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IPIS briefing No. 1

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The IPIS briefing offers a selection of articles, news and updates on natural resources, armed conflict, Business & Human Rights and arms trade.  Every month, an editorial and related publications shed a light on a specific topic in IPIS’ areas of research.

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This briefing is produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of IPIS and can under no circumstances be regarded as reflecting the position of the European Union


EDITORIAL

Guiding companies on their Human Rights duties

Decades of voluntary corporate social responsibility (CSR) initiatives have failed to adequately protect human rights. Also the human rights framework, albeit with a more defined commitment in the area of human rights compared to CSR, has yet not been effective in preventing human rights abuses. NGOs across the world continue to report accounts of companies being linked to serious human rights abuses.

The ‘Toolbox on Business and Human Rights’, developed by IPIS and the University of Antwerp for the Belgian Federal Institute for Sustainable Development, provides an accessible and user-friendly set of tools to guide companies on their human rights duties. The toolbox explicitly refers to the character of the relevant regulations – that is, whether they are hard law (binding) or soft law (aiming to promote a specific behaviour but non-binding). While there are some sector-specific mandatory mechanisms, it is striking that most mechanisms are non-binding, recommended good practices to avoid or mitigate the risk of adverse human rights impacts.

International soft-law standards, such as the United Nations Guiding Principles on Business & Human Rights (UNGPs) and the OECD Due Diligence Guidance for Responsible Business Conduct, attempt to prevent, address and remedy human rights abuses committed in business operations. Since these guidances are not mandatory, companies cannot, however, be held legally accountable when they neglect their responsibility to respect human rights and the environment.

To respond to these vital shortcomings of non-binding standards, there are simultaneous initiatives at both national and international level to introduce binding legislation to prevent, address and remedy human rights abuses committed in business operations. Across Europe and beyond, there is a growing trend towards introducing mandatory human rights and environmental due diligence at the national level. In October 2019, European CSOs have published a joint statement that calls for a EU legislation that establishes a mandatory human rights and environmental due diligence framework for business, companies and financial institutions operating, or offering a product or service, within the EU.

At the UN, a treaty is being developed to regulate the activities of transnational corporations and other business enterprises in international human rights law. In July 2018, the UN Human Rights Council’s open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) released the Zero Draft of the legally binding instrument. On 16 July 2019 the OEIGWG published the Revised Draft. This draft was discussed during the fifth session of the OEIGWG in October 2019. The treaty mirrors the language of the UNGPs and applies to all business activities including particularly, but not limited to, those of a transnational character.

The Toolbox on Business and Human Rights guides businesses through the numerous mechanisms, legislation and tools, informing the user how they can comply with their human rights duties. This guidance is desirable because the number of mechanisms can be overwhelming for a company. However, at the same time, the number of mandatory mechanisms is very limited. As described in several articles in this briefing, the reliance on a voluntary approach to promote business respect for human rights has proven insufficient. Mandatory due diligence legislation is needed to adequately prevent violations of human rights and environmental damages.

Such obligations for State’s parties can be found in the 2012 Arms Trade Treaty. The ATT recognizes a direct link between respect for on one hand human rights law, and international humanitarian law and on other hand arms export controls. In Belgium, as a signatory, the Flemish government transposed the ATT into law in 2017. For instance, the law has made it mandatory for the exporter, the carrier or the transit agent of military goods, goods for military use, or civilian weapons, in transit, to notify the Flemish Strategic Goods Control Service if they have knowledge that the items in transit can or could be used in the commission of genocide, crimes against humanity, or war crimes (Art. 8, Art. 26 and Art. 30 Flemish Arms Export Control Decree).

FURTHER READING

United Nations Takes Another Step in Developing a Treaty on Business and Human Rights | 5 November 2019 | Littler Mendelson P.C.

Since it was established in 2014, a United Nations Inter-Governmental Working Group (“IGWG”) has met annually to develop a multilateral treaty to attempt to hold businesses legally accountable for harms that may be related to their global operations (the “Proposed Treaty”). Littler Mendelson attorneys have provided testimony at all of these sessions.1 The IGWG held its most recent session from October 14-18, 2019, during which certain member States of the United Nations (“States”) and other stakeholders discussed a “Revised Draft” of the Proposed Treaty.2 This Revised Draft is the second full draft of the Proposed Treaty that the IGWG has produced.

The lengthy journey towards a treaty on business and human rights | 11 October 2019 | OpenGlobalRights

A new version of the UN’s draft treaty on business and human rights strengthens its protection focus, but must go further to ensure effective access to justice for victims.

