Australian Journal of Human Rights
Undermining Australia’s international standing: the failure to extend human rights protections to indigenous peoples affected by Australian mining companies’ ventures abroad
Standards of human rights are embedded within the statist system of public international law and predicated upon the protection of individuals from the very states that undertake responsibilities towards them. The limitations of this ‘vertical’ model are highlighted by the impact of Australian mining companies’ extraterritorial operations on indigenous peoples. This impact is used in this article as a lens through which I undertake an examination of states’ ability to shape the processes of international law to ensure that protection from abuse is not contingent upon the geographic location of the abuse or the juristic character of the perpetrator. After analysing the applicable framework of existing and emerging standards and the extent to which these standards have afforded protection to indigenous peoples, the article concludes that Australia has a duty to regulate the extraterritorial operations of its mining companies. Such a duty arises from four principal bases. First, the patterns of deprivation associated with mining activity have been addressed primarily through the application of ‘host’ states’ ‘horizontal’ duties to prevent abuses within their territorial boundaries. Yet host states’ ability and desire to regulate has been impaired by the imperative of securing foreign direct investment in a globalised marketplace. Second, the mining sector’s bid for self-regulation requires human needs to compete with objectives of profit-generation. Third, soft law initiatives have not yet yielded an international mechanism for direct enforcement of human rights obligations on corporations. Fourth, standards have been developed which enable indigenous peoples to participate in decisions that affect their lives and preserve their relationship with traditional lands and territories. The acceptance and implementation of these standards creates conditions in which guarantees enshrined in universal human rights instruments, which Australia has ratified, may be realised. The good faith implementation of these universal guarantees requires Australia to exercise its regulatory power and thereby forestall catastrophic and preventable deprivations.
Australia’s mining industry occupies a significant place in the nation’s history, culture and economy. The mining sector is the country’s largest export earner and constitutes 8.5 per cent of Australia’s gross domestic product.1 Mining operations contribute to Australians’ high living standards. They are similarly capable of enhancing the lives of traditional owners of land subject to exploration and exploitation. Yet the pursuit of mineral revenues has too often proceeded on the basis of a relationship between corporations and government, paying little regard to indigenous peoples or their connection with lands and territories. Having ‘stonewalled, completely refusing to recognise’ indigenous rights (Harvey 2004: 238) in the 1970s and 1980s, mining companies have in recent years negotiated a range of agreements with Australia’s indigenous communities. A detailed study of recent agreements has concluded that their outcomes, in terms of benefits to indigenous peoples, are highly variable and that important work is underway to place such agreements within a human rights framework (O’Fairchallaigh 2004: 303–28). In light of the continuing struggles of indigenous Australians to have their human rights recognised and accommodated within the context of corporate investment, it is perhaps unsurprising that operations of Australia’s mining companies have at times had devastating impacts upon indigenous peoples overseas. This paper will focus on these companies’ extraterritorial operations and consider the extent to which they may be subject to standards of international human rights.
Transnational corporations (TNCs) and indigenous peoples
TNCs and globalisation
Processes associated with economic globalisation, including the reduction of barriers to trade and investment, have seen corporate entities that own, control or manage income-generating assets in more than one country (Muchlinski 1999: 12), or TNCs, emerge as the principal vehicle for the international movement of capital.2 Within a corporate grouping, there are often a number of subsidiaries that may be incorporated in different jurisdictions to the holding (or parent) company. Under the general law, each subsidiary is considered to be a separate legal entity with the consequence that a holding company cannot be held responsible for its conduct, notwithstanding ‘the commercial reality that every holding company has the potential and, more often than not, in fact, does, exercise complete control over the subsidiary’ (Ward 2001, citing Briggs v James Hardie). Indeed, the complexity of TNCs’ corporate structures renders the identification of ‘Australian’ mining companies less than obvious. For example, Broken Hill Proprietary Ltd (BHP), hitherto Australia’s largest corporation, merged with UK-based Billiton plc in 2001, resulting in the creation of a dual-listed entity comprising BHP Billiton Ltd and BHP Billiton plc. Headquarters of the BHP Billiton group and BHP Billiton Ltd are in Melbourne, while BHP Billiton plc retains its London base with further ‘corporate centres’ in Johannesburg and Houston.3 For the purposes of this exposition, Australian mining companies are corporations incorporated and/or having a corporate office located in a State or Territory of Australia and their subsidiaries.
Liberalisation of mining laws under the auspices of intergovernmental fora, such as the Asia Pacific Economic Conference, has enabled Australian mining companies to expand their extraterritorial reach. Foreign direct investment has eclipsed international aid as the primary source of external capital for developing countries. In the marketplace for foreign direct investment, developing countries have sought to offer comparative advantages to firms operating within their borders4 by, for example, authorising low standards of environmental protection or mining of legally ‘protected’ forests. Owing to the long duration and high capital investment required by mining operations, companies frequently operate in partnership with other entities, including states that ‘host’ TNC operations, the economies of which may be heavily reliant upon mining revenue.
Indigenous peoples and others ‘still attached to place’5 have been seen as ‘marginal to the discourses on globalisation’ and their knowledge and practices ‘unhelpful in the construction of a truly global contemporary world’ (Oloka-Onyango and Udagama 2000: para 10). Accordingly, these groups have been excluded from decision-making concerning development projects, such as mining operations. Governments have rationalised such projects by invoking the national interest and the corresponding assumption that profit creation will inevitably create conditions essential for the realisation of fundamental human rights. The error of this assumption has been documented in literature concerning ‘Dutch Disease’ and ‘resource curse’6 and in a recent UN paper titled ‘Indigenous peoples and Globalization’, which links such projects with poor economic growth, uneven distribution of economic benefits and perpetuation of structural inequality (Commission on Human Rights 2003: para 23).
Human rights, which aspire to secure a common core of human dignity, may be seen as part of globalisation. While economic processes may be described as ‘globalisation from above’, they have been met by ‘globalisation from below’ in the form of national and supra-national groups seeking to place them within a human rights framework. The forces of globalisation from above and below have qualified sovereignty. But they do not portend the demise of the state (Tomuschat 1993: 6). Rather, they require a more complex role for states in mediating processes associated with globalisation (including extraterritorial corporate investment) to ensure they are not characterised as ‘values in themselves’ capable of trumping norms perceived as inconsistent with their effective operation (Alston 1997: 435–49).
There is no formal authoritative definition of indigenous peoples. Perhaps the most influential definition is the ‘international definition’ formulated by UN Special Rapporteur Martinez Cobo in 1986:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of society now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, on the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.
On an individual basis, an indigenous person is one who belongs to those indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by those populations as one of its members (accepted by the group). [Martinez Cobo 1986: Vol 4: Conclusions, Proposals and Recommendations.]
A more recent definition can be found in art 1 of International Labour Organisation (ILO) Convention No 169 on Indigenous and Tribal Peoples (ILO 169). As in the Martinez Cobo definition, self-identification features prominently and is described as a ‘fundamental criterion’ for determining the groups to which the convention applies. Indigenous and tribal peoples are further described as follows:
... peoples in independent countries ... regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions (and) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.
The term ‘indigenous’ is applied in this paper to cover indigenous and tribal peoples in accordance with the ILO 169 definition.
In contrast to the ‘real-estate, market-oriented view of land tenure generally held by non-indigenous individuals and entities,’ indigenous peoples’ land ‘embodies the essential elements of their cosmogony (and) the ultimate source of life and wisdom’ (Alfonso Martinez 2004: para 7). Lands and territories traditionally occupied or used by indigenous peoples are generally enjoyed collectively; preserved for future generations; and deeply intertwined with religious practices, identity, cultural heritage, political and social cohesion and economic livelihood (Alfonso Martinez 2004: para 7).
Colonisation saw indigenous peoples dispossessed of their lands and territories on a massive scale. Dispossession was rationalised by doctrines including ‘discovery’, ‘terra nullius’ and trusteeship. These doctrines were largely driven by the economic agendas of states (Daes 2001: para 23). The consequent domination of indigenous peoples and suppression of their cultures and perspectives left a legacy of deprivation acutely felt today. Indigenous peoples have been described as ‘almost invariably’ existing on the ‘lowest socio-economic rung of the ladder’ and at ‘the margins of power’ (Anaya 1996: 4). Some states have failed to recognise the existence of indigenous land or have failed to attach legal rights accordingly. Differences in nations’ domestic property laws, degrees of recognition of indigenous lands and willingness to attach legal rights thereto have resulted in legal title to indigenous lands existing in a variety of forms. These include land held subject to native title,7 demarcated indigenous land, trust land or crown land. The physical connection between indigenous peoples and their traditional lands also assumes a variety of forms. It may entail exclusive occupation or access without occupation. Where forced relocation has occurred, the physical connection may be completely severed. Similarly, subsurface resources may be owned by indigenous peoples, or ownership may be retained by the state.
For indigenous groups that were spared the full effects of colonisation, economic globalisation is sometimes analogised with colonisation. According to Stavenhagen:
The isolated, marginal areas often occupied by indigenous peoples constitute the last great and, until recently, unexploited reserves of natural resources. Neither State planners nor multinational corporations ... have hesitated to ‘incorporate’ these areas into the national and international economy. In the process, indigenous peoples have suffered genocide and ethnocide. [Cited by Ksentini 1994: para 79.]
The mutually sustaining relationship between indigenous peoples and their traditional lands has facilitated the preservation of indigenous lands, territories and cultures. Investment liberalisation has rendered these lands vulnerable to development. The resulting attack on indigenous peoples’ dignity, cultures and existence has led to deprivation and marginalisation and is reported to have precipitated the disappearance of entire indigenous groups.8 Such devastating consequences have most often followed where states have failed to recognise indigenous land rights, thus depriving indigenous peoples of the opportunity to participate in decision-making concerning development of traditional lands and territories (Daes 2001: para 67). Accordingly, participants drawn from government, industry, NGOs and indigenous communities concluded at a UN Workshop on Indigenous Peoples, Private Sector Natural Resource, Energy and Mining Companies (UN Workshop) that extractive resource development required equitable relationships between indigenous groups, states and the private sector — a precondition of which was full recognition of indigenous peoples’ rights to their lands, territories and natural resources (Commission on Human Rights 2002: para 3).
