INDIGENOUS PEOPLES’ RIGHTS OVER NATURAL RESOURCES: AN ANALYSIS OF HOST COMMUNITIES RIGHTS IN NIGERIA

DOI: 10.25041/lajil.v3i2.2402 The many States are engulfed in crises over natural resources in the form of claims and counterclaims over who should exercise legal authority over the resources located within the state territory. In Nigeria, the agitation over control of natural resources has led to militancy and rebellion against the federal government and multinational oil companies. The debate on who should control and manage natural oil resources in Nigeria exists at the local community level, the federating states level, and the federal government level. This paper x-rayed the varying contentions of these agitations from an international law perspective. It adopted the doctrinal method to explore international human rights instruments and other legal and non-legal sources to realize the result and arrive at persuasive conclusions. The paper concluded that although international law guarantees states’ exercise of sovereign rights over their natural resources, it safeguards the right of indigenous peoples and communities to manage the natural resources found within their ancestral lands to deepen their economic and social development. It also concluded that the Niger Delta indigenous peoples and oil-producing communities are entitled to exercise some measure of control and management of the processes of exploitation of the natural resources found within their lands. The paper calls on the Nigerian government to fasttrack legal and policy reforms to resource rights to indigenous host communities of natural resources in Nigeria.


DOI:
10.25041/lajil.v3i2.2402 The many States are engulfed in crises over natural resources in the form of claims and counterclaims over who should exercise legal authority over the resources located within the state territory. In Nigeria, the agitation over control of natural resources has led to militancy and rebellion against the federal government and multinational oil companies. The debate on who should control and manage natural oil resources in Nigeria exists at the local community level, the federating states level, and the federal government level. This paper x-rayed the varying contentions of these agitations from an international law perspective. It adopted the doctrinal method to explore international human rights instruments and other legal and non-legal sources to realize the result and arrive at persuasive conclusions. The paper concluded that although international law guarantees states' exercise of sovereign rights over their natural resources, it safeguards the right of indigenous peoples and communities to manage the natural resources found within their ancestral lands to deepen their economic and social development. It also concluded that the Niger Delta indigenous peoples and oil-producing communities are entitled to exercise some measure of control and management of the processes of exploitation of the natural resources found within their lands. The paper calls on the Nigerian government to fasttrack legal and policy reforms to resource rights to indigenous host communities of natural resources in Nigeria.

A. Introduction
International law refers to sets of principles and conventions regulating the conduct of nations among themselves, some of which are enforceable while others are persuasive. These enforceable international legal instruments do not bind only States but may be extended to specific regional and international agencies, associations, and even individuals. 1 Numerous conventions and treaties confer rights on individual members of the human community, whichever states they may belong to or are situated. Recent developments in international accompanied this agitation in the form of destruction of oil facilities, abduction and kidnapping of expatriate oil workers and continued unrest and retaliation by military troops of the federal government. Host oil communities claim that resources are exploited from their land without commensurate compensation for the environmental consequences of the exploration and exploitation. They also claim loss of livelihood from the destruction of their farmlands and fishing games due to oil spillage, the consequent ruin of their local economy, and the proliferation of poverty. They claim unemployment and political alienation as a result of their minority status. These claims have given rise to debates on the right of the natural resources host communities over the resources found in their lands. 6 It is pertinent to state that international law does not recommend any system of government for states. However, it does regulate the conduct of a state about its citizen's rights accruable by international conventions, customary international law, and opinions of international disputes settlement bodies. Therefore, the issues this paper intends to discuss are to find out the extent to which a community of people is collectively entitled to internationally guaranteed rights over natural resources as against the state in which they belong and whether these rights inure to the natural resources host communities in Nigeria.

