Introduction

In 2011, revolutionary forces in Libya, labelling themselves the National Transitional Council (NTC), took up arms against the government which had been led by Colonel Muammar Gadhafi for more than 42 years. Following Colonel Gadhafi’s excessive response to the insurrection, most notably the ordering of systematic and widespread attacks against the civilian population, the international community stepped in. In addition to authorizing military action, ultimately leading to the fall of the Gadhafi regime, the UN Security Council also imposed sanctions against the Libyan authorities. These included a freezing of the assets of the Libyan National Oil Corporation as a ‘potential source of funding for [Gadhafi’s] regime’.Footnote 1 Moreover, the Council explicitly expressed and affirmed its determination to ensure that the frozen assets ‘shall, at a later stage, as soon as possible be made available to and for the benefit of the people of the Libyan Arab Jamahiriya’.Footnote 2 Indeed, after the armed conflict had ended and a transitional government had been installed, the Security Council removed the petroleum sanctions.Footnote 3

The current situation in Syria resembles, to a certain extent, the situation in Libya before the fall of the Gadhafi regime. Also in Syria, protests broke out in 2011 against the government led by Bashar Al-Assad, which were severely repressed by the Assad government, resulting in an armed conflict which is still ongoing. In this situation, however, the Security Council was unable to adopt measures to stop the atrocities due to differences of opinion among its permanent members. This prompted the US and the EU in 2011 to impose sanctions against the Syrian authorities, including petroleum sanctions. Most interesting in this respect are the sanctions imposed by the EU, which provide an explicit exemption for oil exports from rebel-held territory in order to ‘support and help the opposition’.Footnote 4 The EU decided that competent authorities in EU member states should consult with the Syrian National Coalition for Opposition and Revolutionary Forces (SNC) before approving a particular transaction. This decision is striking, since it formulates a presumption that the opposition movement is entitled to dispose of Syrian oil reserves.

As a general starting point, it should be noted that international law does not formulate a clear-cut right for armed opposition groups to exploit natural resources (Sect. 2). It accords the right to dispose freely of natural resources to states and peoples (Sect. 3). The question that this article therefore aims to answer is whether armed opposition groups can claim a right to dispose of natural resources situated within national jurisdiction based on the premise that they represent either the state or its people. It is important to note here that the Libyan and Syrian armed conflicts are not the first in which armed opposition groups turn to natural resources to finance their armed struggle. In recent decades, natural resources have become one of the primary means for these groups to finance their activities. Examples include the União Nacional para a Independência Total de Angola (UNITA) in Angola, the Revolutionary United Front (RUF) in Sierra Leone and the Forces Nouvelles in Côte d’Ivoire, which all turned to diamonds as a source of conflict revenues. The role that natural resources play in internal armed conflicts has also been the object of extensive studies in social sciences literature regarding the political economy of armed conflict.Footnote 5

The armed conflicts in Libya and Syria however share two characteristics which make them especially relevant as case studies. In these armed conflicts the legitimacy of the respective governments was/is severely contested by a significant part of the world community as a consequence of the atrocities committed by these governments against their population. In addition, the major armed opposition groups in Libya and Syria—the NTC for Libya and the SNC for Syria—enjoy(ed) the sympathy of a significant part of the world community, which is illustrated by the widespread recognition of these groups by foreign states. The question is therefore to what extent these facts impact upon the legal status of the opposition movements and whether this would entitle them to exercise control over public natural resources (Sects. 4 and 5). Finally, this article explores the possibilities for granting armed opposition groups a right to exploit natural resources based on a factual determination of effective control over territory and their ability to respect international humanitarian law (Sect. 6).

The International Legal Framework for the Exploitation of Natural Resources by Armed Opposition Groups

Situations of armed conflict are primarily regulated by international humanitarian law, which is generally considered the lex specialis for these situations.Footnote 6 Moreover, international humanitarian law is the only field of international law which directly accords rights to armed groups.Footnote 7 It is for these reasons that any right for armed groups to exploit natural resources would primarily have to be based on this field of international law.

