10.6092/issn.2531-6133/9420
The recurring allegations of human rights violations directly or indirectly caused by the activities of MNEs pose many challenges and particularly affect developing States in contexts of fragility and conflict. In such situations, transnational corporate structures, limited liability veils, fragmented jurisdictions and unwilling or unable States are overwhelmingly quoted as the main obstacles for a fairer globalization. This article is aimed at shedding some light on the last of these factors:  why some States seem to be unable or unwilling to protect human rights, in general terms and with regard to transnational corporate activities. A proper and pertinent Corporate Social Responsibility can help break this vicious circle, but companies need a paradigm shift to reasonably operate in those difficult circumstances.
application/pdf
2531-6133
9420
1
en
Alberto Jiménez-Piernas García
University of Bologna Law Review
Democratic Republic of Congo
Corporate Social Responsibility, Business Opportunities and States’ Fragility or Failure: Colombia and DR Congo
Text.Serial.Journal
https://bolognalawreview.unibo.it/
4
Articles & Essays
2019-05-03
2019-05-02
2019-02-14
2020-01-23
72-113
UBLR
Alberto Jiménez-Piernas García
2019/05/03
10.6092/issn.2531-6133/9420
72
University of Alcalá
2531-6133
1
Democratic Republic of Congo
en
113
Corporate Social Responsibility, Business Opportunities and States’ Fragility or Failure: Colombia and DR Congo
https://bolognalawreview.unibo.it/article/download/9420/9185
4
 ARTICLES & ESSAYS                                                      https://doi.org/10.6092/issn.2531-6133/9420




  Corporate Social Responsibility, Business Opportunities
  and States’ Fragility or Failure: Colombia and DR Congo

                              ALBERTO JIMENEZ
                                         ´    -PIERNAS GARCíA †


TABLE OF CONTENTS: 1. Corporate Activities in Fragile and Failed States: Risks and
Opportunities; 1.1. Introduction; 1.2. Understanding Fragile and Failed States; 1.3. The
S.D.Gs.: a New Momentum for a Proper C.S.R. in High Risk Areas; 1.4. C.S.R. and Business
Opportunities in Fragile and Failed States; 2. Study-Case (1): Post-Conﬂict C.S.R. in
Colombia; 2.1 The Situation in Colombia and the Peace Agreement with F.A.R.C.; 2.2. C.S.R.
Clauses in the Peace Agreement with F.A.R.C.; 2.3. The Potential of the Private Sector in
Rural Colombia; 3. Study-Case (2): Recurrent Violence and Natural Resources in the
D.R.C.; 3.1. Overview of the Situation in D.R.C.: not a Simple Good-Evil Plot; 3.2. The
Precedent of the Kimberley Process: C.S.R. in the Security Council; 3.3. Tin, Tantalum,
Tungsten and Gold: the Merit of the New EU Regulation. An Appropriate Policy Balance;
3.4. Misunderstandings of the Private Sector and Inconsistencies of the EU Role:
Regulatory Lacunae, Cobalt and Last Elections in D.R.C.; 4. The Potential of a Proper
C.S.R.: Some Recommendations.

ABSTRACT: The recurring allegations of human rights violations directly or indirectly
caused by the activities of M.N.Es.        pose many challenges and particularly affect
developing States in contexts of fragility and conﬂict. In such situations, transnational
corporate structures, limited liability veils, fragmented jurisdictions and unwilling or
unable States are overwhelmingly quoted as the main obstacles for a fairer globalization.
This article is aimed at shedding some light on the last of these factors: why some States
seem to be unable or unwilling to protect human rights, in general terms and with regard
to transnational corporate activities.        A proper and pertinent Corporate Social
Responsibility can help break this vicious circle, but companies need a paradigm shift to
reasonably operate in those difficult circumstances.

KEYWORDS: Corporate Social Responsibility; Fragile and Failed States; Sustainable Development
Goals; Colombia; Democratic Republic of Congo


JEL CODES: E02, F53, K33, O19




                                     UNIVERSITY OF BOLOGNA LAW REVIEW

                                                  ISSN 2531-6133

                                                  [VOL.4:1 2019]

            This article is released under the terms of Creative Commons Attribution 4.0 International License



                                                           72
                                                      University of Bologna Law Review
                                                                          [Vol.4:1 2019]
                                                           https://doi.org/10.6092/issn.2531-6133/9420



          1.   CORPORATE ACTIVITIES IN FRAGILE AND FAILED STATES: RISKS AND
       OPPORTUNITIES

      1.1. INTRODUCTION

It is commonplace to observe that economic globalization is not a
zero-sum phenomenon: there are advantages and opportunities along
with deﬁciencies and adverse effects. States have historically been the
most responsible for human rights violations and tensions have
traditionally been present between populations and States’ power.1
However, globalization has increased the importance of non-State actors,
in particular multinational enterprises (hereinafter M.N.Es.), generating a
triangle of tensions between States, economic actors and societies.
Globalization has also led to the multiplication of asymmetric
transnational (but not always international) conﬂicts.2 International Law
(hereinafter I.L.) faces a number of challenges such as piracy, terrorism,
transnational crime and massive streams of refugees. To some extent,
†
    Ph.D. in European Law, University of Bologna (Italy) and Scholar of the Royal College
    of Spain. Ph.D. in Latin American and European Studies, University of Alcalá (Spain).
    Founder of the Spanish platform on C.S.R. NegocioResponsable.Org.
1
  I.H.R.L. is, in origin, a way to alleviate the tension between societal expectations and
  States’ power, limiting the latter to a precise framework. It was traditionally assumed
  that States were the major – and, at a time, almost the only- human rights’ violators
  so the historically most important tension was between States and Societal Expectations.
  Globalisation has added new tensions and corporate activities are able to cause as many
  violations of human rights as States. Moreover, in the words of Prof. Carrillo Salcedo, the
  government’s treatment of its own nationals is no longer an “internal matter”, but has
  become a concern under contemporary I.L.:
             [S]i el trato que un Estado diera a sus nacionales era en el derecho
             internacional tradicional un cuestión de jurisdicción interna (ya que el
             Derecho internacional no regía esta cuestión y se limitaba a regular
             la posición jurídica de los extranjeros), en el Derecho Internacional
             contemporáneo ocurre lo contrario como consecuencia de . . . . los derechos
             humanos. [If in traditional international law the treatment that a State
             gave its citizens was a matter of internal jurisdiction (since international
             Law has not governed this problem and has limited itself to regulating
             the legal position of foreigners), in contemporary International Law the
             opposite happens as a consequence of. . . . human rights]
  see JUAN ANTONIO CARRILLO SALCEDO, SOBERANíA DE LOS ESTADOS Y DERECHOS HUMANOS EN
  DERECHO INTERNACIONAL CONTEMPORÁNEO 19 [SOVEREIGNTY OF STATES AND HUMAN RIGHT IN
  CONTEMPORARY INTERNATIONAL LAW] (1995).
2
  See Rafael Calduch Cervera, Procesos de cooperación y conﬂicto en el sistema internacional del
  siglo XXI [Processes of cooperation and conﬂict in the international system of the XXI century], in
  HISTORIA DE LAS RELACIONES INTERNACIONALES CONTEMPORÁNEAS [HISTORY OF CONTEMPORARY
  INTERNATIONAL RELATIONS] 701, 709-713 (Juan Carlos Pereira Castañares ed., 2009).


                                                73
                                                      University of Bologna Law Review
                                                                          [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



there is a need to “rethink jurisdiction” in light of recent developments
after which the “idea of jurisdiction as purely an expression of the rights
and powers of sovereign States requires reconceptualization”,3 since
problems are ever more interconnected. The concept of sovereignty has
always moved between “autonomy and responsibility”,4 but these
developments tend to increase the relative weight of the latter. This has to
come with the understanding that there are no self-contained regimes
under I.L., so that international trade and investments do not take place in
a legal vacuum or in a totally separate legal bubble.5
         Moreover,        both     individuals        and    transnational          companies
(hereinafter T.N.Cs.)          have gradually become partial legal subjects of
contemporary I.L. For instance, International Human Rights Law (
hereinafter I.H.R.L.) has greatly contributed to the recognition of a limited
locus    standi      of   individuals       in    some      regional      subsystems          (the
Inter-American Court of Human Rights and the European Court of
Human Rights) and through some United Nations (hereinafter U.N.)
Committees (in a quasi-jurisdictional manner).6                       Then, Criminal I.L.
might also turn against individuals. In parallel, business enterprises can
3
  See Alex Mills, Rethinking Jurisdiction in International Law, 84 BRIT. Y.B. INT’L L. 187, 218-
  19 (2014) (“This development suggests the need to rethink the idea of jurisdiction in
  international law. To the extent that States have agreed to individually enforceable rights
  for foreign investors which extend to a right of access to civil or administrative remedies . .
  . . they have apparently agreed that they owe jurisdictional obligations not only to foreign
  States but also to individuals. It is true that these rights may be considered as products
  of State consent through treaties or even (more controversially) customary international
  law, suggesting that the individual rights thus created can be accommodates within the
  existing framework of jurisdictional rules. It can nevertheless also be argued that through
  the recognition of individuals as positive actors and jurisdictional rights-bearers, the
  idea of jurisdiction as purely an expression of the rights and powers of sovereign States
  requires reconceptualization.”).
4
  T. GAMMELTOFT-HANSEN and T. E. AALBERTS: “Sovereignty at Sea: The Law and
  Politics of saving lives in the Mare Liberum”, in Working Papers of the Danish Institute for
  International Studies, No. 18, Copenhagen 2010, 31 pp., at pp. 8-13.
5
  See Ralph Alexander Lorz, Fragmentation, Consolidation and the Future Relationship between
  International Investment Law and General International Law, in INVESTMENT LAW WITHIN
  INTERNATIONAL LAW: INTEGRATIONIST PERSPECTIVES 482, 482-493 (Freya Baetens ed., 2013).
6
  To date, eight of the human rights treaty bodies receive individual communications
  (under certain admissibility criteria): the Human Rights Committee, the Committee
  on Elimination of Discrimination Against Women, the Committee against Torture, the
  Committee on the Elimination of Racial Discrimination, the Committee on the Rights of
  Persons with Disabilities, the Committee on Enforced Disappearances, the Committee on
  Economic, Social and Cultural Rights, and the Committee on the Rights of the Child.