Australia’s voluminous Corporations Act 2001 (Cth) does not extend in scope to extraterritorial mining activity and makes no mention of human rights. Yet Australian mining companies’ extraterritorial operations have had a significant effect on the realisation of indigenous peoples’ human rights. These companies have sometimes established funds to facilitate the realisation of economic and social rights and, owing to their economic and political power, may present a vehicle for lobbying governments to promote indigenous concerns. However, the concerns and priorities of indigenous peoples have often been overlooked by Australian mining companies. Indigenous peoples have been excluded from participation in decisions that affect their lives. Consequences have included forced relocation from indigenous lands, as experienced by the Kao and Malifut communities of Indonesia, whose traditional lands have been subject to goldmining by Melbourne-based company Newcrest — notwithstanding legislation designating these lands to be ‘managed ancestral protected forest’. Exclusion from benefits of mining and environmental degradation with concomitant impacts on standards of health and living have been comprehensively documented with respect to the Ok Tedi copper and gold mine in Papua New Guinea (PNG), operated by a consortium including the PNG Government, in which BHP was major shareholder.
Resulting protest has on occasion been met with acts of violence by police or security agents engaged to protect mining installations and personnel. Such ‘punishment for resistance’ (Daes 2001: para 22) resulted in injuries and fatalities when protesters concerned with Aurora Gold Ltd9 and Newcrest’s (O’Neill 2004: 101) Indonesian operations were beaten, fired at and detained by ‘Brimob’ mobile police units. The World Bank’s Extractive Industries Review (World Bank Group 2004) concluded that developing states that are heavily reliant on mining have experienced poor economic growth and an increased incidence of civil conflict. Indeed, the tendency of grievances and protest resulting from mining to fuel separatist sentiments and contribute to armed conflict is vividly demonstrated by the link between the operations of CRA Ltd (CRA)10 and the continuing tragedy in Bougainville. The deprivations resulting from the operations of TNCs in some of the least developed economies in the world highlight the imperative of holding large mining companies accountable for their extraterritorial conduct. The following sections examine Australia’s ability to forestall such catastrophic and preventable deprivations.
International law and its participants
TNCs in international law
In somewhat anachronistic language (Thornberry 2002: 89), states have traditionally been recognised as ‘subjects’ of international law and private or non-state actors have been characterised as ‘objects’. But the absence of any legal impediment to non-state actors’ participation in international law is manifest in a 1949 pronouncement by the International Court of Justice (ICJ):
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of States has already given rise to instances of action on the international plane by certain entities which are not States. [Reparations Case (1949): 178–9.]
Indeed, non-state entities hold duties under a range of international instruments. One such instrument is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which calls for the punishment of persons committing acts including genocide, whether they be ‘constitutionally responsible rulers, public officials or private individuals’ (art IV). Duties have also been imposed on corporations by instruments including the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on Civil Liability for Oil Pollution Damage. Conversely, corporations have benefited from a range of rights under international law. For example, the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits corporations to submit disputes to arbitration and have arbitral awards enforced internationally.11 There is thus no legal impediment to the imposition of human rights obligations on corporations.
Norms of human rights, as embedded in public international law, are predicated on the protection of individuals from the very states that undertake responsibilities towards them. This formulation fails to account for the range of human experience, cultural associations and interactions that have been rendered yet more complex by the processes of globalisation. International law’s inadequate response to concerns raised by ventures such as the Ok Tedi mine is attributed by Sornarajah to the same ‘power-centred’ agenda that has generated doctrinal justifications for indigenous dispossession: the economic interests of powerful states which have been eager to protect their overseas investments (Sornarajah 2001). The human impact of TNCs’ operations signals an urgent need for states to regulate corporate conduct and move towards a ‘people-centred’ international law (Sornarajah 2001). Failure to do so could consign victims of ‘private’ conduct to a human rights void and throw the coherence and credibility of the human rights enterprise into question.12
Human rights have emerged as the international community’s collective response to the uniqueness of the human condition.13 The substantial corpus of human rights norms may thus be seen to adequately embrace all of humanity. But a growing appreciation of the distinctiveness of specific groups, their vulnerability to certain harms and the differential impact of human rights violations upon such groups has resulted in the elaboration of ‘group-differentiated’ standards, such as minority rights. As individuals and members of minorities, indigenous peoples have to some extent benefited from ‘undifferentiated’ standards applicable to all and from standards concerning minorities. But the failure of either corpus of rights to specifically accommodate an indigenous perspective, combined with the need to find ‘liberating forms of discourse’ (Williams 1990: 704) through which indigenous struggles can be humanised and narratives accommodated, has resulted in efforts to redefine indigenous peoples’ ‘terms of survival in international law’ (Williams 1990: 700). Williams’ observation, made some 15 years ago, resonates today:
... decisions about the cultural survival of indigenous peoples are made in distant capitals and boardrooms of multinational corporations without ever listening to the views or preferences of indigenous peoples about the rights that matter to them. [Williams 1990: 703.]
Indigenous-specific standards have followed two trajectories, the first constituted by the work of the ILO and the second by the Charter-based organs of the UN. The former has perhaps been less ambitious and facilitated a lesser degree of indigenous participation. But with deeper historical roots, it has spawned binding international standards. The ILO commenced studies on indigenous workers in 1921, and adopted the first international instrument specifically concerned with indigenous peoples in 1957.14 The Convention focused primarily on labour standards and generated distrust and considerable criticism due to its objective of indigenous peoples’ ‘progressive integration into their respective national communities’. While still operative, the Convention was revised by the much broader ILO 169 in 1989. With 17 ratifications (which do not include Australia in their number), ILO 169 is concerned with indigenous peoples’ preservation of their distinctive identities and participation in decisions affecting their lives. As a binding instrument, it has been described as ‘international law’s most concrete manifestation of the growing responsiveness to indigenous peoples’ demands’ (Anaya 1996: 47).
The second trajectory drew on international developments such as decolonisation, international human rights law and the emergence of indigenous organisations in the 1960s and 1970s (Thornberry 2002: 21). In 1971 the UN Sub-Commission on the Promotion and Protection of Human Rights (UN Sub-Commission)15 appointed Special Rapporteur Martinez Cobo to conduct a study of discrimination against indigenous peoples. In 1982, prior to the study’s completion, the Economic and Social Council established the Working Group on Indigenous Peoples (WGIP), comprised of five expert members drawn from the Sub-Commission. WGIP proceedings are conducted annually and endeavour to review developments concerning indigenous peoples’ human rights and develop standards accommodating indigenous cultures and aspirations.
The UN General Assembly declared 1993 to be the International Year for the World’s Indigenous People and, in the following year, launched the International Decade of the World’s Indigenous People. Objectives of the decade included empowering indigenous peoples to make choices that enable the retention of their cultural identity and participation in political, economic and social life. The Permanent Forum on Indigenous Issues established in 2000 falls within this objective by providing a permanent mechanism involving indigenous peoples in the regular exchange of information. A further objective was standard setting, including the adoption of the UN draft Declaration on the Rights of Indigenous Peoples (draft Declaration). After commencing the drafting process in 1985, the WGIP submitted the draft Declaration to the Sub-Commission, which adopted the document in 1994 and submitted it to the Commission on Human Rights. In 1995 the Commission established an open ended Working Group on the Draft Declaration and in 1997 it adopted the relatively uncontentious arts 5 and 43. No article has been adopted since. Despite the Chairperson-Rapporteur’s optimism that consensus was ‘emerging’ (Commission on Human Rights 2004: 8), the frustrations that characterised the working group’s 10th session, held in December 2004, were reflected outside the UN’s Palais des Nations by a group of indigenous hunger-strikers.
The International Decade thus concluded with a key aspiration unfulfilled. On 20 December 2004, the UN General Assembly adopted resolution 59/174, proclaiming a second International Decade of the World’s Indigenous People commencing on 1 January 2005. The stated goals of the second decade are to strengthen international cooperation for the solution of problems faced by indigenous peoples in such areas as culture, education, health, human rights, the environment and social and economic development. The failure of the first decade brings into sharp focus the effects of failing to prioritise indigenous peoples’ concerns.
The draft Declaration’s incomplete status is viewed by indigenous groups as a major failure (Grand Council of the Crees et al 2004). Indigenous peoples’ rights, values and perspectives are more readily overlooked by governments and corporations in the absence of a widely ratified international instrument. The text has accordingly been described as ‘an emblematic synthesis of indigenous claims of right, cultural statements, and world views, suggesting the dim outline of a relationship between indigenous peoples, States and the culture of human rights’ (Thornberry 2002: 26). Its standards, including free, prior and informed consent, have been recognised pursuant to studies conducted by the UN Charter-based organs. These standards may crystallise over time into customary international law. Alternatively, they may constitute emerging standards yet to be adopted. Because of its centrality to indigenous aspirations to participate in the processes of international law on their own terms, this paper considers the draft Declaration in conjunction with ILO 169 as a source of ‘indigenous standards’.
Australia has ratified international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). In contrast to these instruments’ predominantly individualistic standards, the ‘indigenous instruments’ place considerable emphasis on rights held collectively by indigenous peoples. Collective rights remain controversial. Some states and critics maintain that human rights are essentially individualistic.16 But in recognising indigenous peoples as ‘distinct peoples with their own cultures and communities’ (Kymlicka 1995: 60), collective rights may function as ‘external protections’ (above: 35) that protect indigenous peoples collectively from the impact of external decisions, such as decisions granting permission to exploit mineral resources on indigenous lands and territories. The effects of such decisions are most aptly addressed by standards that substantiate indigenous peoples’ collective relationship with lands. Endorsement of these collective rights is likely to create conditions in which individual rights are promoted and realised owing to the recognised indivisibility, interdependence and interrelatedness of all human rights (as affirmed at the World Conference on Human Rights held in Vienna in 1993). The standards which may be applied to protect indigenous peoples’ dignity, cultures and lands from adverse consequences associated with Australian companies’ mining ventures are examined in the following portion of this article.
The human rights framework
Land and resource rights
The Universal Declaration of Human Rights (Universal Declaration) addresses impediments to the ownership of property, declaring that everyone has the right to own property alone and in association with others and that no one shall be arbitrarily deprived of their property (art 17). States parties to CERD undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee to everyone the right to own and inherit property alone, as well as in association with others. This right has been the most concrete and influential within Australian domestic law. It has provided the basis for an enforceable right (exigible against third parties) in Mabo v Queensland No 2 and has been applied in judgments such as Western Australia v Ward with respect to equal protection of property legislation. The right to hold property is absent from the two International Covenants. It features, however, in regional human rights instruments, including the American Convention on Human Rights, pursuant to which it has been interpreted with reference to indigenous peoples’ right to land and natural resources ‘as a fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival’ (Awas Tingni v Nicaragua).