International Legal Regime and Natural Resources Ownership
Ownership of resources has been given international recognition in a vast set of international legal regimes. One notable international legal instrument on natural resources ownership is the United Nations General Assembly (UNGA) Resolution 1803 of 1962 Resolution on Permanent Sovereignty over Natural Resources (RPSNR) 7 which justifies states appropriation of natural resources by way of nationalization of foreign-owned oil industries.  Peace and Conflict Studies (IJPCS) 5, no. 1 (2018): 115-25, http://www.rcmss.com/index.php/ijpcs; www.academix.ng; Dunin, "Battling the 'Resource Curse' in the Niger-Delta." 7 The United Nations General Assembly (UNGA) Resolution 1803 of 1962 in Article 1 provides that; "The right of the peoples and nations to the 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"; UN, "United Nations Emergency Force," UN Resolution, 1962, http://www.geocities.ws/savepalestinenow/unresolutions/studyguide/sgunresgasum1960.html. 8 The struggle for sovereignty over natural resources arguably began in the 19th century when political independence started to develop in some regions, including Latin America. Following World War II in 1945, the movement gained impetus as postcolonial developing country regimes, particularly in Africa and Asia started to claim the right to sovereignty over natural resources. The period was a catalyst for many developing countries (particularly those in Latin America) to contest the validity of concession agreements that their governments had entered into with foreign investors or were imposed during colonial times for exploration and exploitation of natural resources. One of the significant points of contention was that these concession agreements tended to be largely one-sided, and they strongly favored the interests of foreign investors; Mats Ingulstad and Lucas Lixinski, The desire to guarantee the newly decolonized nations sovereignty and less-developed Third World nations to ensure that non-self-governing nations benefited from their naturally endowed resources occasioned the passage of the UN General Assembly's Resolution (RPSNR) on December 14, 1962. The RPSNR recognized the right of the host state to nationalize and expropriate the property of foreign investor companies, provided that appropriate compensation is paid. It secured each country's right to choose its economic system and exercise sovereignty over its natural resources. It is believed that the permanent sovereignty principle has attained the status of a peremptory norm such that it is binding on all states. 9 Another international legal regime on natural resources governance is the Rio Declaration on Environment and Development of 1992, which also recognized nationalization as an integral part of the sovereignty of states. It further recognized in its Article 2 thereof the rights of states to exploit their resources following their environmental and developmental policies. It acknowledged that the Charter of the United Nations recognizes these rights and constitutes core principles of international law. Other conventions on human rights that touch on natural resources include; the ICCPR and ICESCR, 10 which provide for the right of selfdetermination 11 and the rights of peoples over their natural resources; the right of the peoples to an adequate standard of living, food, clothing, housing and continuous improvement of their living conditions; 12 the right of the peoples to environmental and industrial hygiene 13 and the peoples' inherent right to the full enjoyment and free utilization of their natural wealth and resources. 14 A further guarantee of enforceable rights is found in the two ILO Conventions Oxford University Press, 2008); Leo-Felix Lee, "Sovereignty Over, Ownership of and Access to Natural Resources," Environmental Laws and Their Enforcement 2 (2009), https://www.eolss.net/samplechapters/C04/E4-21-05.pdf. 10 Article 2 of the Rio Declaration provides inter-alia; "States have…the sovereign right to exploit their resources according to their own environmental and developmental policies…"; UNEP, "Rio Declaration on Environment and Development" (Rio de Janeiro, 1992), https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.1 51_26_Vol.I_Declaration.pdf. 11 E.g. Article 1(2) of the ICESCR states, "All peoples may, for their ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its means of subsistence". 12 Article 11 of the ICESCR 13 Article 12 of the ICESCR 14 Article 25. In the Fisheries Jurisdiction Cases (1974), the ICJ recognizes that under customary international law, as it had crystallized after the 1958 and 1960 Conferences on the Law of the Sea, a coastal State has the right to establish a 12-mile exclusive fishery zone and preferential rights of fishing in adjacent waters 'to the Extent of the particular dependence of its people upon the fisheries in the seas around its coasts for their livelihood and economic development; ICJ, Fisheries Jurisdiction (United Kingdom v. Iceland) (1974). 15  The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007 though not legally binding, has demonstrated a significant understanding of the right to self-determination in a manner that could help strengthen the natural resources right of indigenous peoples. 16 However, it is noteworthy that both the proponents of state ownership and management of natural resources and those for the host indigenous community's ownership and/or management of natural resources rely on these varying provisions of international law in their respective claims over natural resources. For example, proponents of states ownership and management of natural resources based their claim on state sovereignty, a principle that has become a peremptory norm of international law. 17 Proponents of community ownership and control also argue that the principle of state sovereignty inures to the state citizens as against the state. They also based their contention on numerous human rights instruments that have accorded rights over natural resources to indigenous communities hosting these resources. This paper shall therefore consider the various provisions of international law in support of these conflicting and opposing claims to arrive at a common and better understanding of the position of international law on issues of natural resources ownership and management.