                                                 74
                                                 University of Bologna Law Review
                                                                     [Vol.4:1 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/9420



also sue and be sued under International Investment Law (arbitration
procedures established in multilateral and bilateral investment treaties
or, more simply, in international contracts).
        In this context, social demands target both States and T.N.Cs. In
summary, globalization has deepened the imbalances between States’
power, markets’ inﬂuence and social expectations in terms of human
rights, with tragic consequences in contexts of fragility and conﬂict,
which deserve speciﬁc attention.              The initiatives of Corporate Social
Responsibility (hereinafter C.S.R.), with its lights and shadows, may help
alleviate these tensions.
        In a globalised world, opportunities and risks are two sides of the
same coin: one of the most illustrative examples precisely regards the
impact of corporate activities on human rights in high risk areas, usually
rich in natural resources and in need of opportunities for economic
development.        The recurring allegations of human rights violations
directly or indirectly caused by the activities of M.N.Es.                       pose many
challenges. In such situations, transnational corporate structures, limited
liability veils, fragmented jurisdictions and unwilling or unable States are
overwhelmingly quoted as the main obstacles for a fairer globalization.
This article is aimed at shedding some light on the last of these factors:
why some States seem to be unable or unwilling to protect human rights
with regard to transnational corporate activities and, in general terms,
how C.S.R. can help break this vicious circle and how companies should
analyse     the    situation     to   reasonably      operate       in    those      difficult
circumstances. From an empiric7 and consensual8 approach to I.L. and
7
  To understand todays deﬁes of the international system it is utterly important to keep
  close to the material reality, since international norms and other international political
  initiatives generally follow an empirical-inductive path. See CARLOS JIMéNEZ PIERNAS,
  INTRODUCCIóN AL DERECHO INTERNACIONAL PúBLICO. PRÁCTICA DE ESPAÑA Y DE LA UNIóN
  EUROPEA [Introduction to Public International Law. Practice of Spain and the European
  Union] 50, 65-66 (2nd ed., 2011).
8
  This approach is guided by pragmatism and built upon the understanding that a certain
  level of consensus is difficult but necessary within the international society to address
  its current challenges and for I.L. to progress. See JAUME FERRER LLORET, EL CONSENSO
  EN EL PROCESO DE FORMACIóN INSTITUCIONAL DE NORMAS EN EL DERECHO INTERNACIONAL [The
  consensus in the process of institutional training of rules in International Law] (María
  Teresa De Gispert Pastor et al. eds., 2006). See also Carlos Jiménez Piernas, El derecho


                                            75
                                                University of Bologna Law Review
                                                                    [Vol.4:1 2019]
                                                    https://doi.org/10.6092/issn.2531-6133/9420



International Relations, this article also proposes two study cases: a
scenario of post-conﬂict fragility under control (Colombia) and one of
clear institutional failure (Democratic Republic of the Congo, hereinafter
D.R.C.).
       As a preliminary warning, it should be borne in mind that some
“business and human rights” cases are actually epiphenomena where the
conﬂicts against companies hide an instrumentalization of wider
problematics      between      social    agents,     affected      communities            and
government officials. That’s also why it is utterly important to properly
take into account the institutional terrain.



   1.2. UNDERSTANDING FRAGILE AND FAILED STATES

Besides the population of these States, which is the ﬁrst victim of
instability and violence, T.N.Cs. and other business enterprises also suffer
from States’ fragility, mainly because of the abundant misunderstandings
or misinterpretations of this phenomenon.                 Fragile and failed States
represent a real challenge for the international system at many levels
because     they numb economic exchanges and threaten stability and
security.      At the same time,            this phenomenon causes serious
humanitarian crisis. The consequences derived from fragile and failed
States ﬁrstly affect punctual regions of the world, while they are
ampliﬁed as a result of globalization. Hence this phenomenon produces
undesirable effects at different scales: from regional subsystems to the
global system. The core of this problem is mainly political and historical.
However, taking into consideration some I.L.                  issues may decisively
contribute to its clariﬁcation.
       This phenomenon, intensiﬁed since the end of the Cold War,
requires some transversal research,                especially cautious in using
terminology so as to avoid neo-colonialist, imperialist and hegemonic
 internacional contemporáneo: una aproximación consensualista [Contemporary international
 law: a consensualist approach], in XXXVII CURSO DE DERECHO INTERNACIONAL [XXXVII
 INTERNATIONAL LAW COURSE] 1, 24-31 (2011).


                                          76
                                                     University of Bologna Law Review
                                                                         [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



discourses. For this reason it is crucial to explain what we understand by
fragile and failed States:9              we are not characterizing these States
ontologically; we just allude to their current situation of fragility and
failure depending on the case. States in a situation of fragility and failure
are unable to put into effect their functions. Despite the multiplicity of
actors in international affairs, the U.N. Charter still identiﬁes States as
the stem cell of the international system. But not all States are able to
satisfactorily comply with their obligations: ad intra, they stagnate in
political and economic underdevelopment; and ad extra, the uncertainty
around their international engagements is manifest. Even though these
States have been suffering several political and humanitarian crises since
their independence, the international society started paying more
attention to their failing situation only when their various problems
acquired        international      dimensions        damaging        wider      political      and
economic interests.
           A fragile State lives a political and economic deterioration process
that considerably weakens its authority and reduces its capacity to
provide the essential public services, generally expected from a State
based on the rule of law.              Without entering a paralysis situation, the
fragile States functions are bogged down and insufficient. Two exemplary
cases are the Republic of Mexico and Colombia, that face a hard-fought
war against organised criminality and illegal drugs trade, which proﬁts
from a slow and dysfunctional justice and police administration. A fragile
State may get worse and even become a failed State; however, it does not
necessarily follow this evolution. Actually, a failed State is completely
unable to warrant the rule of law because of its institutional collapse and
due to its political fragmentation, which frequently degenerates into
serious violence within the framework of non-democratic traditions. In
9
    See a rigorous systematization and, in particular, a typology to distinguish fragility from
    failure at Carlos Jimenez Piernas, Estados Débiles y Estados Fracasados, 65 REVISTA ESPAÑOLA
    DE DERECHO INTERNACIONAL [R.E.D.I.], no. 2, 2013, at 11, 17-28. See also GOVERNANCE
    AND SOCIAL DEVELOPMENT RESOURCE CENTRE (G.S.D.R.C.), http://www.gsdrc.org. See also, C.
    Mcloughlin, Topic Guide on Fragile States, August 2009, pp. 8-15 & 28-30 and H. HAIDER
    and FRAGILE STATES FORUM, www.fragilestates.org.



                                               77
                                                       University of Bologna Law Review
                                                                           [Vol.4:1 2019]
                                                            https://doi.org/10.6092/issn.2531-6133/9420



 fact, it is very common as well that the territory of a failed State partly or
 totally falls outside the government control.                      D.R.C. and Somalia are
 perfect examples, where the government has evidently lost the monopoly
 on the use of force. All in all, the most noticeable difference between a
 failed and a fragile State is possibly that the latter rarely creates a threat
 to international peace and security.
            Various sources suggest there could be 30 to 50 States in a situation
 of fragility and failure in the world, with chronic cases in Sub-Saharan
 Africa.        In 2016, the Organization for Economic Co-operation and
 Development (hereinafter O.E.C.D.) deﬁned it as “the combination of
 exposure to risk and insufficient coping capacity of the State, system
 and/or communities to manage, absorb or mitigate those risks”,
 eventually        leading     to   “violence,        the   breakdown          of    institutions,
 displacement, humanitarian crisis or other emergencies”.10
            The causes of this phenomenon are extraordinarily complex. To
 get an approximate idea of these causes, we should not forget the colonial
 inheritance. For example, the artiﬁcial borders in Africa have been at the
 origin of many conﬂicts, both international and internal (like civil wars).
 In this regard, we need to point out that a State in civil war is not a
 synonym for a failed State, as a civil war does not automatically lead to
 failure albeit the furtherance of such a conﬂict is likely to do so. In other
 cases the emphasis should be placed on the contradictions between
 western political institutions and a traditional political culture which
 privileges a multiplicity of religious and ethnic communities, as well as
 tribes and clans.          All these circumstances frequently overlap with an
 exceptional richness in natural resources, or with big investment projects
 aimed at developing infrastructures, essential to improve their human
 rights records. However, such investment projects may have social and
 environmental adverse effects. Very particularly within the framework of
 authoritarian and corrupt regimes, many companies are sort of put
10
     O.E.C.D. Publishing, p. 16, O.E.C.D.: States of Fragility 2016: Understanding Violence, Paris
     (2016), O.E.C.D. Publishing, p. 16, http://dx.doi.org/10.1787/9789264267213-en.



