¹ Zumbansen, Peer, Transnational Law, Evolving, in Elgar Encyclopedia of Comparative Law (Jan Smits, ed., 2012), citing Philip Jessup, Transnational Law (1956) at 2 (stating that he: “shall use the term ‘transnational law’ to include all laws which regulate actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories”). See also Graf Peter Calliess & Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (2010); Craig Scott, Transnational Law as Proto-Concept: Three Conceptions, Germ. L. J. 859 (2010), available at: http://germanlawjournal.com/pdfs/Vol10No07/PDF_Vol_10_No_07_SI_859-876_Scott.pdf (last accessed: 1 December 2012).Google Scholar

² On governance, see Peer Zumbansen, The Conundrum of Order: The Concept of Governance from an Interdisciplinary Perspective, in The Oxford Handbook of Governance (David Levi-Faur, ed., 2011); Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State, in The Law of the Future and the Future of Law (Sam Muller, Stavros Zouridis, Laura Kistemaker & Morly Frishman, eds., 2011), on polycentric governance and inter-systemic harmonization.Google Scholar

³ UN Commission on Human Rights, Human Rights and Transnational Corporations and Other Business Enterprises, CHR Res 2005/69, UNCHR, 61st Sess, UN Doc E/CN.4/RES/2005/69 (2005).Google Scholar

⁴ UN Commission on Human Rights, Promotion and Protection of Human Rights: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, United Nations High Commission for human Rights (UNCHR), 62^nd Session, UN Doc E/CH.4/2006/97 (22 February 2006) [hereinafter “Interim Report”] at para. 1.Google Scholar

⁵ Id. at para. 25. “The extractive sector – oil, gas, and mining – utterly dominates this sample of reported abuses, with two-thirds of the total. … The extractive industries also account for most allegations of the worst abuses, up to and including complicity in crimes against humanity, typically for acts committed by public and private security forces protecting company assets and property; large-scale corruption; violations of labor rights; and a broad array of abuses in relation to local communities, especially indigenous people.”Google Scholar

⁶ Ruggie, John, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, UNHCR, 8^th Session, UN Doc A/HRC/8/5 (2008) [hereinafter “Protect, Respect, Remedy”].Google Scholar

⁷ Ruggie, John, Report of the Special Representative of the Secretary-General on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UNHCR, 17^th Session, UN Doc A/HRC/17/31 (2011) [hereinafter “Guiding Principles”]. See also other yearly reports to the UNHCR, as well as extensive additional material compiled in support of the mandate, online, Business & Human Rights website, available online at: http://www.business-humanrights.org/SpecialRepPortal/Home (last accessed: 18 November 2012).Google Scholar

⁸ See Ruggie, , Protect, Respect, Remedy, supra note 6, at 3.Google Scholar

⁹ Id. at para 9.Google Scholar

¹⁰ Id.Google Scholar

¹¹ Id. at para 55.Google Scholar

¹² Id. at para 82.Google Scholar

¹³ Id. at para 18.Google Scholar

¹⁴ Id. Google Scholar

¹⁵ Id. at para 14.Google Scholar

¹⁶ Id. at para 18.Google Scholar

¹⁷ Id. at para 19.Google Scholar

¹⁸ Ruggie, John, Keynote Presentation at EU Presidency Conference on the ‘Protect, Respect and Remedy’ Framework (November 2009), available online at: http://www.reports-and-materials.org/Ruggie-presentation-Stockholm-10-Nov-2009.pdf (last accessed: 18 November 2012) [hereinafter “Ruggie Stockholm”]. See also Sara Seck, Conceptualizing the Home State Duty to Protect Human Rights, in Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives, 25, 28, 31-32 (Karin Buhmann, Lynn Roseberry, & Mette Morsing eds.,2010).Google Scholar

¹⁹ Ruggie Stockholm, supra note 18, at 4.Google Scholar

²⁰ Id. Google Scholar

²¹ Ruggie, John, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises: Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy”, UNHRC, 14th Sess, UN Doc A/HRC/14/27 (2010) at para. 48 [hereinafter “Steps towards PRR Operationalization”].Google Scholar

