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THE PITFALLS OF UNILATERAL LEGISLATION IN INTERNATIONAL LAW: LESSONS FROM CONFLICT MINERALS LEGISLATION

Published online by Cambridge University Press:  03 July 2020

Phoebe Okowa
Phoebe Okowa*
Affiliation:
Professor of Public International Law Queen Mary, University of London, p.n.okowa@qmul.ac.uk.
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Abstract

This article examines the compatibility of the extraterritorial application of unilateral legislation with the project of international law. Focusing on two instruments, the Dodd-Frank Act passed by the United States Congress and intended to regulate the activities of US listed companies operating in the Congo and the EU conflict minerals legislation, the article challenges their underlying premises that revenues from natural resources perpetuate conflict and resulting human rights abuses. In so far as these instruments make no provision for meaningful participation by the foreign populations which are the objects of legislation, it is argued that there is a tension between these unilateral instruments and the basic premises of law-making in international law as a democratic enterprise centred around governmental representation. By exclusively directing sanctions and other disciplinary measures at rebels, both legislative instruments have the problematic effect of strengthening the exploitation of natural resources by kleptocratic regimes and undermining the right of populations in conflict zones to civil disobedience as an inescapable component of their right of self-determination.

Keywords

public international lawunilateral legislation in international lawEU conflict minerals legislationDodd-Frank Actnatural resources
Type
Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 3 , July 2020 , pp. 685 - 717
Copyright
Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law

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Footnotes

I would thank Professors Malgosia Fitzmaurice (Queen Mary), Eirik Bjorge (Bristol) and Kevin Davis (NYU) and two anonymous reviewers who read earlier versions of this article. The research for this article began during the tenure of a visiting professorship at NYU Law School. I owe a huge debt of gratitude to Jeffrey Smith (J.D. 2016) who was my research assistant and Alison Onyango.

References

1 United Nations Security Council (UNSC), ‘Report of the Group of Experts on the Democratic Republic of Congo’ (29 November 2010) UN Doc S/2010/596; Human Rights Watch, The Curse of Gold: Democratic Republic of Congo (Human Rights Watch 2005); see also T Turner, The Congo Wars: Conflict, Myth and Reality (Zed Books 2007).

2 P Okowa, ‘Sovereignty Contests and the Exploitation of Natural Resources in Conflict Zones’ (2013) 66 CLP 33.

3 United Nations International Covenant on Civil and Political Rights, New York (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) and United Nations Covenant on Economic, Social and Cultural Rights, New York (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).

4 Anghie, A, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005)CrossRefGoogle Scholar.

5 Jong, D Dam-De, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations (Cambridge University Press 2015)CrossRefGoogle Scholar.

6 See Sands, P, ‘‘‘Unilateralism’’, Values and International Law’ (2000) 11 EJIL 291Google Scholar.

7 See UNSC Res 1952 (29 November 2010) UN Doc S/Res/1952 calling on States to observe supply chain due diligence when sourcing from the DRC.

8 See OECD, Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (2nd edn, OECD 2013) (Henceforth called OECD Due Diligence Guidance).

9 C Chinkin, ‘The State That Acts Alone: Bully, Good Samaritan or Iconoclast’ (2000) 11(1) EJIL 31.

10 Presidential Memorandum: Suspension of the Conflict Minerals Rule, Explanatory Statement (8 February 2017) <http://online.wsj.com/public/resources/documents/SECDraftOrder02-08-2017.pdf>.

11 JE Alvarez, ‘Multilateralism and Its Discontents’ (2000) 11 EJIL 393.

12 J Brunnée, ‘International Environmental Law and Community Interests: Procedural Aspects’ in E Benvenisti and G Nolte (eds), Community Interests Across International Law (Oxford University Press 2018).

13 J Cuvelier et al., ‘Analyzing the Impact of the Dodd-Frank Act on Congolese Livelihoods’ Social Science Research Council (November 2014); V Stork, ‘Conflict Minerals, Ineffective Regulations: Comparing International Guidelines to Remedy Dodd-Frank's Inefficiencies’ (2017) 61 NYLSLR 429.

14 For an exception see LB de Chazournes, ‘Unilateralism and Environmental Protection: Issues of Perception and Reality of Issues’ (2000) 11 EJIL 315; A Reinisch, ‘Human Rights Extraterritoriality: Controlling Companies Abroad’ in E Benvenisti and G Nolte (eds), Community Interests Across International Law (Oxford University Press 2018) 396.

