Introduction

Natural resource governance is widely recognized as an important international public policy issue. The 2030 Agenda for Sustainable Development Goal 12.2 seeks to achieve, by 2030, “the sustainable management and efficient use of natural resources.”1UNGA Res.A/RES/70/1, 25 September 2015: Transforming our World: the 2030 Agenda for Sustainable Development, p.22. The African Union (AU) prioritizes natural resource governance in its “Agenda 2063: The Africa we want.”2African Union Commission, Agenda 2030: The Africa We Want, Popular Version, Final Edition, 2015, p.3. In a similar vein, the 2009 Africa Mining Vision3African Union, Africa Mining Vision, February 2009, pp.12-13. recognizes the centrality of natural resources to inclusive and sustainable development. While natural resources are important to realize socio-economic development, it is equally important to note that, if poorly managed, conflicts over natural resources can result in threats to peace and security.

This article analyzes natural resource governance in relation to the mechanisms for managing collective security, conflict resolution, peacebuilding, and social development in the African Great Lakes Region (AGLR) based on a case study of the Democratic Republic of the Congo (DRC). It contextualizes four mechanisms of natural resource governance and identifies challenges that need to be addressed in promoting peace and development in the region.

Contextualizing natural resource governance in the African Great Lakes Region

One of the outcomes of the Great Lakes Summit held in Nairobi in 2006 was the adoption of a Comprehensive Pact on Security, Stability and Development in the Great Lakes Region which now involves, following the 2012 amendment, twelve States Parties: Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo, Rwanda, South Sudan, Tanzania, Uganda, Zambia, Kenya, and Sudan.4Pact on Security, Stability and Development in the Great Lakes Region (15 December 2006) Amended November 2012, art. 1(1) (d). The Pact marked the broad framework for security cooperation in the region, which is one of the most resource-rich regions of Africa. The DRC is potentially the most resource-rich country in the AGLR both in terms of the quality and quantity of its natural resources. Some of these are solid minerals, such as cobalt, copper, coltan, and gold, which are essential sources of economic wealth and raw materials for global manufacturing industries, including the production of many electronic devices. Paradoxically, the DRC is also one of the most conflict-affected countries in Africa, and among the poorest countries in the world, even as natural resources and minerals constitute nearly 80 percent of Congolese exports.5World Bank, ‘République Démocratique du Congo: Rapport de Suivi de la Situation Economique et Financière 2015 – Troisième Edition. Renforcer la Résilience de Long Terme de la RDC: le Rôle de la Dédollarisation, de la Prospection Artisanale et de la Diversification Economique’, 2015, p.10.

There are several reasons for this paradox. One of these relates to the armed conflicts that have occurred in the eastern part of the DRC since 1993 and their regional and international ramifications, including the displacement and death of millions of people.6Office of the United Nations High Commissioner for Human Rights, ‘Democratic Republic of the Congo, 1993–2003: Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003’ (August 2010), <http://www.ohchr.org/Documents/Countries/CD/DRC_MAPPING_REPORT_FINAL_EN.pdf> 09 April 2021,  para.15. The UN reported in 2001 that the conflicts in the DRC were an enterprise of “mass-scale looting”7UN Security Council, ‘Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo’(S/2001/357), 12 April 2001, para.5. and became “mainly about access, control and trade of five key mineral resources: coltan, diamonds, copper, cobalt, and gold.”8ibid para.213. Despite the withdrawal of foreign armies in 2003, conflict-related and fraudulent economic activities continue through different state and non-state actors, armed groups, traffickers, and organized criminal networks across the region and beyond.9UNEP–MONUSCO–OSESG, ‘Experts’ background report on illegal exploitation and trade in natural resources benefitting organized criminal groups and recommendations on MONUSCO’s role in fostering stability and peace in eastern DR Congo’, report, 15 April 2015. In addition to the massive looting of resources, there have been numerous human rights abuses, including sexual violence against women.

Thus, due to the competing interests and the complexity of conflicts, peace and security can only be guaranteed if the issue of natural resource governance is to be properly addressed. All stakeholders are concerned that, given the deep involvement of local, regional, and international actors in resource extraction and complex conflicts ravaging the country, urgent attention needs to be paid to addressing natural resource governance in an inclusive, equitable, and non-violent manner. The UN has underscored the importance of natural resource governance in “A New Strategy for Peace Consolidation, Conflict Prevention and Conflict Resolution to guide UN engagement in the Great Lakes Region,”  published in January 2021.10United Nations Strategy for Peace Consolidation, Conflict Prevention and Conflict Resolution in the Great Lakes Region (S/2020), 4 December 2020. The document emphasizes the need to support a “sustainable and transparent management of natural resources,”11ibid para.53. because stability and development depend on “collective efforts to address the illicit exploitation of and trafficking in natural resources as a source of funding for armed groups and criminals networks.”12ibid.