²² Guiding Principles, supra note 7, at 7, at Principle 2.Google Scholar

²³ Id. at 7, Commentary to Principle 2.Google Scholar

²⁴ Id. Following the matrix introduced in 2009, the Commentary highlights that a range of approaches have been adopted by States to date including both “domestic measures with extraterritorial implications” and “direct extraterritorial legislation and enforcement”, and concludes that a variety of factors “contribute to the perceived and actual reasonableness of States’ actions” including whether they are “grounded in multilateral agreement”.Google Scholar

²⁵ See Seck, Sara, Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations (2011) 3(1) Trade, Law & Development (Special Issue: Third World Approaches to International Law) 164 [hereinafter “Seck in TLD”].Google Scholar

²⁶ Id. at 174. See Klaus Bosselmann, Environmental Governance: A New Approach to Territorial Sovereignty in (Robert Goldstein ed.), Envt'l Ethics and L. 293, 299-300 (2004).Google Scholar

²⁷ United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc A/CONF151/26 (1992); reaffirmed in Rio+20: United Nations Conference on Sustainable Development, The Future We Want, UN Doc A/CONF216/L1, at para. 15 (2012).Google Scholar

²⁸ Id. at Principle 2.Google Scholar

²⁹ But see Nollkeamer, André, Sovereignty and Environmental Justice in International Law, in Environmental law and Justice in Context (Jonas Ebbesson & Phoebe Okowa, eds., 2009) 253 (noting that both an intergenerational justice and a social justice perspective provide contours for the exercise of states’ sovereign rights to determine their own environmental and developmental policies).Google Scholar

³⁰ Seck in TLD, supra note 25 at 175-176.Google Scholar

³¹ Seck in TLD, ibid at 175, citing Xue Hanqin, Transboundary Damage in International Law (Cambridge University Press, 2003) 3 [hereinafter “Xue”].Google Scholar

³² Id. at 175-176, drawing upon Jutta Brunnée, Common Areas, Common Heritage, and Common Concern, in (Daniel Bodansky, Jutta Brunnée, and Ellen Hey, eds.), The Oxford Handbook of International Environmental Law, (Oxford University Press, 2007) 550 at 557-561.Google Scholar

³³ Id. at 176. According to Xue, “the exclusion from the category of transboundary damage of cases which involve transboundary movement of capital or technology, rather than the harmful act or effects, is not reflective of reality.” Xue, supra note 31 at 9-10.Google Scholar

³⁴ Id. at 176-180. The work of the ILC in this area was originally conceived as focused on state liability for acts not prohibited by international law, and in this form at one time included consideration of how to include the export of hazardous technology by TNCs within the scope of the articles. However, as this aspect proved too controversial, it was dropped. See further Shinya Murase, Perspectives from International Economic Law on Transnational Environmental Issues, (1995) 253 Recueil Des Cours 287, 396–398. See also the work of the International Law Association on this issue, International Law Association, Final Report of the Transnational Enforcement of Environmental Law Committee, in Report of the 72nd Conference 655 (2006). While “transnational” is used in the title, the committee report indicates that due to a lack of time, the liability of multinationals for their subsidiaries was not addressed. Id. at 657.Google Scholar

³⁵ UN Office of Legal Affairs, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, GAOR, 56th Session, Supp No. 10 (2001), 366-436, UN Doc A/56/10.Google Scholar

³⁶ UN Office of Legal Affairs, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, GAOR, 61st Sess, Supp No10 (2006), 101-182, UN Doc A/61/10. Unlike the Prevention Articles, id, the Loss Allocation Principles do refer to the Bhopal gas disaster, a primary example of the problem of transnational environmental harm, in four different contexts, suggesting a certain ambiguity as to their scope.Google Scholar

³⁷ For information on the current Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, and on the work of previous mandate holders, Office of the High Commissioner for Human Rights, Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, and on the work of previous mandate holders, United Nations Human Rights, available at: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx (last accessed: 1 December 2012).Google Scholar

³⁸ Report of the Special Rapporteur on the human rights obligations related to environmentally sound management and disposal of hazardous substances and waste, Calin Georgescu, UNHRC 21^st Sess, A/HRC/21/48 (2 July 2012), available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-48_en.pdf (last accessed: 1 December 2012).Google Scholar