State Sovereignty versus the right of 'peoples' over Natural Resources
Sovereignty is the ability of a state to decide for itself unrestrained by external influences. It connotes the right of a state to make its decisions about its affairs, including the management of its resources unencumbered by external interference. 18 The unreserved legal right and authority to own and control the management and development of her natural resources can be inferred from Customary International Law, Declarations and Treaties. Therefore, the trend has shifted away from investor authority over resources to the authority of the host state.
Before the 1960s, the trend was for foreign investors to engage in petroleum extraction to carry out their activities in unrestrained host states because they were believed to possess ownership rights over the resources. However, the decolonization process and political independence embolden newly independent states to demand their economic independence and sovereignty rights, culminating in UN intervention. 19 Thus, on December 14, 1962, the General Assembly adopted the United Nations Resolution 1803 of 1962 RPSNR. 20 Which acknowledged the inherent rights of states to their natural resources. It further recognized the rights of host states to take over the management of their resources and determine and adopt whatever management system best suits them for the interest of their citizens. Further, compensation should be regulated by the law of the host states. 21 By this resolution, the newly of the population, guarantee of the rights of this population to their traditional lands and even provisions of additional land territories where their traditional lands are not sufficient for them. 16 Dorothee Cambou, "The UNDRIP and the Legal Significance of The Right of Indigenous Peoples to Self-Determination: A Human Rights Approach with a Multidimensional Perspective," The International Journal of Human Rights 23, no. 1-2 (2019): 34-50, https://doi.org/10.1080/13642987.2019.1585345. 17 Ibiam, "An Examination of the Contradictions in the Ownership of Land and Natural Resources in Nigerian Federation." 18 Lee, "Sovereignty Over, Ownership of and Access to Natural Resources." 19 Latin America made initial attempts to change the international legal status quo. This was through the insertion of clauses that placed the contracts within the ambit of national and not international law. This came to be known as "Calvo Clause" after the jurist who was its prominent exponent; Richard Kiy and Anne McEnany, "Housing and Real Estate Trends among Americans Retiring in Mexico's Coastal Communities," 2010, https://icfdn.org/wpcontent/uploads/2015/11/Retiring_Responsibly_Housing_English.pdf. 20 UN, "Permanent Sovereignty over Natural Resources General Assembly Resolution 1803 (XVII)" (New York, 1962), https://legal.un.org/avl/ha/ga_1803/ga_1803.html. T he above statements were reinforced in 1966 by Resolution number 2158(xxi), which provided that the General Assembly should, amongst other things; because foreign capital, whether public or private, is forthcoming at the request of the developing countries. It can play an important role in as much as it supplements their effort to exploit and develop their natural resources. This provides that there is government supervision over the activity of foreign capital to ensure that it is used in the interest of national development, recognizing the rights of all countries to independent state scored a huge political victory, as they gained the right of control and ownership of natural resources following the principle of state sovereignty. 22 However, this victory is challenged by recent arguments regarding the rights of communities over resources located in their territory of origin as against the state. The question is, does a group of people have the right against the state over natural resources found in their community? In recent years, the notion that the right of permanent sovereignty over natural resources is exclusive to the state (national government) and a matter of domestic affairs, such that peoples of natural resources producing territories may not legally claim some additional benefit from the resources produced from their land has undergone a deadly attack. 23 The understanding has grown to the notion that the right to permanent sovereignty is accruable to "people" or "indigenous people". 24 It has been accepted that the right to permanent sovereignty does not grant immunity to the national government on their responsibility under international law. It neither operates to absorb them of their obligation under human rights norms and conventions, especially in natural resources. 