15 G Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press 2004) Ch 10.

16 See RB Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness’ (2014) 108 AJIL 211; B Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599.

17 M Hakimi, ‘Unfriendly Unilateralism’ (2014) 55 HILJ 105; de Chazournes (n 14).

18 de Chazournes (n 14).

19 On the optional and non-binding nature of dispute mechanisms see Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) art 33 and Statute of the International Court of Justice art 36(2).

20 See generally legislation discussed in K Dawkins, ‘Ecolabelling: Consumers’ Right-to-Know or Restrictive Business Practice?’ in R Wolfrum (ed), Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (Springer 1996) 551; see also the contested jurisdictional ambit of Canada's Coastal Fisheries Protection Act, RSC 1985 c. C-33, which extended Canada's jurisdiction competence over foreign vessels in the high seas in order to enforce its unilaterally determined conservation and management measures and was the subject matter of a dispute before the International Court of Justice; see Fisheries Jurisdiction Case (Spain v Canada), Jurisdiction of the Court, Judgment [1998] ICJ Rep 432. The dispute did not proceed to the merits, and the Court did not make a formal finding on the legality of Canada's unilateral measures as a result of a preliminary finding by the ICJ that it did not have jurisdiction.

21 A Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’ in P Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 37, 58.

22 HH Koh, ‘Transnational Public Law Litigation’ (1991) 100 YaleLJ 2347.

23 Anghie (n 4).

24 Professor Benvenisti's central arguments were first mooted in a highly influential article: E Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295, and have more recently been developed in a collection of essays under his editorship: E Benvenisti and G Nolte, Community Interests Across International Law (Oxford University Press 2018) Introduction.

25 E Benvenisti, The Law of Global Governance (Brill Nijhoff 2014).

26 ibid 125; see also N Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997).

27 There are, in fact, echoes of this idea in the 8th principle articulated in J Rawls, The Law of Peoples (Harvard University Press 2001) 37, under which ‘Peoples have a duty to assist other peoples living under unfavourable conditions that prevent their having a just or decent political and social regime.’

28 E Benvenisti, ‘Legislating for Humanity: May States Compel Foreigners to Promote Global Welfare?’ (2013) Global Trust Working Paper Series No 2/2013 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2646880>.

29 ibid 4; Benvenisti, The Law of Global Governance (n 25) 129.

30 C McCrudden, ‘AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity’ (Opinio Juris, 25 July 2013) <http://opiniojuris.org/2013/07/25/ajil-symposium-comment-on-eyal-benvenisti-sovereigns-as-trustees-of-humanity/>.

31 O Elagab, ‘The Legality of Non-Forcible Counter-Measures in International Law’ in E Cannizzaro and BI Bonafè (eds), Countermeasures in International Law (Oxford University Press 2015).

32 G Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution Press 2008).

33 See generally, M Hakimi, ‘State Bystander Responsibility’ (2010) 21 EJIL 344.

34 In February 2017, a leaked version of a draft executive memorandum was widely in circulation indicating that the Trump Administration planned to suspend Section 1502 of the Dodd-Frank Act. See E Pilkington, ‘Proposed Trump Executive Order Would Allow US Firms to Sell ‘‘Conflict Minerals’’’ (TheGuardian.com, 8 February 2017) <https://www.theguardian.com/us-news/2017/feb/08/trump-administration-order-conflict-mineral-regulations>.

35 See F Sayre, ‘Arising from the United Nations Trusteeship System’ (1948) 42 AJIL 263; S Pahuja, Decolonising International Law (Cambridge University Press 2011) 5.

36 McCrudden (n 30).

37 J Klabbers, ‘AJIL Symposium: On Medium and Message’ (Opinio Juris, 25 July 2013) <http://opiniojuris.org/2013/07/25/ajil-symposium-on-medium-and-message/>.

38 ibid. But for a sympathetic reception, see A von Bogdandy and D Schmalz, ‘AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept’ (Opinio Juris, 24 July 2013) <http://opiniojuris.org/2013/07/24/ajil-symposium-pushing-benvenisti-further-international-sovereignty-as-a-relative-concept/>.

39 L Wenar, Blood Oil: Tyrants, Violence, and the Rules That Run the World (Oxford University Press 2015).

40 See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), (Merits) [1986] ICJ Rep 14.

41 J Crawford, Chance, Order, Change: The Course of International Law: General Course on Public International Law (Brill Nijhoff 2014); B Roth, Sovereign Equality and Moral Disagreement (Oxford University Press 2011) 82–3; WM Reisman, ‘Why Regime Change Is (Almost Always) a Bad Idea’ (2004) 98 AJIL 516–17.