As a starting point it can be noted that international humanitarian law does not contain specific rules regulating the exploitation of natural resources. The reason for this is evident: international humanitarian law is designed to regulate the waging of an armed conflict and not to address conflict-sustaining activities, such as the exploitation of natural resources. The most relevant rules that apply to natural resources exploitation in internal armed conflicts relate to the protection of property and civilian objects. Furthermore, they are all formulated in terms of prohibitions. The relevant rules include the prohibition against pillage (Art. 4(2)(g) of Additional Protocol II), the prohibition against destroying or seizing the property of a hostile party (Art. 8(2)(e)(xii) of the ICC Statute as derived from Art. 23(g) of the 1907 Hague Regulations) and the prohibition against attacking, destroying, removing or rendering useless objects indispensable to the civilian population (Art. 14(2) of Additional Protocol II).Footnote 8 Without entering into the particularities of these provisions, it should be noted that they do not contain exceptions that would allow armed opposition groups to systematically exploit natural resources for the purpose of financing an armed conflict or otherwise.Footnote 9 In addition, the prohibitions contained in these provisions apply to internal armed conflicts generally.Footnote 10

A right for armed opposition groups to exploit natural resources cannot therefore be based on existing international humanitarian law. The following sections focus on the general legal framework for the exploitation of natural resources and specifically analyse whether armed groups could claim a right to exploit natural resources based on the premise that they represent the holders of the right to dispose freely of natural resources. Section 3 identifies these right holders, while Sects. 4 and 5 focus on the issue of representation.

Subjects of the Right to Dispose Freely of the State’s Natural Resources

International law establishes a right for states and peoples to freely exploit their natural resources.Footnote 11 This right originates in UN General Assembly Resolution 523 (IV) of 12 January 1952, which formulates a right for ‘under-developed countries’ to freely determine the use of their natural resources. Soon after the adoption of this resolution, the right developed along two different but interrelated tracks. First, the right was asserted in terms of the principle of permanent sovereignty over natural resources (PSNR), authoritatively laid down in the 1962 Declaration on Permanent Sovereignty over Natural Resources.Footnote 12 This declaration proclaims a right for peoples and nations to permanent sovereignty over their natural wealth and resources, while conditioning the exercise of this right on the premise that this must be done ‘in the interest of their national development and of the well-being of the people of the state concerned’.Footnote 13 In addition, as Chile proposed, the right of peoples to freely dispose of their natural resources was inserted into the two human rights covenants of 1966 as inherent in their right to self-determination.Footnote 14

The principle of PSNR thus emerged notably within UN General Assembly Resolutions adopted during the 1950s and 1960s, in the era of decolonization. It was advanced by newly independent and developing countries as a means of protecting their ownership rights over the natural wealth and resources situated within their territory.Footnote 15 At the time, the main idea behind the principle was to provide these countries with the legal tools to regain control over their natural resources and to exploit them for their own benefit. It is also in this context that the Chilean proposal to insert a right for peoples to freely dispose of their natural resources in the 1966 human rights covenants must be regarded. At first, the main purpose of the principle of PSNR and the right to self-determination was therefore to protect ‘weaker’ states against ‘stronger’ states. This explains the strong emphasis of early PSNR-related resolutions on the right of states to regulate foreign investment and the more controversial right to nationalise natural resources. At the time, the principle was therefore primarily asserted as an attribute of state sovereignty.

Since then, the principle of PSNR has been inserted in several treaties, especially in the field of international environmental law.Footnote 16 In addition, it has found recognition in the relevant practice of the UN Security CouncilFootnote 17 and has been recognized by the International Court of Justice as having customary international law status.Footnote 18 It can therefore be concluded that the principle of permanent sovereignty has a firm status in international law. Furthermore, whereas in its early years the emphasis of the principle was on (re)affirming the right of newly independent and developing countries to dispose of their natural resources without external interference, the emphasis of the principle shifted towards a rights and duty-related concept with internal dimensions.Footnote 19 As will be explained in Sect. 5, this has also led to a revaluation of peoples as subjects and beneficiaries of the principle. Before entering into this discussion, which is linked to the question of whether a right for armed groups to dispose of natural resources within national jurisdiction can be based on an assumption that they represent the people of the state, the following section will focus on the principle of PSNR as an attribute of state sovereignty and examines the question of whether and, if so, under which conditions, an armed opposition group may exploit natural resources on behalf of the state.

State Representation and the Right to Exploit Public Natural Resources Situated Within National Jurisdiction

The principle of PSNR attributes a right to dispose freely of natural resources to states and therefore assumes the existence of institutions to represent the state.Footnote 20 The existence of such representative institutions is even considered to constitute an essential aspect of statehood, as is apparent from the definition of a state as codified in the 1933 Montevideo Convention on the Rights and Duties of States. This Convention determines that a state should possess a government in addition to a defined territory and a permanent population.Footnote 21 It is therefore the government which is entitled to exercise control over the state’s natural resources to the exclusion of other entities. Section 4.1 examines the criteria that international law formulates for the recognition of an entity as the representative of the state in international law, while Sect. 4.2 takes a closer look at the attitude of the international community with respect to the Libyan and Syrian authorities after the outbreak of the protests in these states. The aim of this section is to show that once an entity has become the government of a state, there is a presumption that it remains the representative of the state in international law until it has effectively been removed. This observation is important for the purpose of determining the conditions under which armed opposition groups may qualify as the new government, discussed in Sect. 4.3.