                                                 78
                                                  University of Bologna Law Review
                                                                      [Vol.4:1 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/9420



 between a rock and a hard place, as if they had to choose between human
 rights standards and some kind of loyalty towards the Government
 contracting their services.
        Studying causes may help to elaborate a typology or classiﬁcation
 of fragile and failed States as there are different phases of fragility and
 failure. The Fragile States Index Score, a Fund for Peace (N.G.O.) proposal
 annually published by Foreign Policy review, is a good starting point to
 the extent it offers a list to work with. There are however, ambiguous
 cases; for example, north Korea which could be considered a fragile State
 but probably not a failed one.11 In North Korea, despite most western
 indexes, the obvious lack of economic development and respect for
 human rights does not imply that institutions are weak, nor does it
 question the effectiveness of State functions. Similarly, China’s alleged
 fragility is probably overestimated in most indexes (listed as being in a
 “warning” situation according to the Fund For Peace Index),12 in the
 same way that Belgium’s institutional stability is probably overrated just
 because of its E.U. membership and economic prosperity.13
        This analysis will only include a fragile and a failed State (Colombia
 and D.R.C.), keeping aside those that bring up very different kinds of
 problems to the international scenario (such as the so-called “rogue
 States”). It goes without saying that a classiﬁcation proposal should be
 theoretically and methodologically preceded by a discussion on which
 quantitative and qualitative factors should be taken into account, besides
 their order of preference, but this is not the priority of the present article.
11
   Id. at 28.
12
   FRAGILE STATES INDEX, http://fundforpeace.org/fsi/wp-content/uploads/2018/04/9511818
   05-Fragile-States-Index-Annual-Report-2018.pdf.
13
   Abundant corruption scandals, the irreconcilable ethnic division between Flemish and
   Walloons, with its reﬂection in the judiciary system, and its inefficacy dealing with the
   latest terrorist attacks make of Belgium a more than discussable option for international
   investments, if Brussels was not the E.U. capital and N.A.T.O. headquarters. The
   international newspapers have abundantly reported in this sense, see for example, how
   The New York Times ridiculed Belgium describing it as the “world’s most PROSPEROUS
   failed States”: A. HIGGINS, Terrorism Response Puts Belgium in a Harsh Light, NEW YORK
   TIMES (Nov. 24, 2015), https://www.nytimes.com/2015/11/25/world/europe/its-capital-
   frozen-belgium-surveys-past-failures-and-squabbles.html.




                                            79
                                                     University of Bologna Law Review
                                                                         [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



 The diverse degree of fragility and failure of these States is a focal point
 for the development of organised criminality like terrorism (frequently
 mixed up with insurgency, like in Afghanistan) and piracy (a recent case
 is the Horn of Africa in the Indian Ocean beneﬁting from Somalia’s
 situation). In contact with terrorism and piracy we cannot ignore illegal
 drugs, arms and art trafficking. Those illegal activities constitute a real
 threat to international peace and security, damaging the global economy
 as well (e.g. Red Sea and the Suez Canal). The challenges derived from
 fragile and failed States cause the serious humanitarian crisis as this
 phenomenon destabilizes the whole system, often via non-conventional
 and asymmetric conﬂicts.
            On the other hand, we shall consider what the reaction to this
 socio-historical phenomenon has been.                       For the time being, the
 international society has not offered very original or creative attempts at
 ﬁnding a solution. The U.N. Charter consecrates the sovereign equality of
 States and this Principle has been interpreted in terms of sovereignty and
 territorial integrity, which has led to more or less virtuosic diplomatic
 cynicism. In reality, although States in a situation of failure cannot either
 comply either with their internal or international obligations, particularly
 for what concerns the maintenance of peace and international security,
 these States are nonetheless recognised as subjects with full rights in the
 international stage.             More concretely, the U.N. practice (of the
 Secretary-General and of the Security Council)14 has highlighted the
 necessity to formally safeguard the sovereignty and territorial integrity of
 failed States, above any empirical proof of their collapse (it does not apply
 to fragile States).         The international system has faced the challenges
 originated by failed States promoting decentralisation (i.e. from U.N. to
 regional organisations such as the European Union (hereinafter E.U.) and
 the African Union). This ﬁnally regionalises any attempt at resolving the
14
     Along with the abundant documentation issued by the E.U., the African Union, the
     International Maritime Organisation, the World Bank, the O.E.C.D., the Secretary-General
     Reports and the U.N.S.C. Resolutions are also indispensable sources of information, all of
     which go beyond the scope of this article.



                                               80
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/9420



 problem, with initiatives that the U.N. Charter has certainly always
 incorporated under Chapter VIII (on Regional Arrangements). We may
 recall the E.U. leadership against piracy in the Horn of Africa; as it will be
 explained, we miss a similar proactive role in D.R.C.. To what extent has
 the international society been doing its best in selecting the most
 adequate solutions to the challenges arisen by fragile and failed States,
 remains an open question.



     1.3. THE S.D.GS.: A NEW MOMENTUM FOR A PROPER C.S.R. IN HIGH-RISK AREAS

 C.S.R. is an interdisciplinary area under development and its detailed
 analysis is outside the scope of this article.                But many of its deﬁning
 elements are becoming clear by now, most notably its difference with
 corporate philanthropy. In 2001 the European Commission (hereinafter
 E.C.) considered it as the “concept whereby companies integrate social
 and environmental concerns in their business operations and in their
 interaction with their stakeholders on a voluntary basis”;15 ten years
 later, the E.C. proclaimed it had simply become the “responsibility of
 enterprises for their impacts on society”,16 which seems a better version.
 The O.E.C.D. speaks of the “private efforts to deﬁne and implement
 responsible business conduct”;17 for the O.E.C.D., responsible business
 conduct

           entails above all complying with laws, such as those on human

           rights,   environmental       protection,       labour     relations      and

           ﬁnancial accountability, even where these are poorly enforced .

           . . . [and] responding to societal expectations communicated by

           channels other than the law,            e.g.        inter-governmental
15
   Commision proposal for a European Framework promoting Corporate Social Responsibility, at
   6, C.O.M. (2001) 366 ﬁnal (Jul. 18, 2001).
16
   Commision Proposal for a Renewed E.U. Strategy 2011-14 for Corporate Social Responsibility,
   at 6, C.O.M. (2011) 671 ﬁnal (Oct. 25, 2011). The documentation of the E.U. is studied in
   detail in chapters III and IV.
17
   Organisation for Economic Co-operation and Development [O.E.C.D.], O.E.C.D. Guidelines
   for Multinational Enterprises, at Para. 7 of the preface (May 25, 2011).



                                              81
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



           organisations, within the workplace, by local communities and

           trade unions, or via the press.18

 The O.E.C.D. further clariﬁes that “[p]rivate voluntary initiatives
 addressing this latter aspect of R[esponsible] B[usiness] C[onduct] are often
 referred to as corporate social responsibility”.19 For the U.N., C.S.R. is
 simply deﬁned as “the corporate responsibility to respect human
 rights.”20
         Interestingly enough, even I.S.O. 26000 standard on C.S.R., which
 is a private non-governmental initiative, takes the trouble to underline
 the difference between philanthropy and responsibility, very commonly
 confused by companies both in developed and developing States:
 “Philanthropy (in this context understood as giving to charitable causes)
 can have a positive impact on society. However, it should not be used by
 an organization as a substitute for integrating social responsibility into
 the organization”.21 I.S.O. 26000 has become, within the private sector,
 an unavoidable cornerstone.               This is in contrast with most private
 initiatives that tended to avoid, at the beginning, a strong human rights’
 language.       For example, the private-led World Business Council for
 Sustainable Development deﬁned C.S.R. as “the continuing commitment .
 . . . to behave ethically and contribute to economic development while
 improving the quality of life of the workforce and their families as well as
 of the local community and society at large”.22                    The Global Reporting
 Initiative (hereinafter G.R.I.),            also private,23         tends to focus on
 sustainability and economic development.
18
   O.E.C.D., Policy Framework for Investment User’s Toolkit, at Chp. VII (2011) (2015 edition of
   the same is available at http://www.oecd.org/investment/toolkit/).
19
   Id.
20
   Special Representative of the Secretary-General, Protect, respect, and remedy: a framework
   for business and human rights, O.H.C.H.R. Doc. A/H.R.C./8/5 (Apr. 7, 2008).
21
   Int’l Organization for Standardization [I.S.O.], I.S.O. 26000:2010 Guidance on social
   responsibility (2010-11).
22
   LORD R. HOLME & P. WATTS, CORPORATE SOCIAL RESPONSIBILITY: MAKING GOOD BUSINESS SENSE
   (2000) www.wbcsd.ch.
23
   Founded in Boston in 1997, G.R.I. is one of the earliest purely private initiative, initially
   centred on environmental business sustainability, comprising periodic reports, and
   later expanded to more general “human rights and corruption” objectives. It has
   issued up to four updates of their own guidelines. GLOBAL REPORTING INITIATIVE (G.R.I.),
   www.globalreporting.org.


