There are, of course, other reasons for States not adhering to their human rights
obligations. For example, the issue of businesses operating in conflict zones is particularly fraught. So-called ‘failing’ States are inevitably embroiled in armed conflicts. Invariably this means that they are simply unable to perform the key functions of a State, let alone protect the population from human rights abuses perpetrated or aggravated by private business enterprises. Governments, government factions, rebels, terrorists or essentially anyone in de jure or de facto control of territory are often also complicit in the abuses. Particularly prized is the power to grant natural resource concessions either legally or on the ground. The enormous riches generated perpetuate the conflicts, whether they be the result of oil and gas exploitation in Angola,269 illegal logging in Liberia,270 or the
exploitation of coltan, diamonds, copper, cobalt and gold in the Democratic Republic of Congo (DRC).271
The DRC is a particularly pertinent and current example. NGOs such as Global Witness have long complained that the commercial activities of many business actors are
268Steiner, Alston & Goodman note 3 at 1388.
269 See e.g. http://www.globalwitness.org/campaigns/corruption/oil-gas-and-mining/angola [last accessed
22.7.11].
270 See e.g. http://www.globalwitness.org/campaigns/environment/forests/illegal-logging [last accessed
22.7.11].
271 See e.g. Global Witness, ‘’Faced with a gun, what can you do?’ War and the Militarisation of Mining in
Eastern Congo,’ Report, July 2009 . http://www.globalwitness.org/sites/default/files/pdfs/ report_en_final_0.pdf [Last accessed 22.7.11].
supporting and financing the continuation of the conflict in the DRC and consequently fuelling human rights abuses. The natural resource sector, in particular, has been the source of countless human rights violations, specifically the use of child labour and forced labour. As far back as April 2001 the UN Security Council’s Panel of Experts on the Illegal Exploitation of Natural Resources and other Forms of Wealth of the Democratic Republic of Congo was describing certain mining companies and their suppliers operating in the DRC as the ‘engines’ of conflict.272 In its first report the Panel identified general
‘lawlessness and the weakness of the central authority’ as central to the problem.273
Businesses have subsequently exploited these weaknesses as the Panel points out: The role of the private sector in the exploitation of natural resources and the continuation of the war has been vital. A number of companies have been involved and have fuelled the war directly…274
In their ‘rush to profit’ it was evident that ‘some foreign companies…were ready to do business regardless of elements of unlawfulness and irregularities.’275 The Panel expressed
concern about numerous foreign companies implicated in the conflict via the supply chain. It cited companies incorporated in Belgium, Germany, Rwanda, Malaysia, Canada,
Tanzania, Switzerland, the Netherlands, the UK, Kenya, India, Pakistan and the Russian Federation.276
The Panel’s Final Report in 2002 concluded that companies continued to contribute to human rights abuses.277 It also identified eighty-five foreign companies which it
considered to be in breach of the OECD’s Guidelines on Multinational Enterprises. The list included, Afrimex Limited, a UK registered company which is discussed further in
272 Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other Forms of Wealth
of the Democratic Republic of Congo, 12 April 2001, S/2001/357 http://www.natural-resources.org/minerals/ CD/docs/other/357e.pdf p.42, at 42, para.215 [last accessed 5.8.09].
273 Ibid at 41 para.213. 274 Ibid at 42 para.215. 275 Ibid at 38 para.184.
276 Panel of Experts, Annex 1, Sample of companies importing minerals from the Democratic Republic of the
Congo via Rwanda, ibid at 46.
277 Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other Forms of
Wealth of the Democratic Republic of Congo, 16 October 2002, S/2002/1146 at 32, para.175 http:// www.natural-resources.org/minerals/CD/docs/other/N0262179.pdf [5.8.09]
Chapter 6 in the context of the OECD Guidelines on Multinational Enterprises and the UK’s response to its activities.
According to NGO reports, child labour and forced labour is probably still being used in the mining process by companies which are incorporated outside of the DRC or through the supply chain. So-called ‘taxes’ paid to rebel forces participating in the fighting inflame the conflict further by fuelling the trade in natural resources for arms, for example, and thus perpetuating the abuses.278 Very few of the companies named by the Panel have been
held to account for their behaviour. Afrimex is one exception as it has been the subject of a complaint to the UK’s National Contact Point under the Specific Instance Procedure
established under the OECD Guidelines for Multinational Enterprises.
Such experiences show that in many conflict zone situations, national law is rendered largely irrelevant when seeking remedies for human rights abuses. At first glance it would appear that the modern cross-border activities of business actors are intrinsically
international and therefore engage international legal rules. Difficulties arise, however, because of the nature of foreign direct investment coupled with the peculiarities of corporate law, as highlighted in Chapter 1.279 Many developing countries, in response to
the New International Economic Order and the doctrine of Permanent Sovereignty Over Natural Resources, started requiring corporate investors to incorporate locally. This was done as a means of protecting natural resources as well as ensuring a measure of control over corporation tax. Thus it is frequently the host State subsidiaries of companies
registered in the home State which are legally responsible for the human rights violations. It means, therefore, that they are nationals of the host State and consequently it is the host State that has the legal obligation to uphold human rights standards. Thus, on the face of it, international law lacks jurisdiction over the abuses and invariably the host State lacks the will or capability to comply with international human rights obligations.
278 Final Statement by the UK National Contact Point for the OECD Guidelines for
Multinational Enterprises: Afrimex (UK) Ltd, 28 August 2008, URN 08/1209 (Afrimex Final Statement),
http://www.berr.gov.uk/whatwedo/sectors/lowcarbon/cr-sd-wp/nationalcontactpoint/page45873.html See Chapter 5 infra for further discussion regarding the DRC.
3.6 If Human Rights Obligations Apply to Business Actors, What is Their