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  1. Conflict Minerals or Conflict Policies?
  2. Conflict Minerals | Digi International
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To achieve this goal, it regulates the use of conflict minerals. Congress decided to employ securities laws to address the current situation in this region due to the many atrocities committed there.

EITI was initiated by governments, civil society organizations, investors, companies, and international organizations. It requires companies in the extractive industry, for instance mining, to publish what they pay to countries and governments to disclose what they receive for granting extraction right to companies. It aims to reduce poverty through transparency and accountability, while companies are able to clearly show their contribution to a — often developing — country's economy. While both these initiatives became well known on the international level, Congress argued in that a mandatory disclosure regime, complimenting already-existing voluntary initiatives, was required to reach major international improvements in payment transparency.

This was mostly due to the fact that, in the opinion of Congress, there were not sufficient participants involved with EITI in particular. A number of countries and companies have joined [EITI], an excellent initiative that has made tremendous strides in changing the cultural secrecy that surrounds extractive industries. But too many countries and too many companies remain outside this voluntary system. S May 17, Sen. However, lack of support led to the creation of the Congo Conflict Minerals Act, which was introduced in April In fact, the SEC, the most powerful regulatory body in the US corporate context, has been given enforcement powers by Congress.

By obliging companies to publish the report on their website, the SEC aims to provide investors and other members of the public to access the information the report contains as well. If conflict minerals originated outside this territory or if they came from recycled or scrap sources, no conflict minerals report is necessary. The conflict minerals report must adhere to a number of criteria. Second, the products that are not DRC conflict free must be described. Third, the facilities that processed the conflict minerals are to be defined.

Sixth, the report must include a description of the due diligence used in making the issuer's determination. This was also referenced by Van der Heijden , p. The mine or location of the conflict minerals must be indicated with the greatest possible specificity. It only requires companies within the scope of this provision to submit a conflict minerals report. As can be recalled, the main purpose of Section is to ameliorate the conflict in the DRC through increased transparency and accountability. Consumer behaviour studies confirm this causal relationship.

Namely, the publication of an open-access report implicating a company of using conflict diamonds in their production line will most probably lead consumers to disfavour that company resulting in falling revenue.

Therefore, companies will turn to other mineral providers to regain the favour of consumers. As a result, warlords in the eastern DRC will be unable to finance their rebellion with conflict minerals. Theoretically, this rationale makes sense. However, it remains unproven whether it functions as such in practice. A negative externality of this development is the decrease of income of miners in the DRC and its neighbouring countries.

These miners, apart from being a participant in a supply chain that finances civil wars, are often victims of the situation themselves. Without the meagre income they make by mining these conflict minerals, it is likely that their situation will worsen. It is reported that the compliance costs for companies cannot be quantified 70 x United States Court of Appeals for the District of Columbia Circuit , pp. Section of the Dodd-Frank Act might also lead to indirect costs for companies within its scope.

The fact that companies are required to publish the content of their conflict minerals report online could lead to inaccurate or misleading statements, which could then result in lawsuits. Litigation costs could therefore be an indirect result of Section In a case before the Washington, DC Court of Appeals, numerous complaints and suggestions of industry commentators were put forward.

Conflict Minerals or Conflict Policies?

Without such an exemption, they argued, companies could be barred from bidding on projects and could be forced to discontinue current projects. Both the SEC and the Court, however, refused to grant exemptions under these circumstances as, first, no domestic laws prohibiting disclosure are known; second, host countries could be asked for permission and, third, host countries might be discouraged from passing such laws due to international developments favouring transparency.

Furthermore, such exemptions would undermine the goal of Section Industrial commentators also suggested submission of the conflict minerals report on a confidential basis. Again, both the Court and the SEC agreed that this would not be possible as it would undermine the goals of Section While not necessarily a direct consequence or externality of Section , some regard the adoption of this provision foreign policy in the shape of corporate legislation. S July 15, Sen.