25 A good number of Conventions on human rights grant some fundamental rights in connection to natural resources on states citizens and communities are produced. For example, Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right of self-determination of peoples over their natural resources. Article 47 of the ICCPR states that "nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources", while Article 1 (2) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) states; "All peoples may, for their ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of secure their share in the administration of enterprises that are wholly or partly operated by foreign capital and have a greater share in the advantages from that place on an equitable basis, with due regard to development needs and objectives of that people concerned. Considers that when foreign investors exploit the natural resources of the developing countries, the latter should undertake proper and accelerated training of national personnel at all levels and in all fields connected with such exploitation. 22 On December 12, 1974, the General Assembly adopted resolution No 3281 (XXIV) entitled `Charter of Economic Rights and Duties of State". This resolution which inter-alia stated; (a) Every state shall freely exercise full permanent sovereignty including possession, use and dispose over all of its wealth, natural resources and economic activities; (b) Each state has the right to nationalize, expropriate or transfer ownership of foreign property in which case appropriate compensation shall be paid by the state adopting such measure taking into account any relevant laws and regulations and all circumstances that the state considers pertinent. In any case, where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing states and by its tribunals, unless it is freely and mutually agreed by all states concerned that other peaceful means be sought based on the sovereignty of states and following the principle of the choice of means. 23   international economic cooperation, based upon the principle of mutual benefit and international law. In no case may a person be deprived of their means of subsistence". 26 The implication of permanent sovereignty over natural resources to "peoples" of a state is that it could arguably form the basis of a challenge to a government's decision to authorize multinational companies to operate in the natural resources sector in a state's territory against the will of the citizens in general or the natural resources host community in particular. Secondly, governments would also be bound to utilize natural resources to benefit the whole population. Hence, the realization of the right to permanent sovereignty as belonging also to peoples add new relevancy to the "RPSNR" in the post-colonial period, directing sovereign states to use resources for 'the wellbeing of their peoples'. 27 The principle of permanent sovereignty has evolved to a peremptory norm of international law. It is said to be sharing the same status with the prohibition of the use of force. 28 Therefore, it is binding on states and will amount to illegality for any state to violate the principle therein.

a. The Indigenous Peoples Right to their Natural Resources under International Conventions
A good deal of conventions and treaties protecting the right of indigenous peoples and communities are available and supportive of the assertion that international law favors peoples' ownership and management of natural resources found in their territory. Much of the international protection guaranteed to indigenous people can be found in three documents; 1) The Indigenous and Tribal Population Convention 1957 (Convention 107)  According to the 2003 Report of the African Commission's Working Group of Experts on Indigenous Population/Communities, 30 the expression "indigenous people" refers to those communities in Africa: 1) whose cultures and ways of life differ considerably from the dominant society, and whose cultures are under threat, in some cases to the point of extinction; 2) The survival of their particular way of life depends on access and rights to their traditional lands and natural resources thereon; 3) who suffer from discrimination as they are regarded as less developed and less advanced than other more dominant sectors of society; 4) who live in inaccessible regions, often geographically isolated, and suffer from various forms of marginalization, both politically and socially; 5) who are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority; and, 6) who identify themselves as indigenous From this definition, it can safely be deduced that "indigenous people" and "peoples" could also be "minorities". 31 The UN Declaration guarantees "indigenous people" or indigenous communities to maintain their unique cultures and traditions. It further guarantees the right of indigenous peoples to freely determine their political status and the right to just and fair compensations in cases of expropriation of their lands.