The collective and mutually sustaining relationship between indigenous peoples and their lands and territories informs the indigenous instruments’ land and resource provisions. Indigenous peoples’ right to maintain and strengthen their distinctive spiritual and material relationship with lands and other resources they have traditionally owned, occupied or used and to uphold their responsibilities to future generations is set forth in the draft Declaration’s art 25. Article 26 represents a high point in facilitating the preservation of indigenous peoples’ existence as distinct communities. It enshrines their right to own, develop, control and use their lands and territories, which encompass the total environment of lands and resources traditionally owned, occupied or used. Full recognition is extended to laws, traditions, customs, land-tenure systems and institutions for the development and management of resources and effective measures are required from states to prevent any interference with, alienation of or encroachment upon these rights. The language of ILO 169’s art 14, which stipulates that rights of ownership and possession over lands ‘shall be recognised’, is somewhat weaker. But its scope extends to requiring measures to safeguard the right to use lands not exclusively occupied but to which indigenous peoples have access. Lands are defined by ILO 169 to extend to the concept of territories, defined again in art 13 to encompass the total environment of areas occupied or otherwise used. Governments are called upon to respect the special cultural and spiritual importance of indigenous peoples’ relationship with these lands and territories.
Indigenous peoples’ conservation, restoration and protection of the total environment and productive capacity of lands, territories and resources is recognised as a right to be realised through state assistance and international cooperation by art 28 of the draft Declaration. Effective measures are required from states to prevent storage or disposal of hazardous materials on indigenous peoples’ lands and territories. Indigenous peoples’ participation in decisions affecting their lands, territories and resources is extended by art 30 to determining and developing priorities and strategies for development. States are required to obtain free and informed consent prior to the approval of activities such as mining; to take measures to mitigate adverse environmental, economic, social, cultural or spiritual impact; and to provide fair and just compensation. Special measures which accord with indigenous peoples’ freely expressed wishes are to be adopted to safeguard the environment and natural resources pertaining to lands ‘occupied or otherwise used’ pursuant to ILO 169’s arts 4 and 15(1) respectively. Where ownership of subsurface resources is retained by the state, governments are required under art 15(2) to consult indigenous peoples to ascertain the degree to which their interests would be prejudiced before commencement of exploitation and, ‘wherever possible’, to permit indigenous participation in benefit sharing.
ILO 169’s art 16 and art 10 of the draft Declaration require that removal of indigenous peoples from lands and territories is subject to their free, prior and informed consent and the right of return and compensation. In the absence of consent, the draft Declaration’s art 27 speaks of restitution or just and fair compensation in the form of ‘lands, territories and resources equal in quality, size and legal status’. Relocation under ILO 169’s art 16 is ‘permissible only where necessary as an exceptional measure’ and subject to the right of return where practicable, provision of alternate ‘suitable’ lands or compensation. The indigenous instruments offer a means of recognition of indigenous peoples’ rights to their lands, territories and resources, the absence of which presents a threat to standards of living, the survival of indigenous peoples as viable territorial communities and ‘the basics required to sustain life’ (World Bank Group 2004: 40). The property rights contained in the Universal Declaration and CERD complement the rights in the draft Declaration and ILO 169 by ensuring that the recognition of the cultural and spiritual importance of land does not detract from the economic and social relationship that indigenous peoples enjoy with their lands and territories.
With longstanding roots in political philosophy (Cassese 1995: Ch 1) self-determination was enshrined as a principle of international law by the UN Charter, where it was associated with peoples’ equal rights and conditions of stability and wellbeing necessary for friendly relations among nations (arts 1(2), 55). Expounding the Charter’s Chs XI and XII, General Assembly Resolutions 1514 and 1541 saw self-determination emerge as a key right of peoples in achieving decolonisation and transition of non-self-governing territories to independence. A decade later, the Friendly Relations Declaration affirmed the equal rights and self-determination of peoples within sovereign and independent states. The principle’s standing as a right is confirmed by common art 1 of the ICCPR and ICESCR. Article 1(1) declares that all peoples have the right to self-determination, by virtue of which they are free to choose their political status and freely pursue their economic, social and cultural development. The right of all peoples to freely dispose of their natural wealth and resources is combined in art 1(2) with the negative guarantee that peoples ‘not be deprived of their means of subsistence’. The principle has been applied in a series of judgments of the ICJ (Namibia Case (1971), Western Sahara Case (1975), East Timor Case (1995)) and emerged as a peremptory norm of customary international law (Cassese 1995; Anaya 2000: 3).
Despite its status as lex lata, self-determination has attracted such labels as lex imperfecta (Thornberry 1993: 109) and lex obscura (Crawford 2001: 10) on account of its uncertainty and ambiguity of meaning. Decolonisation has diverted attention from the full application of self-determination, which is a continuing right extending outside the colonial context (Thornberry 2002: 125) and firmly entrenched in public international law (Cassese 1995: 319). Although sometimes viewed as separate from human rights, self-determination is more appropriately seen as the synthesis of individual human rights. Cassese contends that a people can enjoy self-determination only when the human rights of all individuals comprising that people are fully respected, rendering respect for one a requirement of compliance with the other (Cassese 1995: 337).
A deadlock in the negotiation of ILO 169 was resolved by the excision of references to self-determination and insertion of a stipulation ensuring that self-determination cannot be extrapolated from references to ‘peoples’.17 Negotiations concerning the draft Declaration, which afforded an unprecedented degree of indigenous participation (Daes 2000: 72), revealed self-determination to be less readily dispensable. It permeates the document and has emerged as the focal point of indigenous aspirations.18 Substituting ‘all peoples’ with ‘indigenous peoples,’ art 3 adopts the wording of the International Covenants’ common art 1(1). Article 31 describes a possible manifestation of self-determination to be autonomy or self-government concerning:
... indigenous peoples’ internal or local affairs including culture, religion ... social welfare, economic activities, land and resources management, environment ... as well as ways and means for financing these autonomous functions.
The 1992 WGIP meeting saw Australia advocate the realisation of indigenous self-determination ‘by a system which guarantees full and genuine participation, fundamental human rights and the special position of indigenous peoples’ (WGIP, Report of 1992 Session). Australia’s advocacy for self-determination extended to (unsuccessfully) supporting a call for recognition of indigenous peoples as ‘peoples’ at the 1993 World Conference on Human Rights and the following understanding presented to the WGIP in 1995:
... self-determination is an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of peoples as individuals to participate in the political process ... and the right of distinct peoples within the state to make decisions on and administer their own affairs. [WGIP, Report of 1995 Session.]
By 1999, a radical shift was apparent. Australia’s representatives were asserting that the rhetoric of self-determination should be abandoned because it implied the establishment of separate nations or laws.19
Attempts to confine the scope of self-determination, supplant its language with appellations such as ‘self-management’ and eschew the terminology of ‘peoples’ have resulted from the apprehension that the principle may mutate into a vehicle for indigenous secession. This apprehension may be attributable to an emphasis on the political aspects of self-determination, drawing upon its internal and external manifestations. The former manifestation has been described as a ‘continuing process of authentic self-rule’ (Thornberry 1993: 102). The latter has been invoked to ‘define new externalities, new identities, in convulsive times’ (above: 102). It is associated with a perception that self-determination is primarily a right to independent statehood. This perception has been identified as a source of conflict by Cassese, who postulates a ‘rethinking’ of self-determination to emphasise its internal dimension (Cassese 1995: 350). In invoking this general principle of international law, indigenous peoples have sought a form of self-determination achievable through a dialogic process of cooperation and mutual respect-building. Identifying the right to subsistence as self-determination’s ‘essential content’, Moses says:
In view of the profound relationship we have with our lands, resources and environment, subsistence for indigenous peoples has vital economic, social, cultural, political and spiritual dimensions. [Moses 2000: 161.]
Concurring with Moses’s formulation, Scheinin questions the draft Declaration’s failure to incorporate para 2 of the International Covenants’ common art 1. Paragraph 1 emphasises self-determination’s ‘political dimension’ at the expense of its crucial ‘resource dimension’ and has fuelled states’ ‘unnecessary suspicions’ concerning secession (Scheinin 2000: 198). Henriksen takes a divergent view on the motivations of states. He attributes their stance to apprehensions over losing control of indigenous lands and resources, rather than fear of losing political power (Henriksen 2000: 136). Henriksen’s conjecture, if correct, is particularly concerning because it illuminates a persistent unwillingness to recognise and honour indigenous peoples’ relationship with lands and territories. Political concerns, on the other hand, may be addressed by international law’s restrictions on the right to secession. Much has been written about the Friendly Relations Declaration, which may accommodate divergent interpretations. Despite repeated references to territorial integrity, it does not prohibit secession. Nor does it permit secession unless all peaceful means of achieving self-determination have failed and the government does not represent its population.
States’ reluctance to extend an established principle of international law to indigenous peoples perpetuates the discrimination to which they have been subjected. Indigenous peoples have not pressed for independent statehood. The right to self-determination would enable them to exercise control over their lands, resources and lives in the context of mineral exploration and exploitation and thus holds the promise of a fair globalisation that embraces the priorities of those attached to place. It would also confer greater clarity upon the application of this key principle of international law.
Derived from self-determination and the right to development, the principle of permanent sovereignty over natural resources was the subject of a General Assembly declaration in 1962. Informed by the impacts of natural resource exploitation on indigenous lands, a recent report by Special Rapporteur Daes (Daes 2004) declares that:
... indigenous peoples have the permanent right to own and control their resources so long as they wish, free from economic, legal, and political oppression or unfairness of any kind, including the often unequal and unjust conditions of the private marketplace. [Daes 2004: para 47.]
Substantiating self-determination’s ‘resource dimension’, indigenous peoples’ right to permanent sovereignty over natural resources is described as a collective right that obliges states to respect, protect and promote indigenous peoples’ interest in their natural resources. In the absence of prior, fair and lawful disposition, states are required to respect indigenous peoples’ collective ownership of natural resources on or under their lands and territories. Noting that resources originally owned by indigenous peoples ‘were not, in most situations, freely and fairly given up’, Daes concludes that even in circumstances where states’ authority limits indigenous resource rights, it must be exercised in a manner consistent with indigenous peoples’ human rights. Connecting resource rights with the rights to food, life, shelter and self-determination, as well as the right to exist as a people, the principle is required to guard against unequal and unjust conditions’, including those of the private marketplace.
