import bans on ‘conflict’ minerals and timber: comparing ... · import bans on ‘conflict’...
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ECPR General Conference, Université de Montréal, 26-29 August 2015
DRAFT PAPER (August 6, 2015)
Import Bans on ‘Conflict’ Minerals and Timber: Comparing US and
EU Efforts to Prevent International Trade in Illegally Exploited
Resources
Lena Partzsch ([email protected])
Sina Leipold ([email protected])
Domestic regulations for global supply chains gain prominence in Australia, Canada,
the EU and the US. Governments have turned away from the paradigm of free trade and
have introduced import bans on ‘conflict’ minerals and timber. This norm shift
acknowledges that resource-intense life styles of developed countries may contribute to
resource depletion and, supposedly, violence in other parts of the world. The paper
carves out the emergence and cascade of a new international norm that holds importers
liable for human-rights violations and environmental devastation in countries of origin.
Our focus is on the policy fields of timber (2008 US Legal Timber Protection Act, 2010
EU Timber Regulation, 2012 Australia the Illegal Logging Prohibiton Act) and minerals
(2003 Kimberley Process Certification Scheme, 2010 US Dodd-Frank Act section 1502,
2013 Canadian parliament Conflict Minerals Act proposal, 2014 European Commission
due diligence proposal). By exploring similarities and differences across the two fields
we aim to understand what allows for the emergence and cascade of new norms and
what can be learned from each field regarding the potentials and possible drawbacks of
this particular norm shift to greater foreign accountability.
The paper shows that new efforts to prevent international trade in illegally exploited
resources in both policy fields are characterized by a hybridity between a re-centering of
the state and ongoing trends of outsourcing the proliferation of environmental and
human rights-related norms to private parties. The ‘trick’ is that the new approaches,
while they employ multi-nationals to do sustainability governance, are based on
legality, i.e. enforcing rules of the countries of origin, and therefore they do not disagree
with the rules of the World Trade Organization nor do they violate the sovereignty of
the foreign countries. This ‘legality trick’ allows the new norm to resonate with broader
public understandings of what is considered appropriate behaviour in the international
system.
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1. Introduction
In International Relations (IR), norms define what can be considered appropriate
behavior in the community of states (Finnemore et al., 1998; Risse et al., 1999). The
norm of free trade has been prior-ranking to most states, especially to the EU and the
US, for the last two and a half decades. It has manifested in the foundation of the World
Trade Organization (WTO), in 1993, that enforces unlimited exchange of goods
between countries, without control of human rights and environmental standards
adherence abroad (Esty, 2001). In consequence, multi-national companies often accept
illegal practices without being hold accountable by neither exporting nor importing
countries (Sachs et al., 2007). The case of Shell in Nigeria gained a lot of attention. The
multi-national oil company was not hold liable for human-rights violations and the
devastation of the Ogoni people's lands (Kohl, 2014).
Since the film ‘Blood Diamonds’ in 2006 with Leonardo DiCaprio, the term of ‘blood’
or ‘conflict’ diamonds has become part of everyday speech. The term refers to the social
and ecological costs of diamond mining. Returns from trading gemstones like diamonds
as well as other ‘lootable’ resources often finance armed conflicts and thus are
metaphorically ‘tainted with blood’ (Smillie, 2013; Collier et al., 2009). Well-known
examples are trade in diamonds during the civil wars in Angola (1975-2002) and Sierra
Leone (1991-2002). Timber has most prominently figured in conflicts that have affected
Liberia, the Democratic Republic of the Congo (DR Congo), and Cambodia (Price et
al., 2007). The term of ‘blood consumption’ expresses that not only the purchase of
illegal diamonds, minerals and timber but, more fundamentally, the resource-intense life
styles of developed countries may contribute to resource depletion and, supposedly,
violence in other parts of the world (Swilling et al., 2012; Partzsch, 2015).
IR scholars have criticized respective lacks of accountability for a long time (Grant et
al., 2005; Sachs et al., 2007). Now governance efforts aiming to prevent actors from
selling illegally exploited resources at international markets gain prominence in
Australia, Canada, the EU and the US (Bartley, 2014; Sarfaty, 2015 forthcoming).
Governments introduce domestic (binding) regulations for global supply chains, in
particular, in the areas of timber (2008 US Legal Timber Protection Act, 2010 EU
Timber Regulation, 2012 Australia the Illegal Logging Prohibiton Act) and minerals
(2003 Kimberley Process Certification Scheme, 2010 US Dodd-Frank Act section 1502,
2013 Canadian parliament Conflict Minerals Act proposal, 2014 European Commission
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due diligence proposal). These regulations allow states to transmit environmental and
human rights-related norms to third-party suppliers and their host governments via
multi-national companies. They do not only affect companies; they serve as an
alternative to international law for shaping the behavior of host governments (Sarfaty,
2015 forthcoming). Under pressure from third-party suppliers, developing countries
may pass legislation and strengthen their rule of law in order to prevent global
companies from shifting their supply chains to other countries. However, they may also
weaken their law to make compliance with the legality provision easier for their
companies and, thus, gain international competitiveness (Bartley, 2014). So possible
effects are discussed controversially.
The paper seeks to better understand what the actual shifts are. In a first part, we will
therefore look at one of the most popular IR models of change, the Norm Innovation
Cycle (Finnemore et al., 1998). Against this theoretical background, in a second and
third part, we will compare the two fields of forestry and mining, and explore
similarities and differences between the political developments in countries of ‘conflict’
consumption (Australia, Canada, EU, US). While the new governance approach is
unidirectional, it also affects host countries. Therefore, the fourth part of this paper
looks at implementation processes on the ground in those countries that host multi-
national companies that need to fulfil due diligence requirements, such as DR Congo
(‘host countries’ or ‘countries of origin’). We will demonstrate, in a fifth (discussion)
part that the analyzed efforts to prevent international trade in illegally harvested
resources are characterized by a hybridity: On the one hand, supply chain-regulations
signify a turn away from the paradigm of free trade and the emergence of a new norm.
