Private actors in development projects: reflections on human rights between power and resistance

Abstract

The theme of the book symposium ‘The Rule of Law in Transnational Development Projects’ is, as Bhatt's Concessionaires, Financiers and Communities (2020) and Lander's Transnational Law and State Transformation (2020) highlight, ripe for critical reflection. The two books reveal the power wielded by private for-profit actors in the co-constitution of legal norms, often at the expense of local communities in development-investment settings. The co-constitution of legal norms by private actors via ‘contracts’, ‘policies’ and ‘intermediaries’ (Bhatt, Lander and Taekema, Book Symposium Introduction in this issue) development permeates rule of law in the public sphere, including in ways that affect the application of domestic and international legal norms relating to human rights. Of course, rule of law may be defined by ‘thick’ conceptions … as a just system of laws ‘consistent with international human rights norms and standards’ (UN Secretary General, 2004, para. 6) or ‘thin’ conceptions with more formalistic requirements that do not prescribe political or social values. Deontological questions aside, even in its ‘thinnest’ conception, rule of law means that legal norms ‘should be publicly promulgated; be predictable in their application; apply to all citizens, including government officials; and be subject to some form of neutral adjudication in the event of disputes as to their interpretation or application’ (Trebilcock, 2011, p. 209). Yet, rule of law has often been applied ‘to favour entrenched elites over resistance groups, vested interests … over civil disobedience, official actors over unofficial actors and property owners over protestors’ (Simpson, 2012, p. 9).