Participation is a not a novel principle in international human rights law. For example, art 25 of the ICCPR guarantees every citizen the right to vote, to participate in public affairs and to access public services without discrimination. The indigenous standards in ILO 169 and the draft Declaration extend participation to decision-making that impacts upon indigenous peoples’ lives. ILO 169’s provisions are to be applied subject to art 6 (which requires governments to consult indigenous peoples with respect to legislative and administrative measures and decision-making that concerns them, and establish means for the full development of indigenous institutions and initiatives) and art 7 (which requires governments to cooperate with indigenous peoples in taking measures to protect and preserve the environment of the territories they inhabit). The right to full participation in ‘all levels of decision-making in matters which may affect their rights, lives and destinies’ is the subject of the draft Declaration’s art 19. Free and informed consent prior to the making of decisions affecting indigenous peoples’ lives is incorporated into the standards concerning lands and resources considered above. The principle also applies to the adoption of legislative or administrative measures affecting indigenous peoples pursuant to art 20 of the draft Declaration.20 Accordingly, free and informed consent is required prior to removal from lands and territories and the commencement and conduct of mining operations. The principle appears in the draft American Declaration on the Rights of Indigenous Peoples and has been applied in the interpretation of the ‘undifferentiated’ human rights standards considered under the heading ‘Indirect TNC responsibilities’ below.
Although ILO 169’s Guide suggests that art 7 does not confer a right of veto,21 an understanding emerged from the UN Workshop that the principle empowers indigenous peoples to say ‘no’ to the extractive industries, even if they do not own the subsoil on the basis that ‘the right to say “no” makes negotiations real’ (Commission on Human Rights 2002: para 52). A working paper on the principle submitted to the 22nd session of the WGIP concluded that it requires full provision of information concerning the scope and impact of proposed developments on indigenous lands, resources and wellbeing and permits indigenous peoples to consent freely or to withhold their consent prior to the commencement of development without coercion, pressure or intimidation (Motoc and Tentebba Foundation 2004: para 14). The principle is an important vehicle for recognising indigenous peoples’ ‘inherent and prior right to their lands and resources and respect[ing] their legal authority to require that third parties enter into an equal and respectful relationship with them’ (above: para 13). It is thus a valuable guide towards the realisation of indigenous self-determination. Caution is required, however, to prevent the principle from being applied to rationalise states’ failures to recognise indigenous land rights.
Environmental protection has been described as the sine qua non of numerous human rights, as ‘damage to the environment can impair and undermine all the rights spoken of in the Universal Declaration and other human rights instruments’ (Gabickovo-Nagymaros Case per Weeramantry J). Indigenous peoples suffer disproportionately from environmental harm as a consequence of their connection to land. Yonggom elder Alex Maun describes natural resource use as inextricably linked with his people’s means of living and survival (Maun 1997). Waste from the Ok Tedi mine threatened the right to life and undermined the realisation of a range of ICESCR rights, including the rights to food, health and an adequate standard of living. Self-determination is implicated in the loss of means of subsistence resulting from the Yonggom and neighbouring communities’ lack of freedom to choose their own development.
The right to a clean environment is enshrined in regional human rights instruments, such as the African Charter on Human and Peoples’ Rights (art 11) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (art 24). But no human rights treaty of universal application enunciates the right to a particular environment. The UN Draft Principles on Human Rights and the Environment affirm that all persons have the right to a secure, healthy and ecologically sound environment (Ksentini 1994: Annex I, Principle 1(2)). In addressing the disproportionate suffering of marginalised groups from environmental harm, Ksentini contends that procedural human rights guarantees (such as access to information and participation in decision-making) have played a significant role within international environmental law and in turn have facilitated the expansion of human rights guarantees with reference to environmental concerns (Ksentini 1994: paras 241–3). The consequent integration of human rights and environmental law under Shelton’s rubric of ‘environmental justice’ recognises that ‘favourable natural conditions are essential to the fulfilment of human desires and goals’ while the preservation of such conditions is ‘a basic need of individuals and societies’ (Shelton 2001: 257).
Indigenous peoples’ dependence as cultural groups upon a safe environment and the environmental protection flowing from their traditional practices and knowledge are recognised by indigenous standards, including ILO 169’s art 4 and the draft Declaration’s art 28, considered above under the heading ‘Land and resource rights’. It is also acknowledged within ‘soft law’ pronouncements issuing from international conferences and summits. Although these documents are couched in the language of recommendation and aspiration, they reflect commitments flowing from broad state participation and thus exert considerable influence on the development of international law (Thornberry 2002: 30). Principle 22 of the 1992 Rio Declaration on Environment and Development recognises indigenous peoples’ ‘vital role in environmental protection because of their knowledge and traditional practices’ and calls on states to ‘recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’. Agenda 21 moves to recognise that:
In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities.
The rhetoric of ‘sustainable development’ infuses these documents, informs the work of bodies such as the UN Commission on Sustainable Development and has navigated its way into the lexicon of Australian mining companies, considered below under the heading ‘Voluntary regulation’. For indigenous peoples, Thornberry considers this ‘contemporary mantra’ to signify their collective ability to maintain cultural cohesiveness and choose their development without the choice being overborne by outside powers (Thornberry 2002: 168).
Noting states’ differential contributions to global environmental degradation, the Rio Declaration (Principle 7) attaches ‘common but differentiated responsibilities’ to states and considers that standards applied in developing countries may ‘be inappropriate and of unwarranted economic and social cost’ to developing countries (Principle 11). This view, which characterises thinking on economic globalisation, has rationalised the application of lower environmental standards in host states. Comprehending TNCs’ ability to exploit states’ ‘differentiated responsibilities’, Agenda 21 asks that they commit to standards in host states ‘no less stringent than those existing in the country of origin’. The marginalisation of indigenous peoples, which can follow from the application of ‘differentiated standards’, has been addressed in fora such as the Indigenous Peoples’ International Summit on Sustainable Development convened in preparation for the 2002 World Summit on Sustainable Development. The World Summit reaffirmed a commitment to the Rio Declaration and Agenda 21. The Indigenous Peoples’ Summit spawned the Kimberley Declaration and its implementation plan. That declaration describes indigenous peoples as responsible for defending their lands against exploitation and as being entitled to determine priorities for the use of their lands, territories and resources subject to free, prior and informed consent. It identifies a principle obstacle to recognising indigenous peoples’ rights to be economic globalisation.
Unlike collective rights, minority rights are not held by a minority as a group. Article 27 of the ICCPR provides that persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language. Inspired by art 27, the UN Minority Rights Declaration extends the reach of minority rights to participation in decisions affecting persons belonging to minorities. It has also informed indigenous standard-setting by generating considerable discussion in negotiations concerning the draft Declaration (Thornberry 2002: 75) In contrast to ILO 169’s low ratification rate and the draft Declaration’s incomplete status, the ICCPR is widely ratified. Article 27 has accordingly made some inroads towards addressing threats presented by mining to the existence and identity of indigenous peoples.
The human impact of mining lends sharp focus to the interdependence of human rights. It also illuminates the tendency of violations of (predominantly individual) universal rights to flow from the denial of collective rights. Forced relocation, which undermines the ICESCR rights to housing and an adequate living standard, can be averted by indigenous participation in decisions concerning housing and mine location. Participation in decisions concerning mining methods and waste management could minimise the significant human rights impact of environmental degradation considered above under the heading ‘Environmental rights’. Inherent in decision-making that excludes indigenous participation is the racially discriminatory assumption that indigenous concerns are of insufficient societal value to warrant compromising profit-generating development. In diminishing the recognition and enjoyment of indigenous peoples’ most fundamental human rights, such decisions contravene the non-discrimination provisions in the Universal Declaration, ICCPR, ICESCR and CERD. Arbitrary detention, beatings and killings perpetrated by state-based policing units have followed protest fermented by the failure to facilitate participation and benefit sharing. Fundamental rights that form part of customary international law and are enshrined in instruments such as the ICCPR and CAT are thus violated. These include the right to life, liberty and security of the person, freedom from arbitrary detention and freedom from torture and other cruel, inhuman and degrading treatment or punishment. These patterns of abuse highlight the opportunity afforded by the ratification of ILO 169 and eventual adoption of the draft Declaration. These instruments are capable of shaping international law and the processes of globalisation to accommodate indigenous concerns and priorities rather than proffering opportunistic doctrinal justifications for further encroachments into indigenous life which threaten indigenous peoples’ lands, cultures, priorities and survival as distinct groups. The following portions of this article examine the extent to which individual and collective rights have, and may come to be, applied to enable indigenous peoples to participate in decisions that affect their lives and preserve their relationship with traditional lands and territories.
Indirect TNC responsibilities
The notion of horizontality
No international human rights treaty imposes direct obligations on TNCs and thus Australian mining companies. Under the formulation considered above under the heading ‘TNCs in international law’, the states that constitute the ‘subjects’ of international law hold human rights obligations towards individuals within their jurisdiction. The traditional focus of human rights law has thus been the ‘vertical’ relationship between the state and the individual. The vertical model represents a highly restrictive application of international standards, and fails to comprehend their flexibility and scope. Standards of human rights require states to respect, protect and fulfil the realisation of human rights of persons within their jurisdiction. These obligations can only be meaningfully performed by states addressing their own conduct, in addition to the conduct of private entities that has an impact upon the realisation of human rights. In order to ensure that the victims of human rights abuses perpetrated by private actors are adequately addressed, states are thereby obligated to address the actual and potential obligations of non-state actors such as corporations. International human rights law may thus also apply horizontally, requiring states to regulate relations between ‘private’ entities. A failure to regulate private conduct that has an impact on the realisation of human rights may constitute a violation by the state. Corporations and other private actors may accordingly be subject to indirect human rights obligations through the ‘horizontal’ application of human rights standards.
