¹ Wenar, L, Blood Oil: Tyrants, Violence, and the Rules that Run the World (Oxford University Press, New York, NY, 2016).Google Scholar

² Wenar, L, ‘Property Rights and the Resource Curse’ (2008) 36(1) Philosophy & Public Affairs 2.CrossRefGoogle Scholar

³ By ‘practice-dependence’ I mean a methodological tenet of normative theorising which suggests we take existing institutions as a starting point for moral analysis. See Sangiovanni, A, ‘Justice and the Priority of Politics to Morality’ (2007) 16(2) The Journal of Political Philosophy 137.CrossRefGoogle Scholar

⁴ See (n 1) 210–17.

⁵ Ross, ML, ‘How Do Natural Resources Influence Civil War? Evidence from Thirteen Cases’ (2004) 58(1) International Organization 35.CrossRefGoogle Scholar

⁶ See (n 2) 3.

⁷ Allen Buchanan has become a vocal advocate of the view that justice, understood essentially as human rights, is the moral foundation of the current international legal order. Buchanan, A, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, New York, NY, 2004) 4.Google Scholar

⁸ See (n 1) 170–80, 190–207.

⁹ See (n 1) 235–8.

¹⁰ For an account of the emergence of this consensus among states, see Schrijver, N, Sovereignty over Natural Resources (Cambridge University Press, New York, NY, 1997) 33–81.CrossRefGoogle Scholar

¹¹ Schrijver, N, ‘Self-Determination of Peoples and Sovereignty over Natural Wealth and Resources’ in Schrijver, N (ed), Realizing the Right to Development (United Nations Publication, New York, NY, 2013).Google Scholar

¹² For this point, see Reus-Smit, C, Individual Rights and the Making of the International System (Cambridge University Press, Cambridge, 2013) 2.CrossRefGoogle Scholar

¹³ Other issues concerned what kind of independence satisfies self-determination, whether the principle requires the creation of an independent government and whether the government should be representative and democratic. See Cassese, A, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, Cambridge, 1995) 141–58.Google Scholar

¹⁴ See (n 12) 169–70.

¹⁵ These include The Declaration on the Granting of Independence to Colonial Countries and Peoples, The Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, and both human rights Covenants.

¹⁶ See Zacher, M, ‘The Territorial Integrity Norm: International Boundaries and the Use of Force’ (2001) 55(2) International Organization 215.CrossRefGoogle Scholar

¹⁷ Hannum, H, ‘Rethinking Self-Determination’ (1993) 34(1) Virginia Journal of International Law 1.Google Scholar

¹⁸ Wellman, CH, A Theory of Secession: The Case for Political Self-Determination (Cambridge University Press, Cambridge, 2005).CrossRefGoogle Scholar

¹⁹ The most prominent recent defenders of a moral right of self-determination (and resource rights as its corollary) for groups which are not sovereign nations include Moore, M, A Political Theory of Territory (Oxford University Press, New York, NY, 2015)CrossRefGoogle Scholar and Nine, C, Global Justice and Territory (Oxford University Press, New York, NY, 2012).CrossRefGoogle Scholar

²⁰ Beitz argued that the location and framing of collectives vis-à-vis unequally distributed and undeserved natural resources is arbitrary from a moral point of view. Therefore, natural resource endowments should be redistributed according to a global redistribution principle which would give each society a fair share of natural resources. Beitz, C, Political Theory and International Relations (Princeton University Press, Princeton, NJ, 1979) 141, 292.Google Scholar

²¹ Feiring, B, Indigenous Peoples’ Rights to Lands, Territories, and Resources (International Land Coalition, Rome, 2013) 11, available at <http://www.landcoalition.org/sites/default/files/documents/resources/IndigenousPeoplesRightsLandTerritoriesResources.pdf>.Google Scholar

²² See Daes, E-I, ‘Indigenous Peoples’ Permanent Sovereignty over Natural Resources’ Final report of the Special Rapporteur to the Commission on Human Rights, E/CN.4/Sub.2/2004/30 (13 July 2004) available at <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/149/26/PDF/G0414926.pdf?OpenElement>..>Google Scholar

²³ Macklem argues that indigenous rights have to be internationally legally recognised by international law as distinct from more generic human rights (minority rights and rights to cultural protection as well as civil, political, and social rights) because they mitigate adverse consequences of the arbitrary distribution of territorial sovereignty initiated by colonisation – the distribution which not only excluded indigenous groups from participating in the distribution of sovereign power, but which also authorised legal actors to whom it distributed sovereign power – states – to exercise such power over indigenous peoples to their detriment. Macklem, P, The Sovereignty of Human Rights (Oxford University Press, New York, NY, 2015) 161.Google Scholar

²⁴ The key international instruments that define indigenous peoples’ rights are the International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries from 1989 (ILO Convention No 169) and the United Nations Declaration of Rights of Indigenous People from 2007. For an account of the process of international recognition of indigenous rights see (n 23) 133–62.

