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Authors

Sara L. Seck

Abstract

Home states that are actively engaged in global mining have considered and

rejected calls to regulate the conduct of transnational mining corporations so

as to prevent and remedy human rights and environmental harms. This

reluctance to regulate is often expressed as a concern that extraterritorial

regulation will conflict with the sovereignty of foreign states. This paper

argues that the public international law of jurisdiction is permissive of home

state regulation that can be justified under the nationality or territoriality

principles, provided that there is no true conflict with an exercise of host state

jurisdiction. In the human rights and environment contexts, it is more likely

that home state regulation would result in concurrent but not conflicting

jurisdiction, particularly where the regulation is designed to further shared

international norms. Beyond permissibility, this paper argues that

international sustainable mineral development law imposes an emerging

obligation on all states, including home states, to ensure that the three pillars

of public participation rights are respected. These rights are access to

information, public participation in decision-making, and access to justice in

environmental matters, and they are formulated in the global mining context

as a right of indigenous and local communities to free, prior and informed

consent. Support for the existence of such a home state obligation may be

found in the recommendations of international human rights treaty bodies,

and in the work of the International Law Commission on both state

responsibility, and the prevention and allocation of loss for transboundary

harm.

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