Horizontal obligations sit somewhat uneasily within the Westphalian system of public international law predicated upon states’ obligations vis-a-vis one another (Clapham 1993: Chs 4–5). Nevertheless, a contextual reading of universal standards supports the extension of state obligations into the private sphere (above: 93). To the extent that horizontal obligations have been and may be applied, they illustrate the flexibility of human rights standards in addressing the range of sources of oppression and harms experienced by victims (above: 343–56). The Universal Declaration’s preamble proclaims that ‘every individual and organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms by progressive measures, national and international, to secure their universal and effective recognition ...’. This is elaborated by art 29, which states that ‘everyone’ has duties to the community, and art 30, which prohibits any ‘State, group or person’ from acting to destroy the rights and freedoms in the declaration’. The individual’s duties to other individuals and the community are recognised by the preamble to the ICCPR and ICESCR, while CERD calls upon each state party to ‘prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation’ (art 1(d)). These provisions are expressed to extend to private actors, but there is no current mechanism for enforcing direct human rights obligations on private parties at the international level (Jagers 2002: 41). Abuses by private parties must therefore be redressed on the basis of an act or omission of the state. TNCs thus participate indirectly in international law.
General comments and recommendations
Responsibilities of the UN committees (the ‘treaty bodies’) that supervise the core human rights instruments include the study of state parties’ periodic reports and the provision of general comments and recommendations on the interpretation of standards. These comments and recommendations have addressed the responsibilities of states in the context of the challenges presented by mining activity. For example, the Human Rights Committee (HRC) has confirmed that the right to self-determination contained in art 1 of the ICCPR is a continuing right extending to peoples within independent states and entailing ‘corresponding duties for all states and the international community’ (General Comment 12, para 21). In its General Comment 23 concerning art 27, the HRC recognises that the right to enjoy a particular culture ‘may consist in a way of life which is closely associated with territory and use of its resources’, particularly for ‘members of indigenous communities constituting a minority’ (para 3.2). Notwithstanding the article’s negative stipulation that persons belonging to minorities shall not be denied its protections, the Committee required ‘[p]ositive measures of protection ... against the acts of the State party itself ... also the acts of other persons within the State party’ (para 6.1). Positive measures may also be required to ensure the effective participation of members of minority communities in decisions that affect them in light of culture’s many manifestations that include a particular way of life associated with the use of land and resources (para 7).
The ICESCR Committee has stated that while state parties are ultimately accountable for compliance with the Covenant, all members of society, including private businesses, have responsibilities towards the realisation of the right to adequate food (General Comment 12, para 20). The Committee recommended that government and civil society formulate a code of conduct for the ‘private business sector ... conducive to respect of the right to adequate food’. With reference to the right to the highest attainable standard of health, the Committee counts that among violations likely to cause bodily harm, unnecessary morbidity and preventable mortality is ‘the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries’ (General Comment 14, para 50).
In its General Recommendation XXI on self-determination (para 5), the CERD Committee expressed the view that internal self-determination22 encompasses the right of persons of ethnic or linguistic groups to play a part in their country’s government and engage in activities particularly relevant to preserving the identity of such persons or groups. The Committee’s views are informed by the interrelationship between human rights standards. Recognition of this interrelationship is extended to the indigenous standards in General Recommendation XXIII concerning discrimination against indigenous peoples. State parties are called upon to ‘provide conditions allowing for sustainable economic development compatible with (the) cultural characteristics of indigenous peoples’ (para 3) to ensure effective participation in public life and obtain informed consent to decisions relating to the rights and interests of indigenous peoples. Endorsing the indigenous standards, the Committee urges states to ‘recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources’ (para 5). Accordingly, indigenous peoples removed from these lands without free and informed consent have the right to restitution or compensation if restitution cannot be achieved.
States have been found accountable for repercussions of private mineral extraction in the course of the responses of treaty bodies to state reporting. The HRC has expressed concerns about the impact of oil extraction on the cultural identity and traditional livelihood of Ecuador’s indigenous peoples (CCPR/C/SR.1694, cited in Thornberry 2002: 164). Building on the link made between land and culture in General Comment 23, the HRC recommended that Brazil expedite the demarcation of indigenous lands. With reference to the deleterious effects of natural resource exploitation on the environment, health and culture of Suriname’s indigenous peoples, the CERD Committee stated that:
... development objectives are no justification for encroachments on human rights, and ... along with the right to exploit natural resources there are specific, concomitant obligations towards the local population; it recommends adoption by the State party of a legislative framework which clearly sets forth the broad principles governing the exploitation of the land, including the obligation to abide by strict environmental standards. [Concluding Observations/Comments 2004: para 15.]
Noting Colombia’s failure to facilitate indigenous participation in decision-making concerning private resource extraction, the ICESCR Committee recommended that indigenous consent should be obtained in accordance with ILO 169 (Thornberry 2002).
The HRC turned its attention to indigenous self-determination in 1999 (Scheinin 2000: 189). The self-determination of indigenous Australians was the subject of questions raised in conjunction with Australia’s Third and Fourth Periodic Reports under the ICCPR. Member Scheinin commented pursuant to Australia’s response that strengthening protections extended to indigenous peoples with reference to participation and sustainability of ways of life would ‘give depth and substance to Australia’s implementation of the Covenant’.23
Particularly relevant to the conduct overseas of Australian mining companies are concerns of ‘excessive use of force employed against demonstrators’ (HRC Conclusions and Recommendations: Indonesia, l.3) expressed by the Committee Against Torture. Indonesia’s response was that its policing forces were faced with ‘frequent violent protests’ and ‘[m]any of these demonstrations are in fact masterminded by outside provocateurs bent on creating agitation designed to cause political and social upheaval’. The Committee nevertheless concluded that ‘a large number of reports concerning acts of torture and ill-treatment committed by police and especially the mobile police units (“Brimob”), army (TNI), and paramilitary groups reportedly linked to authorities’. Abuses were ‘sometimes committed by military personnel employed by businesses in Indonesia to protect their premises’ (HRC Concluding Observations: Indonesia, para 7). Because of the perpetrators’ connection with the state, their abuses fall within Indonesia’s vertical obligations but indicate that new modes of interaction are required between the government and private business if human rights are to be realised.
Pursuant to art 40 of the ICCPR’s First Optional Protocol, the HRC considers and determines written complaints from individuals claiming to be victims of violations of the ICCPR within the jurisdiction of a state party. The Committee has declined to consider communications concerning the right to self-determination on the basis that it is a collective right beyond its individual communication jurisdiction (AD v Canada). However, the influence of art 1 has been manifest in the HRC’s application of art 27.
The ‘culture-economy nexus’ (Thornberry 2002: 160) expressed in General Comment 23 was established in Kitok v Sweden. The HRC found that where economic activity is grounded in cultural practices, it falls within the purview of art 27. State expropriation of indigenous land for private oil and gas exploration was the subject of Ominayak, Chief of the Lubicon Lake Band v Canada. A self-determination claim alleging the destruction of the Band’s environment, economic base and means of subsistence was amended to a claim under art 27. Member Ando’s dissenting opinion that ‘outright refusal by a group in a given society to change its traditional way of life may hamper the economic development of society as a whole’ (at [2.3]) illuminates the challenges faced by the indigenous in preserving their culture and existence from the onslaught of ‘progress’ and development of their lands — challenges rendered all the more acute in the face of globalisation. The consequent importance of recognising the crucial link between indigenous peoples and their lands and territories was addressed by the majority view that private resource extraction activities, combined with historical inequities, threatened the way of life and culture of the Band, including economic and social activities that constitute part of the Band’s culture. The HRC found this threat to be adequately addressed by the payment of compensation and setting aside of land. Accordingly, the sustainability of the Band’s culture was recognised to depend upon an economic and social relationship with land.
The foundations laid in Kitok, Ominayak and General Comment 23, combined with the influence of instruments including the Minority Rights Declaration (see Thornberry 2002: 165–9) and pronouncements concerning sustainable development, underline Ilmari Lansman v Finland. The HRC found that stone quarrying by private interests in a reindeer herding area would contravene art 27, irrespective of the ‘national interest’, if local Saami were not consulted or the authors’ ability to engage in reindeer husbandry was undermined. Reflecting the interrelatedness of human rights standards, the need to consult and facilitate participation of members of affected minority groups is informed by art 1(1) and the ‘political component’ of self-determination (in addition to art 25). Protecting the sustainability of a minority group’s culture and economy invokes self-determination’s ‘resource component’ as expounded in art 1(2).24 Also consistent with self-determination is the HRC’s recognition that cultures are not ‘discrete and homogenous’ (Wilson 1997: 9) but rather are dynamic and able to respond to internal and external influences. Article 27 accordingly applied, notwithstanding the transformation of Saami reindeer herding methods. The influence of art 1 upon HRC jurisprudence was explicitly recognised in Diergaardt v Namibia (at [10.3]) and Mahuika v New Zealand, where the Committee stated that it ‘may be relevant in the interpretation of other rights in the Covenant, in particular article 27’ (at ).
The 20 member ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) examines states’ compliance with ratified Conventions. CEACR comments appear as Direct Requests and Observations. Observations are published in CEACR’s annual report submitted to the International Labour Conference, where some are discussed. ‘Representations’ and ‘Complaints’ alleging failure to comply with ratified conventions may be filed by workers’ or employers’ organisations. They are then determined by a tripartite Governing Body Committee and published. Calls for detailed information concerning states’ compliance with ILO 169 punctuate CEACR’s recent Observations (CEACR 2004). Its 2004 Observation concerning Bolivia confirms that art 15 must be read subject to arts 6 and 7, requiring prompt consultation of indigenous peoples with respect to mining activities. The CEACR ‘reminds’ Colombia of an earlier ‘Representation’, which concluded that ILO 169’s ‘fundamental requirements of prior consultation and participation’ require that ‘sufficient time be given to allow the country’s indigenous peoples to engage in their own decision-making processes and to participate effectively in decisions taken in a manner consistent with their cultural and social traditions’. Ratification by Australia would extend ILO 169’s benefits to indigenous Australians. But it would not extend protection to those affected by the extraterritorial activities of Australia’s corporate nationals.
The horizontal application of human rights standards has addressed concerns arising from private exploitation of indigenous lands and facilitated a ‘normative expansion’ (Thornberry 2002: 413), which comprehends the connection between indigenous culture and land. The application of principles such as participation has resulted from indigenous peoples’ utilisation of universal standards in the absence of a widely ratified indigenous-differentiated instrument, yet reflects the growing influence of the indigenous standards. Efforts to regulate the private development of indigenous lands have been limited by ILO 169’s low ratification rate and the absence of a mechanism to hear specific claims concerning self-determination.