³⁹ Resolution: Human Rights and Environment, UNHRC 19th Sess, A/HRC/RES/19/10 (19 April 2012), available at: http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G12/131/59/PDF/G1213159.pdf?OpenElement (last accessed: 1 December 2012).Google Scholar

⁴⁰ See for example, Donald Alton & Dinah Shelton, Environmental Protection and Human Rights (2011), at Ch. 6.Google Scholar

⁴¹ Id. at Chapter 7.Google Scholar

⁴² Id. at Chapter 8.Google Scholar

⁴³ See also Knox, John, Diagonal Environmental Rights, in Universal Human Rights and Extraterritorial Obligations (Sigrun Skogly & Mark Gibney, eds., 2010).Google Scholar

⁴⁴ See generally Seck, Sara, Canadian Mining Internationally and the UN Guiding Principles on Business and Human Rights (2011) 49 Can. Y.B. Int'l. Law. 51 [hereinafter “Seck in CYIL”]; Sara Seck, Home State Responsibility and Local Communities: The Case of Global Mining (2008) 11 Yale Hmn. Rts. & Dev. L. J. 177 [hereinafter “Seck in YHRDLJ”]; Sara Seck, Environmental Harm in Developing Countries Caused by Subsidiaries of Canadian Mining Corporations: The Interface of Public and Private International Law (1999) 37 Can. Y.B. Int'l. Law 139.Google Scholar

⁴⁵ House of Commons, Standing Committee On Foreign Affairs & International Trade, Fourteenth Report: Mining in Developing Countries, 38th Parl, 1st Session (June 2005) [hereinafter “SCFAIT Report”]. Google Scholar

⁴⁶ Id. at 1-2.Google Scholar

⁴⁷ Canada, Department of Foreign Affairs & International Trade, Mining in Developing Countries — Corporate Social Responsibility: The Government's Response to the Report of the Standing Committee on Foreign Affairs and International Trade (October 2005) at 4, 2-3 [hereinafter “Government Response”].Google Scholar

⁴⁸ Id. at 3 (embracing a proposal in the SCFAIT Report, supra note 1 at 2).Google Scholar

⁴⁹ National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries, Advisory Group Report, 29 March 2007, available at: http://www.mining.ca/www/media_lib/MAC_Documents/Publications/CSRENG.pdf (last accessed: 1 December 2012). [hereinafter “Advisory Group Report”].Google Scholar

⁵⁰ Id. at 41-45.Google Scholar

⁵¹ Id. at iii; for details see ibid at 8-24.Google Scholar

⁵² Id. at 11-14 (stating also that the application and interpretation of these standards “shall observe and enhance respect for principles of the Universal Declaration of Human Rights and other related instruments,” and that “[s]pecific guidelines related to the application and interpretation of human rights principles will be developed.”) See further International Finance Corporation of the World Bank Group, Environment and Social Policies and Procedures, and related Guidelines, available at: http://www.ifc.org/ifcext/sustainability.nsf/Content/EnvSocStandards (last accessed: 1 December 2012).Google Scholar

⁵³ Advisory Group Report, ibid at 11-14. See further Voluntary Principles on Security and Human Rights, available at: http://www.voluntaryprinciples.org/files/voluntary_principles_english.pdf (last accessed: 1 December 2012) [hereinafter “Voluntary Principles”].Google Scholar

⁵⁴ Advisory Group Report, ibid at iv-v, 58-60.Google Scholar

⁵⁵ Id. at 15-19. See further Global Reporting Initiative, available at: https://www.globalreporting.org/Pages/default.aspx (last accessed: 1 December 2012) [hereinafter “GRI”].Google Scholar

⁵⁶ Canada, Department of Foreign Affairs and International Trade, Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian Extractive Sector (2009), available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/ds/csr-strategy-rse-stategie.aspx?view=d (last accessed: 1 December 2012) [hereinafter “Building the Canadian Advantage”]. Google Scholar