                                              82
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                            https://doi.org/10.6092/issn.2531-6133/9420



 In line with the U.N. Guiding Principles and the EC, non-proﬁt and
 non-Governmental Organizations (hereinafter N.G.Os.), like Amnesty
 International and Human Rights Watch, early emphasised the need to
 analyse “corporate behaviour through human rights lens”,24 correctly
 putting the accent on the human rights dimension of C.S.R. For
 Transparency         International,        there      is      a    “missing         link”       with
 anti-corruption and it should include, beyond “the management of
 economic, social and environmental impacts”, also the “relationships
 within the workplace and marketplace, along the supply chain, in
 communities and among policymakers.”25                            Corruption requires two
 parties: the corrupter and the corrupted, which brings us back to the
 institutional terrain of fragile States.
         The most common mistake in contexts of fragility and conﬂict can
 be expressed more crudely: C.S.R. does not consist of building a hospital
 or a school in exchange for polluting a river. Despite the diversity of
 deﬁnitions of C.S.R., three basic characteristic elements can be deduced,
 taken as categories or as an approximation to Weberian ideal types:26 1)
 the close connection of C.S.R. with the type of business and its inherent
 operations in the ﬁeld (the criterion of relevance that distinguishes it
 from philanthropic actions); 2) a sustainability criterion, i.e., to prioritise
 long-term preventive effects in social and environmental issues, leaving
 aside circumstantial, reactive and contingent approaches; and 3) a solid
 vocation to respect human rights, which is its speciﬁc legal basis.
         Clearly, C.S.R. seems to have lost considerable momentum, mainly
 as a result of the upsurge of the new U.N. development agenda, the
24
   Human Rights Watch [H.R.W.], Corporate Accountability: A Human Rights Watch
   Position Paper, (Sept. 8, 2005), https://www.hrw.org/news/2005/09/08/corporate-
   accountability-human-rights-watch-position-paper.
25
   Transparency International, Corporate Responsibility and Anti-Corruption: the Missing
   Link?, at 2, (Apr. 6, 2010).
26
   Alberto Jiménez-Piernas García, La deﬁnición de la responsabilidad social corporativa a la luz
   de los principios rectores: una perspectiva de derechos humanos [The deﬁnition of corporate
   social responsibility in the light of the guiding principles: a human rights perspective], in
   EMPRESAS Y DERECHOS HUMANOS [COMPANIES AND HUMAN RIGHTS] 67-86, 82-83 (Carlos
   Rámon Fernández Liesa & María Eugenia López-Jacoiste Diaz eds., 2018).




                                               83
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



 Sustainable Development Goals (hereinafter S.D.Gs.) for 2030.27 A good
 part of the private sector has enthusiastically welcomed the S.D.Gs.
 because they easily ﬁt their emotional marketing strategies and, again,
 they leave room for companies to pursue philanthropic social actions
 hiding the lack of a proper C.S.R. Many enterprises just choose which
 S.D.Gs.    better serve their public image needs without analysing their
 concrete impact and supply chains.                This trend reﬂects an attempt to
 extinguish C.S.R. when, in fact, the S.D.Gs. constitute an end and C.S.R. is
 one of the means to achieve them. Without corporate respect for human
 rights, business enterprises will “contribute” to the S.D.Gs. only with
 difficulty, among which international institutions should prioritise No. 16
 and 17 that precisely refer to strong institutions, democracy, rule of law
 and public-private partnerships (hereinafter P.P.Ps.).28
         Further still, most S.D.Gs. actually refer to procedural aspects of
 human rights,29 mainly economic and social rights (water and sanitation,
 food, health, protection of the environment and climate change) but also
 some civil and political rights (very prominently, access to justice and
 non-discrimination).
         If properly designed as the responsibility to minimise adverse
 corporate      impacts,      it   is   precisely     in    least-developed           countries
 (hereinafter L.D.Cs.) and developing countries that the external or global
 dimension of C.S.R. converges even more closely with the S.D.Gs.,
 reinforcing each other. In this sense, it can be stated that the S.D.Gs. could
27
   G.A. Res. 70/1, U.N. Doc. A/RES/70/1 (Sept. 25, 2015).
28
   Alberto Jiménez-Piernas García, Importancia y características de los planes nacionales de
   empresas y derechos humanos en relación con el desarrollo sostenible [Importance and features
   of national business plans and human rights in relation to sustainable development], in
   OBJETIVOS DE DESARROLLO SOSTENIBLE Y DERECHOS HUMANOS: PAZ, JUSTICIA E INSTITUCIONES
   SóLIDAS / DERECHOS HUMANOS Y EMPRESAS [OBJECTIVES OF SUSTAINABLE DEVELOPMENT AND
   HUMAN RIGHTS: PEACE, JUSTICE AND SOLID INSTITUTIONS/ HUMAN RIGHTS AND COMPANIES] 289
   (Diana Marcela Verdiales López, Cástor Miguel Díaz Barrado & Carlos Rámon Fernández
   Liesa eds., 2018).
29
   The new S.D.Gs., at the end of the day, “seek to realize the human rights of all”. In this
   development agenda, it is acknowledged that the “[p]rivate business activity, investment
   and innovation are major drivers of productivity, inclusive economic growth and job
   creations” so that the U.N. “call[s] upon all businesses to apply their creativity and
   innovation to solving sustainable development challenges”. U.N. Doc. A/RES/70/1, supra,
   preamble and para. 67 (quotes).



                                              84
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 mark a turning point or a new momentum for a pertinent C.S.R. in
 developing countries.



     1.4. C.S.R. AND BUSINESS OPPORTUNITIES IN FRAGILE AND FAILED STATES

 As explained before, State fragility is measured by combining qualitative
 and quantitative factors,            from institutional legitimacy to social
 inequalities and economic indicators. That said, one cannot affirm that
 there is a priori, a direct correlation between fragility and economic
 underperformance.          In practice, however, different degrees of State
 fragility often correspond to L.D.Cs.             and developing countries, which
 suffer from high public debt and low income rates, so that their economic
 needs tend to shadow their I.H.R.L. obligations.
         With respect to M.N.Es., it would be manichaean and inaccurate to
 lay all blame on them, as if companies felt at ease or were eager to operate
 in fragile States or in conﬂict zones. Indeed, quantitative studies have
 begun to question previous assumptions and prejudices in this respect,
 such as the “symbiotic relationship between repressive governance and
 foreign capital.”30 While it is certainly true that corporate behaviour is
 more likely to adapt to undesirable situations so as not to put at risk
 investments and beneﬁts,31 it would also be dangerous to ignore the
 growing reputational and even operational consequences of corporate
 misbehaviours. It is evident that companies do not necessarily and always
 feel at home in authoritarian or repressive States, but “rhetoric has
 exceeded empirical research.”32              Many authors have enthusiastically
 started to conduct quantitative analysis in search of mathematical models
 to investigate eventual C.S.R. returns on beneﬁts.33 It is called the C.S.R.
30
   Shannon L. Blanton & Robert G. Blanton, What Attracts Foreign Investors? An Examination
   of Human Rights and Foreign Direct Investment, 69 J. POL. 143, 145 (2007).
31
   This explains, by the way, why C.S.R. should not be left purely to self-regulatory schemes.
32
   Concerning, foreign investment, Blanton’s research would show that mathematical
   models refute the “dominant traditional perspective [assuming] F.D.I. and human rights
   to be inherently incongruous”. Id. p. 152.
33
   Maria F. Izzo, Bringing Theory to Practice: How to Extract Value From Corporate Social
   Responsibility, 5 J. GLOBAL RESP, 22 (2014).