In calling on states to regulate corporate conduct, human rights obligations are imposed indirectly upon corporations. But in its preoccupation with activities within the territorial boundaries of host states, ‘horizontality’ has failed to call upon home states to regulate their corporate nationals’ extraterritorial activity. The realities of economic globalisation often render meaningful host state regulation unrealistic. Amorphous corporate structures present difficulties in identification of relevant corporate entities (Kamminga and Zia-Zarifi 2000: 3) and render the notional exercise of lifting the corporate veil costly and complex. In light of TNCs’ ability to divest themselves of operations, host states may be fearful that regulating corporate conduct may jeopardise economic benefits associated with foreign investment. The power differential between a large TNC and the government of a small host state, which may also be performing the conflicted role of regulator and joint venture party, raises difficulties exemplified by the experiences of the PNG government concerning Ok Tedi. After a landslide destroyed the foundations of a tailings containment dam, the government faced the prospect that requiring construction of a new dam would precipitate BHP’s withdrawal from the venture. Fear of losing BHP’s investment, combined with economic pressures attributable in part to the closure of CRA’s Bougainville Copper mine, saw the government allow the local river system to become the repository of mine waste. Furthermore, violent abuses at the hands of state based policing forces have resulted from Indonesia’s determination to maintain foreign direct investment. The formidable challenges inherent in requiring host states to regulate foreign corporations illuminate the need for complementary methods of addressing TNC conduct. These methods are examined below under the heading ‘Towards effective regulation’.
Towards effective regulation
The direct human rights impact of corporate activity has undermined the reputations of Australian companies such as BHP and Rio Tinto. It has led to a call for the imposition of direct human rights obligations on corporations and resulted in a proliferation of voluntary standards, including company policies, internal codes of conduct and industry based codes. At its inaugural Global Sustainable Development Conference held in October 2004, the Minerals Council of Australia (MCA) released ‘Enduring Value’, a framework designed to provide guidance on promoting sustainable development and to ‘uphold fundamental human rights and respect cultures, customs and values’25 in dealings with those affected by mining. The document is an impressive articulation of human rights guarantees and sustainable development goals. It seeks engagement with indigenous communities to foster respect for indigenous peoples’ culture and relationship with land and to facilitate the incorporation of local and traditional environmental knowledge and land management practices into company operations.
‘Public relations’ motivations invariably play a part in such initiatives, which endeavour to maintain legitimacy in the marketplace and ward off the gaggle of voices constituting international civil society. Nevertheless, these initiatives represent an important step towards shaping corporate behaviour and indicate the ‘gradual emergence of commitments that could form a basis for legitimate, agreed international standards’ (ICHRP 2002: 70). Such an outcome is unlikely if these documents are adopted as a tokenistic response to public pressure. Concerns associated with the MCA’s entirely voluntary Code for Environmental Management have been met by the requirement that companies endorse ‘Enduring Value’ as a condition of MCA membership.26 However, mining companies are not obliged to join the MCA. Furthermore, the MCA’s insistence that governmental regulation is unnecessary exemplifies the tendency of TNCs and industry bodies to put forward voluntary regulation as a rationalisation against more concrete and meaningful modes of regulation. Without effective monitoring and auditing mechanisms, voluntary standards may be readily overlooked in the face of large potential profits. The persistent refusal of MCA member Newcrest to accede to the Kao and Malifut communities’ demands for participation in decision-making, profit-sharing and recognition of land rights is but one example of the limitations of self-regulation.
A number of non-governmental organisations have sought to address the absence of regulation. Established in 1995, the Mineral Policy Institute conducts campaigns and disseminates information concerning the environmental and human rights effects of mining within Australia, Asia and the Pacific.27 Under the auspices of the Australian Asia-Pacific Mining Network, representatives of human rights and environment NGOs — including the Mineral Policy Institute — prepared a guidance document entitled Principles for the Conduct of Company Operations within the Minerals Industry.28 The principles concern, inter alia, human rights, land rights and indigenous issues. In 2000, Oxfam Community Aid Abroad (Oxfam) addressed the absence of a regulatory mechanism addressing the extraterritorial operations of Australia’s mining companies by establishing a Mining Ombudsman. Based on study of the human impact of mining, Oxfam devised ‘Benchmarks for the Mining Industry’ derived from such instruments as the ICCPR, ILO 169 and Rio Declaration.
Where mining activities threaten or undermine collective or individual rights of communities and their members, the Mining Ombudsman investigates community concerns and makes formal contact with the companies concerned. Community requests for accountability are then mediated by the Mining Ombudsman and, where practicable, a dialogic process is established and its outcomes published by Oxfam. A salient feature of the Mining Ombudsman’s approach is the application of indigenous standards in her facilitation of a participatory process accommodating indigenous peoples’ values and perspectives. A striking recent example is the dialogue involving NGOs, BHP Billiton and five indigenous communities aggrieved by the operations of its Tintaya copper mine in Peru (Oxfam Community Aid Abroad 2004). Despite apparently intractable differences following forced evictions, environmental degradation and loss of livelihood, agreement was achieved for restitution of a parcel of lands, allocation of funds to sustainable development programs and increased indigenous participation in decision-making. Ongoing evaluation by the Mining Ombudsman subsequent to the negotiated agreement reveals community frustrations regarding inadequate consultation over the implementation of sustainable development programs and construction of a tailings dam. The participatory process is clearly a continuing one, according indigenous peoples the ‘respect and dignity’ necessary for the realisation of self-determination (Daes 2000: 82). It requires ongoing scrutiny and must account for eventual mine closure and land rehabilitation in accordance with indigenous communities’ values and priorities. In facilitating such participatory processes in the context of Australian mining companies’ ventures abroad, the Mining Ombudsman affords a valuable model for the application of indigenous standards and might constitute a blueprint for a more formal regulatory regime.
Soft law addressing TNC conduct includes the OECD Guidelines for Multinational Enterprises and the UN Global Compact of shared values and principles. The most comprehensive soft law instrument is the UN Norms on Responsibilities of TNCs and Other Business Enterprises with regard to Human Rights (UN Norms) adopted at the Sub-Commission’s 55th session in August 2003. The UN Norms amount in essence to a restatement of existing international law, extended to the full spectrum of business activity, both national and transnational. Principle 1 concerns general obligations and provides the template for the interpretation of the norms. It calls upon all business enterprises to promote, secure fulfilment of, respect, ensure respect of and protect human rights (which expressly include indigenous rights) within their spheres of activity and influence. The elimination of discrimination on grounds including indigenous status is the gravamen of principle 2. Its corresponding commentary calls upon businesses to treat ‘stakeholders’29 — including indigenous peoples and communities — ‘with respect and dignity, and on a basis of equality’.
Principle 10 calls upon businesses to respect national sovereignty and human rights in host states. This is extended by its commentary to respect for the rights of indigenous peoples and communities in accordance with ILO 169, with reference to the rights enshrined in arts 13 to 16, considered above under the heading ‘Land and resource rights’. The interrelationship between human rights and environmental preservation is recognised by principle 14 and businesses held responsible for the environmental and human health impact of their activities. The potential consequences of proposed activities for indigenous peoples and their lands and resources are to be assessed, with periodic evaluations made of ‘performance’ in consultation with indigenous peoples and communities to determine how best to respect their rights. Failure to comply with the UN Norms entitles communities to reparation in the form of ‘prompt, effective and adequate’ restitution, compensation and rehabilitation (principle 18).
A report on the possible elaboration of the UN Norms to address indigenous peoples’ specific concerns concluded that insufficient emphasis was placed on addressing past injustices, structural inequality and the resolution of disputes between indigenous peoples and companies.30 The norms may be seen to present an opportunity to address more fully these concerns in the context of business activity. But such an extension would be latent with danger. Without authority deriving from existing law, the norms could be undermined and their influence diminished if they ventured into controversies that have to date been inadequately addressed by the UN. In the absence of a formal declaration addressing the rights and specific perspectives of indigenous peoples, the UN Norms derive authority from the binding (but not widely accepted) standards in ILO 169.
At its 60th session in April 2004, the UN Commission on Human Rights affirmed that the UN Norms have the status of a draft proposal and have ‘no legal standing’. The Commission nevertheless confirmed the importance of corporate responsibility and requested that the Office of the High Commissioner for Human Rights compile a report on the norms and other initiatives and standards. The High Commissioner received submissions and held a moderated discussion in October 2004 in preparation for the Commission’s 2005 session, where she provided her report. An examination of submissions reveals broad support for the UN Norms among NGOs and academics and a corresponding bid by TNCs to maintain self-regulation as an alternative to direct obligations. Notable exceptions to this pattern include rights-focused industry groups such as the Business Leaders Initiative on Human Rights.
The High Commissioner’s report presented at the 61st session of the Commission on Human Rights in April 2005 led to a resolution by the Commission to establish a Special Representative on the issue of human rights and transnational corporations and other business enterprises. Professor John Ruggie was appointed to the role on 28 July 2005. His mandate includes the identification and clarification of standards or corporate accountability with reference to human rights and he is due to provide a final report in April 2007. The priority accorded to corporate accountability and the UN Norms on the 2005 Commission agenda reflects the urgency now attached to addressing the human impact of corporate conduct. The UN Norms may come to shape corporate and state conduct and create an ‘anticipatory effect’ (ICHRP 2002: 74) in decision-making. International law’s flexibility enables states to fashion the extent to which TNCs participate in its processes. The UN Norms may consequently form the basis of a formal declaration, part of which may crystallise over time into customary international law. Alternatively, they may be enacted into a binding treaty imposing direct obligations on businesses. Supervision may be performed by existing UN machinery, such as treaty bodies; by the Special Representative on human rights and business; or by a new body specifically established for the purpose. But notwithstanding the priority now accorded by the UN to corporate accountability, a regulatory mechanism may require some time to materialise in light of the insistence upon self-regulation by economically and politically powerful TNCs. In the meantime, unless Australia steps in to fill the current regulatory void, indigenous peoples affected by the extraterritorial activities of Australian mining companies will continue to be subject to the vagaries of voluntary codes and host state regulation.
