Developing mining industry is a sovereign right

Nearly a week ago, I got into a conversation incidentally with someone who was apparently well versed in the mining industry. She acknowledged it as a thriving industry, albeit some twists and turns. Our conversation was principally centered on the US Dodd-Frank Act Section 1502, a legislation signed by former US President Obama way back in July 2010, which requires companies to report to the US Securities Exchange Commission to disclose if any of the minerals used in their products have been sourced from the DR Congo or any of the adjoining countries, and to describe how they verified this. In this context, adjoining countries are: Angola, Burundi, Central Africa Republic, Republic of Congo, Rwanda, Tanzania, Uganda and Zambia.

Nearly a week ago, I got into a conversation incidentally with someone who was apparently well versed in the mining industry. She acknowledged it as a thriving industry, albeit some twists and turns. Our conversation was principally centered on the US Dodd-Frank Act Section 1502, a legislation signed by former US President Obama way back in July 2010, which requires companies to report to the US Securities Exchange Commission to disclose if any of the minerals used in their products have been sourced from the DR Congo or any of the adjoining countries, and to describe how they verified this. In this context, adjoining countries are: Angola, Burundi, Central Africa Republic, Republic of Congo, Rwanda, Tanzania, Uganda and Zambia.

The main reason for adoption of the said Act is to address a concern by the US Congress “that the exploitation and trade of conflict minerals originating in the Democratic Republic of the Congo and adjoining countries is helping to finance conflict characterised by extreme levels of violence in the eastern DR Congo, particularly sexual-and gender-based violence, and contributing to an emergency humanitarian situation therein”.

 

As is famously known, the DR Congo has large natural resources, including reserves of cassiterite (tin), columbite-tantalite (aka coltan – source of tantalum), wolframite (tungsten) and gold. For many years, armed groups have fought to control mines within the DR Congo and its adjoining countries; those armed groups have been cited for committing human rights violations and labour and environmental abuses. Therefore, tin, tantalum, tungsten and gold were named “conflict minerals”. The goal is to cut direct and indirect funding of armed groups engaged in conflict and human rights abuses in the DR Congo.

 

More specifically, the Dodd-Frank Act requires conducting a “reasonable country of origin inquiry” to determine whether or not there is reason to believe that conflict minerals from the DR Congo or an adjoining country are present in a company’s product.

 

My concern isn’t about imposing such restrictions on conflict minerals from the DR Congo but sweeping restrictions to all bordering countries. It is indeed a sweeping generalisation, which doesn’t reflect sovereign rights. It is, however, reasonable to oblige companies dealing in mineral business to fulfill the due diligence requirements, as set out at national and international levels.

But this must be limited to the companies operating in the DR Congo but should in no way affect neighboring countries. Rwanda, like other adjoining countries, has adequate policy, regulatory and institutional frameworks that do not create a fertile ground for abuses related to possible human rights and environment.

Interestingly, for example, Ministerial Regulations No. 001/minifom/2011 dated on 10 March 2011 prohibits importation of fraudulent minerals in the country. Specifically, Article 3 of this Regulation forbids to import minerals into Rwanda without proper documents indicating their origin and the weight at origin, given by the right authorities.

These minerals have to be with required trade documents, and to be certified and tagged by competent authorities. In fact, existing institutional framework ensure effective implementation and enforcement of mining regulatory and policy frameworks. Mining industry is one of the key priority areas for investment that contributes significantly to economic growth of Rwanda.

Furthermore, under Principle 21 of the United Nations Conference on the Human Environment, popularly known as ‘the Stockholm Declaration of 1972’ as well as Principle 2 of the United Nations Conference on Environment and Development, also known as “Rio Declaration of 1992” have a common principle that says States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Clearly, it asserts a State’s right to exploit its own natural resources (including minerals) in accordance with its environmental impact assessment standards and in a manner that doesn’t have deleterious neighborhood effects.

Realistically, in as much as due diligence requirement is concerned, it should apply to the DR Congo companies or those ones that directly or indirectly deal with mining companies in the DR Congo. But this can’t be a sweeping requirement to all mining companies in adjoining countries. It is a fallacy to say adjoining countries are fomenting the crisis in order to import minerals from the DR Congo.

The existential challenge can, alternatively, be addressed by the United Nations Organisation Stabilisation Mission in the DR Congo (MONUSCO) whose mandate, among others, is to neutralise any subversive activities against civilians, including sexual and gender-based violence and violence against children. Ever since the UN Peacekeeping mission was established in 1999 up to now fragile peace prevails. And it is the biggest Peacekeeping mission in the world though recently reduced from 19,815 to 16,215 troops.

At any rate, Dodd-Frank Act is inconsistent with Human Rights and unilateral coercive measures. They strongly oppose any extraterritorial nature of those measures which, in addition, threaten the sovereignty of States and, as a result, call upon all UN Member States neither to recognise these measures nor to apply them.

The writer is an international expert.

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