⁵⁷ Id. at 4.Google Scholar

⁵⁸ Id. [emphasis added].Google Scholar

⁵⁹ Id. Not surprisingly, these are the same as those identified in the Advisory Group Report, supra note 49.Google Scholar

⁶⁰ Id. In addition, a CSR Centre of Excellence will be created to develop and disseminate CSR information, and the capacities of developing countries to manage extractive sector development will be enhanced with Canadian government support.Google Scholar

⁶¹ Id. at 8. The Performance Standards “set expectations of conduct in eight issue areas, including Social and Environmental Assessment and Management Systems; Labour and Working Conditions; Pollution Prevention and Abatement; Community Health, Safety and Security; Land Acquisition and Involuntary Resettlement; Biodiversity Conservation and Sustainable Natural Resource Management; Indigenous Peoples; and Cultural Heritage” (id).Google Scholar

⁶² Id. at 8. Eighty percent of global financing for extractive sector projects is provided by these institutions, which agree to adopt lending practices consistent with the IFC Performance Standards (id); see also Equator Principles, available at: http://www.equator-principles.com/ (last accessed: 1 December 2012).Google Scholar

⁶³ Id. at 9; Voluntary Principles, supra note 53.Google Scholar

⁶⁴ Id. at 9. See GRI, supra note 55; GRI, Reporting Framework, available at: GRI https://www.globalreporting.org/reporting/reporting-framework-overview/Pages/default.aspx (last accessed: 1 December 2012); GRI, Mining and Metals Sector Supplement, available at: GRI https://www.globalreporting.org/resourcelibrary/MMSS-Complete.pdf (last accessed: 1 December 2012).Google Scholar

⁶⁵ Building the Canadian Advantage, id at 8.Google Scholar

⁶⁶ Id. at 8. While Building the Canadian Advantage highlights the UN Human Rights Council's 2008 unanimous endorsement of the Protect, Respect and Remedy Framework, it makes no reference to the three pillars or what these might mean for the Canadian government's own responsibility to address problems associated with Canadian global mining companies. By contrast, reference is made to Canada's international anti-bribery obligations, although not to the fact that Canada has been criticized for being non-compliant. See Building the Canadian Advantage, supra note 56 at 14-15; Seck in CYIL, supra note 44.Google Scholar

⁶⁷ Building the Canadian Advantage, ibid at 11-14, discussing initiatives relating to Export Development Canada (EDC), the Canadian International Development Agency's Canada Investment Fund for Africa, and CPPIB. See further Seck in CYIL, supra note 44.Google Scholar

⁶⁸ Building the Canadian Advantage, id at 10.Google Scholar

⁶⁹ Id. Google Scholar

⁷⁰ Privy Council Office, PC 2009-0422, available at: http://www.pco-bcp.gc.ca/oic-ddc.asp?lang=eng&Page=secretariats&txtOICID=20090422&txtFromDate=&txtToDate=&txtPrecis=&txtDepartment=&txtAct=&txtChapterNo=&txtChapterYear=&txtBillNo=&rdoComingIntoForce=&DoSearch=Search+%2F+List&viewattach=20393&blnDisplayFlg=1 (last accessed: 1 December 2012). [hereinafter “Order in Council”]. Google Scholar

⁷¹ Order in Council, id. at s 7(1).Google Scholar

⁷² Office of the Extractive Sector Corporate Social Responsibility Counsellor, Building a Review Process for the Canadian International Extractive Sector: A Backgrounder (June 2010) at 2, available at: Department of Foreign Affairs and International Trade, available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/building%20a%20review%20process%20backgrounder%20FINAL%20June%202010.pdf (last accessed: 1 December 2012).Google Scholar

⁷³ See Office of the Extractive Sector Corporate Social Responsibility Counsellor, Public Consultations Summary Report: Building a review process for the Canadian international extractive sector: A summary of public consultations held June-August 2010 at 4-5 (2010), available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Consultations%20Summary%20Report%20Sept%202010.pdf (last accessed: 1 December 2012). [hereinafter “CSR Consultations Summary”]. Google Scholar