On the other hand, in particularly when it comes to implementation, these new
regulations resonate with broader public understandings and ongoing trends of
outsourcing the proliferation of environmental and human rights-related norms to
private parties.
There is a significant gap of research on the emergence of this novel governance
approach. While strategic benefits of ‘outsourcing’ regulation and enforcement to
private entities are commonly acknowledged, the governance of global supply chains
has been understudied in existing literature. More literature is available on forestry in
terms of the emergence of the new regulations (e.g. Leipold et al., 2015 forthcoming;
Bartley, 2014) as well as the implementation in countries of origin ( McDermott et al.
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2014, Lesniewska/McDermott 2014, Cashore/Stone 2014). With regards to mining, first
studies discuss the (potential) impact of the US Dodd-Frank Act section 1502 on
business companies and exporting countries (Manhart/Schleicher 2013; Sarfaty 2015).
These studies deal primarily with legal (and economic) consequences for companies. In
addition to those secondary sources, our study is based on 67 expert interviews, approx.
200 policy documents, and participant observation data which were collected between
autumn 2013 and spring 2015.
2. Norm Change in the International System (Theoretical Framework)
Scholars have developed many different models of change (for an overview see Kristof,
2010). A well-known model among international norm scholars is the Norm Life Cycle
(Finnemore et al., 1998). Finnemore et al. (1998) use this circular model to explain the
role norms play in political change, both the ways in which norms, themselves, change
and the ways in which they change other features of the political landscape. They
assume processes of strategic social construction, in which actors strategize rationally to
reconfigure preferences, identities, or social context (Finnemore et al., 1998, p. 288). In
this paper we are mainly interested in how norm change manifests in new regulations
and which actors have established the new norm of greater foreign accountability in the
international system.
The Norm Life Cycle consists of three phases: (1) norm emergence, (2) norm cascade
and (3) norm internalization. In the first phase, norm emergence, agents play a
significant role as they need to convince a critical mass of states. Norm entrepreneurs
call attention to issues or even create issues, in a sense of framing, by using language
that names, interprets and dramatizes: „Norms do not appear out of thin air; they are
actively built by agents having strong notions about appropriate or desirable behavior in
their community” (Finnemore et al., 1998, pp. 896–897).
In the second phase, norm cascade, convinced states need to persuade further states
(Finnemore et al., 1998, p. 900). Empirical studies suggest that one-third of the total
states in the system must accept a norm to ‘tip’ the process. It also matters which states
adopt the norm. Some states are critical to a norm’s adoption; others are less so
(Finnemore et al., 1998, p. 900). With regards to supply chain regulations, countries
with high purchasing power, such as the EU and the US, do certainly matter more.
Finnemore et al., 1998 (p. 901) explain how in the case of land mines, by May 1997 the
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number of states supporting the ban on anti-personnel land mines reached 60, or
approximately one-third of the total states in the system. After that point, a norm
cascade occurred, and 124 states ratified the Ottawa land mine treaty in December 1997.
In our cases of the new norm in forestry and mining, only a limited set of ‘consumer’
countries is actually crucial for the cascade of the norm (while host countries may adopt
similar regulations without having the same purchasing power). The aim in this phase is
however that norms are internalized by all actors and achieve a taken-for-granted
quality that makes conformance possible in the third phase, norm internalization. At
this stage, norms are considered ‘normal’ (in importing and exporting countries). This
does not mean that nobody acts against the norm, for example, landmines are still in
use. But the international community takes actions against norm violations.
We may be able to explain the diffusion of a new norm as a consequence of
international pressure. Finnemore et al. (1998, p. 902) use the term of ‘contagion’ that,
in the second phase, norm cascade, occurs among states. This means that international
or regional demonstration effect may become more important than domestic politics for
effecting norm change. So we can assume that, once a critical state, such as the US,
demonstrates that supply chain regulation is possible, others may follow. Hardly,
however, on the ground-change happens without domestic pressure from groups such as
NGOs, industry groups or bureaucracies, as a norm always needs to compete and stand
up to other norms (Risse et al., 1999).
New norms never enter a normative vacuum but instead emerge in a highly contested
normative space where they must compete with other perceptions what is considered
appropriate behaviour, at the international and the local level (Finnemore et al., 1998;
Zimmermann, 2012). While domestic regulation on global supply chains fits into the
human-rights based system, process-based import restrictions have so far been
considered an illegal trade barrier under the free trade paradigm (Fishman et al., 2014;
Smillie, 2013). The construction of (new) cognitive frames is an essential component of
norm entrepreneurs’ political strategies (Finnemore et al., 1998, pp. 896–897; Elgström,
2000). Only if the new frames resonate with broader public understandings and are
adopted as a new way of talking about and understanding issues, a new norm can be
successful (Finnemore et al., 1998, pp. 896–897).
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3. Import Bans on Illegally Harvested Timber
In the field of forestry, the norm to hold companies in ‘consumer’ countries liable for
social and environmental issues caused by illegal forest operations also in other parts of
the world emerged slowly over the past decades. The first import ban on illegally
harvested timber was adopted by the US in 2008: the US adopted the Legal Timber
Protection Act (LTPA) (amending the US Lacey Act). This initiative was quickly
followed by the European Timber Regulation (EUTR) in 2010 and the Australian Illegal
Logging Prohibition Act (ILPA) in 2012.
First Phase of the Norm Life Cycle (Norm Emergence):
These initiatives evolved from the international attention towards illegal logging since
the late 1990s. Since the 1998 G8 Summit, illegal logging has been high up on the
global forest policy agenda. It has been associated with social conflict, (international)
organized crime and widespread deforestation and in many tropical countries (cf.