Strengthening the mechanisms of natural resource governance

Lessons drawn from the DRC indicate that the international community has supported the adoption and/or the implementation of four mechanisms of natural resource governance as a strategy of sustainable peacebuilding and development. They include international, regional, and national legal instruments, social policies, the threat of sanctions, certification mechanisms, and cooperation in the management of shared resources.

The law plays an important role in regulating behavior, especially in an area that faces several security challenges. First, existing legal gaps are exploited by those engaging in criminal activities. Partly in response to such illicit activities, the International Conference on the Great Lakes Region (ICGLR) adopted the Protocol Against the Illegal Exploitation of Natural Resources in November 2006.  This contributed to the evolution of African international law, as the African Union (AU) at its 23rd Ordinary Session Summit decided to incorporate the Protocol into its 2014 Malabo Protocol, which categorizes the illicit exploitation of natural resources as a crime under the jurisdiction of the International Criminal Law Section of the African Court of Justice and Human and Peoples’ Rights. Second, legal instruments have been adopted to compensate for the lack of effective state authority over its territory in the context of armed conflict, which implies a loss of its sovereignty and control over its natural resources.

Uncontrolled foreign exploitation of natural resources in the DRC has contributed to the globalization of law, particularly in relation to the mining sector. A due diligence obligation has been placed on companies to report and guarantee that their supply chains do not include resources whose origin is linked to human rights abuses. A prominent example that applies to the DRC and the African Great Lakes Region is the Regulation (EU) 2017/821 of the European Parliament and of the EU Council of 17 May 2017 laying down supply chain due diligence obligations for European Union-based importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas, which came into force on 1 January 2021.13Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. Third, laws have served to open access to natural resources with the resort to economic liberalism as the driving ideology. This is based on the belief that by attracting private investors, they will legally exploit natural resources, avoid violence or other illicit activities, and contribute to the development of the Congolese economy. Fourth and last, legal instruments are used to protect peoples’ environment and the right to development according to mechanisms such as the protection of the rights of local communities and the social responsibility of enterprises under Congolese mining, forests, and oil legislation.

Collective sanctions are under the discretion of the UN Security Council. The UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo was created in 2000 and was replaced by the Group of Experts on the DRC in 2004, with the mandate to recommend such sanctions.14UNSC Res.1533 (2004), paras.8 and 10. Certification mechanisms have been popularized following concerns about the international trade of natural resources from countries affected by conflicts, such as Angola, Liberia, and Sierra Leone. Their goal is also to prevent foreign consumers from buying resources that they know are illegally exploited or sold to provide funding for armed conflicts in the countries of origin. The most well-known of these mechanisms of certification is the Kimberley Process Certificate Scheme, which has been applied to diamonds since 2003. The ICGLR has also created a specific certification mechanism which is part of its 2010 Regional Initiative against the Illegal Exploitation of Natural Resources, the implementation of which is among the UN’s priorities.

Cooperation in the management of shared resources is reminiscent of pre-existing initiatives, such as the management of the forest ecosystems and rivers of the Congo Basin, through the Central African Forests Commission (COMIFAC) and the International Commission for the Congo Basin-Ubangi-Sangha (CICOS) respectively. The tensions around the Nile River between Ethiopia, Egypt, and Sudan demonstrate that peace and security can be at risk when this kind of cooperation is not assured. Thus, the initiative undertaken by the ICGLR leadership to foster the development of common infrastructure around natural resources must be commended. The Economic Community of Great Lakes Countries, formed by Burundi, the DRC, and Rwanda in 1976, is a good example of coming together to produce a common good through a shared resource, which in this case was electricity produced through the Ruzizi River. This success story may be replicated for situations like the exploitation of Lake Kivu’s methane gas.15Anne-Marie Nsaka Kabunda, ‘La relance de la CEPGL comme cadre d’harmonisation des relations rwando-congolaises’, in Oswald. Ndeshyo (ed.), Mélanges Célestin Nguya-Ndila. La République démocratique du Congo : les défis récurrents de décolonisation et de développement économique et social, Kinshasa, Editions CEDESURK, 2012, p.1225.

Conclusion: Examining the prospects for success        

Despite the existence of international, regional, and national legal frameworks for natural resource governance in the DRC, resource conflicts—and their links to illegal economic activities, crime, and human rights abuses—have hardly improved. In its report dated June 2020, the UN Panel of Experts on the DRC indicated that the country still faces implementation challenges regarding the due diligence obligation of companies “undermining the integrity of some supply chains.”16UN Security Council, ‘Final Report of the Group of Experts on the Democratic Republic of the Congo’ (S/2020/482), 2020, p.2. The report also noted that the gold sector is still vulnerable to exploitation by armed groups, criminal networks, and unregulated trade.”17ibid.