Legal Criteria for State Representation

International law comprises two criteria which need to be satisfied for an entity to qualify as the government: an entity should be able to exercise authority over state territory and the population and it should possess a valid legal title to this effect.Footnote 22 In most cases these criteria do not pose any particular problems for the purpose of establishing which entity qualifies as a government and is therefore entitled to exercise the right to exploit the state’s natural resources and to issue concessions on its behalf. However, there are some instances where the situation leaves room for doubt. This is particularly so when a government no longer exercises effective authority over the whole territory of the state as a consequence of the outbreak of internal armed conflict or when a government has assumed power through unconstitutional means.

The requirement that a government exercises authority over territory and the population is referred to as the doctrine of effectiveness of governmental power. Effective control over territory and the population is considered to be the single most important criterion for determining which entity is considered to represent the state in international law.Footnote 23 The question arises whether international law would allow an armed opposition group to establish itself as the new government while the conflict is still ongoing, based on this group exercising effective control over portions of the state territory. It is important to note in this respect that international law contains rules prohibiting the premature recognition of an opposition movement as the new government, precisely to prevent situations in which third states all too easily switch sides according to their convenience. International law presumes that the established authorities continue to represent the state as a whole as long as the armed conflict is in progress.Footnote 24 As noted by Sir Hersch Lauterpacht:

So long as the lawful government offers resistance which is not ostensibly hopeless or purely nominal, the de jure recognition of the revolutionary party as a government constitutes premature recognition which the lawful government is entitled to regard as an act of intervention contrary to international law.Footnote 25

This is still the prevailing view in legal doctrine today.Footnote 26 In other words, as long as the outcomes of an armed conflict are undecided, any act recognising the opposition movement as the de jure government is unlawful and entails the responsibility of the recognizing state.

This also implies that it is the de jure government that is exclusively entitled to exploit the state’s natural resources. In these circumstances, recognition by third states of the opposing party as the representative of the state, or even allowing the opposition to exploit the state’s natural resources to the detriment of the lawful government, constitutes a violation of the principle of non-intervention.Footnote 27 While effectiveness is therefore an essential aspect with regard to the question of whether a new government represents the state in international law, it is less so for determining which entity is entitled to represent the state in situations of internal armed conflicts.

The doctrine of effective control is furthermore balanced by the second criterion, which requires that a government should possess a valid legal title to represent the state. Even though unconstitutional changes in government do not affect the identity of the state as such,Footnote 28 state practice demonstrates that the international community attaches importance to the existence of a valid legal title for state representation. This is first of all apparent from the reactions of the international community to coups d’états, such as those in Haiti in 1991, in Sierra Leone in 1997 and, more recently, in the Central African Republic in 2013. In all these situations the coup was condemned by the international community, including by the UN Security Council.Footnote 29

In addition, the importance attached by the international community to a valid legal title is reflected in several regional conventions which attach legal consequences to unconstitutional changes in government. Article 7(g) of the 2002 Protocol Relating to the Establishment of the Peace and Security Council of the African Union provides, for example, that the African Peace and Security Council shall ‘institute sanctions whenever an unconstitutional change of Government takes place in a Member State, as provided for in the Lomé Declaration’.Footnote 30 Acting upon the Protocol, the African Peace and Security Council suspended the Central African Republic immediately after the 2013 coup d’état.Footnote 31 Similarly, Article 9 of the Charter of the Organization of American States provides that the right to participate in the sessions of the principal organs of the organization may be suspended for a member of the Organization whose democratically constituted government has been overthrown by force.Footnote 32 This provision was invoked to suspend Honduras following the coup d’état in 2009.Footnote 33

This practice demonstrates that effectiveness is not the sole decisive factor in determining which entity is entitled to represent the state and, therefore, to exercise control over the state’s natural resources. The existence of a valid legal title is of equal importance. The question that subsequently arises is whether there are any circumstances in which governments in power are no longer considered to constitute the de jure government, implying that they are no longer entitled to exploit the state’s natural resources.