⁷⁴ Id. at 2. See further individual consultation reports, available at: Department of Foreign Affairs and International Trade, http://www.international.gc.ca/csr_counsellor-conseiller_rse/presentations-publications.aspx (last accessed: 1 December 2012). See also description of stakeholders in Office of the Extractive Sector Corporate Social Responsibility Counsellor, Annual Report to Parliament October 2009 – October 2010 (February 2011) at 3, online: Department of Foreign Affairs and International Trade, available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/presentations-publications.aspx (last accessed: 1 December 2012): “[T]he Counsellor has spent much of the past year in conversations with the multitude of constituencies who have an interest in the issues…. These stakeholders include Canadian companies, host country authorities, project affected communities and individuals, joint venture partners, Canadian industry associations, overseas industry associations, professional associations, Canadian NGOs, non-Canadian civil society groups, Canadian parliamentarians, host country regulators, service providers including the legal and consulting communities, socially responsible investors, academics, international financial institutions, global initiatives, and others.”Google Scholar

⁷⁵ Canada, Rules of Procedure for the Review Mechanism of the Office of the Extractive Sector Corporate Social Responsibility Counsellor (20 October 2010), available online at: Department of Foreign Affairs and International Trade, available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Rules%20of%20procedure%20FINAL.pdf (last accessed: 1 December 2012) [hereinafter “CSR Rules of Procedure”].Google Scholar

⁷⁶ Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor, The Review Process Participant Guide (2011), available at: Department of Foreign Affairs and International Trade available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Participant%20guide%20April%202011.pdf (last accessed: 1 December 2012)[hereinafter “Review Process Participant Guide”].Google Scholar

⁷⁷ For details, see Seck in CYIL, supra note 44.Google Scholar

⁷⁸ CSR Consultations Summary, supra note 73, at 4.Google Scholar

⁷⁹ Order in Council, supra note 70, s 1. This definition is repeated in the CSR Rules of Procedure, supra note 75, at s. 1.Google Scholar

⁸⁰ For a typology of Canadian mining companies, categorizing them according to their head office and government jurisdiction, among other factors, see Foreign Affairs and International Trade Canada, Discussion Paper, prepared for the National Roundtables on Corporate Social Responsibility and the Extractive Sector in Developing Countries at 26-27, at Table 2 (2006).Google Scholar

⁸¹ See for example, Bill C-354, An Act to amend the Federal Courts Act (international promotion and protection of human rights), 2d Sess, 40th Parl, 2009 and the extensively debated Bill C-300, An Act Respecting Corporate Accountability for Mining, Oil and Gas Corporations in Developing Countries, 2d Sess, 40th Parl., 2009, both discussed in, Seck in CYIL, 2011, supra note 44. See also Richard Janda, Note: An Act Respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries (Bill C-300): Anatomy of a Failed Initiative, 6 JSDLP 97 (2010).Google Scholar

⁸² Order in Council, supra note 70, at s. 6.Google Scholar

⁸³ Order in Council, id. at s. 5(5).Google Scholar

⁸⁴ Id. Google Scholar

⁸⁵ Id. at s 1. However, the National Contact Point for the OECD MNE Guidelines is to remain the “primary authority” concerning these (ibid, s 5(2)-(4)). See Department of Foreign Affairs and International Trade Canada, Canada's National Contact Point for the OECD MNE Guidelines, available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/index.aspx?lang=eng&menu_id=1 (last accessed: 1 December 2012).Google Scholar

⁸⁶ Order in Council, supra note 70, s. 6(1)(a). An “individual, group or community” may authorize an “individual or organization” to aid or assist them in the submission of a request for review, thus allowing for the possibility that Canadian civil society organizations could assist foreign complainants in accessing the review process: CSR Rules of Procedure, supra note 75, s. 5(a). Anonymous requests may not be submitted, although submissions may be made that request confidentiality (ibid, s 3(c)). The Participant Guide identifies the need for the requester to ensure that they have “adequate resources and capacity” to continue the process through to its conclusion, yet no resources are specifically designated to support requestors’ capacity to engage the process. Review Process Participant Guide, supra note 76, at 17.Google Scholar