42 European Union Regulation (EU) No 995/2010 of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market (text with EEA relevance) [2010] OJ L 295/23.

43 B Kingsbury, N Krisch and R Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 LCP 15.

44 J Habermas, ‘The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 445–6.

45 M Walzer, ‘The Moral Standing of States: A Response to Four Critics’ (1980) 9 PPA 209–12, 216.

46 Hakimi (n 17) 105; D Bodansky, ‘What's So Bad about Unilateral Action to Protect the Environment?’ (2000) 11 EJIL 339.

47 P Craig, UK, EU and Global Administrative Law (Cambridge University Press 2015) 653.

48 Hakimi (n 17).

49 UNSC Res 1952 (n 7).

50 L Partzsch ‘The New EU Conflict Minerals Regulation: Normative Power in International Relations? (2018) 9(4) Global Policy 481ff.

51 J Cohen, Globalisation and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (Cambridge University Press 2012).

52 de Chazournes (n 14) 318.

53 Kingsbury (n 16) 599–625.

54 J Waldron, Law and Disagreement (Oxford University Press 1999).

55 See D Feldman, ‘The Internationalization of Public Law and Its Impact on the UK’ in J Jowell, D Oliver and C O'Cinneide (eds), The Changing Constitution (Oxford University Press 2015); C McLachlan, Foreign Relations Law (Cambridge University Press 2014) 78–80.

56 See for instance the dominance of industry in the consultation process leading to the adoption of EU legislation. ‘Public Consultation on a Possible EU Initiative on responsible sourcing of minerals originating from conflict-affected and high-risk areas: Contributions’ (European Commission) <http://trade.ec.europa.eu/consultations-archive/conflict-minerals/>; RSN Staff, ‘Group of Investors Urge European Union to Adopt Stronger Conflict Minerals Legislation’ (Responsible Sourcing Network, 21 October 2014) <https://www.sourcingnetwork.org/blog/2014/10/21/group-of-investors-urge-european-union-to-adopt-stronger-con.html>.

57 Cuvelier et al. (n 13) 7.

58 Section 1502, Dodd-Frank Wall Street Reform and Consumer Protection Act, 2010 (to accompany H.R. 4173) United States (henceforth called the Dodd-Frank Reform).

59 It is also the declared legal basis of the Kimberley Certification Process that applies to conflict Minerals.

60 China is the only other country to have recently taken up significant unilateral initiatives but these are broadly voluntary and do not raise concerns of legislative overreach since they do not impinge on the administrative structures of natural resource of States; see China Chamber of Commerce, ‘The Chinese Due Diligence Guidance for Responsible Mineral Supply Chains’ <http://www.cccmc.org.cn/docs/2016-05/20160503161408153738.pdf>.

61 International Conference on the Great Lakes Region, Protocol on the Illegal Exploitation of Natural Resources in the Great Lakes Region (30 November 2006).

62 UNSC, ‘Report of the Panel of Experts on Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo’ (16 October 2002) UN Doc S/2002/1146; UNSC, ‘Report of the Group of Experts’ (n 1).

63 UNSC, ‘Addendum to the Report of the Panel of Experts on Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo’ (13 November 2001) UN Doc S/2001/1072.

64 UNSC Res 1952 (n 7).

65 See United Nations Office of the High Commissioner for Human Rights (OHCHR), ‘Guiding Principles on Business and Human Rights’ (United Nations, 2011); OECD Due Diligence Guidance (n 8); JG Ruggie, ‘The Social Construction of the UN Guiding Principles on Business and Human Rights’ (2017) Corporate Responsibility Initiative, Harvard Kennedy School, Working Paper No 67 <https://research.hks.harvard.edu/publications/getFile.aspx?Id=1564>.

66 Kimberley Certification Process <http://www.KimberleyProcess.com/home/index-en.html>; JE Wetzel, ‘Targeted Economic Measures to Curb Armed Conflict? The Kimberley Process on the Trade in “Conflict Diamonds”’ in N Quenivet and S Shah-Davis (eds), International Law and Armed Conflict: Challenges in the 21st Century (TMC Asser Press 2010).

67 See Commission of the European Communities, Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan, 2003 <http://www.euflegt.efi.int/flegt-action-plan>.

68 See OECD Due Diligence Guidance (n 8).

69 International Conference on the Great Lakes Region, Pact on Security, Stability and Development for the Great Lakes Region (15 December 2016) art 9.

