Transnational Law and State Transformation

Jennifer Lander is a Lecturer in Law at De Montfort University, UK

Table of Contents

Preface

Part I: Theory and Summary of the Book






Transnational Law, State Transformation and Global Markets: Economic Development and Material Constitutional Change





Decoding "Development": A Socio-Legal Approach





Development Code-Cracking: The Conceptual Origin Story of the Book



Parts of a Whole: State, Law and Market from Material Constitutional Perspective




Seeking Reward and Mitigating Risk: The Changing Dynamics of "Development" in the Global Economy





Development as State Modernisation



Development as Marketisation



Building Markets, Building States: Understanding the Contemporary Paradigm




Contextualising Extractive Development



Conclusion




Introduction to the Case Study





Constituting a Resource Frontier in Outer Mongolia



Chapter Outline





A Note on Research Methods



Part II: The Case Study




State, Law and Economy in Mongolia: An Historical Overview





Introduction: Tracing Material Constitutional Change over Time



State-Economic Relations Prior to the National State: An Overview of the Mongol Aristocratic-Pastoral Order (Twelfth – Twentieth Centuries)





Socio-Political Constitution of the Early Mongol State



Sustaining the Aristocratic State: Embedded Economy and Customary Norms




Distinguishing the Economic from the Political: State Socialism, National Industrialisation and Regional Integration in the Soviet Union (1924-1990)





A Shifting Situation: New Geopolitical Challenges in the Early Twentieth Century



Socialist Constitutionalism: New Institutions and Revolutionary Legality for the Mongol People’s Republic



Introducing "Economic Development" into Mongol Steppe Society




Democratising the Government, Depoliticising the Economy? The Post-Socialist Mongolian State





(Re)constitutionalisation Part I: A New Blueprint for Accumulation



(Re)constitutionalisation Part II: A New Political-Legal Regime



Mongolia as a Model Market Democracy?




Conclusion




See-Saws of Instability: Mongolia’s Mining Regime from 1994-2014





Introduction



1994-2002: Making a Minerals Market on the "Final Frontier"



2002-2006: Re-evaluating the State-Market Balance



2006-2009: State-Market Compromise and the Oyu Tolgoi Investment Agreement



2009-2013: Optimism and Entanglement



2014: Facing the Crisis of Transnational Capital and Confidence



Conclusion




After the Crisis: Strategies for Stabilisation within the State





Introduction



Unstable Institutions at the Centre and the Periphery: Curtailing Political Risk within the State for Foreign Investment





Conflict at the Core: Parliament, Politicians and "Resource Nationalism"



Conflict at the Periphery: Local Governments, Rent-Seeking and Corruption




Stabilisation Mechanisms: Blurring Public-Private Boundaries and Strengthening Executive Authority in the Mining Regime





Blurring the Public-Private Divide at the Central and Sub-National Scales



Deepening Executive Power within Central and Sub-National Administrations




Conclusion




Redefining Resistance: Strategies for Stabilisation in State-Society Relations





Introduction





Organised Civil Society in Mongolia: An Overview




The Law and Politics of Exclusion in the Making of a "Civil" Society: Limiting Political Risk from Environmental Activists





The Emergence of Environmental Activism around Mining in Mongolia




Stabilisation Mechanism I: Excluding Dissent through Institutional Disassociation and State Criminalisation



Stabilisation Mechanism II: Inclusion Through Multi-Stakeholder Dialogue, Consensus Building and the Narrative of "Shared Responsibility"





Governing Political Risk for Mining Projects through the Norms and Mechanisms of Corporate Social Responsibility: Tracing a Transnational Normative Agenda



Institutionalising Multi-Stakeholder Norms and Practices in Mongolia’s Mining Regime: The Extractive Industries Transparency Initiative and the Integrated Mineral Resource Initiative



Non-State Dispute Resolution and Conflict Mediation: The Role of the International Finance Corporation in the South Gobi



Summary of Case Studies




Conclusion

Part III: Theoretical Reflections




Transnational Legal Ordering and State Transformation in Mongolia: Summarising the Case Study





Introduction



Transnational Legal Ordering



Stabilising Mongolia’s Investment Environment as a Process of Transnational Legal Ordering





Substantive Legal Reform



Changes in the Boundary between the State and the Market, and other Forms of Social Ordering



Changes in the Institutional Architecture of the State



Enhancement of Professional Expertise and its Role in Governance



Change in Associational Patterns Instituted through Transnational Mechanisms of Accountability with Accompanying Normative Frames



Summary




The Legal and Political Costs of Transnational Legal Ordering in Mongolia’s Mining Regime





"Who Cares about Politics?" Setting out the Significance of Transnational Legal Ordering for Democratic Politics in Mongolia



A New Rule for the Rule of Law? Stability as the new Grundnorm for Mining Law and Policy



‘It is Our Destiny to Work with Our Neighbours’: From Geo-Politics to Geo-Economics




The Law of Unintended Consequences: Perils in New Patterns of State Transformation



Conclusion




Reflecting on Material Constitutional Change in Mongolia





Seeing the Forest for the Trees