                                             85
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 “business case”; for better or worse, business ﬁnds its way through.
 Among other results, theories of “shared value”34 emerged to point out
 that C.S.R. could create value for both companies and stakeholders, being
 measurable in terms of “social performance”. In sum, it can contribute to
 reduce business risks and, even, increase beneﬁts by creating value for
 both the enterprise and society.
          Critics claim that such reasoning leads to a merely instrumentalist
 or utilitarian perspective.        From this point of view, C.S.R. and human
 rights    respect     would      become      a    simple      management            issue      of
 “goodwill-nomics”:35 violations would be read as a risk and, sometimes,
 this approach can treat violations as unavoidable costs of production,
 while    the    word     stakeholders     could     end     up    hiding       victims,       i.e.
 rights-holders.       This cost-effective way of thinking has an additional
 problem as far as it would “allow corporations to prioritise some human
 rights”36 (those more costly, for example). All these quantitative manias
 may reﬂect a certain “dissemination of the corporate form of thinking”.37
          It is not so difficult to avoid confusing stakeholders with
 right-holders and the above-mentioned risk of permitting a “private-led
 prioritization or marketization of human rights”. For that, companies
 should ﬁrst ensure that C.S.R. is really aimed at addressing the impact of
 their operations in the ﬁeld and do not constitute arbitrary donations to
 social causes, which can be tricky and a double-edged sword in countries
 with factionalised elites and institutional weaknesses (unless they really
 want to meddle in politics). Secondly, companies should accept that C.S.R.
 is only partially quantiﬁable and, more importantly, that C.S.R. is not
 automatically proﬁtable: sometimes it is, but not always and necessarily.
34
   Michael E. Porter & Mark R. Kramer, Creating Shared Value: How to Reinvent Capitalism –
   and Unleash a Wave of Innovation and Growth, HARV. BUS. REV., Jan.-Feb. 2011, at 1, 63-70.
35
   SURYA DEVA, REGULATING CORPORATE HUMAN RIGHTS VIOLATIONS. HUMANIZING BUSINESS 139
   (2012).
36
   Robert McCorquodale, Pluralism, Global Law and Human Rights: Strengthening Corporate
   Accountability for Human Rights Violations, 2 GLOBAL CONST. 287, 307 (2013).
37
   S. E. MERRY, Measuring the World: Indicators, Human Rights and Global Governance: with C.A.
   Comment by John M. Conley, 52 Current Anthropology S3, (Supplement to April Corporate
   Lives: New Perspectives on the Social Life of the Corporate Form, edited by D.J. PARTRIDGE,
   M. WELKER and R. HARDIN), pp. S-83-S-95, at p. S-83.


                                             86
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 In other occasions, it will simply reduce risks, which are only dramatically
 quantiﬁable when they materialize. Credible due diligence protocols are
 an essential part of this work.38
           That said, if companies ﬁnd out that their economic results are
 improved thanks to C.S.R., there should not be anything wrong with that.
 The problem only arises when you put the cart before the horse, i.e., when
 marketing motivations shape and distort C.S.R. The trap of marketing
 motivations can be summarised in some simple questions that C.E.Os. and
 executive directors should ask their marketing departments: why build a
 hospital and not a school? Is it not a rather political choice alien to our
 corporate role? Would it not be better to assign that money to reduce our
 concrete impact on the environment or to improve working conditions,
 for example? Why spend 100,000€ to reduce our negative impact and
 1,000,000€ in the marketing department to communicate it, and not the
 other way round, now that communication costs are lesser thanks to the
 internet and social media? This is exactly what we mean by putting the
 cart before the horse. This is not thought to totally deny the importance
 of communication and marketing departments, but we urgently need to
 rethink their creeping predominance in the Boards of Directors of
 companies.        The excessive weight of marketing departments generate
 multitude of misunderstandings, with companies repeatedly tripping
 over the same stones: the overreliance on philanthropic and emotional
 marketing strategies will only accentuate the lack of awareness on
 institutional, regulatory and socio-historical risks in fragile contexts.
           Western, marketing-based and self-referential C.S.R. strategies
 are generally (and erroneously) oriented to rich societies and built upon
 the self-perceived interest of companies (the so-called business case),
 where philanthropy and responsibility are usually mixed up. Being also
 inadequate in developed countries, it is crystal clear that such C.S.R. falls
 short of the challenges in fragile or failed States and results in the
38
     For information purposes, see O.E.C.D., O.E.C.D. DUE DILIGENCE GUIDANCE FOR RESPONSIBLE
     BUSINESS CONDUCT (2018), http://mneguidelines.oecd.org/due-diligence-guidance-for-
     responsible-business-conduct.htm.


                                              87
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 companies falling into the same traps again and again. In those scenarios,
 the key is the institutional terrain where business operations take place
 and the best way to deal with it is avoiding both undue cynicism and
 excesses of idealism.
         Moving to the perspective of policy-makers, studies on China’s
 economic penetration into the African Continent have revealed that
 European conditionalities have led to some fatigue and frustration
 amongst many African governments.                   China has taken advantage of
 western “credibility gaps as development partners”.39 The “language of
 South-South cooperation”,40 “explicitly rejecting Afro-pessimism”,41
 continues to inspire Chinese post-Tiananmen and post-Darfur foreign
 policy. At the same time, its “categorical support for non-intervention in
 domestic affairs”42 is still valid, but has been slightly balanced and
 nuanced since the 1990s, now less reluctant towards international
 cooperation through regional and international organizations.
         In other words, it takes two to tango: policy makers should know
 that the punitive approach is losing ground against more constructive
 hybrid pressures. On the other hand, company directors should realise
 that a proper C.S.R., integral and integrated, could become a crucial
 comparative advantage in many developing countries, where there are
 plenty of opportunities in terms of natural resources and infrastructures.
 This approach may also help western companies to avoid politics, regain
 credibility and to better face growing competition from China and India.
39
   Deborah Brautigam, The Dragon’s Gift 311 (1st ed. 2009).
40
   Gerald Segal, China and Africa, 519 Annals Am. Acad. 115, 125 (1992).
41
   China returns to Africa 7 (Chris Alden, Dan Large & Ricardo Soares de Oliveira eds., 2008).
42
   Id., p. 22.




                                             88
                                           University of Bologna Law Review
                                                               [Vol.4:1 2019]
                                               https://doi.org/10.6092/issn.2531-6133/9420



      2. STUDY-CASE (1): POST-CONFLICT C.S.R. IN COLOMBIA

  2.1. THE SITUATION IN COLOMBIA AND THE PEACE AGREEMENT WITH F.A.R.C.

The negative outcome of the referendum held in October 2016 triggered
concerns regarding the future of Colombia, after so many efforts to reach
an agreement between the government and the Revolutionary Armed
Forces of Colombia (hereinafter F.A.R.C.) Up to 50 articles of the ﬁrst text
(rejected by the electorate) were amended in an attempt to address the
lack of consensus, after which the then-President Santos still decided to
adopt the agreement through a legislative act by the end of 2016. We have
seen in different scenarios the “referenda curse”, ranging from Brexit to
Colombia, or the secessionist Catalan region in Spain: what they all share
is a variety of situations where institutional legitimacies are under
pressure.
      The most polemic points of the Peace Agreement concerned its
provisions on transitional justice (a special tribunal and a partial amnesty
that ﬁnally excluded major crimes), together with a sort of political
insurance by virtue of which F.A.R.C. are guaranteed for the next two
electoral periods 5 seats in the Congress and 5 seats in the Senate
(including security and ﬁnancial support to compete in the elections).
After 50 years of open armed confrontation, most Colombians judged it to
be excessively conciliatory and saw the 2018 elections as a second
opportunity to express their discontent. In June 2018, the majority voted
for the right-wing Duque, now President of Colombia, who had ﬁercely
opposed the Peace Agreement and even brought it before the
Constitutional Court.
      However, the Constitutional Court has ruled that only a President
has the faculty to negotiate and close peace agreements, therefore
backing outgoing President Santos, who has received more international
than internal support. The Congress is then obliged to remain within the
framework of the spirit of the agreement, although it has some room for



                                      89
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 manoeuvre during its implementation: “[E]l ámbito de regulación del
 Congreso respecto de la implementación del Acuerdo Final radica en la
 presentación de diferentes opciones de regulación, pero todas ellas deben estar
 dirigidas a facilitar dicha labor de implementación del Acuerdo.”43
         From an international perspective, article 3 common to the four
 Geneva Conventions of 1949, has deliberately been used to give the peace
 agreement a broader base of legitimacy and even some “legal
 resiliency”44 to handle the vicissitudes of national politics. In this sense,
 I.L. interestingly connects with Constitutional Law: the agreement is
 presented as “internationally binding” and, actually, the separation
 between its international legal life and its internal one is artiﬁcial,45 not
 to say a ﬁction intended to protect it from the vagaries of forthcoming
 governments. This smart use of I.L. could be a source of inspiration for
 other conﬂict-affected regions.
         In more general terms, taking into consideration the active
 engagement of Norway, Cuba, the Holy See, Venezuela and Chile, the
 Peace Agreement can also be interpreted as a success for multilateralism.
 In a speech at the headquarters of the E.U. in Brussels, the Executive
 Secretary of the U.N. Economic Commission for Latin America and the
 Caribbean, Alicia Bárcena, said that the negotiation process showed “in
 this uncertain time the tangible value of multilateral endeavours.”46
         In the meantime, the U.S., a traditional ally in the ﬁght against
 drugs, has taken a tougher line.                  President Donald J. Trump has
 “considered designating Colombia as a country that has failed
 demonstrably        to    adhere     to    its    obligations      under       international
43
   Colombian Constitutional Court: Judgement C-332/17, 17 May 2017, available at:
   http://www.corteconstitucional.gov.co/relatoria/2017/C-332-17.htm.
44
   Carlos R. Fernàndez Liesa, El Derecho Internacional en el Acuerdo de Paz, [International Law
   in the Peace Agreement], in El Acuerdo de Paz entre el gobierno de Colombia y las F.A.R.C.
   [The Peace Agreement between the Colombian government and the F.A.R.C.] 39, 48 (Carlos R.
   Fernandez Liesa et al. eds., 2017).
45
   Id. p. 45.
46
   Press Release, U.N. Economic Commission for Latin America and the Caribbean,
   Alicia Bárcena, Peace Process is Achievement of Colombians, Demonstrating Relevance
   of Multilateralism and Value of the Region’s Constructive and Respectful Support
   (May 31, 2018) https://www.cepal.org/en/pressreleases/alicia-barcena-peace-process-
   achievement-colombians-demonstrating-relevance.