A distinction should be made in this regard between the establishment of a new government and the continued recognition of the established government. For new governments the existence of a valid legal title is important. The practice discussed in this section relates exclusively to unconstitutional changes in government. For the established authorities, the existence of a valid legal title is generally presumed. This also explains why a de jure government which has lost effective control over portions of the state territory following an internal armed conflict is still considered to represent the state in international law. Whether the actions of a government may deprive it of its status as a lawful government is discussed in Sect. 4.2 with reference to the situations in Libya and Syria, while Sect. 4.3 discusses the legal status of the opposition movements in Libya and Syria.

Attitude of the International Community towards the Libyan and Syrian Authorities

Both in the Libyan and the Syrian armed conflict, the authorities ordered systematic attacks against the civilian population, amounting to the commission of international crimes. The Independent International Commission of Inquiry on the Syrian Arab Republic that was established by the Human Rights Council to investigate alleged violations of international human rights law since March 2011 in Syria formulated the following conclusions in its August 2014 report:

Government forces continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces have committed gross violations of human rights and the war crimes of murder, hostage-taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon.Footnote 34

For Libya, the systematic attacks by the authorities against the civilian population constituted the primary reason for the Security Council to adopt measures under Chapter VII of the UN Charter, including a referral of the situation to the ICC and an authorization for member states ‘to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in [Libya]’.Footnote 35 It based these decisions on the failure of the Libyan authorities to respect its responsibility to protect its population.Footnote 36

Notwithstanding the condemnation expressed by the international community in connection to the atrocities committed by the Libyan and Syrian authorities, it is striking that neither the Security Council nor—in the absence of agreement between the Security Council members in relation to Syria—the General Assembly in their resolutions have suggested that the respective authorities would no longer qualify as the government. Even though the Security Council imposed asset freezes on the Libyan authorities, including in connection to the state’s oil reserves, it refrained from making any statements regarding the legal status of the Libyan government. The sanctions aimed to coerce the government to stop the killing; they did not have a direct impact on the legal position of the government as such.

In view of the stalemate in the Security Council in relation to Syria, reference can be made to relevant resolutions adopted by the General Assembly as expressions of the collective position of the international community in relation to Syria. These resolutions contain firm language with respect to the Syrian authorities, yet they do not denounce the government as such. The most far-reaching passages of these resolutions relate to the political transition process envisaged for Syria, based on the 2012 Geneva communiqué of the Action Group for Syria.Footnote 37 These passages contain proposals for the establishment of a transitional government, consisting of representatives of the Syrian opposition as well as the Assad government. While the passages therefore aim at dissolving the Assad government, they do not directly impact upon the current status of the Assad government. In addition, it should be noted that the approach of the General Assembly does not differ in this respect from the one taken by the Security Council, which is actively involved in the peace process. In its resolution of 17 December 2014 in relation to Syria, the Security Council ‘reiterates that the only sustainable solution to the current crisis in Syria is through an inclusive and Syrian-led political process that meets the legitimate aspirations of the Syrian people, with a view to full implementation of the Geneva Communiqué’.Footnote 38

The most important conclusion that can be drawn from these reactions is that the atrocities committed by the governments in Libya and Syria have faced widespread condemnation, yet they have not resulted in formal statements denouncing the position of the established authorities as the representative of the state. A distinction should therefore be made between condemnation voiced by the international community with respect to the acts of the government, on the one hand, and a decision to withdraw the recognition of the established authorities as the lawful government, on the other.

Where UN organs have not gone as far as to denounce the Libyan and Syrian authorities, it is interesting to take a closer look at the attitudes of individual states towards the Libyan and Syrian authorities. Most telling in this respect is the reaction of the US in connection to the Assad regime. The US has pushed for the removal of the Assad regime from the moment that it became clear that the regime used chemical weapons against its own population. It has also suspended most of its diplomatic relations with the Assad government and openly provides support to the moderate opposition forces.Footnote 39 Nevertheless, the US has also consistently been involved in peace talks with the Assad government and the opposition. Even though it is abundantly clear that the US no longer supports the Assad government or is willing to conduct bilateral diplomatic relations with it, the US has not officially withdrawn its recognition of the government as such.

The question arises whether a withdrawal of recognition can nevertheless be inferred from the attitude of the international community towards the opposition movements in Libya and Syria. Recognition of the opposition as the government would automatically entail the de-recognition of the established authorities. This issue is examined in the following section.

