11 Oct Sovereignty over Natural Resources in the Afghan Crisis: Effectiveness and Human Rights Considerations
[Andrea Mensi is a postdoctoral researcher in public international law at the University of Lugano and adjunct professor at the University of Milan; he is an attorney at law admitted to the Milan Bar.]
While the international community is still debating about whether to recognize a government led by the Taliban, there are further critical issues to consider, such as the management of the natural resources in Afghanistan and the rights of the Afghan people with respect to those resources. At the time of writing this post (30 September 2021) the situation is constantly evolving, and many questions remain. How does the international legal principle of States’ permanent sovereignty over natural resources accords to those events? And what rights do the Afghan people have with respect to the natural resources within the Afghan territory?
Latest available official estimations of the Afghan Minister of Mines claimed that the natural resources in Afghanistan could amount to up to $3 trillion, including, for example, subsoil resources such as copper, rare earths, lithium, chromium, uranium, mercury, coal, oil, natural gas and gold. As noted some years ago in a UNEP Report on the sustainable management of natural resources in Afghanistan, the exploitation of natural resources represents an important tool to contribute to both the economic development and the maintenance of peace in the region.
Permanent Sovereignty over Natural Resources and Changes in Government
It is undisputed that the change in government, however obtained, does not per se affect the identity of the State itself (p. 387) as an international legal person. Despite the latest events, Afghanistan as a State did not cease to be an international legal subject and will maintain such status until it will consist of a territory and a population subject to an organized political authority. Those international legal principles stated in Article 1 of the Montevideo Convention on the Rights and Duties of States are today part of general international law and have been applied, for example, in the Opinion No 1 of the Arbitration Commission of the European Conference on Yugoslavia (p. 1495).
As a State, Afghanistan enjoys a right to permanent sovereignty over the natural resources within its territory, including in the subsoil. This international legal principle, which resulted from the application of territorial sovereignty to the natural resources of a State territory, has been declared by UNGA Resolution 1803 (XVII), which proclaims that States have the right to permanent sovereignty over their natural resources. According to the same Resolution, this right is to be exercised in the interest of national development and of the well-being of the people (in the sense of the whole population) of the State concerned. This principle has been confirmed by successive seminal UNGA Resolutions, such as UNGA Resolution 3281 (XXIX), incorporating the ‛Charter of Economic Rights and Duties of States’ (CERDS) and UNGA Resolution 3201 (S-VI) containing the ‛Declaration on the Establishment of a New International Economic Order’ (NIEO), as well as in numerous international treaties. Today, it is part of customary international law as declared by the International Court of Justice in Armed Activities on the Territory of Congo (para. 244).
While States are the main bearers of this right, the possibility that the right to permanent sovereignty is vested in other subjects rather than States is limited to those categories of non-independent peoples with a right to independence and hence to a territory under international law, namely the peoples of remaining non-self-governing territories and peoples subject to ‛alien domination, subjugation and exploitation’ expressly recognized by the UN General Assembly, such as the Palestinian people. However, the Afghan people do not currently fall within such categories of non-independent peoples, as such categories are essentially limited to situations involving the occupation of a territory by a foreign power.
Therefore, the Afghan State, like other States, has the right to permanent sovereignty over the natural resources of its territory and exercises such right through its government, on behalf of, and in the interest of the Afghan people. In such context, the Afghan government has the exclusive authority to adopt decisions on the exploitation, utilization and conservation of natural resources in the State territory, above and beneath the surface, including the freedom to decide the method of their exploitation, the right to grant concessions to national or foreign companies, and to conclude trade agreements for the exploitation of such natural resources (pp. 262-266).
The Legitimacy of the New Afghan Government to Exploit Natural Resources
The fact that the Taliban took power through the use of force raises questions about whether the new Afghan government, which resulted from such events, will be entitled under international law to exercise control over the Afghan natural resources, including strategic resources in the subsoil, on behalf of the Afghan people. According to the doctrine of effectiveness, the effective control of a political entity over a territory and its population represents the most important criterion to determine whether a government represents the State at the international level. While the situation is still evolving, evidence suggests that today the new interim government, which is composed mainly, if not exclusively, of Taliban leaders, is exercising effective control over most of the Afghan territory, including the capital Kabul.
The unconstitutional conduct of the Taliban in taking power seems, however, to have limited impact in the context of permanent sovereignty over Afghan natural resources. In principle, a legitimate government which loses control over parts of State territory following an armed conflict is considered the representative of the State by international law (pp. 9-10). However, there is not currently an Afghan government in exile, such as the Hadi exiled government of Yemen, that would substantially, and not ‛purely nominally’ (p. 94), challenge the authority of the Taliban over the Afghan territory.