                                              90
                                                 University of Bologna Law Review
                                                                     [Vol.4:1 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/9420



 counternarcotics agreements due to the extraordinary growth of coca
 cultivation and cocaine production over the past 3 years, including record
 cultivation during the last 12 months.”47 For now, Colombia has not been
 included in the list of non-complying countries. But such statement is all
 the more poignant when one realises that it was issued just a year after
 the entry into force of the Peace Agreement. Hence, it casts a serious
 shadow over its effective implementation and explicitly poses a threat,
 which had previously been expressed only sotto voce.
         The difficulties of Colombia have become more apparent due to the
 ﬂows of people that cross the border ﬂeeing from Venezuela. Beyond the
 present humanitarian crisis, the long Colombian boundary line with
 Venezuela, Ecuador, Peru, Panama and Brazil constitutes a real hub of
 organized criminality, mainly linked to illegal arms trade and drug
 cartels. In sum, the State ﬁnds itself in big difficulties in exercising an
 effective control of the territory. Furthermore, the problematic presence
 of the Ejército de Liberaciòn Nacional (hereinafter E.L.N.) persists and is
 “further complicated by the internal division within the E.L.N., unlike
 F.A.R.C.”48 In the event of a similar agreement with this rebel group,
 dissidents are more than foreseeable. Against this background, it goes
 without saying that the achievement of an agreement with F.A.R.C. should
 not be over estimated.
         Still, it is not all bad news. In May 2018 O.E.C.D. member States
 invited Colombia to become a full member of the Organization, after talks
 and negotiations since 2013. The signing ceremony took place on the 30th
 of May.49 After satisfying the national or internal procedure to that effect,
 accession will become effective once Colombia deposits its instrument of
 accession with the French government, the depositary of the Convention.
47
   Memorandum from the Presidential memoranda, Presidential Determination No. 2017-
   12 (Sept.    13, 2017) https://www.whitehouse.gov/presidential-actions/presidential-
   memorandum-secretary-state-2/.
48
   INT’L INST. FOR STRATEGIC STUDIES, THE ARMED CONFLICT SURVEY 335 (Routledge ed., 2018).
49
   Press Release, O.E.C.D., O.E.C.D. countries agree to invite Colombia as 37th member (May
   25, 2017) http://www.oecd.org/countries/colombia/oecd-countries-agree-to-invite-
   colombia-as-37th-member.htm.




                                            91
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 This may explain why Colombia does not even ﬁgure in the O.E.C.D. fragile
 States Index, despite its obvious institutional fragilities.                        Similarly,
 Mexico should also ﬁgure in the list of fragile States of the O.E.C.D., but it
 does not because it is a full member of the Organization.



       2.2. C.S.R. CLAUSES IN THE COLOMBIAN PEACE AGREEMENT WITH F.A.R.C.

 As is logical, C.S.R. is far from being the top priority of the Peace
 Agreement between Colombia and F.A.R.C. However, a careful reading of
 its provisions reveals that economic aspects are critical in helping the
 government re-establish control of remote rural areas, where the social
 fabric is used to obey a variety of rebels, warlords and drug cartels. The
 promotion of the formal economy and an effective control of the territory
 are therefore closely intertwined. The Peace Agreement is additionally
 right in its combination of regulation and policies; the text is peppered
 with legislative plans and appropriate accompanying policies.                                The
 common axis is built upon their complementarity, since laws do not
 suffice on their own without enabling policies.
           Speciﬁcally, it acknowledges that the State needs the private sector
 to take root in remote areas. Even though the English translation does not
 reﬂect it, the Spanish original uses the verb “adelantar” (literally,
 “advance”) in art.          1.1.8: to create mechanisms to facilitate that “las
 empresas del sector privado que adelanten su actividad económica en los
 territorios rurales” [the companies in the private sector that advance the
 economic activity in rural areas]. The temporal nuance is not without
 signiﬁcance, even more so as organised crime groups and drug dealers are
 quickly ﬁlling the power vacuum left by F.A.R.C.’s demobilisation.50 The
 most famous example is the Gulf Clan, which has expanded its inﬂuence
 and now has now consolidated in 142 municipalities, even though minor
50
     International Institute for Strategic Studies: The Armed Conﬂict Survey 2018, July 2018,
     Routledge Ed., p. 329.




                                              92
                                           University of Bologna Law Review
                                                               [Vol.4:1 2019]
                                               https://doi.org/10.6092/issn.2531-6133/9420



drug cartels have also proﬁted from the relative slowness of State
institutions in ﬁlling the gap left by F.A.R.C..
Without idealising its role, the private sector is certainly quicker than
public institutions and could act as the spearhead of a long-term
stabilisation process. That is where P.P.Ps. make more sense than ever.
Moreover, the private sector can further help in the promotion of formal
economy and the formalisation of labour relations.
       A corollary of State control is one of the strict requirements
foreseen in the agreement to revise private security licences (art. 3.4.10),
“placing an emphasis on the prohibition of the privatisation” of functions
typically performed by the State (mainly, military and intelligence
activities).   As for public services, the agreement accepts that private
companies may “provide domiciliary public services” but within a general
framework of “accountability” (art. 2.2.5).
       At this point, it is worth citing at length the C.S.R. clauses present in
the Peace Agreement.
       (See table in the next page)




                                      93
                                           University of Bologna Law Review
                                                               [Vol.4:1 2019]
                                                 https://doi.org/10.6092/issn.2531-6133/9420



Table 1: C.S.R. clauses in the Colombian Peace Agreement with F.A.R.C.

 C.S.R. Dimensions               Clauses of the Peace Agreement
                      Art. 1.1.8: “Set up mechanisms for social dialogue
                      between national, regional and local authorities,
  Business role in    small-scale     farmer         communities            and      also
      affected        indigenous, black, afro-descendent, raizal and
    rural areas;      palenquero communities, in addition to other
                      communities where different ethnic and cultural
   Public-Private     groups coexist, and private sector companies
   Partnerships;      doing business in rural areas, with a view to
                      creating formal spaces for discussion between
  Institutionalised   actors with diverse interests, which allow the
   dialogue and       promotion of a common development agenda
    cooperation       focusing on socio-environmental sustainability,
                      he      well-being        of   rural     populations           and
                      economic       growth            with      equity”.
                      Art. 1.3.3.5: “Promoting the recruitment of women
    Gender gaps
                      in   non-traditional           areas       of     production”.
  Labour relations    Art. 1.3.3.5: “Training agricultural workers and
  (in agriculture);   businesses in the area of employment rights and
 Capacity building;   obligations, and promoting the culture of
 Formal economy       formalisation        of    the    labour        market”.
                       Art.    2.2.5: “Strengthen the mechanisms for
   Public services
                       accountability of . . . . and companies providing
 and accountability
                       domiciliary         public         services”.




                                     94
                                             University of Bologna Law Review
                                                                 [Vol.4:1 2019]
                                                https://doi.org/10.6092/issn.2531-6133/9420




                        Art.   3.4.10: “Strengthen .           .   .   .   territorial
                        supervisionand inspection of private security and
                        surveillance services . . . . placing an emphasis
  Private Security
                        on the prohibition of the privatisation of
       Forces
                        military, police or intelligence functions . . . .;
                        it shall ensure that they do not perform
                        state military, police or security functions”.
     Control of        Art.    4.3.3:   “Review and establish strict State
   the economic        controls on the production, import and selling
    production;        of chemicals precursor and input require for
    Illicit drugs;     the production of illicit drugs.            .   .   .    It shall
    Mix of hard        put in place rules and mechanisms to engage
    and soft law       companies who produce, import and sell the above
     measures          to adopt measures of transparency and control”.



  2.3. THE POTENTIAL OF THE PRIVATE SECTOR IN RURAL COLOMBIA

It is well-known that State institutions need some time to consolidate. If
adequately guided by public policies, the private sector can serve as a
catalyst for institutional stability. A usual problem in these situations is
the over-abundance of well intended but vague public policies or, sensu
contrario, the absence of concrete policies to meaningfully assist business
enterprises in the ﬁeld. Of course, the Peace Agreement does its job and
one should not ask it to be more concrete (it could be worse for the
negotiating strategy); more concrete accompaniment of the private sector
will be decisive, however, in the implementation policies that will follow.
Companies’ role, in summary, is to take over the private functions
previously fulﬁlled by what we might call “illegal private actors”. In this
manner, the social tissue gradually recovers from maﬁa-style loyalties
and tensions. Formal economy and formal labour relations are a crucial
aspect of this post-conﬂict transition.