Indigenous peoples have been referred to as tribes, aborigines, first people, first nations, ethnic groups, Adivasi, Janajati, etc. 32 the phrase has also been used to refer to occupational groups with ancestral ties like hunter-gatherers, nomads, peasants, hill people, etc. 33 Therefore "people" or indigenous peoples or tribal peoples under the UNDRIP, the ILO Conventions and other international legal instruments could rightly apply to indigenous or ancestral communities of the Niger-Delta of Nigeria who share common ancestral ties with their traditional lands. 34 30 The indigenous peoples of the Niger-Delta of Nigeria face the same danger experienced by other indigenous peoples of the world. 35 They have been disposed of their ancestral lands, deprived of their sources of economic livelihood. Their territory is constantly under military occupation, deprived not only of their territorial but also economic and political selfdetermination. 36 Their ancestral ties, traditional lifestyles, values and custom, cultural heritage all face extinction. The same applies to their identity, sense of pride, and traditional practices. The Nigerian state has violated their collective rights to self-development, the entirety of their economic, social, and cultural rights, and their rights to dispose of their natural resources freely. 37 It is worth reiterating that as far back as 1996, the Human Rights Council had directed the Nigerian government to immediately carry out legal reforms to guarantee human rights protection in line with the provisions of the ICCPR and in particular, to take appropriate legislative and policy steps to secure the rights of indigenous peoples and indigenous minorities in Nigeria. 38 The Nigerian government has not implemented these recommendations to date. The rights over natural resources provided in favor of indigenous peoples inure to the Niger-Delta of Nigeria.

b. Natural Resources Rights and the Principle of Self Determination
The right to self-determination is a fundamental principle of human rights. It entails the individual and collective right of a people to freely determine and pursue their political, economic, social, and cultural development and status. 39 This right is linked with decolonization, especially in indigenous peoples, such as in Australia and the USA. The International Court of Justice (ICJ) has held that this is a right held by the people rather than the government alone and that it is a norm of jus cogens which is the highest rule of international law and must be obeyed at all times. 40 It is arguable that since self-determination is a right that attaches to "all peoples", the rights are also accruable to indigenous peoples of a state. The Constitutional Court of South Africa has upheld indigenous peoples' rights to ownership of subsoil and minerals by their historical occupation and use. 41 This principle is enshrined in the International Labour Organization (ILO) Convention 169 on the indigenous and tribal peoples in independent countries, and this convention has two vital attributes: 1) The right of individuals to participate in the use, management, and conservation of natural resources derived from their lands.
2) The government's consultation with the people to establish or ascertain to what degree the people's interest would be prejudiced. The above attributes can also be found in the Aarhus Convention on the Access to Environmental  Self-Determination is a principle enabling people to determine their internal political status without being subjected to any form of external or outside interference. 43 The right to political self-determination will not be sustainable without the correlative right of the beneficiaries to use and manage their natural resources. Thus, Articles 3 and 26 of the United Nations Declaration on the Right of Indigenous Peoples provided for the right of self-determination of indigenous peoples and, more specifically, indigenous peoples' right to lands, territories, and resources they have traditionally occupied. 44 Indigenous peoples should be able to exercise a measure of control over their lands. In a broader context, land rights mean the right to partition, own, develop, utilization and decision-making on issues concerning the land. 45 Therefore, indigenous peoples' land rights shall include preserving their ancestral shrines and their subsistence living. The state is obliged not only to respect these rights but also to protect them. The right to self-determination of indigenous peoples provides the basis within which the political, economic, and social rights of indigenous peoples can be realized within the framework of a sovereign state. While the right could not form the basis for the secession of indigenous peoples living within an independent state, it guarantees self-government in the form of autonomy in matters affecting them locally. Though the principles of "PSNR" are not legally binding, it is an essential element of the right of self-determination, which has attained the status of customary international law. 46 Further, the "PSNR" principle has received wider acceptance, having been incorporated in many legally binding treaty laws like the ICCPR, ICESCR, ILO Conventions and even the African Charter on Human and Peoples Rights.