Contribution to the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (pdf) | October 2019 | CIDSE

This is a decisive moment for the process towards shaping a UN Treaty that can bring value to global efforts towards preventing adverse human rights effects of business activities and providing access to justice for affected people and communities. The nature and impacts of global business require action at multiple levels. The Treaty is urgently needed to help address gaps and insufficiencies in the global legal framework, which has not kept up with evolutions in the global economic and business reality, and to help redress the current imbalances between the rights and obligations of business.

Regulating Corporate Impunity | October 2019 | Rosa Luxemburg Stiftung

Professor David Bilchitz discusses the United Nations Binding Treaty on Business and Human Rights.

Joint business response to the Revised Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises (“Revised Draft Treaty”) (pdf) | October 2019 | International Organisation of Employers

Respecting human rights is a priority for the business community. It is leading and actively engaged in many initiatives to implement the UN Guiding Principles on Business and Human Rights (UNGPs) and other relevant Government-backed standards, notably the OECD Guidelines for Multinational Enterprises and the ILO MNE Declaration. It also carries out numerous activities to make a positive contribution to the Sustainable Development Goals (SDGs) at the international, regional, national and local level.

The Lengthy Journey towards a Treaty on Business & Human Rights | 30 September 2019 | Business & Human Rights Resource Centre

Half a decade has passed since in July 2014 the UN Human Rights Council first voted to begin negotiating a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. The elements, scope, and substance of the Treaty have been subject to a healthy debate, which the Business & Human Rights Resource Centre has helped facilitate in our Debate the Treaty blog series.

Für eine menschenrechtliche Regulierung der globalen Wirtschaft (pdf) | 27 September 2019 | GlobalPolicy.org

Statement by the Treaty Alliance Germany on the revised draft for a binding UN agreement on Business and Human Rights (“Revised Draft”).

ARTICLES

BUSINESS & HUMAN RIGHTS

UN experts raise concerns over Swiss ‘responsible business’ initiative | 1 October 2019 | Swissinfo

United Nations human rights experts have raised concerns over the Swiss government’s position on the so-called “responsible business” initiative.  “We are concerned to read that the Federal Council [the government] has expressed a preference for voluntary commitments” by multinationals regarding their human rights responsibilities for their supply chains, a rapporteur at the UN Committee on Economic, Social and Cultural Rights declared on Tuesday.

BMW Starts On-Site Work for Responsible Cobalt Mining in Congo | 19 September 2019 | BMW blog

Project for responsible artisanal cobalt mining in Kolwezi, DR Congo: launching on-site activities | 19 September 2019 | BASF

Earlier this year, BMW announced their plans of sourcing its cobalt in a responsible manner. One of the big issues surrounding cobalt mining is that, in a lot of cases, is done with utter disregard for even the smallest ethical norms. That’s about to change if the pilot project ‘Cobalt for Development’ launched by BMW, BASF SE, Samsung SDI and Samsung Electronics goes according to plan.

London Metal Exchange to delay ban on tainted metal until 2025 | 18 September 2019 | Reuters | Euronews

The London Metal Exchange (LME) will postpone plans to ban metal tainted by human rights abuses until 2025, giving producers three more years to comply with guidelines and the exchange time to rethink its approach, industry sources said.

NATURAL RESOURCES

A conversation with Guinean President Condé on natural resource management in Africa | 3 October 2019 |Brookings Institute

Natural resources are a major driver for economic growth across the African continent, and the Republic of Guinea is no exception. The country has one-third of the world’s reserves of bauxite, a wealth of iron ore reserves, and considerable diamond and gold reserves. The mining sector actually produces more than 90 percent of Guinea’s exports. Despite its prominence, though, the sector also only accounts for 17 percent of Guinea’s tax revenue and 2.6 percent of employment. Agriculture dominates job creation, accounting for 52 percent of the total workforce.

Investing in a smelter in Rwanda | 26 September 2019 | Mining Review Africa

Exclusive interview with Dr Radoslav Miskiewicz, CEO of Luma Holding Ltd and President of the Supervisory Board of LuNa Smelter in Rwanda. LuNa Smelter is a gold sponsor at the upcoming East & Central Africa Mining Forum where Dr Miskiewicz is part of a session on “International players who added value to their mining industry”.