CIFOR 2003). This framing led to a first norm change on the international level – from
a focus on private initiatives to promote sustainable forest management (i.e. certification
schemes) towards a focus on (inter)governmental initiatives to promote legal forest
management.
Based on the increasing awareness of forests as a vital part of the Earth’s ecology
spurred by the international environmental movement in the 1970s and 80s, the first
overarching forest certification body was founded in 1993 (mostly through the
engagement of Word Wide Fund for Nature (WWF) and Greenpeace): the Forest
Stewardship Council (FSC) (Bartley 2003). Shortly after, several industry groups also
launched certification programs, most prominently the Sustainable Forestry Initiative
(SFI) and the Programme for the Endorsement of Forest Certification (PEFC). With
this, “[f]orest certification was emerging globally as the most advanced case of non-
state driven private authority” (Cashore et al., 2004). Yet, the uptake of these schemes
remained limited, particularly in the major target countries of the tropics (Pattberg,
2006).
Partly as a result of this limited adoption, the idea to ensure legality gained prominence
in global forest governance (Leipold & Winkel, 2015). Against the background of many
forestry operations not even meeting the basic legal obligations of a country, policy
schemes like the Forest Law Enforcement and Governance (FLEG), initiated by the
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World Bank and the US and the UK governments, and the European Union’s Forest
Law Enforcement, Governance and Trade Initiative (FLEGT) were developed. For a
long time, these intergovernmental public initiatives of importing ‘consumer’ countries
(the EU and the US, in particular) targeted ‘producer’ countries from where most illegal
wood was exported (e.g. Indonesia, Ghana or the African Great Lakes Region). They
aimed to support exporting countries to enforce their own forest laws and thus, advance
their economic development as well as their social and environmental stewardship in the
forest sector.
Yet, these initiatives were soon criticized for being too weak as they promoted
voluntary measures, private governance, and soft law (Humphreys 2006). This spurred
several initiatives by environmental NGOs such as the Environmental Investigation
Agency in the US, Greenpeace and Friends of the Earth in Europe. In parallel, also
industry groups in the US, the EU and Australia became increasingly interested in the
issue as it touched upon questions of competitiveness in global timber markets. This
multi-faceted nature of illegal logging provided a fertile ground for fusing
environmental concerns about deforestation and ‘conflict’ timber with economic
concerns about unfair competition (from imported illegal ‘dumping’ timber) and
reputational damage (through consumer boycotts of tropical timber, in particular) in the
US, the EU, and Australia. In all these (consumer) countries both, environmental and
industry groups, pushed for a new generation of legally-binding policies against illegal
logging on a world wide-scale, resulting in the passage of the US LTPA, the EUTR and
the Australian ILPA (Leipold et al. 2015).
Second Phase of the Norm Life Cycle (Norm Cascade):
All three policies are legally-binding measures that prohibit placing timber harvested in
contravention to the laws of the country of origin on the respective market. To ensure
compliance, each policy requires economic operators to exercise due care (LTPA) or
due diligence (EUTR, ILPA) (Leipold et al., 2015). As such, they reflect an evolution
from voluntary governance schemes focusing on ‘producer’ countries towards legally-
binding policies in ‘consumer’ countries. The first of these policies was the 2008
amendment of the US Lacey Act which was quickly followed by the EU Timber
Regulation 2010 and the Australian Illegal Logging Prohibiton Act 2012. As the policy-
making processes of all three laws ran mostly parallel and there was a close exchange
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among key stakeholders across continents (Leipold et al. 2015), a norm cascade already
occurred during policy making.
Notably, the approaches to ensure compliance differ across the three laws, and this
demonstrates that the new norm has not entered into a vacuum but had to be integrated
in a legal and political culture of the country at stake. The LTPA’s due care
requirement, for instance, means that a company has to undertake the care a reasonably
prudent person would use in similar circumstances. Hence, there is no fixed standard or
checklist of what to do in order to meet the required due care – instead, due care has to
be defined for each prosecution case. In contrast, the EUTR’s and ILPA’s due diligence
requirement prescribes specific steps, companies need to undertake in order to meet the
requirement. These are steps to insure sufficient information, risk assessment and risk
mitigation – in the EU according to a risk-based approach (assessing the risk of
illegality depending on the tree species and/or the country of harvest).
4. Import Bans on ‘Conflict’ Minerals
Import bans on ‘conflict’ minerals were adopted by the US in 2010 and were drafted by
Canada in 2013 and the EU in 2014. The Dodd-Frank Act section 1502 is US federal
law (Finnemore and Sikkink 1998: 900; Sarfaty 2015: 2, 11). Passed as a response to
the 2007 Financial Crisis, the 2010 Dodd–Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act) brought significant changes to financial regulation in
the US. In particular, section 1502 requires that companies in the US need to ensure that
minerals originating in the DR Congo or any of the nine adjoining countries are not
benefiting armed groups in the area. Section 1502 imposes “reasonable inquiry” and
“due diligence” to companies by monitoring and administering their purchases and sales
of potential ‘conflict’ minerals (coltan, tantalum, tin, tungsten, gold)
(Manhart/Schleicher 2013; Sarfaty 2015: 19-23).
The quality of the due diligence must meet nationally or internationally recognized
standards, such as the Organization for Economic Cooperation and Development
(OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from
Conflict-Affected And High-Risk Areas. Companies must file a disclosure form (Form
SD for specialized disclosure) and a Conflict Minerals Report as an exhibit to Form SD.
An independent private sector audit is required for the Conflict Minerals Report (Sarfaty
2015: 19-23). Liability is attached for any false or misleading statement (Sarfaty 2015:
Kommentar [LP1]: (Rwanda, Burundi, Uganda, South Sudan, Central African
Republic, Congo Brazzaville, Angola,
Zambia, and Tanzania)
Kommentar [LP2]: Cassiterite is an ore/tin
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20). Moreover, California and Maryland have passed laws to incentivize compliance
with section 1502. These regulations prohibit companies in violation of the disclosure
requirements to contract with California’s and Maryland’s state agencies (Sarfaty 2015:
20-21).
