A Glass Half Full: Critical Assessment of EU Regulation 2017/821 on Conflict Minerals

Samenvatting

EU Regulation 2017/821, bound to enter into force in early 2021, is the most recent legislative initiative aiming to sever the links between minerals trade, conflict dynamics and human rights abuses. The Regulation, which is meant to complement US legislation on conflict minerals, creates requirements for direct importers of 3TG in the EU and preludes to the establishment of a list of responsible EU smelters and refiners. While marking a historic step forward in the global efforts to curb conflict minerals trade, the Regulation
presents some critical aspects. These include the exact definition of its geographical scope, its limitation to the 3TG metals and minerals and, most importantly, the exemption from its binding provisions of all downstream companies. While the functioning and effectiveness of the Regulation, as well as its possible unintended social and economic consequences on producing countries, will become clearer after its entry into force, this article provides an interim assessment of its strengths and weaknesses. The article starts by
putting the Regulation in the context of global efforts to curb trade in conflict minerals, and addresses the ongoing debate on the possible adverse economic and social consequences of this type of legislation (Section 2). It then analyses the contents of the Regulation, critically focusing attention, in particular, on its hybrid combination of binding and voluntary measures, and on its scope of application (Section 3). In Section 4, an interim appraisal of the Regulation is carried out by highlighting both its undeniable potential and the shortcomings that might hamper its effectiveness in achieving its stated goals.
Finally, Section 5 summarizes the article’s conclusions in the light of the likely adoption by the EU, in the near future, of a cross-sectoral mandatory human rights due diligence instrument.
Keywords: conflict minerals; Dodd-Frank Act; due diligence; European Union; human rights