The Legal Justifications for a People-Based Approach to the Control of Mineral Resources in the Democratic Republic of the Congo

The Democratic Republic of the Congo (DRC) is endowed with vast mineral wealth. However, although renewed activities in the mining sector ameliorated the DRC’s fiscal position and GDP growth in 2005-07, generally the peoples of the DRC neither participate in nor benefit from the exploitation of mineral resources. The problem is that the exploitation of mineral resources in the DRC go against the interests of the Congolese peoples. To be sure, the Congolese peoples are some of the poorest in the world. The main purpose of this paper is to explore the ways in which the peoples of the DRC can in domestic, regional and international law gain control over mineral resources. Accordingly, the basic question for this paper is: What legal justifications in national, regional and international law could serve to increase the control of the peoples over mineral resources in the DRC? The paper argues that the scholarship on the legal justifications for a people-based mineral control do not fully articulate the right to control mineral resources (RCMR). The existing scholarship on the RCMR is limited in that it fails to: (1) fully articulate the RCMR, (2) examine the RCMR in terms of first and second generations of human rights and in terms of national mineral resources law, and (3) address the RCMR in the particular circumstances of the DRC. This paper fills up these gaps in the scholarship on the RCMR. Firstly, the paper demonstrates that, in Congolese law, regional and international law, there is more than one principal justification for a people-based control of mineral resources. These justifications include popular sovereignty, socio-economic rights, the right of peoples to enjoy their national wealth, economic self-determination, permanent sovereignty over natural resources, and the right to development. Secondly, the paper utilizes democratic and socio-economic rights enshrined in the Congolese Constitution and the Mining Code as a point of departure in advocating a people-based control of mineral resources. Finally, the paper gives an overview of the exploitation of mineral resources in the particular circumstances of the DRC