The Resource Curse and International Law
In her recently defended PhD thesis, Lys Kulamadayil explores different ways in which international law matters to economic and human development and the distribution of power and wealth in resource-wealthy postcolonial countries. She finds some legal rules to be foundational to the resource curse, but that normative instruments have also been used to prevent adverse impacts of natural resources extraction and to obtain remedies for them. Her thesis proposes that the multifaceted and sometimes paradoxical roles that law plays for the “pathology of plenty” offer new and unexpected insights about the work and nature of international law.
How did you come to choose your research topic?
In the course of my graduate studies in London, I began thinking about reasons why international law seemed to fail in delivering satisfactory responses to collective action problems. Were the reasons intrinsic to international law or did they lie elsewhere? Outside the classroom, I had for a long time been interested in economic and human development issues. Thus, when I came across the idea of the resource curse, I was intrigued by this tragic yet important development puzzle, and began to wonder how international law fitted into the picture.
My research is thus curiosity-driven and explores the multifaceted and even paradoxical interplay between international law and the resource curse, or, as I call it, the pathology of plenty. This term refers to different adverse impacts of the presence and extraction of natural resources on the fabric of postcolonial resource-wealthy societies. I investigate to what extent law was implicated in the production of the pathology of plenty, and whether it offered opportunities for escape, prevention or remedy.
And what do you find?
The main finding of my dissertation is that international law matters. As broad and simple as it may seem, it is actually a battlesome intervention into the resource curse scholarship. Finding that international law matters implies that existing resource curse theories are missing a piece of the puzzle. It contradicts views which look to frame the resource curse as yet another example of governance failure in the absence of law, and it invites asking how international law matters.
I argue that this is context-dependent and that legal rules may work with and against each other in unexpected ways. My dissertation sheds light on these different ways, arguing that international law can play a constitutive, preventive, remedial and perhaps even punitive role in resource-cursed societies. I do this by reviewing how norms from fields such as general international law, international organisations law, humanitarian law, human rights law, anti-corruption law and foreign investment law are implicated or responsive to the pathology of plenty. Focusing on the context in which relevant norms emerged and the ways in which they have been used, I not only differentiate between states, but also investigate the role of public and non-governmental organisations, companies, intellectuals, communities and politicians. By breaking up the black box of states in this way, I discover that state-centred liberal ideologies embedded in modern legal principles are foundational for some of the patterns that are now associated with the resource curse.
However, legal instruments have also been developed and used to respond to the resource curse. The most evident, of course, are the Extractive Industries Transparency Initiative or the Kimberley Process, two quasi-legal tools designed to improve fairness and reduce theft in resources trade. My dissertation assesses such instruments in terms of their design, adaptability, and oversight and compliance mechanisms. These assessments are less concerned with the legal nature of these instruments and more with how they conceive of the manifestation of the resource curse that they seek to address and whether or not they are sensitive to the holistic nature of the issue. Overall, I note that normative frameworks and rules have become increasingly sophisticated in targeting or involving specific domestic actors, most notably through multi-stakeholder initiatives. This is generally a positive development. Yet, I caution that international law cannot revert the power and property structures which are characteristic of resource-cursed countries as these structures were embedded in such countries in the processes of state formation. Law can however be used to ease some of the worst outcomes of resources extraction.
Can you give an example?
I discuss the regulation of armed conflicts financed by natural resources revenues and those fought to secure access to resources-rich territories. Both types of armed conflicts have received quite a lot of public attention in the 1990s, when blood diamonds entered our consciousness, and then again recently, when it became known that the organisation known as Islamic State cashed in on Syrian and Iraqi oil. My dissertation explores to what extent international law regulates resources trade from conflict-ridden regions and critically examines whether the incentives for resources wars are in fact partly created by law. I suggest that even though a number of legal possibilities exist to intervene in resources wars by curtailing the trade with high-value commodities, such interventions must always grapple with the sovereign right of the government in power to continue exploiting and trading these commodities even if the revenues that this generates are used to fuel the armed conflict. Furthermore, I agree with other scholars that natural resources property regimes bias conflicts in favour of the party who can lawfully exercise the so-called resources sovereignty.
Lys Kulamadayil defended her PhD thesis in International Law on 2 October 2018. Professor Joost Pauwelyn presided the committee, which included Professor Andrea Bianchi and Adjunct Professor Jorge Viñuales, thesis co-directors, and Professor Duncan Kennedy, Carter Professor of General Jurisprudence, Emeritus, from Harvard Law School, Cambridge, USA.
Full citation of the PhD thesis:
Kulamadayil, Lys. “The Resource Curse and International Law.” PhD thesis, Graduate Institute of International and Development Studies, 2018.
Interview by Nathalie Tanner, Research Office.
Lys Kulamadayil received an invitation to teach method classes at two Universities in Ecuador resulting from her short essay, “When International Law Distracts: Reconsidering Anti-Corruption Law”, which was posted on the European Society of International Law's website. The classes she taught, in Quito and Guayaquil respectively, were “Research and Writing for Teachers of International Law” and the “LifeCycle of a Research Project”.