Languages:
The conditions of mineral extraction and the relationships of suppliers operating in conflict-affected or high- risk area is a serious challenge. Adverse impacts may include harm to people (i.e. external impacts), or reputational damage as well as legal liabilities for the companies involved (i.e.internal impacts), or both.
To ensure the respect human rights and do not contribute to conflict, the companies should take conduct proactive and reasonable steps and make good faith efforts to identify and prevent or mitigate any risks of adverse impacts through « Due diligence » processes which are collaborative government-backed multi-stakeholder initiatives on responsible supply chain management.
Due diligence is an on-going, proactive and reactive process through which companies can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts as an integral part of business decision-making and risk management systems.
Due diligence is the investigation or exercise of care that a reasonable business or person is normally expected to take before entering into an agreement or contract with another party or an act with a certain standard of care1. It can be a legal obligation, but the term will more commonly apply to voluntary investigations.
The purpose of due diligence processes is thus to help companies respect human rights and avoid contributing to conflict through their practices. These processes can also help companies ensure they observe international law and comply with domestic laws, including in the present case those governing the illicit trade in minerals and avoid United Nations sanctions.
Conflict-affected and high-risk areas are identified by the presence of armed conflict, widespread violence or other risks of harm to people. Armed conflict may take a variety of forms, such as a conflict of international or non-international character, which may involve two or more states, or may consist of wars of liberation, or insurgencies, civil wars, etc.
High-risk areas may include areas of political instability or repression, institutional weakness, insecurity, collapse of civil infrastructure and widespread violence. Such areas are often characterised by widespread human rights abuses and violations of national or international law.
In conflict-affected and high-risk areas, companies involved in mining and trade in minerals may be at risk of contributing to or being associated with significant adverse impacts, including serious human rights abuses and conflict while generating income, growth and prosperity, sustain livelihoods and foster local development.
The OECD2 Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (“the Guidance”), with its Supplements on Tin, Tantalum, Tungsten and Gold3, is a collaborative government-backed multi-stakeholder initiative which has the view to enabling countries to benefit from their mineral resources and preventing the extraction and trade of minerals from becoming a source of conflict, human rights abuses, and insecurity. It integrates recommendations developed by the Financial Action Task Force (FATF), which sets standards and promotes the effective implementation of measures to combat money laundering and terrorist financing.
One of the main areas of focus of the implementation programme of the OECD Guidance since its adoption in 2011 is to ensure that international standards do not further marginalize workers of the informal sector to ensure that legitimate artisanal mining communities can benefit from ongoing trade in conflict-affected and high-risk areas. This in order to support their development and thus contribute to the general improvement of the situation on the ground.
The Guidance document is also intended to cultivate supply chains4 and sustainable corporate engagement in the involved sector with a view to enabling countries to benefit from their resources and preventing the activity from becoming a source of conflict, human rights abuses, and insecurity.
The Guidance was developed through a multi-stakeholder process with in-depth engagement from OECD and eleven countries of the International Conference on the Great Lakes Region industry, civil society, as well as the United Nations Group of Experts on the DRC. It has been approved by the OECD Investment Committee and the OECD Development Assistance Committee, and has been endorsed by the eleven member states of the International Conference on the Great Lakes Region (ICGLR) in 2010.
On basis of a OECD Recommendation, it was amended to include a reference to the Supplement on Gold and the updated edition clarifies that the Guidance provides a framework for detailed due diligence as a basis for responsible supply chain management of all minerals. It provides companies with a complete package to source minerals responsibly in order or trade in those minerals to support peace and development and help companies respect human rights and avoid contributing to conflict through their sourcing decisions, including the choice of their suppliers. This in order to clarify expectations concerning the nature of responsible supply chain management of minerals.
The Guidance builds on and is consistent with the principles and standards contained in the OECD Guidelines for Multinational Enterprises and the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. It provides recommendations jointly addressed by governments to companies operating in or sourcing minerals from conflict-affected and high-risk areas.
The nature and extent of due diligence actions that are appropriate will depend on individual circumstances and be affected by factors such as the size of the enterprise, the location of the activities, the situation in a particular country, the sector and nature of the products or services involved.
Due diligence is thus structured around the steps that companies should take to:
Among others, it should integrate the model supply chain policy and specific due diligence recommendations outlined in this Guidance such as procurement practices, integrity and know your customer due diligence measures and sustainability, corporate social responsibility or other annual reporting.
The five-step framework for risk-based due diligence are :
The OECD Guidance also entails an Appendix on “suggested measures to create economic and development opportunities for artisanal and small-scale miners” calling on all stakeholders to engage in legalisation and formalisation programmes of artisanal mining communities.
Globally, companies have to commit to refraining from any action which contributes to the financing of conflict by any direct or indirect support to non-state armed groups or public or private security forces who illegally control mine sites, from actions which upport illegal taxes or extortions, and commit to comply with relevant United Nations sanctions resolutions or, where applicable, domestic laws implementing such resolutions.
Risk mitigation measures may be considered for implementation by upstream companies individually or through associations, joint assessment teams or other suitable means.
