The Swiss Human Rights Due Diligence Legislation: Between Law and Politics

On 29 November 2020, Swiss citizens voted on a popular constitutional initiative, known as the Swiss Responsible Business Initiative.1 The vote was triggered by an initiative signed by more than the required 100,000 Swiss citizens who used their constitutional right to ask for an amendment of the Swiss Constitution by introducing a new provision on mandatory human rights due diligence and corporate liability. For such an initiative to be successful, both the majority of the people as well as of the cantons (states) is required. While 50.7 per cent of the participating voters accepted the initiative, the proposal did not reach the majority of the cantons and therefore the Responsible Business Initiative was rejected. Its rejection nevertheless triggered the adoption of new reporting and due diligence obligations relating to conflict minerals and child labour, which the Parliament had promised to adopt in case the Responsible Business Initiative was rejected.2 This contribution outlines the content of the newly adopted human rights due diligence legislation that will reflect the due diligence standard for companies in Switzerland for the years to come. It also aims to inform policy makers in other countries by describing the political struggle underlying the adoption of mandatory human rights due diligence in Switzerland.

An Unintended Legacy: The External Policy Responses of the USA and European Union to Conflict Minerals in Africa

Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones, and jewellery import minerals from conflict-affected areas, thereby indirectly fuelling conflicts in these areas or undermining human rights. For a continent endowed with natural resources including minerals, Africa has suffered the brunt of this predicament. This state of affairs has lent impetus to the adoption of several regulations geared towards curbing irresponsible business practices by companies relying on such minerals, the goal being, amongst others, to guarantee the protection of human rights. In May 2017, the European Union adopted regulations intended to stop the importation of conflict minerals in Europe, debatably making giant strides in the direction of the protection of human rights. These regulations are to come into force in 2021. However, can these regulations advance the much-desired goal of the protection of human rights in Africa on issues pertaining to conflict minerals? By analyzing the 2017 EU regulations in light of previous regulations of a similar nature, the paper concludes that the said regulations constitute a weak normative framework and could in fact have unintended consequences on the fundamental rights of civilians in natural resource-rich conflict areas of Africa.

An Unintended Legacy: The External Policy Responses of the US and European Union to Conflict Minerals in Africa

Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones and jewellery; import minerals from conflict-affected areas, thereby indirectly fuelling conflicts in these areas or undermining human rights. For a continent endowed with natural resources including minerals, Africa has suffered the brunt of this predicament. This state of affairs has lent impetus to the adoption of several regulations geared towards curbing irresponsible business practices by companies relying on such minerals, the goal being, amongst others, to guarantee the protection of human rights. In May 2017, the European Union adopted Regulations intended to stop the importation of conflict minerals in Europe, debatably making giant strides in the direction of protection of human rights. These Regulations are to come into force in 2021. However, can these regulations advance the much-desired goal of protection of human rights in Africa on issues pertaining to conflict minerals? By analyzing the 2017 EU Regulations in light of previous regulations of a similar nature, the paper concludes that the said regulations constitute a weak normative framework and could in fact have unintended consequences on the fundamental rights of civilians in natural resource-rich conflict areas of Africa.

A Proposal for Criminal Liability for Breach of Due Diligence Obligations: the European Conflict Minerals Regulation as an Example

In recent years, the international community has adopted standards aimed at encouraging States to promote the development and implementation of human rights compliance programmes by companies. This has been the case for conflict minerals, where soft law recommendations have been translated into a European Union (EU) hard law standard that sets out several due diligence obligations for importers of certain minerals or metals. This article will examine the origin of the EU Conflict Minerals Regulation and outline the type of compliance and due diligence obligations imposed on EU importers. It also reflects on the role of criminal law as a means of sanctioning the most serious violations of these new due diligence obligations such as traceability and transparency.