Document Type

Article

Publication Date

January 2008

Keywords

international sustainable mineral development law, human rights

Abstract

Canadian mining companies, stock exchanges, mining professionals, and the Canadian government itself, play a significant role in global mining. This unpublished PhD dissertation, completed in January 2008, explores whether Canada has a legal obligation to regulate to prevent and remedy human rights and environmental harm associated with Canadian mining companies operating abroad. Canada and global mining serve as a case study to explore the broader question of whether home states have obligations under international environmental and human rights law.The key claims examined in this dissertation are as follows. First, the exercise of unilateral home state jurisdiction over transnational corporate conduct does not violate jurisdictional principles of public international law. Rather, international law is permissive of such jurisdiction. Secondly, beyond permissibility, the secondary rules of the international law of state responsibility discourage the direct attribution of transnational corporate conduct to the home state due to reliance upon agency principles. However, rethinking attribution and responsibility in causal terms suggests that a home state’s failure to regulate to prevent and remedy harm where such obligations exist under a primary rule, could lead to direct home state responsibility for corporate wrongdoing. Third, the primary rules of international environmental and human rights law, and the international law of sustainable mineral development, suggest that there is an emerging obligation for states, including home states, to regulate to prevent and remedy transnational harms.The dissertation draws upon Third World Approaches to International Law (TWAIL) to argue that home state claims that the exercise of extraterritorial jurisdiction infringes the sovereignty of host states are suspect if Third World sovereignty is understood as never having been the sovereign equality presupposed under contemporary principles of international law. Ultimately, the dissertation proposes a regime of home state regulation structured in keeping with a cosmopolitan democratic vision of transnational governance and reflecting a concept of interactive jurisdiction that gives voice to subaltern local communities. Unilateral implementation of the proposed regime could then be viewed as a contribution to customary international legal process and while at the same time serving as a counter-hegemonic tool for subaltern local community resistance.

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