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Undermining Australia's international standing: the failure to extend human rights protections to indigenous peoples affected by Australian mining companies’ ventures abroad
journal contributionposted on 2023-02-03, 01:45 authored by T Penovic
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.