The measures are adopted at various levels :
Companies will neither tolerate nor by any means profit from, contribute to, assist with or facilitate the commission by any party of any forms of torture, cruel, inhuman and degrading treatment, any forms of forced or compulsory labour and in paricular child labour, the worst forms of child labour, and other gross human rights violations and abuses such as sexual violence, war crimes against humanity, genocide or other serious violations of international humanitarian law.
Also, companies commit to not offer, promise, give or demand any bribes, and will resist the olicitation of bribes to conceal ordisguise the origin of minerals, to misrepresent taxes, fees and royalties paid to governments for the purposes of mineral extraction, trade, handling, transport and export. They will contribute to the effective elimination of money laundering where we identify a reasonable risk of money-laundering resulting from, or connected to the global mining activities.
Companies will ensure that all taxes, fees, and royalties related to the global mining activities in these high-risk areas are paid to governments and to disclose such payments in accordance with the principles set forth under the Extractive Industry Transparency Initiative (EITI).
Regarding risk management of bribery and other fraudulent practices, companies commit to engage with all stakeholders involved (suppliers, central or local governmental authorities, international organisations, civil society and affected third parties, as appropriate), to improve and track performance with a view to preventing or mitigating risks of adverse impacts through measureable steps taken in reasonable timescales.
When planning and structuring the supply chain risk assessment, upstream companies in the supply chain should take into account the following recommended actions:
These expertises expected include the nature and form of the mineral supply chain (e.g.mineral procurement), but also linguistic abilities and cultural sensitivities, human rights, corruption and financial crime and the standards and processes contained in this Due Diligence Guidance.
These supplements more specifically recommend, among other things, that the involved companies establish a system of internal control over the minerals in their possession (chain of custody or traceability) and establish on-the-ground assessment teams, which may be set up jointly through cooperation among upstream companies while retaining individual responsibility, for generating and sharing verifiable, reliable, up-to-date information on the qualitative circumstances of mineral extraction, trade, handling and export from conflict-affected and high-risk areas.
These specific Guidance documents call on these upstream companies to provide the results of risk assessments to their downstream purchasers and have the smelters/refiners’ due diligence practices audited by independent third parties, including through an institutionalised mechanism.
A distinction is made between upstream and downstream actors in the supply chain reflects the fact that internal control mechanisms based on tracing minerals in a company’s possession are generally unfeasible after smelting, with refined metals entering the consumer market as small parts of various components in end products.
These steps are very detailed in the respective supplements and are summarized in the following figure for the supply chain of tin, tantalium and tungsten.
Artisanal and small-scale producers such as individuals, informal working groups or communities are not expected to carry out due diligence as recommended in this Guidance, but they are encouraged to remain involved in due diligence efforts of their customers and formalise so they can carry out due diligence in the future.
More specifically, the Guidance supplement on gold identifies three possible sources of gold and gold-bearing material, for which different due diligence is recommended and adapted processes described in details. It underlines among other things that the legitimacy of artisanal and small-scale mining is a difficult concept to define because it involves a number of situation-specific factors. Again the processes relative to gold mining activities in high-risk regions are described in the supplement and are summarized in the figure below.
All companies in the gold supply chain should carry out Step 1 (Establish strong company management systems) and begin Step 2 (Identify and assess risks in the supply chain) to determine whether they actually or potentially source gold from conflict-affected and high-risk areas. The remainder of the Steps in this Supplement will then only apply to companies sourcing gold from conflict affected and high-risk areas and actors in the gold supply chain that operate in a conflict-affected or high-risk area.
The Gold Supplement also includes due diligence measures to be taken on recycled/ scrap or previously refined gold (“Recyclable Gold”) only insofar as recycled material is a potential means of laundering gold that has been mined in conflict-affected and high-risk areas in order to hide its origin.
Companies are encoraged to establish a company and/or mine level grievance mechanism which should develop an early warning risk awareness mechanism allowing any interested party (affected persons orwhistle-blowers) to voice concerns regarding the circumstances of gold extraction, trade, handling and export in a conflict-affected or high-risk area. This will allow a company to be alerted of risks in its supply chain in addition to the company’s own fact and risk assessments.
| References |
|---|
|
OECD (2016), OECD Due Diligence Guidance for Responsible Supply Chains of Minerals
from Conflict-Affected and High-Risk Areas: Third Edition, OECD Publishing, Paris. http://dx.doi.org/10.1787/9789264252479-en   OECD – A global standard towards responsible mineral supply chains http://mneguidelines.oecd.org/mining.htm http://dx.doi.org/10.1787/9789264252479-en http://mneguidelines.oecd.org/duediligence/ http://www.oecd.org/corporate/mne/mining.htm |
|
1 https://en.wikipedia.org/wiki/Due_diligence 2 The OECD is a forum where governments work together to address the economic, social and environmental challenges of globalisation. The OECD is also at the forefront of efforts to understand and to help governments respond to new developments and concerns, such as corporate governance, the information economy and the challenges of an ageing population. 3 Metals reasonably assumed to be recycled are excluded from the scope of this Guidance. 4 The term supply chain refers to the system of all the activities, organisations, actors, technology, information, resources and services involved in moving the mineral from the extraction site downstream to its incorporation in the final product for end consumers |
This summary is free and ad-free, as is all of our content. You can help us remain free and independant as well as to develop new ways to communicate science by becoming a Patron!
BECOME A PATRON!