Attitude of the International Community towards the Libyan and Syrian Opposition

In both the Libyan and Syrian armed conflict, the opposition organized itself in the course of the armed conflict by establishing a political body to act as its representative in its relations with the international community. In Libya, the NTC was established in March 2011. In its founding statement, it declared itself to be ‘the sole representative of all Libya’.Footnote 40 Likewise, in the Syrian armed conflict the moderate opposition forces formed a National Coalition for Syrian Revolutionary and Opposition Forces (NCS), commonly known as the Syrian National Council in November 2012.Footnote 41

Individual states and international organizations started to express their recognition for the NTC and the NSC soon after the establishment of these bodies. It should however be noted that states did not recognise these bodies as the official government of Libya or Syria, but rather as the—or even a—representative of the Libyan or Syrian people, which amounts to political and not legal recognition.Footnote 42 Likewise, the General Assembly in its Resolution 67/262 (2013) welcomed the establishment of the NCS ‘as effective representative interlocutors needed for a political transition’, while noting ‘the wide international acknowledgement … of the Coalition as the legitimate representative of the Syrian people’.

According to Talmon, political recognition of an opposition group ‘means that the recognizing state is willing to enter into political and other relations with that group’.Footnote 43 This type of recognition therefore paves the way to establishing diplomatic relations with the opposition movement. However, it does not imply that the opposition movement is considered to be entitled to assume international rights and obligations on behalf of the state, including rights over natural resources situated within the state’s territory.

In other words, since the recognition accorded to these bodies by states and international organizations was merely political it did not affect the legal position of the Gaddafi or Assad regime as the official de jure government of Libya or Syria respectively. In relation to Libya, the official position of states changed only after the defeat of the Gaddafi regime. This is exemplified by UN Security Council Resolution 2009 (2011), in which the Council implicitly recognised the NTC as the new Libyan authorities after the armed conflict had ended. This also implies that the Gaddafi and Assad regimes remain(ed) formally entitled to dispose of the state’s natural resources to the exclusion of other actors, even though this right could not in practice be exercised by the Gaddafi government as a result of the sanctions imposed by the Security Council on the National Oil Company.

The cautious practice of states with regard to the recognition of the Libyan and Syrian opposition underlines the continued validity of the rule identified in Sect. 4.1 regarding the prohibition on extending recognition to revolutionary forces as long as the conflict has not ended. This also implies that armed opposition groups would be prohibited from exploiting natural resources situated within national jurisdiction. Nonetheless, as briefly noted in Sect. 3, ‘peoples’ are designated as subjects of the principle of PSNR in addition to states. The following section analyses the implications of this designation for the purposes of natural resources exploitation with the aim of establishing whether affording recognition to the opposition as the representative of the people entails a right for the opposition to exploit the state’s natural resources on behalf of the people.

Peoples as Subjects and Beneficiaries of the Right to Sovereignty over Public Natural Resources

The 1962 Declaration on Permanent Sovereignty over Natural Resources and the 1966 human rights covenants accord a central position to peoples as beneficiaries and holders of the right to sovereignty over natural resources.Footnote 44 The very first principle of the authoritative 1962 Declaration on Permanent Sovereignty over Natural Resources, adopted by the UN General Assembly, proclaims a right for peoples and nations to permanent sovereignty over their natural wealth and resources, while conditioning the exercise of this right on the premise that this must be done ‘in the interest of their national development and of the well-being of the people of the State concerned’.Footnote 45

The central position of peoples with respect to natural resources ownership has further been confirmed in the identical Articles 1(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), which incorporate the economic component of the right to self-determination. These provisions determine that ‘[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources’, while they emphasize that ‘in no case may a people be deprived of its own means of subsistence’.Footnote 46 This right is inextricably linked to the political component of the right to self-determination, incorporated in Articles 1(1) of the ICESCR and the ICCPR, which provides peoples with the right to choose their political system and to pursue their economic, social and cultural development.

Both legal documents therefore affirm that peoples—in addition to states—are subjects of the right to exercise control over public natural resources, while the 1962 Declaration also emphasises that peoples are beneficiaries of this right. A people-oriented conception of natural resources ownership has received recognition in several contemporary legal and political instruments addressing the contribution of natural resources in financing armed conflicts, most particularly in resolutions adopted by the UN Security Council, in peace agreements and in regional treaties. Examples include UN Security Council Resolution 1457 (2003) on the DR Congo, in which the Security Council reaffirms the sovereignty of the DRC over its natural resources and emphasises that these should be exploited ‘to benefit the country and its people’.Footnote 47 Also, in its Resolution 1521 (2003) on Liberia, the Council emphasises that government revenues from the timber industry must be used ‘for legitimate purposes for the benefit of the Liberian people’.Footnote 48

Examples from peace agreements include Article VII of the Lomé Peace Agreement of 7 July 1999, concluded between the government of Sierra Leone and the Revolutionary United Front, which provides that the government shall exercise control over the state’s natural resources ‘for the benefit of the people of Sierra Leone’. Finally, Article 3 of the Protocol of the Great Lakes Region Against the Illegal Exploitation of Natural Resources of 30 November 2006, a regional treaty adopted by the states situated in the African Great Lakes region, determines that the right of the respective states to freely dispose of their natural resources ‘shall be exercised in the exclusive interest of the people’.