First Phase of the Norm Life Cycle (Norm Emergence):
Global Witness, a non-governmental organization (NGO) with offices in London and
Washington, paved the way for import bans on ‘conflict’ minerals (Sarfaty 2015: 4, 21;
Smillie 2013: 1007). The NGO can be considered a crucial ‘norm entrepreneur’
(Finnemore et al., 1998: 896) for its efforts to uncover links between natural resources,
conflicts and corruption. The NGO’ s reports called attention to the issue of armed
groups being funded almost exclusively through the sales of diamonds in the Angolan
civil war (Global Witness, 1998, 2000). What was novel was that the activists framed
the issue in a way that foreign governments and multi.national companies were
responsible for violence in others parts of the world.
Global Witness accomplished to fit the norm of diamond importers being liable for
violence in countries of origin into the context of the UN security norm system. In June
1998 the UN Security Council expanded its existing sanctions regime against the
National Union for the Total Independence of Angola (UNITA) to include a ban on any
Angolan diamond imports not accompanied by a certificate of origin issued by the
Angolan government (Smillie, 2005). In the following the UN Security Council
Sanction Committee on Angola, chaired by Canada’s UN ambassador Robert Fowler,
released a report – the Fowler Report – in March 2000, that, for the first time, named
companies, weapon dealers and heads of state (the presidents of Togo and Burkina
Faso) for their continued involvement in trafficking diamonds and weapons. This step
of ‘naming and shaming’ signified a new way of talking about and understanding issues
of armed conflicts (Smillie, 2005).
After having read the diverse reports and in parallel to a public debate in South African
media, Phumzile Mlambo-Ngcuka, then South-African Minister of Minerals and
Energy, invited some NGO and business representatives to an informal meeting in
Kimberley, South Africa, in May 2000. This event was the beginning of the so called
‘Kimberley Process’ (Smillie, 2005; Murphy, 2011). This stakeholder process resulted
in the Kimberley Process Certification Scheme (KPCE), established in 2003. The KPCE
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requires all raw diamonds certified to be legal by the government of the country of
origin to be imported by other states. 81 states signed the agreements, in particular, the
US, the EU and India (where 92% of the world's diamonds were cut and polished in
Surat, close to Bombay, in 2003). As member states agreed that they would not trade
with non-members, common commercial sense obliged every country with a diamond
industry to join (Smillie, 2013: 1013).
Second Phase of the Norm Life Cycle (Norm Cascade):
While ‘norm entrepreneur’ Global Witness (2011) brought into question the
effectiveness of the Kimberley process and pulled out of the scheme in 2011, the NGO
efforts have caused the emergence of the new norm of foreign accountability in the field
of minerals; and we can see a cascade. The 2010 Dodd–Frank Act section 15021 follows
the same main principle as the KPCE, and, again, Global Witness is said to have paved
the way for the adoption of this binding and probably more effective regulation against
‘conflict’ minerals (Sarfaty 2015: 4, 21; Smillie 2013: 1007).
Several business coalitions formed in response to the 2010 Dodd-Frank Act section
1502, for example, in early 2011, a working group of companies, mostly members of
the Electronic Industry Citizen Coalition (EICC) and the Global e-Sustainability
Initiative (GeSI), formed the Conflict Free Smelter Program (CFS) (Manhart/Schleicher
2013: 41). Producers of electronic devices, especially mobile phones, have received
special attention (e.g. Poulsen, 2010; McEachran, 2013; Költzsch, 2014). Among other
minerals, tantalum is used to make the capacitors in most cell phones, and tin makes up
the inside lining of some cell phones and is used to solder circuit boards. In 2010, after
the Dodd-Frank Act was passed, US-based company Apple completed a detailed study
on the use of tantalum, tin, tungsten and gold throughout its supply chain – including
both component/subcomponent suppliers and metal smelters. Apple requires all
suppliers to only source from validated smelters, according to standards developed by
the Extractives Work Group – a joint of EICC and GeSI.2
In 2011 the US government launched the Public-Private Alliance for Responsible
Minerals Trade in Congo3 with government bodies, companies and NGOs (including
Global Witness). Members are requested to provide financial support for the efforts of
1 https://www.sec.gov/about/laws/wallstreetreform-cpa.pdf (15-06-2015).
2 See http://www.apple.com/supplier-responsibility/ (30-05-2015).
3 http://www.state.gov/r/pa/prs/ps/2011/11/177214.htm (15-06-2015).
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the Alliance to implement on the ground-projects (Manhart/Schleicher 2013: 46-47). In
2012, the Dutch government started a similar initiative with almost all the same
companies and NGOs, the Conflict-Free Tin Initiative (CFTI)4. CFTI finances ‘best
practice’ downstream suppliers, i.e. mines in the DR Congo and Malaysia. The aim of
this initiative is to develop mechanisms that systematically support companies that
comply with responsible sourcing standards (Manhart/Schleicher 2013: 45-46). In 2013
(after two and a half years of preparation, including participation in the CFTI), Bas van
Abel founded the Fairphone company in the Netherlands (the Dodd-Frank Act does not
apply here). His motivation was to develop a mobile device which does not contain any
‘conflict’ minerals and with fair labor conditions for the workforce along the supply
chain.5 The company received a lot of public attention (McEachran, 2013; Költzsch,
2014).