70 Hakimi (n 17).

71 Dodd-Frank Reform Act, Sec.1502; CR Taylor, ‘Conflict Minerals and SEC Disclosure Regulation’ (2012) 105 HBLR <http://www.hblr.org/2012/01/conflict-minerals-and-sec-disclosure-regulation/>; Canada introduced a similar legislation but it failed to garner support and was eventually shelved.

72 European Union Regulation (EU) 2017/821 of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas OJ L 130/1 (henceforth called EU Conflict Minerals Regulation).

73 M Ayogu and Z Lewis, ‘Conflict Minerals: An Assessment of the Dodd-Frank Act’ (Op-Ed, Brookings, 3 October 2011) <https://www.brookings.edu/opinions/conflict-minerals-an-assessment-of-the-dodd-frank-act/>.

74 Ruggie (n 65); see generally, RB Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness’ (2014) 108 AJIL 211.

75 LWolfe, ‘How Dodd-Frank Is Failing Congo’ (Foreign Policy, 2 February 2015) <https://foreignpolicy.com/2015/02/02/how-dodd-frank-is-failing-congo-mining-conflict-minerals/>.

76 N Stoo, M Verpoorten and P van der Windt, ‘More Legislation, More Violence? The Impact of Dodd-Frank in the DRC’ (2018) 13 PLoS One; B Mbubi, ‘Let's Be Frank: The Impact of Dodd-Frank and International Legislation on Congolese Extractive Industry’ (Carnegiecouncil.org, 11 October 2017) <https://www.carnegiecouncil.org/publications/ethics_online/impact-of-dodd-frank-and-international-legislation-on-congolese-extractive-industry>.

77 EU Conflict Minerals Regulation (n 72) para 7 provides ‘controlling trade in minerals from conflict areas, is one of the ways of eliminating the financing of armed groups’. EU Conflict Minerals Regulation, para 10 states: ‘Union citizens and civil society actors have raised awareness with respect to Union economic operators not being held accountable for their potential connection to the illicit extraction of and trade in minerals from conflict areas. Such minerals, potentially present in consumer products, link customers to conflicts that have severe impacts on human rights, in particular the rights of women, as armed groups often use mass rape as a deliberate strategy to intimidate and control local populations in order to preserve their interest. For this reason, Union citizens have requested, in particular through petitions, that the commission make a legislative proposal to the European parliament and to the Council to hold economic operators accountable under the relevant guidelines as established by the UN and OECD.’

78 Dodd-Frank Reform, Sec.1502 (a); Verweijen, J, Stable Instability: Political Settlements and Armed Groups in the Congo (Rift Valley Institute, Usalama Project: Governance in Conflict 2016)Google Scholar

79 ICESCR (n 3) art 1; ICCPR (n 3) art 1; see generally, Crawford, J, ‘The Right of Self-Determination in International Law: Its Development and Future’ in Alston, P (ed), People's Rights (Oxford University Press 2001)Google Scholar.

80 Cuvelier et al. (n 13).

81 J Verweijen, The Ambiguity of Militarization: The Complex Interaction between the Congolese Armed Forces and Civilians in the Kivu provinces, Eastern DR Congo, PhD dissertation, (Utrecht University) Utrecht 2015.

82 See United Nations General Assembly Res 1803 (XVII) ‘Permanent Sovereignty over Natural Resources’ (14 December 1962) UN Doc A/5217.

83 See Collier, P and Hoeffler, A, ‘Greed and Grievance in Civil War’ (2004) 56 Oxford Economic Papers 563CrossRefGoogle Scholar.

84 See L Nathan, ‘The Frightful Inadequacy of Most of the Statistics’: A Critique of Collier and Hoeffler on the Causes of Civil War’ (2005) LSE, Crisis States Development Research Centre, Discussion Paper No.11; H Ohmura, ‘Civil War, Natural Resources, and Democracy – When Do Natural Resources Lead to Civil War?’ (2014) The Hikone Ronso 399; This argument was forcefully made in the litigation contesting the legality of the Dodd-Frank Act; see National Association of Manufacturers v. Securities and Exchange Commission, United States Court of Appeals for the District of Columbia Circuit, No. 13-5252 (18 August 2015) at 21, fn 21.

85 In the legal challenges to the Dodd-Frank before US courts, US companies argued that the measures expected of them were disproportionate and imposed in the absence of any objectively verifiable evidence of the link between revenues generated by trade in conflict minerals and rebel participation in the civil war. See National Association of Manufacturers v Securities and Exchange Commission, United States Court of Appeals D.C. (No. 13-5252) (18 August 2015).

