World Mining Congress
This paper discusses the author’s work identifying international law norms of consultation with indigenous communities and poses a potentially counterintuitive argument that corporate stakeholders’ interactions with indigenous communities may have effects on the content of those norms. The claim is counterintuitive because the international law of pertinence is customary international law, which arises from consistent state practice and opinio juris (a belief by states that they are acting in a way they are legally bound to do so). Customary international law traditionally has no reference to corporate conduct per se. The paper first surveys several sources on developing international law on consultation obligations. Then it references the impact these norms can have on corporate stakeholders in industries like mining. Then, it poses an argument as to an economic ratcheting effect that can occur through various agreements between corporate stakeholders and indigenous communities that then feeds through into international law via several mechanisms. The consequences for mining companies are diverse and include the possibility that conduct by one company can have longer-term implications for the obligations of other companies and, indeed, of states. The effects will differ in the context of different competitive environments and may actually have effects on the economics of different competitive models.
Keywords: International law; Impact; Impacts; analysis; Governments; Government; Developments; Development; mining;
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