Rights as Usual

This past week I participated in a Conference on “Natural Resources Grabbing: Erosion or Legitimate Exercise of State Sovereignty” organised by the University of Cagliari, in Sardinia. The joint paper my colleague Dr Jérémie Gilbert from the University of East London and I presented there is on “Resources Grabbing and Human Rights: Building a Triangular Relationship between States, Indigenous Peoples and Corporations”.

The starting point of the paper is the idea that under international law, two potentially contradictory rights co-exist: permanent sovereignty over natural resources, which is a right of the state; and the right of peoples to freely dispose of their natural resources. The right of peoples to dispose of their natural resources is guaranteed under Article 1 of the two main United Nations Human Rights Treaties, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Despite this prominent place under international human rights law (first article, present in both treaties), this right, as a right of peoples, was essentially dormant until the UN Human Rights Committee, the body monitoring the implementation of the ICCPR, started to ask states to comply with it in relation to indigenous communities. In parallel indigenous peoples rights were gaining significant international attention with for example the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007.

The paper then looks at the UN Guiding Principles on Business and Human Rights. By affirming the existence of a corporate responsibility to protect human rights, and by indicating in Guiding Principle 12 that “human rights” include both Covenants, the UN Guiding Principles actually require corporations not to violate the right of peoples to freely dispose of their natural resources. In practice, this means at a minimum a right of peoples, indigenous and non-indigenous alike, to consent (and therefore to say no) to operations affecting their access to resources. It may also mean that peoples should be given a seat at the negotiation table together with state authorities and international investors, so that these peoples can secure a share of the benefits the investment will bring.

In sum, the paper argues that the development of a legal framework on indigenous peoples under international human rights law, as well as the adoption of the UN Guiding Principles by the UN Human Rights Council in 2011, have somewhat revived the otherwise neglected right of peoples to freely dispose of their natural resources. This right holds great potential in the business and human rights field.