A year after the Fairphone was founded in the Netherlands, in March 2014, the
European Commission proposed a draft regulation setting up a system for supply chain
due diligence self-certification of responsible importers of tin, tantalum and tungsten,
their ores, and gold originating in conflict-affected and high-risk area. The Commission
suggests that the quality of the due diligence must meet with the OECD Due Diligence
Guidance, while the Dodd-Frank Act lists OECD Due Diligence Guidance only as one
option among others (Sarfaty 2015: 3). Moreover, the EU proposal is not limited to a
specific area of origin and is hence more comprehensive than the US Dodd-Frank
section 1502. In May 2015, the European Parliament voted in favor of the
Commission’s proposal.
The Canadian Parliament voted on a similar proposal in September 2014, i.e. the
Conflict Minerals Act6 that is however, similar to the US Dodd-Frank Act section
1502, limited to ‘conflict’ minerals from the Great Lakes Region of Africa. The bill was
not adopted in first reading and is now read a second time and referred to the Standing
Committee. The EU and the Canadian legislative proposals however signify the cascade
of the new norm to domestically regulate global supply chains and turn away from the
free trade-paradigm. In the following section, we will demonstrate that, moreover, the
cascade of the new norm of greater foreign accountability. Still, the norm is in the phase
of cascade, including its adaptation to and acceptance by the over-all norm system.
4 http://solutions-network.org/site-cfti (25-06-2015).
5 See http://www.fairphone.com/about/ (30-05-2015).
6 See: https://openparliament.ca/bills/41-2/C-486/ (30-05-2015).
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5. Implementation on the Ground
The challenge for the timber regulations, the Dodd-Frank Act section 1502, and in fact
all existing and future supply chain-related regulation, is how to effectively implement
due care and due diligence requirements given the multi-tiered and fluid nature of
supply chains as well as the power dynamics between buyers and suppliers at usually far
away geographic distance (Sarfaty 2015: 11). While in the forest sector, regulations is
limited to enforcing legality, in the mining sector, companies need to monitor and
administer their purchases and sales of potential ‘conflict’ minerals. Thereby supply
chains often comprise seven or eight layers in the supply chain between the original
artisanal mine and the final packaged good in the consumer sector (Sarfaty 2015: 12).
In the forest sector, implementation is slowly emerging in all three cases, the US, the
EU, and Australia. In the few studies analyzing these regulations and their emerging
implementation, expectations range from an enhanced promotion of “environmental and
social stewardship in the forest sector” (Cashore/Stone 2012: 1) to possible adverse
effects such as “disproportionate burdens on smallholders” (McDermott et al. 2014: 8)
or incentives for “governments to weaken their laws” (Bartley 2014: 105).
The Legal Timber Protection Act (LTPA)
Since the LTPA came into force in 2008, there have been three prosecution cases: (1)
the United States vs. Three pallets of tropical hardwood, concerning a shipment of
tropical hardwood from Peru declared under an improper tariff code (U.S. Department
of the Interior 2010), (2) the United States vs. Gibson Guitars, concerning the import of
ebony from Madagascar and (3) the United States vs. Gibson Guitars, concerning the
import of ebony and rosewood from India. The first case resulted in a seizure of goods
and went mostly unnoticed by the public. The latter two cases, however, triggered a
widespread media debate. Although the violation of the LTPA could be proven for the
ebony from Madagascar, the Indian case could not be decided due to legal issues in
India (U.S. Department of Justice 2012). Nevertheless, both Gibson prosecutions were
settled in 2012 with a Criminal Enforcement Agreement requiring Gibson Guitars to
pay a 300,000 USD penalty, a 50,000 USD community service payment, cooperate in
Lacey Act investigations and prosecutions, and follow a customized Lacey Act
Compliance Program (U.S. Department of Justice 2012). This law enforcement is to a
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large extent driven by private investigations of the NGO Environmental Investigation
Agency who uncovers potential prosecution cases. It provided, for instance, the core
report that led to the investigation of Gibson’s operations.
Despite the limited number of cases, the LTPA is generally perceived as effective
regulation in the US and interviews indicate that this perception also dominates
internationally. This perception has recently also been underlined by a statistical
analysis by Prestemon (2015). This perception mostly emerges out of the approach
taken in implementation. Given scarce resources of the implementing agencies, the
underlying logic is to use high profile prosecutions and penalties to create threat
scenarios for importing companies. Exactly these threat scenarios, however, turn
enforcement into a political minefield for the competent authorities because importing
companies lobby against the LTPA (Leipold/Winkel 2015b).
In addition to the politics connected to implementation, there are also certain practical
hurdles. The second Gibson case, for instance, demonstrates that legality might in some
cases be a legal gray area. Also, complex global supply chains, corruption, and
sophisticated composite products pose considerable difficulties to a complete chain of
evidence, for both companies and enforcing authorities. Although more and more
sophisticated methods emerge to track raw materials (e.g. micro chips or special paints)
or determine the specific origin of wood and fiber (e.g. isotope analysis), they are not
yet widely used. It is also contested whether these methods should substitute proper
documentation authorized by the respective national government – as this touches upon
national sovereignty over natural resources.
In addition to these discussions on the prove of (il)legality, the concept of due care is
also at the core of implementation discussions in the US. As there is no fixed standard
of due care, several environmentalists mention that specific risk assessment tools
provided by NGOs could serve as opportunity to “creat[e] a higher standard of […]
what due care is” (representative of a US environmental NGO) by providing more and
more information to companies that they will then need to take into account in order to
meet a “reasonably prudent” care. In response, standardization of due care through
(official) guidelines is increasingly discussed (participant observation), and some
industry representatives started to support certification schemes as a possibility to
demonstrate due care and “franchise out risks” (US industry representative).
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EUTR
The EUTR implementation situation is much more diverse as the regulation needs to be
transferred into national law by the EU member states and is enforced by their national
or local authorities. This results in very different pace and quality of implementation
and a widely shared concern that the implementation may vary across member states.
This may provide a loophole for companies who are able to relocate their operations
and, as a consequence, may incentivize member states to pass legislation with the
lowest possible penalties and lax enforcement (Schwer/Sotirov 2014).