Following this line of reasoning, one could conclude that the Dodd-Frank Act was intended as a foreign policy tool as well. Legislative developments in the United States, the establishment of different due diligence measures by international organizations, and steps taken by the ICGLR increased pressure on companies to take regulatory steps to meet the desired conflict-free trade in minerals coming from Central Africa. An example of industry-driven initiatives can be found in the Tin Supply Chain Initiative. The ITRI recognized the international need for improving due diligence on the supply of minerals.

Global Witness In the NGO's view, companies could give a false impression that they had fulfilled their obligations, which would in turn relinquish them from their obligations under the ITRI's initiative. Therefore, the system has to be implemented at a reasonable and pragmatic level while ensuring, at the same time, that the objectives are substantially met.

The CFS Assessment Program carries out i business process review, which entails that a processor evaluates the policies of a company including its codes of conduct relating to conflict minerals, and ii material analysis review, which consists of an evaluation of the origin of a mineral and its possible recyclability.

Meanwhile, similar private due diligence initiatives in the gold industry have been taken in the DRC, Uganda, and recently in the United Arab Emirates.

Conflict Minerals | Digi International

These formalities may have to do with output, process or the actors involved. At the same time, escaping these same formalities is also what is said to make IN-LAW more desirable and effective. As a result, some problems cannot be solved through public law and, therefore, informal law became inevitable. Furthermore, it can also be used as a strategy to invite private actors in the process of thinking about solutions as it brings stakeholders together in this process of establishing private rules. This law-making process takes place in an informal sphere, without the presence of a monitory body.

Against this background, different questions arise on the way this process is guided. Furthermore, how private actors can be held accountable for their conduct is also a question unsolved. Curtin and Senden provide some possibilities to deal with the problem of lack on accountability and how to deal with legitimacy.

See, furthermore, Vytopil , pp. Vytopil pays attention to the legal meaning of CSR via applying the codes of conduct. This is especially relevant in politically unstable areas where the authorities are prone to fraud and where corruption is prevalent. According to the corruption perceptions index of Transparency International, the DRC falls within the top fifteen most corrupt countries in the world. Apart from the difficulties caused by the armed conflict in the extraction areas, the reliability of the certificates issued by local authorities may be questionable.

Therefore, the question may arise whether self-regulation does not suffice in promoting transparency, which is of importance to marginalize the trade with warlords. Such companies seem to present an ethical stance to the public while reserving the right to set the limits of their own responsibility in the event that human rights abuses or other crimes do take place.

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Thus there is no guarantee that soft-law approaches will develop into anything harder and more effective. This problem will grow as extractive companies from China, India, Russia and other countries play an increasing role in resource extraction, because companies from these countries have typically not been exposed to the kind of pressure from activist shareholders, non-governmental organisations and class-action plaintiffs that have made Western-based multinationals more sensitive to their reputations on human rights than they used to be.

They also want to be associated with the noble principles of transparency and CSR but will not be seen implementing them in their activities. As such, companies benefit by being associated with CSR and transparency principles, without actually putting them into practice. It becomes a public relations gimmick that serves no good to the public. This is because the companies are not held accountable by any one including their shareholders for not doing what they preach. There is no law mandating them to do so.

Instead, the Congolese government should push companies further with a view to cutting out armed groups and military units from their supply chain once and for all. In the previous sections, it was discussed which approaches towards conflict minerals from the DRC have been taken at different levels of governance: on the one hand, public initiatives on the international and the national level, and, on the other, private initiatives.

Each level of governance has their own advantages and disadvantages in terms of desirability and effectiveness. This section discusses which approach the EU, as one of the main importers of raw minerals from that area, should take. Both the EU and the African Union have indicated their wish to cooperate on issues relating to raw materials, such as the improvement of transparency of contracts of mining companies. The European contribution to the fight against conflict minerals became more concrete after the appearance of the OECD Guidance and the legislative discussion in the United States.