A Top Leader of the Democratic Republic of the Congo’s Political Opposition Returns | 12 September 2019 | The New Yorker

On a Monday in May, people’s phones began to buzz in Kinshasa, the capital of the Democratic Republic of the Congo. News alerts were arriving from Congolese social-media forums—on WhatsApp, Facebook, and Twitter—that scrutinize and declare reports, rumors, and conspiracies fake or real. The alerts said that the opposition political leader Moïse Katumbi Chapwe was planning to return to the D.R.C., after three years in exile. He was scheduled to speak on television that night.

DRC growth ‘hampered by lack of transparency over mining contracts’ | 6 September 2019 | Public Finance International

“Major challenges” with the transparency and accountability of mining contracts are hampering the Democratic Republic of Congo’s ability to boost public spending. This is according to the International Monetary Fund, which called for the DRC to publicly tender mining assets, publish mining contracts and disclose the true owners of mining contracts, in a report released this week.

How much should we worry about the Congo Basin fires? | 5 September 2019 | Landscape News

In the last few weeks, news of the wildfires in the Amazon and Indonesia has been difficult to avoid. But if we take a look at Global Forest Watch’s world map showing the past week’s alerts for Congo Basin fires (one-square-kilometer areas in which fire is detected by satellite imaging), we might well wonder if we’ve been missing something important.

ARMS TRADE

An arms dealer’s guide to philanthropy | 13 October 2019 | Mail & Guardian

Ivor Ichikowitz is the founder and executive chairman of the Paramount Group, the largest private arms manufacturer in Africa. It makes armoured vehicles, naval ships, helicopters, and fighter jets. But Ichikowitz would prefer not to be remembered for the weapons systems that he sells to autocratic regimes including Saudi Arabia, Kazakhstan, Gabon and the Republic of Congo.

Gems, Warlords and Mercenaries: Russia’s Playbook in Central African Republic | 30 September 2019 | New York Times

The dealer pulled back a shiny pink curtain and sprinkled the contents of two white envelopes across his desk: sparkling diamonds, more than 100 of them. Some gems are sold legally, he explained. But many are trafficked by rebels who fight over the mines, adding fuel to a six-year uprising that has killed thousands and displaced more than a million people here in the Central African Republic.

La France militaire en Afrique : un mauvais investissement économique | 26 September 2019 | Contrepoints

Beaucoup d’observateurs estiment que les interventions militaires de la France dans son “pré-carré” africain visent à mettre la main sur des ressources naturelles et à préempter le marché intérieur des ex-colonies. Pourtant, le compte n’y est pas.

Ventes d’armes : du matériel français est utilisé dans des pays où les droits de l’Homme sont bafoués | 23 September 2019 | Radio France

Au delà du Yémen, des équipements militaires vendus par la France servent parfois, comme en Égypte et au Cameroun, à commettre des violences ou des crimes contre des populations civiles.

“Non, il n’y aura pas de nouvelle guerre froide en Afrique” | 8 September 2019 | Aline Leboeuf | Le Monde

La chercheuse Aline Leboeuf analyse les stratégies militaires de la Russie, des Etats-Unis et de la Chine sur le continent. Certains analystes, chercheurs ou journalistes annoncent le retour de la guerre froide en Afrique. La confrontation entre grandes puissances, Etats-Unis contre Chine et Russie, est même présentée par John Bolton, le conseiller pour la sécurité nationale du président Donald Trump, comme au cœur de la stratégie américaine sur ce continent. Pourtant, il n’y aura pas de nouvelle guerre froide. En voici les quatre raisons.

ARMED CONFLICT

Rwanda: Is DR Congo No Longer a Safe Haven for Armed Militias? | 1 October 2019 | The New Times

In a September 22, 2019 interview on TV5Monde, a French television network, DR Congo’s new President, Félix Tshisekedi, addressed a wide range of issues in his country, including corruption, poverty, war and insecurity, and how he intends to deal with them.

The Case for a U.S. Foreign Legion | 1 October 2019 | Charged Affairs

Eighteen years of war have severely burdened the U.S. Armed Forces and made the American public wary of long-term military commitments. Between the low percentage of citizens who serve and the sense that the wars in Afghanistan and Iraq have been for naught, it is understandable that many in the United States would like their country to play a less active role in global security. But climate change, refugee flows, and other destabilizing events will continue to heighten the risk of conflicts, some of which will require outside intervention to halt. Despite China’s increased military strength, and the ability of some European countries to deploy troops to far-flung locations, the United States is still the country best equipped to intervene in conflicts around the globe, if it so chooses.