Already now, different implementation styles become apparent in different member
states. In Germany, for instance, competent authorities are portrayed as focusing on
education and information efforts (participant observation, government and industry
representatives from Germany). This is underlined by a due diligence system which
gives very detailed guidance. In addition, companies are granted generous transition
periods to develop due diligence systems and competent authorities are described as
closely cooperating with industry (government and industry representatives from
Germany). Similar to the US debate, also in Europe, the prove of (il)legality and the
question how to demonstrate due diligence are at the core of implementation
discussions. Yet, as due diligence provides more guidance on how to meet this
requirement than due care, discussions on the EUTR and ILPA focus more on specific
guidelines. In the German implementation debate, for instance, the particular basis to
make risk-based assessments of goods is debated. With regard to the prove of
(il)legality, a first investigation of imports from the DR Congo by German authorities in
2014 – initiated by a report from Greenpeace – triggered a debate on how to ensure
legality. In this case, records and communications had been falsified to the extreme. The
respective German government ministry had even been presented with a false letter
from a Congolese government ministry which was stating that the goods in question
were legal. In reaction, German authorities increasingly promote the application of
testing and tracking systems (such as isotope analysis) (German government and NGO
representatives).
Another debate in the German context evolves around the question what kind of due
diligence system is suitable to ensure legality. The EUTR allows private agencies to
become “monitoring organizations” that aid the promulgation by offering customized
due diligence systems. These also often offer legality verification systems. Hence, this
15
question is connected to the role of certification and verification schemes. Certification
schemes are not recognized as sufficient due diligence system but only as building
block of such a system. Yet, several stakeholders expect that the EUTR might
nevertheless promote certification as a vital part of due diligence. Others, however,
point to a potential crowding-out effect by so called legality verification schemes. These
schemes emerged over the past few years and have been portrayed by German
stakeholders as gaining increasing popularity among companies. This development is by
some viewed critically as legality verification is less comprehensive in terms of
environmental and social aspects than sustainability certification (German government,
NGO and industry representatives).
ILPA
The implementation of the Australian ILPA is just beginning. In November 2014, an 18
months transition period stated to educate the respective companies (DAFF, 2013: 37).
Hence, the debates about implementation are also in a very early stage and there is no
scientific analysis of the law or its implementation yet. What is remarkable about ILPA
is that it is the only of the three regulations that officially recognizes the certification
schemes FSC and PEFC, European FLEGT licenses and the Indonesian verification
system SVLK. In addition it provides country-specific guidelines for some of
Australia’s major timber trading partners. This difference to the other two regulations
might become significant as it provides a clearer incentive for companies to utilize these
schemes as due diligence system.
Kimberley Process Certification Scheme (KPCE):
The Kimberley Process Certification Scheme (KPCE) is considered to be highly
ineffective (Smillie, 2013). The Scheme has no administrative center (Smillie, 2013:
1014). The monitoring system requires that each member state has to voluntarily host a
review team every three years. The teams are typically comprised of the representatives
of three other governments and one each from industry and civil society. Each team
member has to pay his or way, which means that countries and stakeholders with fewer
resources often play no role in the process. The produced reports were often delayed,
and in many cases there has been little or no follow-up (Smillie, 2013: 1014). A review
16
of compliance in the DRC in 2004 and 2009, for example, found that internal controls
were weak and almost nonexistent (Smillie, 2013: 1014).
Decision-making in the KPCE is based on unanimity: “This [need for consensus] has
meant that almost every attempt to bring meaningful reform to the KPCS since 2003 has
been thwarted and almost every attempt to sanction noncompliance has been blocked”
(Smillie, 2013). In particular, NGO representatives failed with attempts to expand the
monitoring system and to integrate, for example, human rights abuse. So monitoring is
confined to whether raw diamonds come from the place the exporter had stated on the
manifest (Smillie, 2013, p. 1018).
Dodd-Frank Act Section 1502:
Not only are nearly 6,000 companies directly affected by section 1502, but there are
also thousands of suppliers to these companies that are indirectly affected (Sarfaty 2015:
20). First studies exist on the ‘implementation’ of the Dodd-Frank Act by business
companies in the DR Congo (Manhart/Schleicher 2013; Sarfaty 2015). The Congolese
Civil Wars began in 1996, and the country has been an arena of riots and armed
conflicts since then with at least 3.8 million dead people (Coghlan et al., 2004). Several
studies prove the conflict, in particular, to be a resource war financed through the illegal
exploitation of timber and minerals (Cramer, 2011; UNEP 2009: 20).
In reaction to the adoption of the US Dodd-Frank Act section 1502 in 2010 (and
although the Act became effective only in January 2013), in DR Congo, President
Joseph Kabila suspended artisanal mining activities in North Kivu, South Kivu and
Maniema from September 2010 to March 2011 (Manhart/Schleicher 2013: 30). This led
to a collapse of the mining industry in these regions (while mining continued especially
in the Katenga region, see Manhart/Schleicher 2013: 30-32). The general scope on all
artisanal mining – irrespective of its role in conflict financing – was originally not
intended by the Dodd-Frank Act. The UN Group of Experts on the Democratic Republic
of the Congo (UNGoE) and also the UN Security Council resolution 1952 (2010)
recommended the OECD Due Diligence Guidance on Responsible Supply Chains of
Minerals from Conflict-Affected and High-Risk Areas, published in 2011. The OECD
(2011) approach consists of five steps:
1. Establish strong company management systems;
2. Identify and assess risks in the supply chain;
17
3. Design and implement a strategy to respond to identified risks;
4. Carry out independent third-party audit of supply chain due diligence at identified
points of the supply chain;
5. Report on supply chain due diligence.
Immediately after the adoption, the Congolese government required mineral exporters
to exercise due diligence in accordance with the OECD Guidance (Manhart/Schleicher
2013: 30). Non-compliance is sanctioned with the suspension of trading license
(Manhart/Schleicher 2013: 30). Several pilot projects are under way to comply with the
OECD approach. As mentioned above, companies such as Apple and Fairphone have
established strong company management systems. Based on interviews with
representatives from business, governments and international organizations, Manhart
and Schleicher (2013: 28-29) find that most companies fulfill the requirements by
collecting letters and questionnaires from supply companies further downstream. Letter
are often standardized (Manhart/Schleicher 2013: 29). Questionnaires often refer to
standard questionnaires provided by, for example, the Conflict Free Smelter (CFS)
Programme (Manhart/Schleicher 2013: 28-29).