The Commission intends to explore with the extractive, recycling and user industries the potential for targeted actions, notably with regard to recycling. It is also ready to examine with Member States and industry, the added value and feasibility of a possible stockpiling programme of raw materials. Such rules are of importance to support the desired transparency in mineral trade from conflict-ridden areas. However, no initiatives have been taken to promote transparency in supply chains yet.

Thus, the question remains which approach the EU should take. In paragraph B, the general approach of the EU towards corporate regulation is discussed. It is submitted that the EU should take a functional approach in that respect. Information thus has emerged as a commodity in its own right and a key governing technology in this sector Power While these contexts rely on different types of research—quantitative in the GAO reports, qualitative in the regional assessments—both are sites where sexual violence in relation to conflict-mining is defined, and defined quite narrowly.

Second, these sites are also contexts where the parameters of knowledge about sexual violence are set, prioritizing some epistemic values over others. In both examples, the substantial challenges in gathering reliable sexual violence data in the challenging contexts of ASM in central Africa are sidelined. In the above discussion, I explored how concerns about sexual violence in central Africa became woven into two, leading initiatives—the U. These two initiatives, I explained, rely on the production of information, including on sexual violence, as a basis for regulation.

In this section, I now examine how sexual violence is defined and mobilized as a knowledge category in these initiatives. Section of the Wall Street Reform Act, though primarily focused on corporate reporting, requires different agencies within the U. The annual reports by GAO generated a baseline from which the impacts of section are assessed.


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Presumably, if rates of sexual violence in the region go down, section is seen as successful, and if the rates go up or are unchanged, the conclusion is the opposite. The GAO annual reports set out information studies and reports on sexual violence in eastern DRC and neighboring countries, providing only minimal analyses of the data, beyond observations about rates of violence going up or down.

For both, the GAO established narrow parameters. Violence against women does not include sexual violence against adult males or boys and would include other types of nonsexual violence against women. The ease with which a legislative mandate is arbitrarily changed to focus on a narrower range of violence is surprising and suggests, again, the strong affective pull that sexual violence, particularly in relation to DRC and central Africa, has on Western imaginaries Autesserre ; Baaz and Stern ; Mertens Given the pervasive forms of SGBV that characterize ASM areas in eastern DRC discussed above, the limited focus on sexual violence understood as akin to rape and sexual slavery is additionally problematic.

While sexual violence may indeed be a subset of gender-based violence, parsing them into separate categories makes it more difficult to identify patterns and types of conflict violence that have a sexualized component. Finally, the GAO report discusses the kinds of data that can be used to assess rates of sexual violence, discounting types of research seen as unsuitable.

The limitations of surveys are also noted and over time the list of limitations grows: under-coverage, insecurity, underreporting, cost US GAO , 40 but surveys are still preferred as the gold standard see e. US GAO , The information included in these sections focus mostly on rape cases. The limitations of using population surveys as a source for determining rates of sexual violence for women and men in ASM sites in eastern DRC were outlined above.

A further striking feature about the GAO reports is the repeated assertions that random sampling and generalizability are the markers of credible research on sexual violence. There is no suggestion that gendered contexts that shape forms of sexual violence and the possibilities of reporting that violence Davies and True are relevant considerations. The twelve-country International Conference on the Great Lakes Region, for example, has included the Guidance as its standard, 11 while the Guidance is also used to audit mining areas under various supply chain certification schemes.

The use of the Guidance for data gathering is still emerging and an analysis of the sexual violence standard in these data would be premature at this stage. Instead, I briefly outline two very different studies using qualitative research methodologies, and illustrating potentially different approaches to conducting research on sexual violence in relation to conflict and artisanal mining. These two examples, while preliminary, illustrate the kinds of methodological decisions and limits that emerge as data on sexual violence as a risk of conflict mining is gathered.