⁸⁷ Order in Council, supra note 70, s. 6(1)(b). Such a request must “clearly name the Responding party”: CSR Rules of Procedure, supra note 75, s. 5(b). Presumably this responding party must then consent in writing to the review process under s. 5(6) of the Order in Council. Google Scholar

⁸⁸ Order in Council, ibid, s. 6(2).Google Scholar

⁸⁹ Ibid, s. 6(3). The five stages are: (a) initial assessment; (b) informal mediation; (c) fact-finding; (d) access to formal mediation; and (e) reporting (ibid, s 6(4)). The CSR Counsellor may exercise discretion and decide not to deal with a request for review, but must consider listed factors when conducting a review. Ibid ss. 6(5), (6)(6).Google Scholar

⁹⁰ Order in Council, ibid, s 6(8). Before issuing the public statement, the Counsellor is to inform the parties of the result and share the statement with the Ministers of International Trade and Natural Resources, as well as the Minister of International Cooperation if relevant: see s. 6(9). The Minister of International Trade may direct the Counsellor to study additional matters: see s. 6(10).Google Scholar

⁹¹ Id. at s 7(2).Google Scholar

⁹² Id. at s 7(4).Google Scholar

⁹³ Id. at s. 8(2).Google Scholar

⁹⁴ Press Release, Canada's Exploration and Mining Companies Welcome Canada's Independent CSR Counsellor, Prospectors and Developers Association of Canada, 2010, available at: http://www.pdac.ca/pdac/misc/101020.html (last accessed: 1 December 2012). However, see Seck in CYIL, supra note 44, for discussion of the timing of the release of the CSR Counsellor Rules of Procedure, relative to a Parliamentary vote on the controversial, and ultimately unsuccessful, private member's bill, Bill C-300, supra note 81.Google Scholar

⁹⁵ Press Release, Mining Association of Canada Welcomes the Launch of the CSR Counsellor's Review Mechanism, Mining Association of Canada (20 October 2010), available at: http://www.mining.ca/www/media_lib/MAC_News/2010/10_20_10_Press_Releaserev.pdf (last accessed: 1 December 2012).Google Scholar

⁹⁶ Press Release, Civil Society Statement on CSR Counsellor: Government's New Toothless Review Mechanism Underlies Why Responsible Mining Bill C-300 Is Necessary, Canadian Network on Corporate Accountability (26 October 2010), available at: http://www.halifaxinitiative.org/content/civil-society-statement-csr-counsellor (last accessed: 1 December 2012). According to the civil society statement, the most common complaints received were “allegations of serious environmental pollution, collaboration with paramilitary networks and deliberate attempts to corrupt government and the judiciary of the host country where the Canadian company establishes its operations.” Moreover, as the CSR Counsellor mechanism “lacks an investigative function to clarify disputed facts”, it is unclear how she would be able to resolve disputes without establishing first “whether the allegations are well founded.”Google Scholar

⁹⁷ Ibid. Google Scholar

⁹⁸ Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor, Closing Report, Request for Review File #2011-01-MEX (October 2011), available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Closing_report_MEX.pdf (last accessed: 1 December 2012).Google Scholar

⁹⁹ Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor, Closing Report, Request for Review File # 2011-02-MAU (February 2012), available at: http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/2011-02-MAU_closing_report-rapport_final-eng.pdf (last accessed: 1 December 2012).Google Scholar

¹⁰⁰ See request for review file # 2012-03-ARG, requested July 9, 2012 by The Center for Human Rights and Environment (CEDHA) with regard to McEwen Mining Inc, available at: <http://www.international.gc.ca/csr_counsellor-conseiller_rse/Registry-web-enregistrement.aspx?view=d (last accessed: 1 December 2012).Google Scholar

¹⁰¹ See Seck in CYIL, supra note 44 (discussing updates to various CSR standards).Google Scholar

¹⁰² See Seck in YHRDLJ, supra note 44 at 180-182 (discussing this issue in the Canadian and Australian context); Seck in CYIL, supra note 44 (for references to this idea in Bill C-300 discourses).Google Scholar

¹⁰³ Okafor, Obiora, Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both? (2008) 10 Int'l Comm. L. Rev. 371. See also Seck in TLD, supra note 25, at 181-200.Google Scholar