Motorola Solutions and AVX Corporation launched the pilot project Solutions for Hope
(SfH) in the Katanga region (that was excluded from the presidential artisanal mining
suspension) in July 2011. Manhart and Schleicher (2013: 44-45) analyze this project’s
compliance with several due diligence steps: Firstly, the conflict-free status of the mine
was reviewed by the International Tin Research Institute (ITRI) Tin Supply Chain
Initiative (iTSCi). The iTSCi is an example of an industry association formed in
reaction to new compliance requirements. Smelters, processors, miners, traders and
users of tin ore launched the initiative in 2009 (Manhart/Schleicher 2013: 36-37). It
assists upstream companies in sourcing conflict free ores from the African Great Lakes
Region in conformance with the OECD Due Diligence Guidance (Manhart/Schleicher
2013:36-37). Secondly, the traceability process of bagging and tagging was
implemented for the SfH project. In the following, an independent audit was carried out
by Gregory Mthembu-Salter, former member of the UNGoE, in line with the OECD
Due Diligence Guidance. Finally, annual smelter audits were provided by the Conflict-
Free Smelter Program (CFS) (Manhart/Schleicher 2013: 44-45).
Like in the SfH project, companies usually ‘outsource’ compliance to private parties
such as consulting firms: “What we therefore see developing is a chain of outsourcing
18
involving layers of monitoring and enforcement, and often competing systems of
incentives” (Sarfaty, 2015 forthcoming): 3). In consequence, Sarfaty (2015
forthcoming) warns that reporting does not lead to the same organizational learning or
behavioral change in firms as would occur with an internal review process. Companies
are facing a proliferation of sometimes competing certification standards and sourcing
initiatives developed by industry groups, governmental bodies, and consulting firms,
which are trying to capitalize the growing business for implementation services (Sarfaty
2015: 30).
At the same time, there is doubt whether information provided reflects reality, or if due
diligence only means additional costs for companies (Manhart/Schleicher 2013: 29).
Not enough mine agents inspect mines and mitigate corruption, while existing
government agents are tempted by bribes to let minerals pass through uninspected
(Sarfaty 2015: 34). No analytical laboratory method is used to cross-check the given
information, although instruments would be available, at least, for some minerals.
Identification of the origin of tin, tantalum and tungsten (3T minerals), coltan,
cassiterite and wolframite concentrate is possible, based on the characteristic
mineralogical and geochemical features of the ores (Manhart/Schleicher 2013: 43-44).
The UNGoE (2015) reports a trend to validate and to certify mining activities in the DR
Congo. However, Manhart et al. (2013: 5) argue that compliance costs mainly set an
incentive to generally abandon sourcing from the DR Congo and adjoining countries,
resulting into a long-term de facto embargo. So far, compliance to the Dodd-Frank Act
is mostly achieved by making sure that no material is directly or indirectly sourced from
the DR Congo or any adjoining country (Manhart et al., 2013: 2). Instead, US
companies use minerals from other parts of the world and from recycling materials that
allows to give a ‘conflict free’ guarantee (Manhart et al., 2013: 28). The declining
demand for Congolese minerals led to a price decrease by half at local mining sites, and
these low price minerals are increasingly exported to China (Manhart et al., 2013: 31).
Moreover, the smuggling of ores into Rwanda, Uganda and Burundi increased
significantly (while armed groups receive significantly lower prices, at least)
(Manhart/Schleicher 2013: 30-32; Sarfaty 2015: 33-34).
Since the adoption of the US Dodd Frank Act Section 1502 in 2010, the security
situation improved in many of the larger mines closely observed by international
companies, mining authorities and Congolese civil society (Manhart/Schleicher 2013:
19
12). However, insecurity is still widespread at gold mining sites throughout the eastern
DR Congo (UNGoE 2015).
6. Discussion: Comparing Import Bans on ‘Conflict’ Minerals and Timber
When looking at the policy field of forestry and mining, we can see a norm shift to
greater foreign (or global) liability for human-rights violations and environmental
devastation (against which often no actions are taken in countries of origin). As shown
for the two fields, the new norm of greater foreign accountability slowly emerged over
the last decades. While, in general, imports are increasingly produced under conditions
that voluntarily go beyond legal requirements of countries of origin (Kalfagianni, 2015;
Pattberg 2006), the norm has been that governments ban only imports which may harm
the health of consumers in their own countries (Kohl, 2014; Sachs et al., 2007). Only
most recently, we can now see the emergence of a new norm that requires due diligence
from companies by monitoring and administering their purchases and sales along global
supply chains and, so far, cascades in very few areas, such as forestry and mining.
The key innovative characteristic of the LTPA, EUTR, ILPA, the Dodd-Frank Act and
other efforts of binding legislation in this direction is to regulate from abroad through
multi-national companies. What is novel in both policy fields, forestry and mining, is
that ‘consumer’ governments are deploying importing companies to regulate themselves
and indirectly regulate other firms in their supply chain. Yet, scholars interpret the new
regulations in quite different way.
