A Glass Half Full: Critical Assessment of EU Regulation 2017/821 on Conflict Minerals

Abstract

EU Regulation 2017/821, bound to enter into force in early 2021, is the most recent legislative initiative aiming to sever the links between minerals trade, conflict dynamics and human rights abuses. The Regulation, which is meant to complement US legislation on conflict minerals, creates requirements for direct importers of 3TG in the EU and preludes to the establishment of a list of responsible EU smelters and refiners. While marking a historic step forward in the global efforts to curb conflict minerals trade, the Regulation presents some critical aspects. These include the exact definition of its geographical scope, its limitation to the 3TG metals and minerals and, most importantly, the exemption from its binding provisions of all downstream companies. While the functioning and effectiveness of the Regulation, as well as its possible unintended social and economic consequences on producing countries, will become clearer after its entry into force, this article provides an interim assessment of its strengths and weaknesses. The article starts by putting the Regulation in the context of global efforts to curb trade in conflict minerals, and addresses the ongoing debate on the possible adverse economic and social consequences of this type of legislation (Section 2). It then analyses the contents of the Regulation, critically focusing attention, in particular, on its hybrid combination of binding and voluntary measures, and on its scope of application (Section 3). In Section 4, an interim appraisal of the Regulation is carried out by highlighting both its undeniable potential and the shortcomings that might hamper its effectiveness in achieving its stated goals. Finally, Section 5 summarizes the article’s conclusions in the light of the likely adoption by the EU, in the near future, of a cross-sectoral mandatory human rights due diligence instrument.

Indicators of illicit activities in gold supply chains: Insights from Peru and Kenya

“…Gold was one of the first minerals of focus in the creation of the OECD (Organization for Economic Co-operation and Development) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, which seeks to 'help companies respect human rights and avoid contributing to conflict through their mineral sourcing practices' (OECD 2016: 3). Gold is also one of four minerals targeted by section 1502 of the Dodd Frank Act and the European Union's Conflict Minerals Regulation (2010), which put in place a set of requirements for US and European importers of the 3Ts and gold from conflict-affected regions (Macchi 2022). These were some of the first regulations aimed at curtailing the sourcing of gold from the DRC (Dodd Frank) or other countries with armed conflicts or in violation of international law (EU Conflict Mineral Regulation).…”

Bedrijven vangen in een net van regulering

“…En door het bedrijfsleven ontwikkelde due diligence-methoden om risico's binnen de toeleveringsketen te onderkennen, kunnen verplicht worden gesteld om mensenrechtenschendingen in die keten te voorkomen. Recente voorbeelden van zo'n horizontale escalatie zijn de in januari 2021 in werking getreden Europese verordening inzake conflictmineralen (Macchi, 2021) en het eerdergenoemde voorstel voor een Europese Corporate Sustainability Due Diligence-richtlijn (Ter Brake, 2022). Als we binnen de gevallen kijken, zien we echter dat escalatie naar activatie van (supra)statelijke actoren zeer moeizaam is.…”