The resurgence of the practice of resource nationalism, specifically the growing reassertion of nation states for control over natural resources within their jurisdictions, spurred widespread discussion on its recent... [ view full abstract ]
The resurgence of the practice of resource nationalism, specifically the growing reassertion of nation states for control over natural resources within their jurisdictions, spurred widespread discussion on its recent character, the diversity of its contemporary forms, and its drivers and motivations across contexts. A prevailing debate revolves around dominant assumptions of resource nationalism as primarily an antagonism between governments and foreign corporate interests, versus arguments on the mutual benefits it facilitates for both. Other recent literature points to the need to understand the construction of resource nationalism and its multi-faceted nature, particularly among developing countries, to grasp its reality and implications in the context of complex global concerns. A key question that remains largely unexplored is whether specific applications of resource nationalism translate to sustainable development. This study aims to contribute to these discussions by examining the logic behind the recent stance of the Philippine and Indonesian governments toward resource nationalism over their mineral resources. It provides a nuanced analysis of the character, underlying motivations, and key strategies and tools, to enforce protectionist policies, and ultimately analyses their implications on sustainability of mining. The Philippines and Indonesia, two of the leading global suppliers of minerals and ores and hosts of large-scale mining industries, were ranked by the Canadian think tank Fraser Institute as among the ten worst governments in the world in its Annual Survey of Mining Companies 2016 and 2017 Policy Perception Index. Investors indicated increased concern over uncertainties regarding environmental regulations on protected areas, disputed land claims, and new revenue-sharing requirements in both countries, perceived by the industry as debilitating for mining investments. This has been welcomed by many anti-mining advocates who view the policy as the needed challenge against neoliberal norms traditionally governing mining regimes, toward nation-building and environmental protection. Yet, there is a prevailing scepticism against this policy stance as a calculated populist strategy designed to project a nationalist ideology, yet devoid of traction in the context of entrenched patrimonial political structures in both countries. The study examines the countries’ respective legal frameworks, policy directives and enforcements, including mining concessions and negotiation agreements made by governments with their mining industries. It argues that the resource nationalism agenda of the Philippines and Indonesia are driven primarily by capitalist interests predominating the states to acquire leverage over rent and capture large shares of industry profits. Packaged to be protective of national patrimony and environmentally responsive, resource nationalism in both countries is governed mainly in economic terms. These would translate to erratic policy shifts (i.e. arbitrary executive orders) and enforcements, which betray an intention to maintain and expand foreign mining investments. The resulting terrain of legal ambivalence proves to be an expedient political strategy that provided an allowance for different legal instruments to be used in contract agreements that may deviate from the fundamental laws governing the mining industry. This legal ambivalence fragments intergovernmental allocation of regulatory authorities, complicates monitoring systems, and deters corporate accountability. All these undermine the provisions for sustainability in both countries’ mining laws, demonstrating prevailing inconsistencies in the outcomes of resource nationalism with sustainable development. The study ultimately poses practical implications for restructuring the international legal order in mining investments capable of regulating rent-seeking resource nationalism from compromising sustainable development.
9d. Law and sustainability