To some scholars, the new approach of binding regulation for global supply chains
stands in contrast to earlier approaches of (public-) private governance, such as the
Forest Stewardship Council (e.g. Bartley, 2014). Other scholars emphasize that this
novel governance approach exemplifies an ongoing trend of private certification
because multi-national companies increasingly join (public-) private initiatives in order
to comply with binding regulations along their supply chains (e.g. Sarfaty, 2015
forthcoming). We agree with both these positions and argue that the new norm signifies
a hybrid approach: On the one hand, we can see a new norm that to a certain extent
turns away from the free-trade paradigm and re-centers the state. On the other hand, the
new regulations fit into the existing WTO system by imposing the same – often
privately defined – requirements on domestic and foreign companies.
20
The new regulations promote a shift towards a more state-centered approach by, first,
being legally binding in ‘consumer’ countries and, second, supporting law enforcement
in ‘producer’ countries without interfering into the respective countries’ national
sovereignty over their forest/mining laws or other laws on natural resources. This is
particularly relevant with regard to WTO conformity as it ensures that none of the three
laws legally discriminates between domestic and imported goods. The new regulations
do not prescribe particular social or environmental standards but require legality (or
‘conflict’ freeness, respectively) – which is eventually defined by the respective
exporting state – and make this requirement binding for domestic producers as well as
importers (in case of the US Dodd-Frank Act, if they want to export to the US).
However, the new regulations also foster – to some extent – private certification and
verification schemes. Particularly the ILPA officially recognizes several of these
schemes, and compliance to the US Dodd-Frank Act section 1502 is de facto outsourced
to private parties. Hence, the new norm does not completely break with ongoing trends
of privatizing public law. Especially, when it comes to implementation, we can see that
companies increasingly join (public-) private certification schemes to demonstrate
(imposed) care and diligence.
The hybridity of state-centrism and privatization was essential for emergence of the new
norm, as the norm has not entered a normative vacuum but instead is competing with
other perceptions of what has considered appropriate behaviour in the international
system (Finnemore et al., 1998, pp. 896–897). The fact that new frames of greater
foreign accountability resonate with broader public understandings turns out to become
increasingly relevant in implementation discussions. Compliance by companies is
linked to compliance by their suppliers. As a result, especially in the policy field of
mining, companies are responsible for implementing and enforcing regulatory standards
on firms abroad, on behalf of other states (Sarfaty 2015: 16).
In the policy field of forestry, only the ILPA officially recognizes private schemes as
substitutes for due diligence systems. Yet, also in the cases of the EUTR and the LTPA,
implementation discussions point to a move towards a privatization of ensuring legality.
Whether this move will happen and which specific effects it might have, however, is
uncertain. Whereas particularly a move towards legality verification is often seen as
cementing low standards, Bartley (2014) argues for the cases of China and Indonesia
that a move towards legality verification might actually correspond more to the realities
21
in these countries than certification schemes, and thus, reinforce law enforcement. The
effects of such a move will eventually also depend on whether certification or
verification will be adopted in all three regions or remain limited to the ILPA. This
adoption, however, will ultimately rely on decisions taken by the respective government
or its implementing authorities. Hence, the move towards privatization relies on state
decisions. In addition, implementation is enforced by dedicated government agencies in
all cases. Although environmental NGOs play a significant role to uncover prosecution
cases (as the cases from the US and Germany show this) and the EUTR also allows
private agencies to become ‘monitoring organizations’ that promulgate due diligence
systems (and facilitate norm cascade), the enforcement of laws is ultimately under the
authority of the state, either the state of origin or the importing ‘consumer’ state.
8. Conclusions
We can see the emergence and cascade of a new norm of greater foreign accountability
and liability in both fields of forestry and mining.
New norm integrates in over-all norm system (‘legality trick’): Domestic regulation for
global supply chains, on the one hand, signifies a radical novel approach to enforce
environmental and human rights-related norms abroad, while, at the same time, the
foreign state may also be strengthened through the principle of legality. On the other
hand supply chain regulation may promote an ongoing trend of private certification.
This norm shift may also cascade to other policy fields as it elegantly fits into broader
norm systems of various national and international political actors. In the field of
forestry, various industry groups from ‘consumer’ countries see benefits in terms of
their competitiveness; developing countries’ sovereignty is strengthened (or, at least, not
threatened); and environmental NGOs are in favor of the new approach as it promotes
environmental (and social) stewardship (Leipold et al. 2015).
In the policy field of mining, NGOs, such as Global Witness, have promoted the novel
approach to enforce human rights and environmental standards; multi-national
companies are opposing it while they cannot officially argue against the NGO’s
22
normative arguments, and some companies have taken the lead in making supply chains
transparent and setting standards for their supply companies (e.g. Apple, Fair Phone)
Do multi-national companies become less or more powerful vis-à-vis the state?
What about the risk that countries decrease regulation (and allow deforestation etc.) to
make it easier for companies to comply?
Impact: Do the new regulations have the potential to shape corporate behavior towards
supply chain transparency (or is this limited to certain companies which benefit from
having an image of ‘sustainability leader)? Will there be no more cases in future like
Shell in Nigeria (at least, for timber and minerals)?
What about countries that do not have sufficient legislation to prevent deforestation?
The effectiveness of the new regulations very much depends how multi-national
companies implement them in host countries.
Minimal standards – bad or good? At least, they allow implementation…
Norm cascade: The novel governance approach allows the US and the EU to pursue
global leadership for ‘sustainable’ supply, while depoliticizing social and ecological
harms caused by world-wide economic competition among unequally positioned
countries (new legislation disguises the real causes of why especially poor countries
over-use their resources in a global economy; ‘consumer’ countries can continue over-
use and burden shifting)
.
To be effective, due diligence policies need to be embedded in broader strategies for
host countries, such as the DR Congo and the Great Lakes Region, that also encompass
issues such as security sector reform, stability of the law, governance and accountability
of state actors.
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