In a feasibility study was conducted of tin mining in Maniema Province, eastern DRC to determine if a certification scheme could be introduced into the area. The resulting report, completed by the consulting firm Channel Research, was based on interviews and focus groups in Maniema over a ten-day period, June In its summary table of recommended mitigation steps for the risks identified, there are no recommendations to address sexual violence. While giving more attention to SGBV, and the gendered division of labor in mining areas, it is not clear the researchers received much training in how to study SGBV.

The report notes in a footnote, for example, that data on pregnancy were made possible because there were three women on the research team who provided gender sensitization de Brier and Merket , Hence, in both these examples—the GAO reports under section ; the supply chain feasibility studies—the complexities of sexualized forms of violence in ASM, together with the considerable challenges of gathering research on conflict, mining and sexual violence are minimized.

Crucially, the GAO definitions of sexual violence and credible data are characterized not as the choices they are, but as epistemological truths. The two feasibility studies, one in Maniema on tin mining, the other in Mambasa on gold mining sites, are quite different in research approaches. The research design gives little consideration to the particular challenges facing data collection in mining areas in DRC.

The IPIS Mambasa study, meanwhile, is much more reflective on methodological requirements for researching armed conflict in the ASM sector including with the participation of local communities, but still gives insufficient consideration to the methodological challenges in gathering SGBV data. The two contexts, while distinct, demonstrate the dynamic interplay between defining sexual violence and setting the parameters for gathering research and data on sexual violence. The relationship between sexual violence, conflict, and mineral extraction, while asserted as a fact, is far from clear.

As this category has taken shape, the foundational assumption of a causal relationship between mining, armed conflict, and sexual violence is no longer visible as an assumption. Instead, a knowledge-gathering apparatus is established by which sexual violence data are assumed to indicate the existence of conflict mining violence, papering over the uncertainties about the relationship between sexual violence, armed conflict, and mining. More troubling, the need for more nuanced research and analysis of both sexual violence and the conditions of conflict linked to mineral extraction is also occluded from some contexts though not all, as the IPIS Mambasa study discussed above suggests.

These micro contexts, I argue here, need to be seen in terms of the social orders that are constituted in and through the categories of violence, the forms of subjectivity, and the knowledge formats Poovey that are authorized. A second argument I pursue is the importance of the representational contexts in which research on conflict sexual violence and SGBV relating to mining is carried out.

The analysis in this paper underlines the work of scholars such as Escobar , Mertens , and others, demonstrating that both research and the policy and technical sites in which research is used, are themselves constituted by the gendered, sexed, raced hierarchies in which actors in the global North design and implement interventions in the global South. I have suggested that the coding of DRC in terms of exceptional violence enacts a cognitive scaffold on which knowledge about DRC is constituted, shaping what we think we know, and what we presume needs to be known.

Her current research explores gender and the global governance of artisanal and small-scale mining. Oxford University Press is a department of the University of Oxford.

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In addition to conflict minerals management, LGE has established responsible mineral sourcing practices for cobalt in response to reports of child labor and other social issues. The RMI provides its members with the most up to date information on conflict-free smelters and refiners, tools for conducting due diligence, and offers a forum for exchanging best practices to address conflict-mineral, as well as broader responsible mineral sourcing issues. The RMI also operates the Responsible Minerals Assurance Process RMAP , a program that uses third party independent auditors to validate that participating smelters and refiners have adequate policies and due diligence processes in place to trace the origin of the minerals that they process and assess whether they were obtained from conflict free sources.

This program enables downstream companies, like LG Electronics, to more confidently source conflict free minerals and promote cross industry efforts to drive a conflict free global supply chain in the DRC and adjoining countries. In addition to programs that focus on conflict affected regions, LGE is also engaged with initiatives to better understand emerging challenges in responsible minerals sourcing — such as cobalt, tin and mica — and the ways that the industry can have a positive impact on more sustainable forms of mining to respect human rights and mitigate environmental impacts.