The question then arises on the causes of the current failure of the foregoing initiatives.  First, there is a lack of genuine political will and good faith by those who are involved in peace processes, including states in the region. Second, some initiatives are not yet fully operational. For example, the crime of illicit exploitation of natural resources can only be regionally prosecuted when the Malabo Protocol comes into force and the African Court is vested with criminal jurisdiction. Third,  the UN Security Council has displayed a lack of initiative when called upon to take decisive collective security sanctions against those involved in the illicit exploitation of natural resources, particularly states and transnational companies. The Committee of Sanctions on the DRC has so far yielded no real positive results because conflicts have persisted and illicit minerals continue to be exported to the international market despite a range of targeted individual sanctions taken against a few members of armed groups.18United Nations, Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo <https://www.un.org/securitycouncil/sanctions/1533> 23 July 2021. Fourth, some laws requiring due diligence for companies do not cover all natural resources or are devoid of legal sanctions in cases of violation. Fifth, Congolese state institutions involved in natural resource governance are too numerous, lack coordination, and are often vested with overlapping competencies.19For instance, Congolese administrations in the mining sector include the following services: Support and Coaching Services
of Small-Scale Mining (SAESSCAM), Centre for Expertise, Evaluation and Certification (CEEC), Congolese Control Office (OCC), National Commission to Combat Mining Fraud (CNLFM), Foreign Trade Division, Mining Division, Customs and Excise Agency (DGDA), Directorate General of Taxes (DGI).
 Such institutional confusion and weaknesses result in poor control and oversight particularly in the lucrative forest and mining sectors, thereby fueling corruption which in turn undermines natural resource governance policies.20DRC’s National Human Rights Commission, ‘Rapport Ponctuel d’Enquêtes sur la Responsabilité Sociétale des Entreprises d’Exploitation Forestière et Minière en République Démocratique du Congo’, Kinshasa, 15 April 2019, p.37 ; Balingene Kahombo, ‘Les activités minières et le respect des droits de l’homme au Kivu’, Law in Africa, vol.22, 2019, p.230.

Also, rampant and organized customs and tax fraud have cost the state a great deal in lost revenues. In 2013, it was reported that only 15 percent of mining production was conducted through legal channels.21Congo Times, ‘RD Congo: 15% Seulement des Minerais Extraits Sont Déclarés’ (31 August 2013) <https://www.agenceecofin.com/gestion-publique/3108-13283-rd-congo-seulement-15-des-minerais-extraits-sont-declares> 09 April 2021. These numbers have not significantly changed over the years, as only 30 percent of mineral products are now reportedly controlled by the state.22Gédéon Ingonde, ‘RDC-Fraude minière : Le manque à gagner de 100 milliards USD estimé par C. Mutamba défie tout réalisme, (chercheur dans les mines)’ (10 September 2020)<https://actu30.cd/2020/09/rdc-fraude-miniere-le-manque-a-gagner-de-100-milliards-usd-estime-par-c-mutamba-defie-tout-realisme-chercheur-dans-les-mines/> 09 April 2021. The DRC justice system which could defend the rule of law is dysfunctional and corrupt as well.23Balingene Kahombo, ‘Corruption and its Impact on Constitutionalism and Respect for the Rule of Law in the Democratic Republic of the Congo’, in Charles M Fombad and Nico Steytler (eds), Corruption and Constitutionalism in Africa: Revisiting Control Measures and Strategies, Oxford University Press, 2020, p.293. All this contributes to the carefree environment within which public officers, businessmen, local and international companies, armed groups, local and transnational criminal networks, and foreign and neighboring states exploit Congolese natural resources at the expense of the Congolese people.24Kahombo, supra note 20, p.216.

In seeking to achieve sustainable development goal 12.2 by 2030, several conditions must be met. Foremost of these is that an effective and democratic state with strong control over its territory and natural resources must exist in the DRC. Reforming the state is primarily the responsibility of the Congolese leadership and citizens. Moreover, the disarmament of armed groups in eastern DRC should be completed without any further delay to put an end to the protracted conflicts in the region. This will require the support of the international community, including the Intervention Brigade of the United Nations Peacekeeping Mission in the DRC (MONUSCO). Finally, regional cooperation between states of the African Great Lakes Region should be promoted and strengthened. Neighboring states should be encouraged to prioritize their mutual interests as well as the socio-economic development and welfare of their peoples through existing cooperation mechanisms, such as the ICGLR and the Economic Community of Great Lakes Countries (CEPGL). This should be done pursuant to the principles and mechanisms of the Peace, Security, and Cooperation Framework on the DRC and the Region which was adopted in February 2013.25Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region (24 February 2013), para.5. It is a legal and political agreement between states of the region which specifies which actions to take with the support of the international community to achieve sustainable peace and development for all.

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