Legal empowerment for local resource control

Yet, overall, the security of resource rights is problematic for both foreign
investors and local resource users in much of sub-Saharan Africa. This is due
to ill-drafted and/or ill-coordinated laws, weak government capacity to
enforce them, limited effectiveness and independence of the judiciary and
other factors.
Within this, efforts to secure resource rights have tended to focus on foreign
investment. As a result, the legal protection of resource rights tends to be
differentiated: the resource rights of some are granted greater protection
than those of others. This differentiation broadly reflects asymmetries in
power relations between actors – with foreign investors tending to enjoy
greater protection than local resource users.
Universal principles but differentiated rules: the protection of property
under international law as it applies to Africa
At the international level, security of resource rights is influenced by the
international rules on the protection of property. The right to property
affirmed by international human rights law protects both the resource rights
of local groups affected by large-scale investment projects, and the property
rights of foreign investors. In addition, foreign investment is also protected
under international economic law. This includes norms on the protection of
foreign property, which extends to resource rights based on contracts
between the investor and host state (e.g. forest or mining concessions). 10
International economic law protecting foreign property emerged in the 19th
century. In the 1960s and 70s, it formed the object of considerable debate
between capital-exporting and capital-importing states. More recently,
polarisations have given way to a significant strengthening of the protection of
foreign property, in many respects well beyond the protection granted to
nationals. This includes:
The development of international rules on the taking of foreign property,
particularly those establishing the conditions for the legality of takings
(public purpose, non-discrimination, due process and payment of
10. International arbitrators have consistently adopted a very broad definition of property rights, including
“all interests and rights which […] may be evaluated in financial and economic terms” (Liamco v. Libya);
and “any right which can be the object of a commercial transaction […] and has thus monetary value”
(Amoco v. Iran). Broad definitions of property rights are also used in virtually all bilateral investment
treaties. As a result, breaches of investors’ contractual rights have been treated as takings of property, with
implications for the strength of the protection of foreign investors’ assets (see e.g. the cases BP v. Libya;
Texaco v. Libya; Aminoil v. Kuwait).
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