Gathii on Public/Private Resource Wars

James Thuo Gathii, Albany Law School, draws upon examples of resource wars in colonial African history in a new paper, Slippages of the Public/Private in Resource Wars. The abstract focuses on this implications he draws from this history:

This paper demonstrates that the public/private distinction that undergirds the view that States have a monopoly of violence of the means to wage war while inaccurate continues to inform contemporary debates in international law in the context of conflicts over resources like diamonds. It shows how the sharp distinctions and boundaries between public and private realms in relation to the monopolization of violence contributes to the ambivalent commitments of the global legal order -and of international law in particular - in dealing with non-state actors engaged in initiating or starting wars in the context of resource wars. In short, my claim is that international law is split at the root - it is split at a number of levels: first, it is split in proceeding from the premise that the use of force (violence) can only be evaluated for its lawfulness if it fulfills certain criteria that relate to the conduct of a State, but where it involves the conduct of non-State actors such violence/use or use of force largely - though not exclusively - falls outside the scope the rules of jus ad bellum.

Second, contemporary international law is also split at its root because it has traditionally underplayed the role of private actors in creating and conducting the use of force/violence. Yet, eighteenth and nineteenth century chartered trading corporations in the colonies were explicitly mandated to wage war to expand the commercial interests of European states consistently with prevailing understanding of international law at the time. The resource conflicts of the 20th and 21st centuries, which also primarily involve non-State actors, have strikingly similar parallels with mercantile/chartered trading corporations in the colonies - although today international law arguably proceeds from the premise that only States have the monopoly of the means and the right to lawfully engage in violence/war. In short, the resource conflicts of today are analogous in many respects with the use of violence by chartered companies. Like the chartered companies of earlier periods, the roving bandits, mercenaries and guerrilas controlling resource zones seek, protect and expand their commerce in a manner in that demonstrates that violence is has not been de-democratized, de-marketized and de-territorialized, contrary to international law's premise that States have a monopoly of violence.

Ultimately, rules of international law relating to the resort the use of force artificially separate the legality of the use of force as used by States, from the use of forcible measures by non-State actors even when the history of the role of international law is deeply implicated in acquiescing to and legitimating the spread of commerce and the acquisition of territory through the use of force. What is more, to the extent that there are standards being developed to govern the extraction of mineral resources, this has involved developing 'soft' rather than hard norms. That is to say that those standards being formulated to govern the role of private actors in resource conflicts as evidenced by the Kimberley Transparency Initiative with regard to 'blood diamonds' which is not legally binding like those relating to the resort to use of force by States.

This failure so far to establish explicitly categorical and enforceable rules prohibiting the use of force in the activities of local and transnational actors engaged in resource extraction in the third world is striking given the hardness of the rules prohibiting the use of force and regulating the use of force when the actors involved are States. What makes these differences all the more striking is that the prohibitions on resort to force where States are involved are predicated on safeguarding the territorial integrity and political independence of States, precisely the twin concerns that arise with resort to the use of force by non-State actors. In short, non-state actors threaten the territorial integrity and political independence of states much the same way that resort to the use of force does with reference to State actors, and yet rules of international law have been slow to begin addressing the use of force by non-state actors in the same way.

In effect, the emerging regimes of 'soft' or voluntary rules and standards may be argued to have the effect of ineluctably facilitating the activities of local and transnational actors to extract mineral resources in so far as they do not categorically impose binding international legal sanctions on these non-state actors not to use force in the same way that they apply to States. This arguably results in the facilitation of the commercial interests of transnational and local actors. Even if one was not persuaded that the absence of a strict norm prohibiting non-State actors from engaging in forcible measures, it is clear that the thriving global trade in resources like diamonds and hard wood timber benefit directly from the forcible extraction of these resources at lower costs than if these resources were peaceably extracted. This is because wars make it difficult for weak States to build institutions that can enforce the collection of taxes and royalties. Without the income that taxes and royalties generate from resources, these States have no income to build the kind of institutions necessary to provide alternative and legitimate avenues of resource extraction.