important theme I take up momentarily. For now, it is sufficient to summarize that Wenar’s use of human rights to generate democratic entitlements is anticipated in international law, that his intellectual predecessors were seriously preoccupied with the potential pitfalls involved in implementing the right, and that a major segment of international law scholarship criticized the endeavor as counterproductive. This history raises the interesting question whether Wenar’s new hook—natural resource ownership—can transcend these concerns and the politics that caused a rise and then fall of this very similar agenda at a point in history that was probably more amenable to the project.[21]

Beyond just human rights norms, the international law governing recognition offers a second parallel that might provide helpful insight. After all, it is the doctrine of recognition in international law that sustains the “might makes right” principle Wenar rightly views as a cause of so much suffering. In addressing this issue, Wenar views Western conferral of privileges over resource endowments to foreign authoritarian regimes via the international law of recognition as one of the primary means by which the West causes global poverty. To paraphrase the argument, Singer’s child drowning in the puddle is not the appropriate metaphor for our obligations vis-à-vis the global poor because we placed and maintain the child in the puddle, in part because our international laws of recognition confer warlords with title in natural resources.[22] To my mind, this critique of recognition likely misses the clearer ways the West causes poverty and fails to engage with the competing values recognition seeks to balance. Even if the doctrine of recognition is unquestionably a causal influence on this deplorable state of affairs, the deeper question is whether it is a necessary evil in the ugly world we find ourselves in.

In practice, states have waxed and waned in their willingness to make democratic credentials prerequisites for their recognition of foreign states and/or governments. In 1907, the Foreign Minister of Ecuador, Carlos Tobar, announced that his government would not recognize any entity that came to power through extra-constitutional means.[23] In 1913, President Wilson formally adopted this doctrine too, then employed it for the better part of two decades to withhold recognition from various would-be governments in South and Latin America.[24] By 1932, however, the practice of making recognition conditional on forms of government, democratic or otherwise, had fallen from favour.[25] Recipient states viewed the practice as a hypocritical violation of the principle of non-intervention in domestic affairs, since no government could trace its lineage to an unbroken line of democratic legitimacy.[26] And most significantly, withholding recognition from non-democratic regimes created a two tiered system; one within the bosom of international law and the other a group of pariahs. Quite apart from replicating standards of civilization, this bifurcation robbed states of a legal framework for governing their inevitable dealings with non-democratic regimes.[27]

In theory, the scholarly literature on recognition is extensive and diverse, but some of the leading scholars are also reluctant about treating democracy as a sine qua non for recognition in international law. Brad Roth, for instance, concludes his masterful treatment of these issues by arguing that “the absence of a meaningful ‘democratic entitlement’ in the international system ought not to be lamented; though superficially attractive, assertions of a new ‘democratic’ legalism pose serious dangers to international peace and security, and even to democracy itself.”[28] I provide a concrete illustration below, but I want to pause to bring the practice and theory of recognition together to show how they offer a significant contribution to the more recent philosophical projects focused on global justice. The combined effect of this international law theory and practice is that, whatever one might think of the underlying argumentation, the supposition that “might makes right” is an evil to be overturned likely requires a supplemental inquiry into whether the alternative might make matters even worse.

These concerns become particularly apparent if we turn to international law’s experience with sanctions. The assumption in Wenar’s great book (and sometimes in my own earlier thinking) is that once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper. I have come to wonder if this logic mimics early thinking about sanctions in international law, where international institutions pressured whole societies in an attempt to coerce their uncooperative governments to comply with international law obligations. Significantly, experience has shown that depriving local populations of access to global markets because of their government’s intransigence can have debilitating effects for local peoples, without necessarily changing their government’s behavior as desired.[29] In fact, sanctions’ social, physical and psychic impact could even rise to the level of a crime against humanity in certain circumstances. The question is, could these unintended side-effects also flow from attempts to coerce democracy, thereby providing an illustration of the “dire consequences” and “dangers to international peace and security, and even to democracy itself” that critics have warned about?  

This brings me to two final queries about this highly original, brilliantly written, hugely important book. Perhaps the fact that this new project focuses on natural resources offers a point of differentiation with all that came before in international law, which will allow it to steer clear of some of the objections I share here. Likewise, an appeal to consumers directly could possibly bypass international law and the politics that undergird it, to better achieve the enormously important goals Wenar seeks to promote. Both these questions strike me as valuable further inquiries that could be helpful to those who are for or against the new form of promoting democratic entitlement globally that Wenar has developed. In this spirit, it is a real pleasure to host Wenar’s work on this blog, which I constructed in a bid to promote exactly this type of critical but respectful dialogue about aesthetically pleasing, paradigm shifting work in the service of crucially important values.

[1] See Corporate War Crimes: Prosecuting Pillage of Natural Resources. See also, www.pillageconference.org.

[2] See New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World.

[3] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World 73 (1 edition ed. 2015).

[4] Id. at 334.

[5] Id. at xlviii.

[6] Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs). Id. at 227.

[7] Id. at 228.

[8] Id. at 229.

[9] For the leading scholarly work in this spirit, see Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (1 edition ed. 2015). A mini-symposium on his book is online here.

[10] See, for instance, Emerka Duruigbo, Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law, 38 Geo. Wash. Int’l L. Rev. 33 (2006).

[11] In reviewing this doctrinal question many moons ago, my own work drew on much scholarly literature, General Assembly Resolutions and treaty provisions. To cite an example of the last of these, Article 21(1) of the African Charter on Human and Peoples’ Rights states that “[a]ll peoples shall freely dispose of their wealth and natural resources,” whereas Article 21(4) of the same treaty indicates that “states parties … shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 56-60. My own review concluded that “given that permanent sovereignty over natural resources vests in both peoples and states, the doctrine can arguably be relevant to pillage cases in either scenario.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, para. 58.

[12] See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 61-65.

[13] Ibid.

[14] Karen Engle shows how concerns about encouraging political self-determination among indigenous peoples led states to recognize but limit self-determination during the negotiation of the UN Declaration on Rights of Indigenous Peoples. See K. Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22 Eur. J. Int. Law 141–163, 144–148 (2011).

[15] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992).

[16] Ibid.

[17] Ibid, at 68.

[18] Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).

[19] Martti Koskenniemi, Intolerant Democracies: A Reaction Responses, 37 Harv. Int. Law J. 231–234, 233 (1996).

[20] Susan Marks, International law, democracy, and the end of history, in Democratic Governance and International Law 532–566, 565 (Gregory H. Fox & Brad R. Roth eds., 2000), https://www.cambridge.org/core/product/identifier/CBO9780511522307A032/type/book_part (last visited Feb 27, 2019).

[21] J. d’Aspremont, The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks, 22 Eur. J. Int. Law 549–570 (2011).

[22] Thomas W. Pogge, World Poverty and Human Rights (2008).

[23] Ti-chiang Chen, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States 108 (1951), http://archive.org/details/cu31924016945770 (last visited Nov 9, 2016).

[24] Ibid.

[25] Id. at 108.; d’Aspremont argues that there was a resurgence of democracy as a criteria for recognition after the 1990s. See Jean d’Aspremont, L’Etat non-démocratique en droit internationalion: Etude critique du droit international positif et de la pratique contemporaine (2008).

[26] Chen, supra note 22 at 108.

[27] Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48 Int. Comp. Law Q. 545–581, 568–570 (1999).

[28] Brad R. Roth, Governmental Illegitimacy in International Law 413 (1999).

[29] See, for example, The Sanctions Decade: Assessing UN Strategies in the 1990s, (David Cortright & Lopez, George A. eds., 2000); Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (1 edition ed. 2007).