These contemporary instruments therefore clearly establish that peoples are to be regarded as beneficiaries of the right for states to exercise control over natural resources. The 1962 Declaration on PSNR and the identical Articles 1(2) of the ICESCR and the ICCPR however also designate peoples as subjects of the right to dispose freely of natural resources. The question that arises is what this right entails and to whom it accrues. Since the relevant legal instruments were drafted in the era of decolonization, it should be established, first of all, whether the term ‘peoples’ has any independent meaning outside this context, i.e. whether it applies to peoples living in independent states generally.Footnote 49

As a starting point it is argued that the right to self-determination does not cease to exist once a state has been established.Footnote 50 While it may be assumed that the external—or inter-state—dimension of the right to self-determination dissolves into state sovereignty once a state has been established, the internal—or intra-state—dimension of the right to self-determination continues to exist. Based on this primary assumption, the more relevant question is to establish what the right entails for the purposes of natural resources exploitation and to whom it applies specifically. As to the addressees, it is argued that three distinct groups are entitled to exercise a right to internal self-determination, and therefore, are to be considered subjects of the principle of sovereignty over natural resources in addition to states. These are the population of a state as a whole, minorities and indigenous peoples. In view of the focus of this article on the question of who may represent the people in situations of internal power contests, this section is limited to an analysis of the position of the first group, i.e. the population as a whole as the sum of all peoples living in a state.Footnote 51

The population as a whole is entitled to exercise a right to internal self-determination on the basis of Articles 1 of the ICESCR and the ICCPR.Footnote 52 Pursuant to Articles 1(1) of the ICESCR and the ICCPR, this right entails, first of all, a right to freely choose the state’s political and economic system.Footnote 53 As Rosalyn Higgins noted: ‘self-determination requires the ongoing choice of the people as to their governance, and, in turn, their economic, social and cultural development’.Footnote 54 One of the principal ways of achieving the right to internal self-determination for the population as a whole is to establish proper procedures for decision-making, which allow for the participation of all the parties concerned.

This interpretation of the identical Articles 1 of the ICESCR and the ICCPR has also been articulated by the Human Rights Committee, which noted that the relevant obligations in Article 1 of the ICCPR include first of all the establishment of constitutional and political processes ‘which in practice allow the exercise of th[e] right [to self-determination]’.Footnote 55 The Human Rights Committee’s emphasis on ‘practice’ is of the essence, since it requires states to put in place policies which effectively guarantee the exercise of the right to self-determination by (individual members of) their population. This also includes an obligation for the state to establish constitutional and political processes allowing people to exercise their right to freely dispose of their natural resources pursuant to Art. 1(2) of the ICCPR. Arguably, this entails a right for the population to be involved in decisions regarding the allocation of natural resources.

The right to internal self-determination of the population as a whole therefore takes shape in the form of procedural or ‘public participation’ rights within the established structures of the state. As a minimum guarantee, the identical Articles 1(2) of the 1966 covenants furthermore determine that ‘in no case may a people be deprived of its means of subsistence’. This prohibition establishes the ultimate limits for governments with respect to the use of the state’s natural resources in the sense that the exercise of permanent sovereignty by the government may never result in peoples being deprived of their means of subsistence.Footnote 56 Arguably, this is the case when a government uses the revenues derived from natural resources exploitation to fund a destructive military campaign against its own population, as happened in Libya in 2011 and is still happening in Syria.

This is also the context in which UN Security Council Resolutions 1970 and 1973 on Libya referred to in the introduction of this article should be read. These resolutions determined that assets owned or controlled by the Libyan authorities or persons and entities affiliated to them, including those of the Libyan National Oil company, were to be frozen and ‘shall, at a later stage, as soon as possible be made available to and for the benefit of the people of the Libyan Arab Jamahiriya’.Footnote 57 While these resolutions recognise that natural resources belong to the people, they also make clear that the right to dispose of natural resources can only be exercised by a lawful government.