¹⁰⁴ Okafor, , id. at 376.Google Scholar

¹⁰⁵ Okafor, Obiora, Newness, Imperialism and International Legal Reform in Our Time: A TWAIL Perspective (2005) 43 Osgoode Hall L.J. 171 at 174.Google Scholar

¹⁰⁶ Ibid at 175.Google Scholar

¹⁰⁷ Mickelson, Karin, Rhetoric and Rage: Third World Voices in International Legal Discourse (1997-98) 16 Wis. Int'l. L.J. 353 at 357 [hereinafter “Mickelson Rhetoric”].Google Scholar

¹⁰⁸ Rajagopal, Balakrishnan, Locating the Third World in Cultural Geography (1998-1999) Third World Leg. Stud. 1 at 19; Balakrishnan Rajagopal, Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy (2006) 27 Third World Qtrl'y 767, at 768.Google Scholar

¹⁰⁹ Mickelson Rhetoric, supra note 107, at 360; Karin Mickelson, Beyond a Politics of the Possible? South-North Relations and Climate Justice, 10 Melb. J. Int'l. L. 411 at 419 (2009). Similarly the power of the “North” within the “South” emerges.Google Scholar

¹¹⁰ Anghie, Antony & Chimni, Bhupinder, Third World Approaches to International Law and Individual Responsibility in Internal Conflict, 36 Stud. Transnat'l. Leg. Pol'y. 185 at 192-193 (2004).Google Scholar

¹¹¹ Antony Anghie, Imperialism, Sovereignty and the Making of International Law 9 (2005).Google Scholar

¹¹² Rajagopal, Balakrishnan, International Law from Below: Development, Social Movements and Third World Resistance at 187 (2003).Google Scholar

¹¹³ Id. at 194-5.Google Scholar

¹¹⁴ Id. at 49.Google Scholar

¹¹⁵ See Seck in TLD, supra note 25; Sara Seck, Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance? (2008) 46 Osgoode Hall L.J. 565 [hereinafter “Seck in OHLJ”].Google Scholar

¹¹⁶ Mickelson, Karin, Leading Towards a Level Playing Field, Repaying Ecological Debt, or Making Environmental Space: Three Stories about International Environmental Cooperation (2005) 43 Osgoode Hall L. J. 137 at 150-166.Google Scholar

¹¹⁷ Seck in OHLJ, supra note 115 at 598-601, drawing upon Susan Marks, The Riddle of All Constitutions (2000).Google Scholar

¹¹⁸ Fraser, Nancy, Reframing Justice in a Globalizing World (2005) 36 New Left Rev. 69 at 82, and crediting John Ruggie's “immensely suggestive essay” for the idea of a post-territorial mode of political differentiation. See John Ruggie, Territoriality and Beyond: Problematizing Modernity in International Relations, 47 Int'l. Org. 139 (1993).Google Scholar

¹¹⁹ Guiding Principles, supra note 7, at Principle 31.Google Scholar

¹²⁰ Id. Google Scholar

¹²¹ But see critique of government coming to the table as a stakeholder equal to industry, rather than acknowledging its responsibility to regulate in the public interest. Seck in YHRDLJ, supra note 44, at 184.Google Scholar

¹²² Further discussion of the nuances underlying the right of free, prior and informed consent or consultation is beyond the scope of this paper.Google Scholar

¹²³ See for example, Graham Mayeda, Access to Justice: The Impact of Injunctions and Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations, 6 J.S.D.L.P. 143 (2010); Charis Kamphuis, Foreign Investment and the Privatization of Coercion: A Case Study of the Forza Security Company in Peru, 37 Brook. J of Int'l. L. (2011); Shin Imai, Bernadette Maheandiran & Valerie Crystal, Accountability Across Borders: Mining in Guatemala and the Canadian Justice System, 26 Osgoode CLPE Research Paper Series (2012), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2143679 (last accessed: 1 December 2012).Google Scholar

¹²⁴ See for example the trial of Goldcorp by the Peoples’ International Health Tribunal, available online: http://healthtribunal.org/resources/the-tribunal-live/ (last accessed Nov 18, 2012).Google Scholar