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A Mine of Our Own: Establishing Uniform African Mining Laws in a Post-Colonization World

A Mine of Our Own: Establishing Uniform African Mining Laws in a Post-Colonization World

Mahmoudy Kemal

           In a cyclical industry such as Africa’s mining sector, robust mining laws are required to discourage pollution by mining companies and deter them from plundering with relative impunity. These concerns arise because many of the world’s richest natural resource reserves are located in Africa.[1] The continent’s importance as a source of energy is widely recognized.[2] Indeed, to this day, Africa generally remains the world’s premier producer of mineral commodities.[3] A traditional role as supplier of natural resources, however, has come at a price.[4]International exploitation of these natural resources, coupled with a dearth of strong local institutions and legal frameworks, have given way to unrestrained excavation at the expense of local interests.[5]

            While indelibly a consequence of Africa’s colonial history,[6] weak industries and neglected institutions resulted in the continent’s arguably disadvantaged position.[7] A lack of strong government institutions—and as a consequence, a lack of efficient laws—stifles Africa’s economic growth and harms both local populations and the regional environment.[8] The strength of a nation’s institutions and legal frameworks determines the extent of the negative repercussions of exploitation.[9] Regrettably, what is often referred to as the “resource curse” has led to unrestrained actions by extractive corporations which have had a devastating impact on African nations.[10]

            To be sure, African history is riddled with French exploitation—mineral and otherwise.[11] The natural richness in resources was in large part responsible for the French colonization of Africa.[12]Indeed, even in a post-colonial era,[13] France has continued to stifle African progress.[14]To this day, France’s vestigial influences linger to divide African countries.[15] France, in hopes to retain influence in formers colonies, unrelentingly intervenes in African nations.[16] These interventions represent France’s desire to preserve its source of influence—and natural resources—more than any altruistic reason.[17] To mitigate the effects of this “curse,” Africa’s legal frameworks must evolve.Indeed, recent years have witnessed spurts of initiatives by African nations to cabin investments and exploration.[18] To-wit, African governments have sought to adjust mining agreements to stand their governments and their populations in good stead.[19]

            This Note will provide a background on the history of the extractive industry in Africa and suggest a model that would improve the legal structure of its mining industry. Part I of this Note will supply background information on the mining sectors in various countries across the African continent while describing the detrimental effects of French resource exploitation as well as recent African mining reforms. Part II of this Note will examine the mining reforms in Appalachian States and will argue that these may serve as constructive examples for African mining reforms because stouter legal frameworks would promote better African business dynamics and permit local economic growth.[20] Part III of this Note will discuss the recent and expansive Chinese entry into the African resource market. Finally, Part IV of this Note will offer solutions to the obstacles faced by the African mining industry. As Africa elects between France’s lingering “neo-colonial” influence and China’s expansive stronghold, a viable twofold solution presents itself: (i) implement lessons learned from American mining reforms; and (ii) establish a uniform African mining legal framework.

 

 

[1]See, e.g., Patrick Munson & Zheng Ronghui, Feeding the Dragon: Managing Chinese Resource Acquisition in Africa, 2 Seattle J. Envtl. L. 343, 361 (2012).

[2]Jessica Marsh, Note, Supplying the World’s Factory: Environmental Impacts of Chinese Resource Extraction in Africa, 28 Tul. Envtl. L.J. 393, 393 (2015) (“Africa’s importance in energy resources and production cannot be overstated.”).

[3]Id.

[4]See generally Matthew L. Norman, Note, The Challenges of State Building in Resource Rich Nations, 10 Nw. U. J. Int’l Hum. Rts.173, 173 (2012).

[5]Id.

[6]Hunter R. Clark, Sustainable Economic Development: What the World Owes Africa, and What Africa Owes Itself, 7 J. Gender Race & Just. 75, 88–89 (2003) (“[H]istorical factors like colonialism . . . undeniably play an ongoing role in Africa’s poverty.”).

[7]Efraim Chalamish, Unquenchable Thirst: The Outlook for Energy Disputes in Africa, 107 Am. Soc’y Int’l Proc. 123, 123 (2013).

[8]Norman, supra note 4, at 173 (describing nations rich in natural resource but weak in governmental institutions).

[9]Id.                                                               

[10]Id. (discussing the “resource curse”).

[11]See generally Andrew Simmonds, Amah and Eved and the Origin of Legal Rights, 46 S.D. L. Rev.516, 603 n.500 (2001) (“Africa was ‘sliced up like a cake’ by . . . France.”); see also Thomas Pakenham, The Scramble for Africaxxi-xxiii, 636–38, 585–601 (1991).

[12]Paul Schmitt, The Future of Genocide Suits at the International Court of Justice: France’s Roles in Rwanda and the Implications of the Bosnia v. Serbia Decision, 40 Geo. J. Int’l L. 585, 594–96 (2009) (concluding that the legacy of France’s colonial period has left Africa with enduring structural inequities).

[13]Although sometimes described as spanning the half-century between 1880 and 1935, this Note, by the term “colonial era,” refers to the more appropriate period between 1880 and 1960. This Note considers these eighty years a more appropriate time-span because a majority of African countries had not gained independence until 1960.  See Amadou-Mahtar M’Bow, General History of Africa, VII: Africa under Colonial Domination, 1880-1935, 1, 7, 18 (Adu Boahen et al. eds., 1985), http://unesdoc.unesco.org/images/0018/001842/184296eo.pdf.

[14]See, e.g., Schmitt, supra note 12, at 590 (discussing France’s role in the Rwandan genocide); see also Martin Meredith, The Fate of Africa: A History of Fifty Years of Independence, 224–30, 524–25 (2006) (detailing France’s two-decade long support of Mobutu’s oppressive rule over then-Zaire).

[15]See Susan Demske, Trade Liberalization: De Facto Neocolonialism in West Africa, 86 Geo. L.J. 155, 175 (1997) (analyzing France’s desire to “weaken [African] institutions”).

[16]Marco Bocchese, Coercing Compliance with the ICC: Empirical Assessment and Theoretical Implications, 24 Mich. St. Int’l L. Rev. 357, 398 (2016) (“[B]etween 1960 and 2008, France launched 43 military operations in . . . Africa.”) (citation omitted).

[17]E.g., Schmitt, supra note 12, at 594 (describing the reasons for French interventions in Africa).

[18]See, e.g., Sasha Fannie Belinkie, Note, South Africa’s Land Restitution Challenge: Mining Alternatives from Evolving Mineral Taxation Policies, 48 Cornell Int’l L.J. 219, 230, 237–245 (2015) (discussing modern African reform policies).

[19]Id.

[20]Chalamish, supra note 7, at 123 (“[The] pressure on local governments to protect local interests at the expense of foreign companies.”).

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