Australia’s power to legislate extraterritorially is supported by domestic and international law. The Australia Act 1986 (Cth) confers legislative power on the Parliament of the Commonwealth to enact laws with extraterritorial operation (s 2(1)). The rules of public international law draw ‘no essential distinction’ between the legal bases for the exercise of civil and criminal jurisdiction via legislation or decision-making (Brownlie 2003: 308). The two generally recognised civil and criminal ‘jurisdictional bases’ are the principles of territoriality and nationality, the latter of which extends to the extraterritorial conduct of a state’s corporate nationals. Accordingly, corporations either incorporated or having a registered office within the state are extended the right to the state’s diplomatic protection and may be subject to its regulatory jurisdiction (Barcelona Traction, Light and Power Company (Belgium v Spain)). Australia accordingly faces no legal impediment to the regulation of its mining companies’ conduct abroad.
Litigation within home countries addressing the extraterritorial conduct of corporate nationals has been described as the flipside of foreign direct investment — foreign direct liability (Ward 2001: 454). The US Alien Tort Claims Act empowers district courts to hear civil claims brought by aliens for torts committed ‘in violation of the law of nations’ or a US treaty. Some Alien Tort Claims Act actions have been brought against parent companies incorporated in the US. Others, including an action brought against Rio Tinto concerning the Bougainville Copper Mine, have focused on non-US parent companies with sufficient business presence to enable a US court to exercise jurisdiction (above: 454). Australia has no comparable legislation. Where Australia’s Parliament has not legislated to incorporate Australia’s international obligations into domestic law, human rights law has not featured prominently in curial proceedings. Proceedings have, however, been brought ‘to vindicate the substance of human rights protection’ (Scott 2001: 62) by pleading causes of action recognised in private law with respect to the ongoing deprivations resulting from the Ok Tedi mine (Dagi, Shackles, Ambetu and Maun v BHP Minerals). The Ok Tedi litigation can be categorised as an instrumental claim, whereby the private law causes of action relied upon would instrumentally benefit the protection of a human rights interest.31 After striking out actions in trespass, private nuisance and negligence with reference to PNG land on the basis that British South Africa Company v Companhia de Mocambique prohibits an Australian court from determining claims concerning foreign land, the Supreme Court of Victoria declined to strike out the torts of public nuisance or negligence resulting in loss of amenity. The relief sought as a consequence of these wrongs included damages and a mandatory injunction to restrain the further discharge of tailings into the river system. Significantly, the Court rejected the defendants’ argument that the plaintiffs’ subsistence lifestyle precluded the possibility of economic loss and accepted the plaintiffs’ argument that ‘gathering food, fishing and game is no less an economic activity because it is not translated through the medium of money’ (Dagi v BHP). The proceedings were settled in 1996. The terms of settlement, which included a $28.6 million compensation package, thus precluded final determination of the plaintiffs’ claims. The settlement can nevertheless be seen as instrumental in benefiting the plaintiffs’ human rights insofar as it sought to address environmental damage and contain mine waste in order to protect the river system.
Despite its ‘instrumental’ settlement and promise of future tort litigation based on loss of amenity, the Ok Tedi litigation ultimately reveals the inadequacy of Australia’s common law adversarial system in fully addressing the harms experienced. While steps have been taken to dredge the river system, it remains the repository of mine tailings. Proceedings alleging failure to comply with the terms of settlement were discontinued in December 2003. This was due primarily to the enactment of PNG’s OK Tedi Mine Continuation Act (2001), which effectuates agreements signed by persons representing or purporting to represent local communities. These agreements ‘support the continuation of the mine’ and exempt BHP ‘from all and any demands and claims arising directly or indirectly from’ its operation.32 In addition to the (lawful) barriers imposed by 19th century English precedents contained in the case law, indigenous plaintiffs with little access to money are opposed to large, profitable corporations in an overwhelmingly user-pays legal system. They are also faced with procedural hurdles, such as jurisdictional challenges of forum non conveniens33 and strike-out applications, in addition to delay, issues of lex fori, the shielding of foreign laws from judicial scrutiny by the common law ‘act of government’ principle, evidentiary standards inimical to indigenous narratives and laws developed without regard for indigenous perspectives and priorities. In the context of adjudication proscribing racial vilification within Australia (Racial Discrimination Act 1975 (Cth) and Racial Hatred Act 1995 (Cth)), the prioritisation of non-indigenous perspectives over indigenous narratives has been described as a ‘second injury’ which reifies dominant racial values and images (M Matsuda ‘Public response to racist speech: considering the victim’s story’ (1989) 87 Michigan LR 2320, cited in Chapman 2004). Unless measures are adopted to accommodate indigenous narratives and perspectives, the concerns of indigenous peoples residing abroad are unlikely to be satisfactorily addressed by Australia’s court system.
In September 2000, Democrat Senator Vicki Bourne introduced the Corporate Code of Conduct Bill 2000 (Cth), which sought to regulate the extraterritorial conduct of companies incorporated in Australia (and their subsidiaries, wherever incorporated) that employ 100 or more persons overseas. The necessity for a regulatory regime was demonstrated by Senator Bourne in her Second Reading speech with reference to the environmental devastation caused by the Ok Tedi mine and ‘[a]ccusations of environmental destruction, improper security use, dislocation of indigenous peoples and other human rights abuses throughout the world (which) have plagued mining and exploration companies’.34 The standards the Bill sought to impose concerned human rights, environmental protection, labour, trade practices, public health and tax. Human rights protections were extended via provisions addressing environmental standards and the prevention of serious threats to public health. ‘Human rights standards’, however, were confined to discrimination with respect to employment or occupation. Significant protections were thus overlooked, perhaps on account of the Bill’s considerable breadth. But despite its flaws, the Bill represented a genuine attempt to address concerns arising from the operations of Australian TNCs and accords with initiatives proposed in the UK,35 the US36 and the EU.37 The government rejected the Bill as ‘unnecessary’ on the basis that instances of ‘inappropriate corporate behaviour’ were infrequent and unrelated. Following revisions to the document, including an expanded coverage to Australian companies employing 50 or more persons overseas, Democrat Senator Natasha Stott-Despoja released an exposure draft of the Corporate Code of Conduct Bill 2004. Any hopes that the document would facilitate further debate in the current parliamentary term evaporated in October 2004, when it emerged that the Coalition Government would enjoy the balance of power in the Senate from July 2005.
Debate concerning extraterritorial regulation characteristically features allegations of cultural imperialism and the unrealistic imposition of ‘Western’ standards on host states (Ward 2001; Stephens 2002: 83). Upon rejecting the 2000 Bill, the Government asserted that ‘its imposition of Australian standards on corporations operating within the territory of sovereign, foreign nations must be interpreted to imply “that local standards are inferior”’ (Parliament of Australia 2001). Although submissions to Parliament opposing the Bill alleged paternalism and imperialism,38 they accepted the legality of extraterritorial regulation. Assertions that companies may seek alternative ‘home states’ to evade the proposed regulatory regime must be addressed alongside the possibility that a demonstrated commitment to human rights standards may in fact enhance Australian companies’ prospects of securing mining opportunities overseas. Perhaps the most powerful argument that may be levelled against such legislation rests upon the right under public international law of sovereign states to conduct their internal affairs without outside intervention (Brownlie 2003: 309). Although the non-intervention principle is generally invoked in the context of armed intervention,39 it may be applied in argument concerning investment policy. A developing state may thus cite low environmental standards as a prerequisite for economic development and participation in the global marketplace. Some legitimacy has been conferred upon this position by pronouncements such as the Rio Declaration.
Economic globalisation has exerted considerable pressure on developing states. Their eagerness to secure foreign direct investment has rendered them vulnerable to lobbying by TNCs to shape policy that creates favourable conditions of operation. The willingness of home states to assist TNCs in their lobbying efforts is well documented and appears to be a feature in the landscape of a globalised world.40 Investments by Aurora Gold and Newcrest in Indonesia have reportedly been advanced by the Australian government’s advocacy for the relaxation of forest protection laws (O’Neill 2004: 101). Although extraterritorial regulation would occasion some foreign policy tensions,41 similar tensions have resulted from home states lobbying on behalf of their corporate nationals (Ganesan 2000: 47–69). These interventions, and the abuses that follow, undermine the self-determination of indigenous peoples within the host state. To the extent that they compromise a host state’s ability to fulfil its human rights obligations (particularly its horizontal obligations concerning corporate conduct within its jurisdiction), these interventions undermine host states’ sovereignty and raise questions about the scope of the non-intervention principle. Effective extraterritorial regulation would encourage TNCs and their home states to desist from such lobbying efforts and would thereby increase host states’ ability to exercise their decision-making functions and protect human rights. In moderating globalisation’s manifestations, it may in fact operate to uphold the sovereignty of host states.
In any event, the actors targeted by extraterritorial regulation are Australia’s corporate nationals and not host states. Australia’s mining companies have engaged in ‘cost-effective’ mining methods in host states, such as ‘deep sea tailings placement’.42 These methods, long abandoned in Australia due to their environmental impact, have contributed to considerable profits that have been repatriated to Australia. Together with the privations outlined above, they have undermined indigenous peoples’ fundamental human rights. These rights are of universal application. They are not an Australian value system, but rather a system of legal standards that has in large part been adopted by host states in which Australian mining companies operate. To contend that protections of fundamental human rights should not be extended to those affected by Australian mining companies’ operations abroad is in fact a form of imperialism and elitism. It is tantamount to stating that protection from abuse may be contingent upon the geographic location of the abuse and the juristic character of the perpetrator. In light of the primary objective of international human rights, such a proposition cannot withstand rational analysis.
A truly effective regulatory system may deter human rights abuses by attaching civil liability for contravention of the standards enshrined. But contraventions of jus cogens norms (such as the right to life and, somewhat controversially, self-determination) may be more appropriately addressed by criminal responsibility.43 Owing to the interrelatedness of human rights and the role played by collective standards in fulfilling ‘individual’ rights, an effective regime would recognise indigenous standards alongside the universal. The draft Declaration’s long and ultimately frustrating journey has offered states the machinery for moving towards Sornarajah’s ‘people-centred’ paradigm and addressing TNCs’ human impact by directly involving ‘affected groups’ in the shaping of international legal processes.44 An effective regime may be advanced by accepting this machinery and building on the experiences of Oxfam and the MCA in the promulgation of its recent guidelines. A suitable model might be constituted by a government based supervisory ombudsman facilitating participation and agreement on development in accordance with indigenous standards, with the option of litigation or arbitration in circumstances where agreements have been breached. Irrespective of the form it might assume, an effective model must comprehend the need for host and home states to buttress one another in their efforts to promote human dignity. International developments may eventually overtake domestic regulatory mechanisms. These developments may be informed and enhanced by the expertise and insights gained through domestic regulation.