Affording recognition to the opposition as the representative of the people therefore does not entail a right for the opposition to exploit the state’s natural resources on behalf of the people. The right to internal self-determination of peoples—in the sense of the whole population of a state—primarily finds expression in public participation rights within the existing state structures. Bestowing a right to exploit natural resources on an entity other than the government on the basis of the recognition of this entity as the representative of the people would stretch too far. Even though peoples can be regarded as owners of public natural resources, it is the government that should exercise this right on their behalf. The right to internal self-determination of peoples therefore does not provide a legal basis for a right of the opposition to exploit public natural resources. The following section discusses an alternative mode for granting such a right to armed opposition groups on the basis of international humanitarian law.

Reconciling Practice with the Law by Applying the Right to Usufruct to Armed Opposition Groups

The previous sections showed that current international law does not provide a legal basis for granting armed opposition groups a right to exploit natural resources found within national jurisdiction. This section argues that a case can nevertheless be made in favour of granting armed opposition groups such a right, provided that certain conditions are fulfilled.Footnote 58 One of the most compelling arguments in favour of granting armed opposition movements such a right is related to the nature of internal armed conflicts. In these armed conflicts, the government does not solely represent the state; it is also a party to the armed conflict. In addition, every conflict dynamics is different: just like governments do not necessarily represent a good cause, armed opposition groups do not necessarily struggle for a bad cause. This is especially true for the armed conflicts studied in the current article. In light of these specific circumstances, can one expect an armed group to comply with rules of international humanitarian law formulating a complete prohibition on exploiting natural resources, while the opposing party has a broadly defined right to exploit natural resources pursuant to the principle of PSNR?

This article therefore proposes to grant those armed opposition groups that are in effective control of a portion of the state territory a qualified right to exploit natural resources, based on the right of usufruct that is central to international occupation law.Footnote 59 Where the general rules of international humanitarian law do not contain specific provisions regulating the exploitation of natural resources, the international law on occupation does. This is due to the specific nature of international occupation law, which is designed to regulate the actions of the occupier as the de facto authority exercising power over a territory.Footnote 60 Section 6.1 discusses the nature of the right of usufruct, while Sect. 6.2 focuses on the conditions for its application to internal armed conflicts.

The Nature of the Right of Usufruct

Under the law of occupation, occupants are granted a qualified right to exploit natural resources pursuant to the concept of usufruct. According to Article 55 of the 1907 Hague Regulations:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Even though the provision does not explicitly mention natural resources as such, the references to forests and agricultural estates included in the provision attest to its relevance for natural resources exploitation. It can therefore be argued that occupants are granted a right to exploit natural resources, as long as they ‘safeguard the capital of these properties’. There has been considerable scholarly discussion regarding the precise meaning of this phrase in relation to the exploitation of non-renewable natural resources, such as oil or minerals, since the exploitation of these natural resources by its very essence diminishes their capital.Footnote 61

The principal question is therefore whether the provision prohibits only excessive exploitation of these natural resources or whether it prohibits their exploitation altogether. In the absence of any consensus on this issue, the position of this article is that the exploitation of non-renewable natural resources by an occupant is allowed within the limits set by modern international law in relation to sustainable development. This implies that an occupant is allowed to exploit the natural resources in occupied territory in so far as this would not harm the options of future generations to exploit the natural resources for their development.Footnote 62

Furthermore, pursuant to the principle of permanent sovereignty over natural resources an occupant must exploit the natural resources in occupied territory for the benefit of the occupied territory and its population.Footnote 63 It is also in this sense that the post-WWII tribunals interpreted the right to usufruct of an occupant, obviously without referring to the principle of PSNR which has been promulgated after the trials had ended. The International Military Tribunal at Nuremberg considered that ‘the economy of an occupied country can only be required to bear the expense(s) of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear’.Footnote 64 This judgment should be read in conjunction with the Krupp case, decided by a lower military tribunal at Nuremberg. This tribunal considered that an occupied country’s economic assets could never be used for military operations against the occupied territory.Footnote 65 A modern interpretation of these judgments suggests that an occupant is permitted to use the proceeds from exploiting resources for the purposes of maintaining a civilian administration in occupied territory, but not to cover the costs associated with military operations.

The qualified nature of the concept of usufruct therefore strikes a careful balance between the realities of armed conflict and the provisional character of the situation. If applied to internal armed conflicts, it would allow armed opposition groups to exploit the natural resources in the territory under their control, while they may only use the proceeds for the purpose of establishing and maintaining a civilian administration.

