Transnational Law and Local Struggles: Mining, Communities and the World Bank (review)

Whether one be from the mining industry, puzzled as to whether industry should be taking on more and more social functions of governments in the countries where mining operations are taking place, to counter the impression that industry is losing an important battle for public opinion and faces the risk of falling “into increasing public disfavour”, or a member of an NGO working with local communities affected by mining activities, a consultant or an academic from whatever disciplines specialised on these issues, this volume is a necessary read.

It would be difficult to imagine a more timely book. Its object: to examine the regulation of conflicts between transnational mining companies and local communities through national, transnational and local processes. In order to do so, it examines how legal authority is being redistributed among public and private actors, as well as national and transnational actors, as a result of globalising forces. The volume is concerned with the intersection between transnational law and local struggles arising from globalising economic activities. Transnational law, it argues, is being developed in sites around the world in order to address governance gaps and opportunities. This represents a significant and continuing shift in how governance is taking place. It is a shift that raises important questions concerning legitimacy and democratic governance - central among these questions being the following one: “How are we to evaluate democratic legitimacy in a globalising world?” (p.289).

The volume sets out to demonstrate “that legal pluralism offers a particularly effective vantage point from which to examine the dynamics of legitimation, its connection to regulation, and its pursuit both inside and outside state structures” (p.289). In order to provide the rigour that only contextualisation through detailed empirical research into evolving legal arrangements can provide, the book presents a case study concerning the negotiation of land transfer and resettlement between a transnational mining enterprise and indigenous peasants in the Andes of Peru.

Two principle areas of inquiry are explored: a) the development of transnational legal regimes and their relationship to other forms of law (the first four chapters), and b) the practical influences of transnational legal ordering in regulating local environments (the last four).

The first chapter examines two central problems: regulation and legitimacy. The analysis is premised on one of the hypotheses that the volume will go on to demonstrate, namely that globalisation has contributed to further blurring the distinction between the public and the private, between the technical and the political. The stage for the study is set by the following framework of analysis.

“If transnational law is proliferating, one way to approach an evaluation of its benefits and dangers presented by its processes of regulation and legitimacy is to inquire into the forms of political identity these processes imply:

What kind of engagement is being promoted?

What rights and duties are created?

What does a transnational legal order offer by way of an emancipatory ideology and practice?

What is asked of us and what is offered in return?

(p.26)

Chapters 2 and 3 explore the global policy arena and the production of multiple transnational legal orders that it entails. In order to help understand some of the dynamics involved in contemporary global legal restructuring, it identifies and analyses two models. The first involves the modelling of legal authority and concerns the privatisation and transnationalisation of national law. The second concerns modelling industry certification.

With regard to the first, the study describes a “process through which areas of national public legal responsibility are systematically privatised and up-loaded to the transnational sphere” as “economic globalisation triggers new local demands for the social regulation of private sector development” (pp.290–291). Faced with the obligation to adopt a reform package presented explicitly as a question of regulatory competition in the race to attract investment, the capacity of governments of mineral rich countries of the South to respond to local demands and pressures became circumscribed by the legal and practical...