Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last?
| Published date | 01 March 2014 |
| Author | Olga Martin-Ortega |
| DOI | 10.1177/016934411403200104 |
| Date | 01 March 2014 |
| Subject Matter | Part A: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 31/4, 44–74, 2013.
44 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
HUMAN RIGHTS DUE DILIGENCE FOR
CORPORATIONS: FROM VOLUNTARY
STANDARDS TO HARD LAW AT LAST?
O M-O*
Abstract
Multinational corporations may play a signi cant role in contemporary con icts both
di r ec t ly o r i n d ir e ct l y b y c on t r ib u ti n g t o th e nancing of activities of warring ar med groups.
e international attention to this proble m has recently been integrated into the e orts to
develop the regulatory framework cove ring activities and working methods of corporate
actors that impact negatively on human rights. is article analyses the initiatives to
develop standards to regulate corporate behaviour a ecting human rights in con ict
zones. In particular, it studies the initiatives taken to prevent corporate involvement
in the con ict in the Democratic Republic of the Congo through the exploitation and
trade of so-called ‘con ict minerals’. Its main focus is the developing standard of human
rights due diligence for corporations, and how international and State practice may
be contributing to its transformation from a voluntary standard to measure corporate
compliance with social expect ations into a potential normative standard.
Keywords: Business and human rights; con ict minerals; Dodd-Frank Act; due
diligence; OECD; Ruggie ; the Democratic Republic of the Congo
1. INTRODUCTION
Natural resources have historically played, and continue to play, a signi cant role in
fuelling and/or perpetuating armed con icts and situations of mass abuse of human
rights.1 In fact, the abundance of natural resources has been described as a ‘resource
* Dr. Olga Martin- Ortega is Reader in Public International Law at t he University of Greenwich
(o.mart in- orte ga@ gre. ac. uk). e author would like to acknowledge the helpful comments and
contributions from St ephen J. Turner and Kr istopher Kerstetter during t he writing of this ar ticle.
She would also li ke to express her gratitude to the anonymous rev iewers for their insig htful
comments. Al l websites were last visited on 2 8July 2013.
1 See, generally, Paul Collier and Anke Hoe er, ‘On Economic Causes of Civi l War’ (1998) 50 Oxford
Economic Papers 563–573; Mats R Berdan and David M Malone (eds), Greed and Grievance ,
Human Right s Due Diligence for Corpor ations
Netherlands Qu arterly of Human Ri ghts, Vol. 32/1 (2014) 45
curse’.2 In recent years, attention has focused on the speci c role of business, part icularly
multinational corporat ions, in this dynamic and how they may direct ly, through their
activities a nd working methods, or indirect ly, through their commercial relations wit h
others, contribute to con ict by faci litating the nancing of war ring armed groups.3 e
international attention to this problem has recently been integrated into the e orts to
develop the regulatory f ramework covering activ ities and working method s of corporate
actors that impact negatively on human rights.4 is article provides an analysis of the
initiatives to develop stand ards to measure corporate behaviour a ecting human rights
in con ict zones and, in particular, in the Democratic Republic of the Congo (DRC)
through the exploitation and trade of so-called ‘con ic t minerals’. ese are minerals
for which extraction and trade is directly linked to the nancing of armed con icts
and human rights abuses. Unlike in the case of other con ict resources, there seems
to be more momentum and willingness of the international community to address
these negative dynam ics. To a certain ex tent, con ict minera ls are providing the fertile
ground to develop international stand ards that may become hard law in the future.
is article explores what the regulation of con ict minerals c an teach us about the
potential normative development for business and human rig hts. Corporations do not
currently have direct lega l obligations in internationa l law. However, through the e orts
to regulate corporate contribution to armed con icts and huma n rights violat ions, States
are developing practices that demand due diligence from corporations. is article
focuses on this standard of corporate human rights due diligence. Due diligence has
traditionally be en used in the eld of corporate governance a s a standard to determine
corporate risk and in international human rights law as a standard to measure State
compliance with internat ional human rights obligations when addressing t he conduct
of non-State actors. As a standard to measure corporate behaviour, due diligence has
evolved from an instr ument to safeguard corporate interests, to a voluntar y standard
to measure corporate compliance w ith social expectat ions to respect the human rights
of those a ected by corporate act ivity. As a standard to measure State complia nce with
human rights obligations, due d iligence has widened to include prevention, protection
and redress against harmful corporate activity. is article studies the development
Economic Agenda s in Civil War (Lynne Rienner Publ ishers 2000); Karen Ba llentine and Jake
Sherman, e Pol itical Economy of Armed Con ict: Beyond Greed an d Grievance (Lynne Rienner
Publishers 2003). For a study on t he roles that di erent natu ral resources can play in c on ict see,
Michael Ross´s chapter in the same volume: ‘Oil, Drugs and Dia monds: e Va rying Roles of
Natural Res ources in Civil Wars’ 47–70.
2 e term was used for t he rst time by Richard Auty in Su staining Development in Mineral
Economics: e Resource Curse esis (Routledge 1993). See, Gilles Carbonnier, ‘Extractive
industries i n fragile state s and the role of market incent ives and regulation’ (2010) 5 e Economics
of Peace and Secu rity Journal 30 –31.
3 Olga Martin-Ortega, ‘Business under Fire: Transnationa l Corporations and Human Rights in
Con ict Zones’ in Noëlle Quenivet and Shilan Shah-Davis (eds), International Law and Armed
Con icts. Chall enges in the XX st Century (TCM A sser 2010) 189–207; Olga Martin- Ortega, ‘Busi ness
and Human Rig hts in Con ict’ (2008) 22 Ethic s and International A airs 273–283.
4 is article u ses alternatively th e terms business, compa ny, corporation and corporate ac tor.
To continue reading
Request your trial