86 Dodd-Frank Reform; On 22 August 2012, the US Securities and Exchange Commission adopted regulations to facilitate disclosure requirements under the Act; see Securities and Exchange Commission, 17 CFR Parts 240 and 249b [Release No. 34-67716; File No. S7-40-10], RIN 3235-AK84.

87 The listed countries are; Angola, Burundi, Central African Republic, Rwanda, Republic of Congo, South Sudan, Tanzania, Uganda and Zambia.

88 The US Securities Exchange Committee suspended enforcement of due diligence requirements in April 2017 following a court case, but the bill has not been repealed; see SN Lynch, ‘SEC Halts Some Enforcement of Conflict Minerals Rule Amid Review’ (Reuters, 7 April 2017) <https://www.reuters.com/article/us-usa-sec-conflictminerals/sec-halts-some-enforcement-of-conflict-minerals-rule-amid-review-idUSKBN1792WX>. In November 2017, the US House of Representatives Financial Services Committee approved a bill that would repeal Section 1502 of the Dodd-Frank Act. The bill is awaiting approval by the US Senate and therefore current law remains in effect. See Braumiller Law Group, ‘Latest Updates in Conflict Minerals Law’ (Lexology, 20 November 2017) <https://www.lexology.com/library/detail.aspx?g=d27d2d5f-df96-4506-8302-4b2958cb92a4>.

89 Securities and Exchange Commission, OMB No. 3235-0697, Form SD Specialized Disclosure Report 3 (2014).

90 In introducing the disclosure rules required by SEC, the Commission observed that the Rule provides information about a product ‘that is material to an investor's undersanding of the risks in an issuers reputation and supply chain’ Securities and Exchange Commission, Federal Register/Vol.77, No.177, (12 September 2012)/Rules and Regulations.

91 United States Securities and Exchange Commission, ‘SEC Adopts Rules Requiring Payment Disclosures by Resource Extraction Issuers’ (22 August 2012) <https://www.sec.gov/news/press-release/2012-2012-164htm>.

92 Lowe, V, ‘Jurisdiction’ in Evans, M (ed), International Law (Oxford University Press 2003)Google Scholar.

93 15 USC, Section 78m – Periodical and other reports (2011).

94 BBC, ‘DR Congo Bans Mining in Eastern Provinces’ (BBC News, 11 September 2010) <https://www.bbc.com/news/world-africa-11269360>.

95 Verweijen (n 81) 8.

96 The International Crisis Group, ‘The Congo's Transition Is Failing: Crisis in the Kivus’ (Crisisgroup, 30 March 2005) <https://www.crisisgroup.org/africa/central-africa/democratic-republic-congo/congos-transition-failing-crisis-kivus>.

97 China Chamber of Commerce of Metals and Chemicals, ‘Guideline for Social Responsibility in Outbound Mining Investments’ (2015) <http://images.mofcom.gov.cn/csr2/201812/20181224151850626.pdf>. The due diligence checks imposed by the legislation require companies to conduct risk assessments and confirm that their sources are not implicated in armed conflict. The regulations are however totally voluntary and there is little evidence that they are being complied with at present; see H Vella, ‘Addressing Conflict Minerals – China Publishes ‘‘Groundbreaking’’ Guidelines’ (Mining Technology/Mining News and Views Updated Daily, 13 November 2014) <https://www.mining-technology.com/features/featureaddressing-conflict-minerals-china-publishes-groundbreaking-guidelines-4439995/>.

98 On 15 November 2017 the US House of Representatives Financial Services Committee approved a bill that if adopted would result in the repeal of Section 1502 of the Dodd-Frank Act; see Deloitte, ‘Perspectives on New EU Conflict Minerals Regulation’ (Taxathandcom, 23 January 2018) <https://www.taxathand.com/article/9047/European-Union/2018/Perspectives-on-new-EU-Conflict-Minerals-Regulation>. The Canadian legislation, which was intended to achieve the same objectives, failed to garner parliamentary approval and was voted down in the Canadian Parliament; see House of Commons of Canada, Bill C-486, Conflict Minerals Act an act respecting corporate practices relating to the extraction, processing, purchase, trade and use of conflict minerals from the Great Lakes Region of Africa (1st Session, 41st Parliament, 2013).

99 UNSC Res 1952 (n 7).

100 OECD Due Diligence Guidance (n 8).

101 For instance, arts 21 and 22 of the Treaty of Lisbon required the EU to implement its common commercial policy while fully respecting the promotion of the rule of law, respect for human dignity, the preservation of peace, prevention of conflicts and the strengthening of international security.