²⁵ United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295, 46 ILM 1013 (13 September 2007). Available at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>..>Google Scholar

²⁶ The case of Saramaka People v Suriname (2007) is crucial in this respect. For a detailed analysis of this case from the perspective of the relationship between indigenous rights and the changed scope of state sovereignty, see Fox-Decent, E and Dahlman, I, ‘Sovereignty as Trusteeship and Indigenous People’ (2005) 16(2) Theoretical Inquiries in Law 507.Google Scholar

²⁷ See (n 1) 203.

²⁸ See (n 1) 203–4.

²⁹ See (n 1) 202–3, 206.

³⁰ The Declaration on Permanent Sovereignty recognises that it is ‘the inalienable right of all states to freely dispose of their natural wealth and resources’ in the preamble and that ‘the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people of the State concerned’ in the first article. Permanent Sovereignty over Natural Resources, GA Res 1803 UN Doc A/5217 (14 December 1962). Available at <http://www.ohchr.org/Documents/ProfessionalInterest/resources.pdf>.

³¹ This distinction can be considered akin to the distinction between legal ownership and beneficial ownership known in common trust law. In common law of trust, the legal owner is not the true owner of the property and holds the legal title for the beneficial owner who is the ‘real’ property owner entitled to receive benefits from the property and make decisions with respect to all aspects of the property.

³² See (n 10) 260–305.

³³ Art 26 of UNDRIP states that ‘indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’ and that ‘indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use’. The United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 UN Doc A/RES/61/295, 46 ILM 1013 (13 September 2007) available at <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>. Relying on the art 21 of the American Convention on Human Rights (which establishes a right to use and enjoy property), the Inter-American Court of Human Rights has in its several decisions recognised that indigenous communities have the right to ownership of natural resources within their territories. For an overview, see (n 26) 523–6.

³⁴ Waldron, J, ‘Property and Ownership’ in Zalta, EN (ed), The Stanford Encyclopedia of Philosophy (Winter 2016 edn) available at <https://plato.stanford.edu/archives/win2016/entries/property/>..>Google Scholar

³⁵ Risse distinguishes no ownership, joint ownership, common ownership, and private ownership. Common ownership is a right to use something without a right to exclude other co-owners. Its core idea is that all co-owners have equal status and ought to have an equal opportunity to use collectively owned resources to satisfy their basic needs. Risse, M, On Global Justice (Princeton University Press, Princeton, NJ, 2012) 112.Google Scholar

³⁶ For the most recent argument against framing resource rights within the current system of sovereign territoriality and on the basis of claims to self-determination, see Armstrong, C, Justice and Natural Resources (Oxford University Press, New York, NY, 2017) 132–49.CrossRefGoogle Scholar Armstrong argues that sovereign territoriality as a way of framing of rights to natural resources undermines the egalitarian distribution of benefits and burdens flowing from natural resources.

³⁷ John Christman called it ‘private liberal ownership’ or ‘sovereignty model of ownership’. Christman, J, The Myth of Property: Toward an Egalitarian Theory of Ownership (Oxford University Press, New York, NY, 1994) 7.Google Scholar

³⁸ See (n 1) 207.

³⁹ The colonial system of foreign investment had in essence been a system of non-reciprocal, ex-territorial rights and privileges granted to ‘investors’ who made natural resources private property and required that they and their property would remain under the jurisdiction of their home state. See (n 10) 174.

⁴⁰ See (n 10) 263.

⁴¹ Constitutions with these provisions include Angola, Vietnam, Iraq and many more. See (n 1) 194.

⁴² Natural Resource Charter (2nd edn, Natural Resource Governance Institute, 2014) available at <https://resourcegovernance.org/sites/default/files/NRCJ1193_natural_resource_charter_19.6.14.pdf>..>Google Scholar

⁴³ The Resolution on Permanent Sovereignty recognises in its very first article that ‘the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned’.

⁴⁴ Nine, C, Global Justice and Territory (Oxford University Press, New York, NY, 2012) 9–12, 116–20.CrossRefGoogle Scholar

⁴⁵ See (n 44) 143.

⁴⁶ See (n 35) 111–15.

