The legal construct of mining conflicts

Abstract

Mining governance frameworks have largely failed to resolve the structural inequalities that perpetuate conflict and power asymmetries in resource development. While extensive literature explores the causes of mining disputes, legal scholarship has often overlooked the role of law in enabling and legitimizing these hierarchies. This article adopts a law and political economy perspective to examine two key legal mechanisms that shape mining governance: contract formation between states and foreign investors, and investor-state dispute settlement. Contracts between host states and multinational mining companies establish the legal foundation of extractive projects, structuring power relations and limiting state regulatory flexibility. The widespread inclusion of arbitration clauses, often found in both investment treaties and contracts, further entrenches these dynamics by allowing investors to challenge state actions through investor-state dispute settlement, a process that frequently prioritizes investor rights over environmental and human rights protections. By focusing on these legal mechanisms, this article challenges dominant governance paradigms that attribute mining conflicts primarily to weak institutions or corruption, instead highlighting the legal scaffolding that enables extractive industries conflicts to proliferate. Drawing on insights from socio-legal research, the article argues that targeted legal reforms, particularly in contract design and dispute resolution, could mitigate mining conflicts and promote more equitable resource governance. While law alone is insufficient to address the complex socio-economic and environmental challenges associated with mining, understanding its constitutive role in shaping market hierarchies is a critical starting point. The article concludes with policy recommendations aimed at reconfiguring legal frameworks to support fairer and more sustainable extractive governance.