                                        95
                                                University of Bologna Law Review
                                                                    [Vol.4:1 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/9420



 Nonetheless, local communities need to feel comfortable with this
 transition period: in particular, they should not fear an abrupt end of
 their traditional lifestyle, nor a threat to their natural environment.
 Otherwise, the risk is that they end up missing previous informal powers
 and illicit activities. In view of the above considerations, each economic
 actor has an intrinsic responsibility depending on the concrete activities
 carried out.      For example, when the Spanish oil company, Repsol,
 congratulates itself on promoting cacao production instead of coca
 plantations in rural Colombia. In doing so, this company is assuming an
 improper role for which it has not been instructed, nor for which it has
 been trained. A foreign company does not have the legitimacy to promote
 cacao instead of other crops (the question could be: why cacao and not
 coffee?).   On the contrary, as indicated by its Head of Relations with
 Communities and Human Rights in America, it seems more relevant to
 channel its C.S.R. through mechanisms of “socio-environmental
 monitoring in collaboration with the neighbouring Guarani populations”,
 as done in Bolivia.51 This is the most pertinent way of involving local
 communities in sustainable rural development and favouring the
 country’s institutional stability. P.P.Ps. are not meant to be a private
 bypass of State functions, but a complementary help and coordination
 process during which each actor must remain in his respective place. An
 oil company faces many challenges before worrying about what is the best
 crop to replace coca cultivation, and by doing that assumes unnecessary
 legitimacy risks in its relationship with the local communities.
        It should not be deduced that the role of the private sector is
 underestimated. In fact, in the era of globalization, companies function as
 important pollinators of regulatory and political options in the territories
 where they operate. A certain degree of “private legal transplant of E.U.
 Law”52 is already detected in the extractive industry and, in general, in
51
   Examples taken from a special issue of a Spanish newspaper: Supplement Responsabilidad
   Social Corporativa [Corporate Social Responsibility], EL PAìS, Nov. 29, 2017, at 80.
52
   Tomaso Ferrando, Codes of conducts as private legal transplant: the case of European
   extractive M.N.Es., in EUR. L. J. 779, 809 (2013).



                                           96
                                                      University of Bologna Law Review
                                                                          [Vol.4:1 2019]
                                                           https://doi.org/10.6092/issn.2531-6133/9420



 standards and codes of conduct. It consists of a private horizontal policy
 and legal transfer: indeed, Codes of Conduct and good practices can have
 a de facto extraterritorial reach through T.N.Cs.’ activities. Of course, it is
 necessary to adapt these codes of conduct to the particularities of fragile
 or conﬂict-affected States:              for instance, in Colombia it would be a
 mistake not to contract with any company or individual that had been
 involved in illegal activities, given that in certain areas it would
 practically mean not hiring anyone.




            3. STUDY-CASE (2): RECURRENT VIOLENCE AND NATURAL RESOURCES IN D.R.C.

       3.1. OVERVIEW OF THE SITUATION IN D.R.C.: NOT A SIMPLE GOOD-EVIL PLOT

 The commonly used and cited Fragile States Index (2018) lists D.R.C. as
 the 6th most fragile country in the world, with all indicators situated at
 the upper limit of the alarm range. This index particularly highlights
 group grievances, factionalised elites, lack of State legitimacy and safety,
 human rights violations and forced displacements. Thus, it does not come
 as a surprise that              D.R.C. has started 2018 with Ebola and polio
 outbreaks,53 extending the alarm beyond its borders.                           That contrasts
 markedly, as usual in Sub-Saharan Africa, with its richness in natural
 resources, ranging from sawn wood, crude petroleum and diamonds to
 cobalt (including its ores), raw and reﬁned copper, in order of importance.
            Power vacuum is evident in the eastern provinces (Ituri, North and
 South Kivu and Tanganyika), where ethnic divisions appear to be the
 perfect place for the proliferation of militia and armed groups, by the way,
 increasingly politicised on the murky expectation that future elections
53
     A new polio vaccine is being tested and, according to the World Health Organization, the
     Ebola outbreak seems to be “largely contained” after two months of alarm. See the latest
     press release, U.N. NEWS, Ebola Outbreak in Democratic Republic Congo is “largely contained“:
     W .H.O. (June 26, 2018), https://news.un.org/en/story/2018/06/1013122.




                                                 97
                                                  University of Bologna Law Review
                                                                      [Vol.4:1 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/9420



 may change the political chess-board.                   The region of Tanganyika
 constitutes a paradigmatic example, where the confrontation between
 Luba and Twa communities has led to massacres and, ultimately, to
 approx. 50,000 forcibly displaced persons.
         In this context, we have to reject simplistic analyses of goodies and
 baddies. But the classic story comes ﬁrst, no matter how well-known it is.
 Of course, Sub-Saharan presidents have good friends in the extractive
 industry and the other way round, heavyweights of mining T.N.Cs. are
 usually close to, at least, one President in the region: Kabila ( D.R.C.) and
 the Israeli businessman Dan Gertler, Kagame (Rwanda) and the Swiss
 Chris Huber, Museveni (Uganda) and Dubai-based Belgian businessman
 Alain Goetz.
         This includes some expectable links to arm dealers (and warlords):
 for example, to get the ore out of Rwanda during 1998-2003 war, Huber
 used the same aircraft as the Russian Viktor Bout (now in a US prison for
 selling arms to terrorists).54 Additionally, independent research suggests
 that Goetz gold supply chains are ﬁnancing conﬂicts and that important
 amounts of gold are smuggled out from the eastern provinces of D.R.C.
 into Uganda and Rwanda, where Goetz also enjoys a predominant
 position.55 The porosity of D.R.C. eastern border further contributes to
 the division of local communities, not to mention the economic losses for
 the State. Then, the lack of effective control of the territory makes it
 possible for rebel groups to ﬁnance themselves through the exploitation
 of minerals.
         So far, the classic story; now, we shall add some nuances. One
 cannot understand why Goetz paid for the cocktail party at the end of the
54
   Clashes Over “Clean Coltan” AFR. CONFIDENTIAL, May 18, 2018. All articles of this
   review are available under subscription at: AFRICA CONFIDENTIAL, https://www.africa-
   conﬁdential.com.
55
   Dubai, the home of Goetz, has become “the most important trading partner [of Rwanda]
   and gold far outstrips Rwanda’s other staple exports, like coffee and tea”. As for Uganda,
   it surprisingly exports 5 tonnes more of gold that it produces, coinciding with a spike
   of activity of Goetz controlled companies. In the overall, Goetz could be involved in the
   smuggling of approx. 20 tonnes of conﬂict-gold out of eastern Congo into Rwanda and
   Uganda. See: “The Great Lakes Gold Rush”, Africa Conﬁdential, Vol. 59 No. 6, 23rd March
   2018.


                                             98
                                                       University of Bologna Law Review
                                                                           [Vol.4:1 2019]
                                                             https://doi.org/10.6092/issn.2531-6133/9420



 International Conference of the Great Lakes Region, held in July 2017 and
 sponsored by the U.N. Special Envoy for the Great Lakes, Saïd Djinnit. The
 U.N. should be rather more cautious, especially after some deadly attacks
 against M.O.N.U.S.C.O. and its lack of popular support.
            On the other side, artisanal mining in D.R.C.                         should not be
 idealised: it is generally organised through cooperatives that sharply
 reﬂect tribal divisions, with regular spikes in ethnic violence, which
 cannot always be attributed to corporate-related causes (although, we
 may consider the historic role of the Belgian colonial administration
 exacerbating and using ethnic divisions). This is why we warned in the
 introduction that sometimes “business and human rights” issues are just
 epiphenomena of wider latent problematics.
            Besides, cooperatives are often accused of stealing mineral to
 launder it through other concessions and some companies are, in turn,
 accused of illicit exports to neighbouring countries.                            But even local
 small-scale          miners       illegally     export       raw       minerals,         incurring
 non-negligible risks to their personal safety.                      One of the most recent
 outbreaks of violence took place in Kivu after the closure of Bibatama
 coltan mine, which led to the reappearance of serious Hutu-Tutsi
 tensions (many miners are ex-combatants who kept their weapons).56 In
 the province of Ituri, rich in gold, Lendu and Hema ethnic groups have
 also clashed since December 2017.
            In 2016, President Kabila and the opposition reached an agreement
 to hold elections by 2017 (the so-called Saint Sylvester Agreement) but
 the President is delaying its implementation.                               In principle, the
 Constitution prevents Kabila from running for a third term, but the
 uncertainty around his own future was a source of concern.                                    In the
 meanwhile, the ﬁrst opposition party (Union for Democracy and Social
 Progress) is widely divided after the death of its historic leader Tshisekedi
 on 1st February 2017, especially because many members of the party do
 not look favourably upon the leadership of his son Felix Tshisekedi.
56
     Africa Conﬁdential, supra note 54, at Vol. 59 No. 10.