Admittedly, the principle of "PSNR" does not transfer "sovereign" rights to peoples as against the state's government; the right accruable to indigenous peoples under the Declaration is a "participatory rights". Consequently, indigenous peoples cannot be alienated in matters touching on their lands. Thus, Article 4 provides that the autonomy or self-government of indigenous peoples relates to their internal or local affairs. In contrast, Article 46 (1) prohibits any interpretation of the Declaration that suggests supporting the right to secession. The ICJ has defined the elf-determination principle as the "need to pay regard to the freely expressed will of the people…in matters concerning their condition". 47 In the East Timor case, 48 the Court acknowledged the principle of self-determination as one of the "essential principles of international law" and a right with "erga omnes character". Also, in the Endorois case 49 the African Commission acknowledged the right of self-determination as available for a community of people living in an independent state. Further, the African Commission advisory opinion on UNDRIP reaffirms the right to internal autonomy for indigenous peoples. 50 The right to internal autonomy can only be meaningfully exercised by the indigenous communities when they are allowed to participate in decisions affecting the use of their lands. This is what the UNDRIP described as the right of free, prior, and informed consent. 51 The Inter-American Court of human rights (IACHR) has endorsed and applied these rights in several cases involving indigenous peoples and their state governments. 52 At the regional level, the African Commission of human rights has recognized internal self-determination as available to communities in African states. The Commission found for the land rights of the Ogiek peoples of Kenya. 53 The Commission has also made findings in favor of the mineral resources hosting peoples of Ogoni located in the Niger-Delta area of Nigeria. Its communication requested the Nigerian government to take necessary measures to ensure better protection of human rights of Ogoni people and measures that will facilitate their enjoyment of environmental, health, land, and natural resources rights. 54 Therefore, it is no surprise that the natural resources hosting communities of the Niger Delta areas of Nigeria 55 are beginning to implement the Self-determination principle to be enshrined in the Constitution, giving them some form of control over the resources extracted daily from their land. The Niger Delta region of Nigeria has been under perpetual tension for over three decades due to non-inclusion in decision-making and non-benefit of the indigenous inhabitants from the proceeds of hydrocarbon and other hydrocarbon resources exploited on their lands. 56

C. Conclusion
We have seen that international law provides a set of legal principles through which communities can rely on their struggle for equity and justice about the distribution of natural resources. International law lays down some fundamental rights for the benefit of indigenous and tribal peoples. Further, it imposes obligations on states to protect these rights in favour of their indigenous communities. These rights include the rights to participate meaningfully in natural resources governance and benefit from the proceeds of natural resources exploitation in a manner that satisfactorily serves the indigenous communities' economic, social, and cultural needs. The right to self-determination and the "peoples" or "indigenous peoples" over their lands and natural resources are available to host indigenous communities of natural resources in Nigeria.
The exploitation of oil in the Niger Delta has severe consequences for the people. It results in oil spillage, the destruction of farmlands, the degradation of the ecosystem, and the disempowerment of the people. Despite the vast oil revenue generated from the Niger Delta region, the indigenous communities in the Region remain in abject penury without basic social infrastructure and any means of livelihood and empowerment.
Therefore, it is recommended that the entire legal regime on natural resources in Nigeria be overhauled to give the natural resources hosting communities a measure of ownership and control rights overexploitation of the commodity within their domain. Legislative provisions extending the right to participation in decision-making over these resources to indigenous communities are pretty essential. We also recommend that the Nigerian government fast-track constitutional and policy reforms provide and protect the rights of Nigeria's indigenous communities to the natural resources located in their land. This will engender peace and development and strengthen the county's federal practices.