Indeed, former President Ghani has resigned, accepting de facto the control of the Taliban over the country. The only significant area of the Afghan territory still not fully controlled by the Taliban is the region of Panjshir, led by the anti-Taliban force of Ahmad Massoud and supported by Deputy President Amrullah Saleh, which recently stated itself to be the legitimate ‛caretaker president’ according to the Constitution of the Islamic Republic of Afghanistan. However, its ability to effectively oppose the Taliban remains uncertain and will greatly depend on international support. In such a context, and considering that the recognition or non-recognition of a firmly established government by other States is not a decisive element, two members of the United Nations Security Council, Russia and China, are appraising the opportunity to establish diplomatic relations with the new Taliban government. Among those first diplomatic contacts, during a meeting between China’s Foreign Minister Wang Yi and current acting First Deputy Prime Minister Mullah Baradar, the Taliban would have expressed their commitment to creating a secure environment for foreign investors, including in the natural resources sector.
Obligations of the New Government under International Law
In these circumstances, an Afghan government led by the Taliban, which exercises effective control over the State territory, has in principle the authority to determine the exploitation of the natural resources in the Afghan territory. Nevertheless, the future government is bound by certain obligations under international law. First, as stated by the above mentioned UNGA Resolution 1803 (XVII) and by relevant Security Council Resolutions, the current customary content of the principle of permanent sovereignty over natural resources requires that the management of the natural resources of a State is done in the interest of that State’s development and the well-being of its people who are the beneficiaries of permanent sovereignty. Consequently, the whole population of Afghanistan shall be entitled to the economic benefits and revenues arising from the exploitation of such resources.
Moreover, while States are the holders of the right to permanent sovereignty over natural resources, peoples enjoy certain rights under international law with respect to those natural resources. According to common Article 1(2) of the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Afghan people, like every other people, have the right freely to dispose of their natural wealth and resources for their own ends. Furthermore, the decisions adopted by the future Afghan government on the exploitation of natural resources shall not deny the Afghan people of their own means of subsistence. As declared by the Human Rights Committee (HRC), such provision constitutes the ‛economic content‘ of the right to self-determination declared in Article 1(1) of the two Covenants, which states that by virtue of their right to self-determination, all peoples have the right to freely determine their political status and to pursue their economic, social and cultural development. As part of the right to self-determination, the Afghan people have the right to participate in the decisions regarding the exploitation of such natural resources through legitimate representative institutions established by Afghan domestic law. Those international legal principles on collective rights of peoples with respect to natural resources may seem aspirational and they mostly depend on effective implementation. However, there is evidence of a growing States practice, such as for example in Tanzania and South Africa domestic legislations, to accord certain peoples’ collective rights with respect to natural resources.
Therefore, the new Afghan government will be under an international obligation to ensure that the exploitation, management and conservation of such resources will be for the well-being of, and in the interest of, the Afghan people rather than for other subjects. Despite not expressly mentioning natural resources, the recent Resolution 2596 (2021) approved by the Security Council on 17 September 2021 demands that the Afghan territory, which according to the international legal connotation of the term comprises its natural resources, not be used to finance terrorist acts. In fact, the illegal exploitation of natural resources by the Taliban to finance terroristic activities and illegal groups has been condemned in the past by both the UNGA and the Security Council. On other hand, the link between illicit exploitation of economic resources and the rights of peoples as beneficiaries of such resources has been already stated by the Security Council in a 2020 Resolution on Libya. However, those acts committed by the Taliban in time past as armed groups do not per se affect the current right to permanent sovereignty of the Afghan State that will be exercised through the new government, which constitutes the distinct ‛formative element’ and the ‛organizational machinery’ of the Afghan State. Rather, it will be a duty of the new Afghan government to ensure its international obligations, including that the Afghan people, and no other subjects, will be the beneficiaries of the exploitation of Afghan natural resources.
The latest negotiations resulted in the appointment of an interim government where the Taliban have a relevant, if not predominant, role. While the Afghan crisis is still ongoing and creates many relevant concerns on human rights protection, particularly on the fundamental rights of women, children and minorities such as the situation of the Hazaras, the issues associated with natural resources deserve careful consideration. Resources, including strategic rare earths and raw materials, have a fundamental role in the stabilization and development of Afghanistan and of its people. International law is based on facts, and the effective control exercised by the Taliban over a relevant part of the Afghan territory cannot be ignored. In principle, and considering the current situation, the new Afghan government is entitled to exercise effective authority over the exploitation of the natural resources of the Afghan territory on behalf of, and in the interest of, the Afghan people. However, international law imposes precise human rights obligations on the Afghan government in order to ensure that the exploitation of the natural resources within its territory is done for the benefit of, and in the interest of, the Afghan people. Despite natural resources not being mentioned in the most recent Resolution 2596 (2021) of the Security Council, their management and the rights of the Afghan people with respect to those resources shall be a priority consideration for Afghan and international actors as a key issue in the further negotiations for the stabilization of Afghanistan and its future development plans.