Conditions for the Application of the Right to Usufruct to Internal Armed Conflicts

The concept of usufruct applies to situations of occupation. Article 42 of the 1907 Hague Regulations determines that ‘territory is considered occupied when it is actually placed under the authority of the hostile army’. It further determines that ‘the occupation extends only to the territory where such authority has been established and can be exercised’. If the concept of usufruct were to be applied by analogy to internal armed conflicts, it would therefore only apply to territories which are under the effective control of an armed group. In addition, this group would have to be highly organised in order to be able to exercise its authority over the territory under its control. This implies that the armed group must be able to implement the basic obligations that are imposed on occupants pursuant to Article 43 of the 1907 Hague Regulations, which states that the occupant ‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. In other words, the armed group must be able to act within the territory under its control as a de facto authority.

It is further essential to emphasise that affording a right to armed groups to exploit natural resources on the basis of the concept of usufruct does not give these groups a carte blanche to use these natural resources as they see fit. As emphasised in Sect. 6.1, the right to usufruct is qualified in the sense that it only allows armed groups to exploit natural resources for the purpose of maintaining a civilian administration. The rationale for granting armed groups this right is to enable them to assume governmental functions in the territory under their control. However, when it is clear that an armed group engages in gross human rights violations in the territories under its control, there are ways to revoke the right to exploit natural resources for this group. More specifically, it should be emphasised that granting a right to usufruct to armed opposition groups does not prevent the UN Security Council or regional organisations from the possibility to impose sanctions in particular situations.

The UN Security Council has resorted to the imposition of sanctions on armed groups on many occasions. These range from commodity sanctions in relation to Angola, Sierra Leone, Côte d’Ivoire and Somalia to asset freezes against persons and entities providing support to armed groups in the DR Congo.Footnote 66 Of special interest to this article are two resolutions passed by the Security Council in relation to Syria. In its Resolution 2170 (2014), the Security Council noted with concern that oil was generating income for extremist organisations operating in Syria, including ISIL and Al-Nusra, and made it clear that trade with these armed groups could constitute financial support for entities on a sanctions list.Footnote 67 Resolution 2199 (2015) builds on this and previous resolutions. It contains a complete section on oil trade, in which the Council specifically:

Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further listings by the Committee.Footnote 68

There are therefore appropriate mechanisms to prevent armed groups that pose a particular threat to peace and security from reaping the benefits of natural resources exploitation in the territories under their control.

Conclusions

This article set out to answer the question of whether a legal basis could be found in international law for granting armed opposition groups a right to exploit natural resources, particularly in light of the 2011 armed conflict in Libya, the current armed conflict in Syria and the EU decision to provide an exemption to the oil sanctions imposed against Syria in favour of oil exports from rebel-held territory. It found that a legal basis for granting a right to armed opposition groups to exploit natural resources is currently lacking.

First, such a right cannot be based on international humanitarian law as it currently stands. The rules applicable to non-international armed conflicts do not contain a right for armed groups to exploit natural resources. Second, such a right cannot be based on general international law either. International law designates ownership of natural resources to states and peoples, without specifying which entity is to exercise the associated rights and obligations on their behalf. In the majority of situations, a state possesses a government which represents the state on the international plane. The situation becomes more problematic in situations of internal armed conflict, where parties fight over control over territory.

This article demonstrated that the loss of effective control over parts of the territory by the established authorities does not impact upon their legal status. International law formulates a presumption that the established authorities continue to represent the state in international law during the course of the armed conflict. Recognition of the opposition as the government would be premature in these circumstances and would therefore qualify as a breach of the principle of non-intervention. This explains why states have been hesitant to accord this legal status to the armed opposition in Libya and Syria and have instead only granted political recognition to the opposition. This in itself does not grant the opposition a right to exploit the state’s natural resources. Even though peoples are subjects of the principle of permanent sovereignty over natural resources, a qualification of the opposition as the representative of the people does not entail a right to exploit natural resources.

Nevertheless, there are good reasons to grant armed opposition groups a right to exploit natural resources, provided these groups are highly organised and in effective control of territory. Moreover, they must be capable of establishing and maintaining authority over this territory. Granting armed opposition groups a qualified right to exploit natural resources in territory under their control would provide these groups with the opportunity to establish a civilian administration for the benefit of the population, while it leaves intact the possibility to take enforcement measures in individual cases. Ultimately, it is argued that applying the carefully delineated right of usufruct to territories under the effective control of armed groups would contribute to—rather than undermine—the realisation of the principal objectives of international humanitarian law, in particular to protect the civilian population from the atrocities of armed conflict.