Blood Oil: A Plea for Progressive Reform or a Philosopher’s Utopia?

Phoebe Okowa is Professor of Public International Law at Queen Mary University of London.  Her teaching interests are in the broad area of Public International Law, especially the law of armed conflict, international environmental law and international criminal law.  She has been a Visiting Professor at New York University School of Law, University of Lille and Stockholm. A member of the Permanent Court of Arbitration, she has advised Public Sector Organizations on questions of Public International Law and served as a member of the IUCN Committee on Environmental Law and the International Law Association Committee on Transnational Enforcement of Environmental Law.

This is an important book. Although not the first to document the extreme deprivation that exists in countries abundant with natural resources or the kleptocratic manner in which those in authority enrich themselves at the expense of their populations, it is to my knowledge the first to offer a systematic explanation of our collective complicity as citizens in this kleptocratic enterprise. The existing literature whether by international lawyers or political scientists, have largely documented the complicity of governments and large corporations in atrocities perpetrated by autocratic and unaccountable regimes as well by rebel groups; collectively, these groups have been able to inflict unimaginable misery on political communities, domestic and international through revenues generated by natural resources.  The first part of this book is largely confirmatory of the themes in the existing body of literature that have explored the predatory and destabilizing role of natural resources in perpetuating autocracy, religious intolerance, mass human rights abuses and general global insecurity.  But this is not a rehearsal of well–trodden arguments or sweeping generalizations. The book is meticulously researched and backed by impressive data as evidenced by the detailed account of the extensive abuse of power by President Obiang of Equatorial Guinea, a country and a president not usually the stuff of headlines! But it is not just explanatory of the pernicious effects of natural resources especially oil.  The book postulates an agenda for change, a plea for responsible citizenship that would require individuals in rich countries to give up their dependence on oil from repressive regimes, loosely categorized as those governments that are in not in any way accountable to their populations especially natural in resource matters.

Thematically this review is by no means comprehensive and in many ways reflects my own disciplinary biases as a public international lawyer.  However, it is probably a good area to focus on because from the outset, the author does not hide his disdain for the normative framework of international law and its supporting institutions.  He is particularly critical of international law’s broad acceptance of governments’ ‘effective control’ as the basis of authority and it’s concomitant failure to give substance to ‘popular sovereignty’ in natural resource transactions. Broadly, he sees international law’s unquestioning acceptance of ‘effectiveness’ as being in conflict with its commitment in international treaties, that the resources of a territory belong to its people. Moreover drawing on examples from domestic law, he points out the inherent contradiction in a system notionally committed to the rule of law also sanctioning a power structure characterized by ‘might is right’. The Putin’s, Obiang’s or Gaddafi’s are able to sell oil because by the rules of the system they are the recognized depositaries of public power, free to dispose of the natural resources of their territories even in the absence of tangible benefit to the populations themselves. Put crudely that international law itself sanctions the theft of natural resources by odious regimes from citizens who rightly own it.

It is true that international lawyers have long accepted that in general ‘effective control’ not democratic legitimacy or popular sovereignty is the basis of authority in international law. This is not because they would not prefer things to be otherwise – international law has never claimed that this it is a just or morally defensible rule, but it is a rule the reflects an acceptable compromise between the twin demands of justice and order in a pluralist community of states. It also a nod to the reality that co-operation and peaceful co-existence may in fact entail a considerable degree of deference to governance structures that are plainly undemocratic.  Few would disagree that effective control is in fact the bedrock on which, however imperfect, the present system of international peace and security rests.  The values that underpin Wenar’s plea for change have in fact been considerably undermined in post Gaddafi’s Libya or Saddam’s Iraq by misguided attempts to create a more democratic and accountable framework of governance, and to prioritize the demands of justice. To be clear, he is adamant that his is no call for pro-democratic intervention, but the coercive and intrusive economic measures advocated for in his Clean Trade Act would in each case have an effect, potentially as catastrophic as the military interventions in Iraq and Libya but this time affecting a multiplicity of regimes and millions of citizens. There are good reasons why the strictures on intervention are not limited to use of force but extend to all forms of economic and political coercion, especially when intended to bring about regime change.

There is also the deeply troubling fact that we live in an international system characterized by profound political inequality and in which the United States and the United Kingdom have played a pivotal role in the marginalization of states from the Global South, and have themselves been complicit in propping up some of the most repressive governments that emerged during the cold war period. Against this backdrop, any proposal of oversight by citizens of these same countries plays straight back into the narrative of subordination, a civilizing mission in all but name.  Moreover, it is surprising that not much thought is given in the book as to how those likely to be destabilized by the proposed system of boycott may react to them; for to have any veneer of legitimacy it must act at least in concert or with the the tacit approval of those with a stake in the system.  Congolese artisanal miners as the doomed US legislation (Dodd Franck 2010) indicates or Nigerian citizens dependent on oil revenue are unlikely to take very kindly to system of degrading tutelage overseen by American or British consumers, deciding when best to buy oil from their governments and when to retreat. Wenar’s remedial proposal has all the hallmarks a citizen sanctioned system of vigilante justice, without oversight or any form of accountability to the populations likely to be affected. Moreover, it assumes as a matter of fact that the citizens of rich nations, empowered to exercise oversight will act on principle free from bias or the influence of domestic partisan interests. The Dodd Franck conflict mineral legislation introduced in 2010 was designed to prevent US corporations from buying conflict minerals that were fuelling violence in the DRC is swiftly being reversed by the Trump administration not because of its devastating socio-economic impact, as the de facto boycott of Congolese minerals took hold, but because it puts US companies at a competitive disadvantage in the international market.  The litigation in US Courts challenging the Dodd Franck Act was singularly concerned with the first amendment rights of American corporations and the livelihoods of local stakeholders impoverished in the wake of its implementation has played no role at all in the formulation of American policy.

There in are fact good reasons why all legal systems including international law, generally frown on self-help, and when sanctioned, only as a most exceptional measure, and subject to important humanitarian safeguards. In the absence of adjudicatory structures of oversight, self-help quickly degenerates into an institutionalized system of witch-hunt against so called ‘pariah states’. The systematic boycotts proposed in the book, to the extent that it will be directed at largely oil producing Islamic states will if nothing else be a rallying point for political Islam and the attendant security implications.

The Nigerians, Venezuelans, or Saudi’s may wish for a more just and democratic framework for the distribution of oil revenues but arguably not at the expense of their own dignity and integrity as sovereign peoples. The futility of prolonged economic sanctions in Iraq and their effect in helping Saddam Hussein consolidate his hold on power, as an Arab hero resisting the forces of neo-colonialism, is a cautionary tale against attempts to bring about political change through external economic coercion. In the form outlined, Wenar’s Clean Trade Act sits rather uncomfortably with the sovereign equality of peoples and the overriding imperatives of maintaining peace and order. This is not to say that states must do as they please or that we must always look the other way, but any forms of pressure brought to bear must be consistent with the bedrock principles on which our shared security rests. A targeted campaign of boycott with a declared objective of regime change, even if that change emanates from the people themselves must also recognize that is a course of action potentially destabilizing the very communities it is meant to protect.