This article was posted in RPAN
The current situation in the Congo is one of hope. With the first democratic elections in over forty years, people smell change in the air. The question still remains though: how to address justice for crimes of the past? The vast, mostly illegal, exploitation of natural resources, including coltan, tin ore, gold, diamonds and copper and cobalt, among others, during the years of the war funded both various militia and rebel groups and various governments’ troops . There existed corruption, extensive damage to the environment and human rights violations.
However, what are the existing possibilities for addressing past wrongs and finding justice for foreign actors in the conflict in the Congo, who are based in Europe? In 1999 the European Parliament adopted a resolution on EU Standards for European Enterprises Operating in Developing Countries , in which it asked the European Commission and the European Council to establish legally binding standards with extra-territorial effect, for European transnational corporations in order to ensure that they comply with international law as well as the OECD Guidelines and the ILO Declaration . These standards refer to those developed by other existing international bodies such as the World Bank, the United Nations Conference on Trade and Development, the Universal Declaration of Human Rights, Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, the Elimination of all Forms of Discrimination Against Women, the 1994 draft UN Declaration on the Rights of Indigenous Peoples, and the UN Declaration on the Elimination of All Forms of Racial Discrimination.
The Parliament has also proposed in their resolution in response to the Commission’s communication on conflict prevention that “the harmful influence which certain private and public undertakings have in unstable regions should be acknowledged by creating a legally binding framework with sanctions for companies which contribute to conflicts in unstable regions”. They have also emphasized the importance in engaging corporate social responsibility “in order to arrive at a concept of binding and accountable rules for EU companies trading and producing in third countries in accordance with human rights and ILO standards”, in their report on trade and poverty.
Until now, the European Commission has taken no action. There are voluntary guidelines, but, crucially, no legally binding framework.
If we look at the response to the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo reports over the years, we can easily be disappointed. Set up as a reporting body, the Panel of Experts had no follow-up powers themselves. The OECD was handed the task for implementation on the recommendations of the Panel but at best had the quasi-jurisdictional National Contact Points (NCPs) to refer to.
OECD guidelines for Multinational Enterprises
According to one leading Professor on international law, human rights, and multinationals, the NCPs “view their role as one of mediation, of encouraging good practice, of observing the confidentiality of commercial information so as not to endanger co-operation with companies”, whereas “others, especially NGOs, have called for them to develop their role more as arbitrators and not mediators”. The main challenges faced by the NCPs, not only for cases referred from the Congo investigation, but in general, include:
- Access: firstly, the NCPs are located in the industrialized capitals of OECD countries and secondly, many have restricted access for NGOs
- Success rate: Processes get stuck for years within the NCPs, with no evidence of progress.
- Roadblocks: in the United States there exists reluctance towards a liberal reading and application of the guidelines, especially of the most recent OECD interpretation of the guidelines’ applicability in conflict zones. With regards to the Congo, there has been a softened reading of the guidelines in which an additional requirement of an “investment nexus” has hindered their applicability.
Strengthening Legal Frameworks and Developing Legal Tools
Some NGOs believe that working to influence on the OECD guidelines and the functioning of the NCPs is a diversion from true accountability, which can only come from developing legal tools. Yet, according to the European Commission’s directorate general Enterprise, corporate social responsibility is “a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis”. This definition emphasizes CSR as a voluntary concept. Seeing that the European Commission has until now, taken no action on these issues, what are the possibilities for developing legal tools and strengthening existing frameworks?
One major challenge is that no single country wants to act alone on these issues, as they would be putting their own companies at a severe competitive disadvantage. An uncompromising stance would simply drive companies to relocate to within a more tolerant jurisdiction, which means that a solution can only be found at a European level through a unified approach to extraterritorial legislation for human rights abuse and financial crimes. There does exist an upcoming framework decision to harmonise legislation on extraterritorial crimes across the EU which would help the twenty-five member states to implement such legislation, and which would affect all companies having assets within the EU in the same way whether or not they are incorporated here.
While building a network for peace advocacy on the problem of natural resource exploitation within the Congo, we are aware that the question of what can be done from a European perspective can be seen through at least three lenses:
- The possibility of improving the working of non-jurisdictional bodies such as the National Contact Points of the OECD
- The existing legal possibilities for crimes committed in the Congo during and after the war in relation to the exploitation of natural resources
- And the development of stronger legal tools in the future for extraterritorial legislation
Each issue is equally important, and advocacy is required in order to improve each in order to continue the search for justice and to allow preventative measures to exist for future cases both within and outside of the Congo.