But moving towards effective regulation appears a formidable task in light of Australia’s failure to ratify ILO 169, rejection of the draft Declaration’s language of self-determination and negative stance on extraterritorial regulation. Sornarajah contends that the way forward involves the imposition of duties upon home states, requiring them to prevent extraterritorial abuses and provide remedies to victims against corporate nationals in their domestic courts. Indicators of such a duty include the link of control manifest in the diplomatic protection extended by home states to TNCs, the likely availability of information concerning overseas violations and profits repatriated to home states. The requirement of the UN Norms that companies act within their ‘sphere of activity and influence’ can be applied a fortiori to home states in supporting the existence of a duty which may become enforceable through the extension of horizontality to home states. Scott argues that when international consensus concerning the need to sanction a particular activity (Scott 2001: 55) becomes sufficiently widespread, states’ power to legislate extraterritorially is elevated to a duty. Such consensus made way for the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth), which followed broad community awareness of ‘sex tours’ by Australian nationals into Southeast Asia. In prohibiting Australians from engaging in ‘sex tourism’, the legislation in effect recognises a duty to protect its child victims. Such protections may be extended to indigenous peoples harmed by mining, whose suffering has become increasingly well documented. It is arguable that the requisite degree of consensus has emerged, elevating Australia’s regulatory power to a duty. Global polling has shown widespread support, in Australia and beyond, for such regulation.45
Australia’s duty to regulate its mining companies’ ventures abroad can be derived from the universally recognised principle of pacta sunt servanda.46 International treaties that Australia has ratified, and with which it must thus comply in good faith, contemplate extraterritorial regulation. For example, the ICESCR provides that each state party shall undertake steps individually and through international assistance and cooperation towards progressive achievement of the full realisation of the Covenant rights (art 2(1)). The ICCPR requires state parties to ‘respect, ensure and fulfil the human rights of individuals within their territory and subject to their jurisdiction’ (art 2(1)). The nationality principle permits Australia to regulate the overseas conduct of its mining companies. Indigenous peoples affected by these companies’ operations are potential beneficiaries of an exercise of Australia’s jurisdiction. Indigenous peoples’ vulnerability to human rights abuses associated with mining can be addressed by extraterritorial regulation applying universal standards to which Australia has committed itself. The incorporation of indigenous standards in such an enactment would assist Australia in achieving the protections of these universal standards. Recognition that the implementation of Australia’s international commitments requires extraterritorial regulation would avert catastrophic deprivations and honour pronouncements, such as the following concerning foreign and trade policy:
The Government views human rights as an inseparable part of Australia’s overall foreign policy approach, both because the treatment of human beings is a matter of concern to Australians and because promoting and protecting human rights underpins Australia’s broader security and economic interests. [Commonwealth of Australia 1997: iii.]
Economic globalisation has enabled Australia’s corporate nationals to expand their extraterritorial operations. It has contributed to the buoyancy of Australia’s economy and exerted profound influence on foreign and trade policy. Australia’s policy rhetoric accords high priority to human rights. Yet rights guarantees have not been extended to indigenous peoples adversely affected by Australia’s corporate investments overseas. The government’s view that regulation is unnecessary ignores available evidence of privations that continue today, notwithstanding the mining industry’s move towards self-regulation and greater calls for ‘horizontal’ accountability from host states. Australia thus faces two stark alternatives. The first is to reassume its international standing as a world leader in the protection of human rights and recognise its duty to uphold the human dignity of those marginalised by economic globalisation. A regulatory framework with extraterritorial application that enshrines indigenous standards alongside universal guarantees may generate a participatory model. Such a model may be applied in the context of analogous activity, such as logging, and may inform further developments concerning indigenous peoples. Beyond this, it may animate developments in the protection of groups vulnerable to the activities of corporations and other actors in the private sphere. The second alternative is to ignore its duty and maintain that extraterritorial regulation is not Australia’s concern. If a fair globalisation is to be achieved, the latter position is untenable.
* Faculty of Law, Monash University. I am grateful to Patrick Thornberry, David Weissbrodt, Scott Wotherspoon and Phillip Tagini for their comments and ideas on the development of this paper. The paper was submitted to the University of Oxford in partial fulfilment of the Master of Studies degree in International Human Rights Law.
1 Minerals Council of Australia at <www.minerals.org.au/corporate>, accessed 12 January 2005.
2 See generally Kamminga and Zia-Zarifi 2000.
3 See <www.bhpbilliton.com/bb/aboutUs/companyOverview/ourStructure.jsp>, accessed 10 November 2004.
4 J Bengoa The Relationship between the enjoyment of human rights, in particular economic, social and cultural rights and income distribution, E/CN.4/Sub.2/1997/9, cited in Eide 2000: 36–7.
5 A Dirlik ‘Globalism and the politics of place’ (1998) 41(2) Development, cited in Oloka-Onyango and Udagama 2000: para 10.
6 See, for example, Stevens 2003.
7 For example, codified in Australia by the Native Title Act 1993 (Cth) following Mabo v Queensland (No 2).
8 The connection between the Paraguayan government’s promotion of TNCs’ oil exploration and the extinction of the Ache people of Paraguay is considered in Geer 1997–98: 363.
9 In May 2001, security forces opened fire on protesters impeding operations at Mount Muro, Kalimantan, resulting in two deaths. See <www.minesandcommunities.org/Action/action15.htm>, accessed 5 January 2005.
10 Following a merger with UK-based the RTZ Corporation plc, CRA now operates as Rio Tinto but retains a corporate office in Melbourne.
11 Rights held by corporations in various international fora are enumerated in International Council on Human Rights Policy (ICHRP) 2002 Beyond Voluntarism: 12.
12 See generally Kinley and Tadaki 2003–2004.
13 Human rights accordingly embody ‘the imperfect, yet inspired response of the international community to a growing awareness of the uniqueness of the human being and the unity of the human race’ (Teson 1985: 898).
14 ILO Convention No 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention 107).
15 The Sub-Commission is comprised of 26 independent experts elected by the UN Commission on Human Rights.
16 See, for example, France, as discussed in Thornberry 2002: 26.
17 Article 1(1). The deadlock is considered in Daes 2000.
18 See generally Thornberry 2002: 382–5.
19 See generally Thornberry 2002: 385.
20 It also appears in arts 10, 27 and 30 (considered above) and in art 12.
21 Cited in Thornberry 2002: 348–50.
22 External self-determination, on the other hand, was not seen to extend to a general right to the unilateral declaration of secession.
23 See generally Thornberry 2002: 128.
24 See generally Scheinin 2000.
25 See <www.minerals.org.au/__data/assets/pdf_file/5515/19520_MCA_ev_impl_booklet.pdf>, accessed 20 December 2004.
26 Media release dated 26 October 2004 at <www.minerals.org.au/__data/assets/pdf_file/ 5513/mr004_24_sd04_pr1_ev.pdf> accessed 20 December 2004.
27 See <www.mpi.org.au/support/about.html>, accessed 20 December 2004.
28 See <www.natural-resources.org/minerals/generalforum/csr/docs/csr/principles_for_mining_ companies_ by_aust_ngos.doc>, accessed 20 December 2004.
29 Defined broadly to include any individual or group that is affected directly or indirectly by business activities. The need for alternative nomenclature concerning indigenous peoples was suggested at the UN Workshop (Commission on Human Rights 2002: para 48), where participants observed that the superiority of indigenous peoples’ rights of traditional ownership to the rights of mining companies to indigenous lands renders it offensive for indigenous peoples to have their rights to land reduced to ‘stakeholder rights’.
30 Paragraph (c) under principle 10 was amended to incorporate the principle of free, prior and informed consent followed the conclusion by Yokota (2003) that the principle was insufficiently addressed.
31 Scott 2001 contrasts instrumental claims with ‘surrogate’ claims, where existing causes of action ‘come close to capturing, in an intrinsic sense’, a human rights norm. Examples include the Federal Court actions of Cubillo v Commonwealth and Ruddock v Vadarlis, both of which unsuccessfully claimed, inter alia, the tort of false imprisonment, which corresponds with the prohibition on arbitrary detention found in instruments such as the ICCPR.
32 See <www.mpi.org.au/oktedi/private_power.html>, accessed 7 October 2004.
33 Proceedings are stayed when an Australian court is characterised as a ‘clearly inappropriate forum’: Voth v Manildra Flour Mills Pty Ltd.
34 See <www.democrats.org.au/speeches/index/htm?speech_id=459&display=1>, accessed 9 November 2004.
35 Corporate Responsibility Bill; see <www.parliament.the-stationery-office.co.uk/pa/cm200102/ cmbills/145/2002145.pdf >, accessed on 20 December 2004.
36 107th Congress, 2 August 2001; see <www.theorator.com/bills107/hr2782.html>, accessed 7 January 2005.
37 European Parliament Resolution on EU Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct A4-0508/98 <www.europa.eu.int/eur-lex/pri/en/oj/ dat/1999/c_104/c_10419990414en01800184.pdf>, accessed 5 January 2005.
38 See <www.aph.gov.au/senate/committee/...99-02/corp_code/submissions/sublist.htm>, accessed 7 January 2005.
39 For example, Nicaragua v US (1986).
40 See, for example, Ganesan 2000: 47–69.
41 Such tensions may result from the scrutiny of host state policies, especially when TNCs operate in partnership with the host state.
42 See generally Oxfam 2004.
43 ICHRP 2002 analyses circumstances in which corporate responsibility may be established applying standards of tort and criminal law, the latter encompassing complicity in abuses committed by others. It is worth noting that such responsibility already exists with respect to the most serious violations of international criminal law. The Commonwealth Criminal Code prohibits Australian nationals anywhere from participating in war crimes or crimes against humanity. Such egregious conduct may appear unlikely to arise in the context of overseas mining activity. However, the conduct of Australian TNC Anvil Mining (with reference to atrocities committed by the government forces in the Democratic Republic of Congo) has raised serious questions about the company’s complicity in crimes against humanity.
44 As proposed in Johns 1994: 923.
45 An example of such polling was discussed by Bourne in her Second Reading speech.
46 See Vienna Convention on the Law of Treaties, art 26.
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