In July 2020, the Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group) issued its report, Business, human rights and conflict-affected regions: towards heightened action (A/75/212), which purports to clarify “the practical steps and outlines practical measures that States and business enterprises should take to prevent and address business-related human rights abuse in conflict and post-conflict contexts, focusing on heightened human rights due diligence and access to remedy” (p. 2).

In some areas — for example, its clear call for “cross-border investigations and prosecutions of international crimes committed by corporate actors as part of a commitment to access to effective remedy” (para. 104) — the Working Group is notably strong. In others, however, it undermines this agenda by appearing to justify what is in the end reprehensible corporate conduct.

In particular, the Working Group addresses what it labels “captive” businesses (paras. 66-71) — those that it presumes cannot stop operating in a conflict zone, despite being implicated in human rights violations. This discussion is confounding across a variety of dimensions.

First, even with respect to local enterprises, it confuses a business (which either operates or does not) with the people who run it (who may or may not “withdraw” from a place when the company stops operating). It fails to distinguish between issues that implicate the justification defence of necessity (avoidance of a greater harm) with the excuse defence of duress (being forced to take admittedly illegal action). And it fails to recognise that all legal orders limit these defences, generally to the most urgent of circumstances and questions of life and limb.

Most problematically, the Working Group asserts that even a foreign business may be considered captive “because of a resource which cannot be found (or would be difficult to find) elsewhere” (para. 69). It uses coltan mined in the DRC as an example of where this would obtain.

The Working Group thus asserts a category new to international human rights law of “captive” companies. It defines that construct so broadly that it places amongst them enterprises that exploit coltan from the DRC not because of lack of alternative sources of niobium and tantalum in the world,[1] but because of corrupt access to resources, regulatory holes, and the profits that flow from those. It goes out of its way to highlight (and therefore at least tacitly endorse) operations in parts of the DRC where it is likely impossible for any mining company to avoid or mitigate serious human rights abuses including exploitation of children and financing of armed conflict, as well as environmental devastation that includes “catastrophic decline of world’s largest primate”—putting into question whether there are any limitations on its concept of the “defence of necessity” (para. 70) at all.

In doing so, the Working Group appears to be on the road to articulating a commercial necessity exception to international human rights law — a right to coltan, as it were. As problematic as this is on its own, it is furthermore indicative of two troublesome developments in contemporary business and human rights.

The first is a forgetfulness of the mechanisms by which international human rights emerge and are consolidated. The Working Group’s pronouncements join a variety of contemporary policy and soft law assertions which obscure issues and open debates that those concerned with the human rights of the most vulnerable should rather be seeking to close. By putting the Working Group’s imprimatur on spurious claims by opponents of corporate accountability—for example, that a corporation (rather than a person) can somehow be held hostage, or that a defence of necessity ever exists for a profit-seeking corporation—the Working Group exhibits a lack of human rights due diligence in the policy- and law-making process itself.

The second development is corporate capture of business and human rights discourse. Increasingly, the debate is framed from the perspective of the company and not of the affected community—asking whether the actions required of the company not to violate human rights are feasible under some ill-defined and empirically weak concept of companies and markets skewed in favour of corporate incumbents. Nowhere does the Working Group acknowledge the “reasons why a business” (other than perhaps a microenterprise, where the person and the enterprise are one and the same) “might be dependent upon a conflict zone” (para. 67) that are overwhelmingly documented in the literature: excess profits and a business model predicated on the political economy of conflict and thus the violation of human rights.

The Working Group’s discourse thus takes us further and further from what Professor John Ruggie identified as our “fundamental challenge”: “bridging the gaps” with regard to “wrongful acts by companies of all kinds without adequate sanctioning and reparation”. The Working Group fails to take this opportunity to clearly articulate that there is no commercial justification for risking entanglement in human rights abuses—no “defence of necessity”, no construct under which a corporation can be considered “captive” for commercial reasons—and thus to catalyse and to leverage legal, market and other mechanisms to hold companies to account. Rather, the Working Group becomes an apologist for coltan mining in the DRC, and thus increasingly complicit in these legally, morally, and practically problematic trends in business and human rights.  

Professor Brian Ganson heads the Africa Centre for Dispute Settlement at the University of Stellenbosch Business School, a hub for research and reflection at the nexus of the private sector, conflict, and development working with multinational companies, governments, human rights defenders, community advocates, and international actors. Brian.Ganson@USB.ac.za.

[1] The US Geological Survey documents that the niobium and tantalum for which coltan is mined are also found in many geological formations and in notably less conflict-prone places. The Department of Industry, Innovation, and Science, for example, notes that Australia has the world’s largest reserves of  tantalum and also has reserves of niobium “large enough to supply current levels of global demand for up to 70 years”. Furthermore, it is elementary economics that scarcity and associated price pressures drive substitution (e.g., towards recycled rather than mined minerals) and innovation (e.g., towards alternative technologies).

This post is part of the Business and Human Rights Journal (BHRJ) Symposium on Business, Human Rights and Conflict-Affected Areas. For more on this topic from the BHRJ, click here.