102 EU Conflict Minerals Regulation (n 72) art 2(f) defines conflict-affected or high-risk areas as ‘areas in a state of armed conflict or fragile post-conflict areas as well as witnessing weak or non-existent governance and security such as failed States and widespread and systematic violations of international law, including human rights abuses’.

103 It is proposed that the European Commission will prepare an indicative list of conflict-affected areas to be updated regularly, a strategy that will help reduce inconsistency in application but not eliminate it all together.

104 EU Conflict Minerals Regulation (n 72) art 2(f).

105 OECD, ‘OECD Due Diligence Guidance for Responsible Business Conduct’ (2018) <https://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance-for-Responsible-Business-Conduct.pdf>.

106 European Commission, Directorate-General for Trade, Report on the Public Consultation on ‘A Possible EU Initiative on Responsible Sourcing of Minerals Originating from Conflict-Affected and High-Risk Areas’ (July 2013).

107 See JA McNeish, ‘Resource Extraction and Conflict in Latin America’ (2018) 93 Colombia Internacional <https://revistas.uniandes.edu.co/doi/full/10.7440/colombiaint93.2018.01>.

108 Cuvelier et al. (n 13) 9; Nathan (n 84).

109 MP Dizolele, ‘Dodd-Frank 1502 and the Congo Crisis’ (CSIS, 22 August 2017) <https://www.csis.org/analysis/dodd-frank-1502-and-congo-crisis>.

110 National Association of Manufacturers v Securities and Exchange Commission (n 85).

111 ibid 15–24.

112 National Association of Manufacturers v Securities and Exchange Commission (n 85).

113 The Unintended Consequences of Dodd-Frank's Conflict Minerals Provision: Hearing Before the Subcommittee on Monetary Policy and Trade of the Committee on Financial Services U.S. House of Representatives, 113th Congress, 1st Session (21 May 2013, Statement of Rep. Campbell); S Raghavan, ‘How a Well-Intentioned US Law Left Congolese Miners Jobless’ (Washington Post, 30 November 2014) <https://www.washingtonpost.com>; Wolfe (n 75); Cuvelier et al. (n 13).

114 See UNGA Res 1803 (XVII) (n 85), the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and well-being of the people of the state concerned; Schrijver, N, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997)CrossRefGoogle Scholar.

115 BBC (n 94).

116 UNSC, ‘Report of the Panel of Experts’ (n 62).

117 See P Schütte, G Franken and P Mwambarangwe, ‘Certification and Due Diligence in Mineral Supply Chains – Benefit or Burden?’ (2015) Federal Institute for Geosciences and Natural Resources (BGR) <https://www.bgr.bund.de/EN/Themen/Min_rohstoffe/Downloads/Vortrag_certification_2015_en.pdf?__blob=publicationFile&v=3>.

118 Ayogu and Lewis (n 73).

119 Baaz, ME and Verweijen, J, ‘The Volatility of a Half-Cooked Bouillabaisse: Rebel–Military Integration and the Conflict Dynamics in Eastern Congo’ (2013) 112 African Affairs 563CrossRefGoogle Scholar.

120 World Bank, ‘Democratic Republic of Congo: Growth with Governance in the Mining Sector’ (2008) Report No 43402-ZR.

121 Stearns, J, Verweijen, J and Baaz, ME, ‘The National Army and Armed Groups in Eastern Congo: Untangling the Gordian Knot of Insecurity’ (Rift Valley Institute 2013)Google Scholar.

122 Human Rights Watch, ‘Democratic Republic of Congo: Ending Impunity for Sexual Violence’ (Human Rights Watch, 10 June 2014) <https://www.hrw.org/news/2014/06/10/democratic-republic-congo-ending-impunity-sexual-violence>; Human Rights Watch, Soldiers Who Rape, Commanders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo (Human Rights Watch 2009).

123 S Raghavan, ‘Obama's Conflict Minerals Law Has Destroyed Everything, Say Congo Miners’ (The Guardian, 2 December 2014) <https://www.theguardian.com/world/2014/dec/02/conflict-minerals-law-congo-poverty>.

124 Globalwitness.org, ‘The Hill Belongs to Them: the need for international action on Congo's conflict minerals trade’ (Global Witness, 14 December 2010) <https://www.globalwitness.org/en/archive/hill-belongs-them-need-international-action-congos-conflict-minerals-trade/>.