Promotie M.E.A.A.M. Ooms LLM

This dissertation examines how the emerging field of ‘international natural resources law’ (INRL) rules the governance of natural resource extraction. It brings together two themes that play a central role in INRL and in international law more generally, but that have generally been at the backstage of legal analysis: power relations and ‘informal’ international law-making. In ‘informal’ international law-making (IIL), states cooperate with non-state actors (such as corporations and non-governmental organisations) in unconventional law-making fora to create rules and standards that may have normative force without being legally ‘binding’.

This study problematises the following prevalent presumptions related to IIL and power: (1) that we should understand international legal rule in terms of a (hierarchical) binary of the ‘formal’ versus the ‘informal’; (2) that the practices that can be organised under the heading of ‘IIL’ do not operate in accordance with a logic of legal normativity; and (3) that (informal) international law’s problem of power should be understood primarily in terms of a (formal) accountability deficit and the instrumentalisation of rules by powerful actors.

To develop a richer understanding of international legal rule, this thesis maps the law-making practices of three cases of ‘informal’ INRL: the Kimberley Process, the Extractive Industries Transparency Initiative, and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. It analyses these cases through a critical interdisciplinary lens to study the operation of (informal) legal normativity at the intersection of law, power, and politics. Thus, it challenges constructed dichotomies between formality and informality, international law and power, and the disciplines of International Law and International Relations.

The main argument presented in this thesis is that international legal normativity should not be understood in terms of a hierarchical binary of ‘formal’ legality versus ‘informal’ legality, but in terms of a spectrum of practices that rule subjects and their conduct ‘through’ the power of legality. In the cases of INRL, normativity is not contingent on the enforcement of formally binding sources of law, but operates specifically through practices of compliance monitoring and techniques of ‘transparency’.

Remarkably, this study finds that these practices of ‘informal’ law-making may have ‘formalising effects’ on the extraction and governance of natural resources. Thus, these practices contribute to international law’s project of creating legalised order and shaping ‘good’ governance of the state and its natural resources, specifically the resource-rich state in the Global South.

In view thereof, this thesis argues that (informal) international law’s problem of power should be understood primarily in terms of law’s capacity to produce governmental power and rule, while operating through unequal relations of power.