⁴⁷ Another example is the human right to water. While water has not been explicitly recognised as a self-standing human right in international treaties, international human rights law entails specific obligations related to access to safe drinking water (e.g. The Convention on the Elimination of All Forms of Discrimination against Women or The Convention on the Rights of the Child). Chris Armstrong proposes the treatment of freshwater supplies as a common resource and the levying of a small charge on the use of water as global resource tax, with the proceeds going to enhance water-harvesting technology in developing countries. Armstrong, C, Global Distributive Justice: An Introduction (Cambridge University Press, Cambridge, 2012) 158–61.Google Scholar

⁴⁸ One such prominent example is global poverty. As Thomas Pogge has argued convincingly, global poverty is the cumulative result of centuries in which the more affluent societies and groups have used their advantages at the cost of the less privileged. To reform this unjust status quo, Pogge suggests that those who make more extensive use of our planet’s valuable natural resources should compensate those who, involuntarily, use very little. According to Pogge, this idea does not require that we conceive of global resources as the common property of humankind or to be shared equally. It requires recognition that states do not have full libertarian property rights over their territorial resources and are required to share a small part of the value of any resources they decide to use or sell. The payment is called Global Resources Dividend and it is to be levied at the point of extraction at the modest rate of one per cent of market value of the resource. Payments from GRD would be made to poorest countries conditional on progress in poverty alleviation. Pogge, T, ‘Eradicating Systemic Poverty: Brief for a Global Resources Dividend’ (2001) 2(1) Journal of Human Development 59.CrossRefGoogle Scholar

⁴⁹ In a similar vein, Cassese argued that the internal self-determination is best explained as a manifestation of the totality of rights embodied in the Human Rights Covenants, with particular emphasis being given to the freedom of expression, the right to peaceful assembly, freedom of association, the right to vote, and the right to take part in the conduct of public affairs. See (n 13) 15.

⁵⁰ Reus-Smit argues that the reinvention of the right to self-determination and its anticolonial normative foundations occurred in the context of the negotiation about human rights Covenants in the Commission on Human Rights. See (n 12) 169–70, 187. Samuel Moyn, on the other hand, insisted that decolonisation was not a struggle for individual rights. Moyn, S, The Last Utopia (Belknap Press, Cambridge, MA, 2010) 85–9.Google Scholar

⁵¹ Art 1 of Pt I of both Covenant states that ‘all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development’. Furthermore, ‘all peoples may, for their own ends, freely dispose of their natural wealth and resources …’ International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> and <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>.

⁵² On the connection between self-determination, human rights, and rights to natural resources, see Gümplová, P, ‘Rights to Natural Resources and Human Rights’ in Oksanen, M, Dodsworth, A and O’Doherty, S (eds), Environmental Human Rights: A Political Theory Perspective (Routledge, Abingdon, 2017) 85–104.CrossRefGoogle Scholar

⁵³ For this point, see Buchanan, A, The Heart of Human Rights (Oxford University Press, New York, NY, 2014) 27–36.Google Scholar

⁵⁴ See (n 53) 8. On the universality of human rights, see Donnelly, J, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press, Ithaca, NY, 2013) 93–105.Google Scholar

⁵⁵ According to Buchanan, unlike moral rights, legal rights involve mechanisms of interpretation, compliance, and enforcement. See (n 53) 7–9.

⁵⁶ See (n 1) 225–33.

⁵⁷ Buchanan argued that consent is ill-suited to the political world not only because there are no existing entities that enjoy consent of most of their citizens, but also because politics is concerned with how to get along when consent is lacking. See (n 7) 243.

⁵⁸ Valentini, L, ‘Assessing the Global Order: Justice, Legitimacy, or Political Justice?’ (2012) 15(5) Critical Review of International Social and Political Philosophy 593.CrossRefGoogle Scholar

⁵⁹ See (n 53) 28–32.

⁶⁰ Koji, T, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12(5) European Journal of International Law 917.CrossRefGoogle Scholar

⁶¹ See Kalyvas, A, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12(2) Constellations 223.CrossRefGoogle Scholar

⁶² Kis, J, Constitutional Democracy (CEU Press, New York, NY, 2003) 133–40.Google Scholar

⁶³ Ackerman, B, We The People (Belknap Press, Cambridge, MA, 2000).Google Scholar

⁶⁴ Habermas, J, Between Facts and Norms (MIT Press, Cambridge, MA, 1998).Google Scholar

⁶⁵ Scheuerman, WE, ‘Between Radicalism and Resignation: Democratic Theory’ in von Schomberg, R and Baynes, K (eds), Discourse and Democracy: Essays on Habermas’s Between Facts and Norms (SUNY Press, Albany, NY, 2002) 61.Google Scholar