                                                 99
                                                 University of Bologna Law Review
                                                                     [Vol.4:1 2019]
                                                      https://doi.org/10.6092/issn.2531-6133/9420



 Before the elections, some Ministers of the Government started raising
 the tricky question of whether next “elections could possibly take place in
 a situation of war”.57 The President even saw an opportunity in this crisis
 to “sell himself” as the guarantor of unity and public safety, through an
 alleged “professionalization” of security forces,58 while he had increased
 government repression of public demonstrations and protests. Joseph
 Kabila, President since 2001 when he succeeded his father, has also played
 it well in the relations with neighbouring countries emphasizing the ideas
 of south-south solidarity and sovereignty. This does not apply to the
 relations with Rwanda and Uganda, which are not exactly going through
 their ﬁnest moment, since they beneﬁt from smuggled minerals and, in
 particular, due to Rwanda’s support to rebel group M-23.
         Only after a visit to D.R.C. of the U.S. Ambassador to the U.N.,
 Nickki Haley, the pressure became more tangible and Kabila announced a
 concrete electoral calendar. Elections were held on 23 December 2018.59
 Felix Tshisekedi is the new President of D.R.C. with the unexpected
 support of Kabila, since the latter’s coalition still controls the Parliament.
 Some media have suggested that Kabila and Tshisekedi agreed on a
 “backroom deal over the disputed poll”. For the time being, social unrest
 and political instability raise doubts about the near future of D.R.C. while
 ebola outbreaks persist.



     3.2. THE PRECEDENT OF THE KIMBERLEY PROCESS: C.S.R. IN THE U.N. SECURITY COUNCIL

 Illicit diamond trade, particularly associated with Sierra Leone but
 affecting the Great Lakes region, led to an unprecedented engagement of
 the U.N. Security Council (hereinafter U.N.S.C.). In a totally unexpected
 way, corporate behaviour was placed at the top of the U.N.S.C. agenda, but
 there were plenty of reasons to do so: the virulence of the conﬂict had
57
   Kabila’s survival strategy, AFR. CONFIDENTIAL, Mar. 9, 2018.
58
   International Institute for Strategic Studies: The Armed Conﬂict Survey 2018, July 2018,
   Routledge Ed., pp. 172-173.
59
   Id. at 171-172.



                                           100
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/9420



 destabilized Sierra Leone and the entire Great Lakes region. The highest
 executive body of the U.N. went well beyond its usual resolutions in terms
 of international peace and security. On the assumption that the conﬂict
 was fueled by illicit trade in diamonds, in 2000 the U.N.S.C. called upon
 the private sector to establish “an effective Certiﬁcate of Origin regime”
 to cut off the ﬁnancing of the armed conﬂicts, while “welcoming” the
 cooperation of the diamond industry, the World Diamond Council and
 N.G.Os. and experts.60
         This represented a turning point in the usual strategies since it was
 the ﬁrst time that P.P.Ps. were backed at such a high political level in
 order to address the crosscutting challenges of fragile and failed
 sub-Saharan States, with ramiﬁcations in a multitude of institutional,
 political, economic and human rights’ issues.
         To the satisfaction of the U.N.S.C., the certiﬁcation scheme started
 to deliver results only one year after, making it possible for Sierra Leone
 to gradually overcome violence.61 The initiative was then extended to
 Guinea and, in 2003, to D.R.C. . By the end of 2002, the U.N.S.C. began to
 support a private-led initiative for the co-regulation of diamond trade.
 Apart from certiﬁcates of origin established by law in the producing
 countries, the industry got involved in the so-called Kimberley Process
 (hereinafter K.P.), described by the U.N.S.C. as a “signiﬁcant progress.”62
 Quite exceptionally, the U.N.S.C. issued a Resolution with the sole purpose
 to back the K.P., explicitly expressing its “strong support”63 and praising
 the fact that it was a “voluntary system of industry self-regulation.”64
 But over time, it has evolved into a mix of self- and co-regulation. Illicit
 trade in diamonds and Kimberley Certiﬁcation Scheme provides us with
 an excellent example of the crucial role of the institutional terrain where
 business operations take place, on how C.S.R. can make a distinctive
60
   See generally S.C. Res. 1306, U.N. Doc. S/RES/1306 (June 5, 2000).
61
   See S.C. Res. 1385, para. 2, U.N. Doc. S/RES/1385 (Dec. 19, 2001).
62
   See S.C. Res. 1446, recital 6, U.N. Doc. S/RES/1446 (December 4, 2002).
63
   S.C. Res. 1459, para 1, U.N. Doc. S/RES/1459 (January 28, 2003).
64
   Id. at 2.




                                             101
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



 contribution including “carrots and sticks.”65 The relative success of the
 K.P. is explained by the combination of compulsory elements (hard law)
 and complementary voluntary actions (soft law):                         on the one hand,
 certiﬁcates of origin were incorporated in the national legislation of
 producing countries; on the other hand, the world industry engaged in
 frank negotiations with States, N.G.Os., Civil Society Organisations
 (hereinafter C.S.Os.) and other producers in order to clean their supply
 chains.    To make it work, all subjects and actors must have a proven
 legitimacy: States should be preferably democratic and have strong and
 reliable institutions; N.G.Os. and C.S.Os. have to demonstrate a legitimate
 interest and be representative of the stakeholders on behalf of which they
 act; and the industry should have agreed a viable starting point (to begin
 with, a strong commitment to minimise the adverse effects of the
 exploitation of resources).
         The institutionalisation of these processes is the key for moving
 C.S.R. from rhetoric to concrete actions.66 As said before, D.R.C. joined
 the Kimberley certiﬁcation system in 2003. In the long run, K.P. data
 show that D.R.C. annual rough diamond exports have signiﬁcantly
 decreased between 2006 and 2016,67 from over 30 million carats (more
 than 679 million USD in value) to almost 15 million carats (worth 229
 million USD). Conﬂict diamonds now represent around 1% of total trade
 in diamonds, which is a pronounced improvement. In the short term (the
 last two years), data are also inﬂuenced by the fact that the market “has
 trended towards smaller stones and lower qualities”, due to its higher
 global demand, according to the Gemological Institute of America.68
 Another problem in D.R.C. is the accuracy of statistics themselves, given
65
   See Franziska Bieri & John. Boli, Trading Diamonds Responsibility: Institutional Explanations
   for Corporate Social Responsibility, 26 Soc. F. 501, 507 (2011).
66
   Id. at 502.
67
   See 2016 is the latest year data has been available; check ﬁgures at: KIMBERLY PROCESS,
   https://www.kimberleyprocess.com/en/democratic-republic-congo#2007.
68
   See Russell Shor, Diamond Producers Aim for Lower Qualities in Today’s Market, GIA.EDU
   (Sept. 18, 2017), https://www.gia.edu/gia-news-research-diamond-producers-aim-
   lower-qualities-todays-market.




                                              102
                                                       University of Bologna Law Review
                                                                           [Vol.4:1 2019]
                                                           https://doi.org/10.6092/issn.2531-6133/9420



 that extensive alluvial diggings and state-owned exploitations are more
 likely to provide imprecise data.
          Among the lessons to be learned from the K.P. , we shall highlight a
 general commitment to put into practice more proactive pressures
 instead of traditional sanctions, which end up punishing civil population
 without delivering structural improvements. Then, even regardless of its
 actual effectiveness, the K.P. has become a useful forum for dialogue
 between all subjects and actors,                      a place for coordination and
 harmonization of mining ﬁscal regimes within the Sub-Saharan region.
 Nevertheless, it should be recalled that diamonds only represent 8.4% of
 D.R.C. exports.69



     3.3. TIN, TANTALUM, TUNGSTEN AND GOLD: THE MERIT OF THE NEW E.U. REGULATION. AN
     APPROPRIATE POLICY BALANCE.

 The E.U. has recently made a move to extend the control of conﬂict
 minerals, including tin, tantalum, tungsten, their ores, and gold. Back in
 2010 the European Parliament (hereinafter E.P.) asked the Commission to
 imitate the U.S. Dodd-Frank Wall Street Reform and Consumer Protection
 Act (in this case, Section 1502),70 built upon the O.E.C.D. Due Diligence
 Guidance        for     Responsible         Supply       Chains       of     Minerals         from
 Conﬂict-Affected and High-Risk Areas.
          The Commission prepared a proposal that consisted of a hard
 norm,      which      would      serve     as    a    framework        for     self-regulation
 (certiﬁcations and good practices) so as to foster responsible supply
 chains.       The public competent authorities would help implement
 self-certiﬁcations and provide the structures for review, reporting and
 claiming, being thus a relatively daring initiative.                        The Commission
69
   OBSERVATORY OF ECONOMIC COMPLEXITY (O.E.C.), Democratic Republic of Congo,
   ATLAS.MEDIA.MIT.EDU, https://atlas.media.mit.edu/en/proﬁle/country/cod/.
70
   See generally Proposal for a Regulation of the European Parliament and of the Council setting
   up a Union system for supply chain due diligence self-regulation of responsible importers of tin,
   tantalum and tungsten, their ores, and gold originating in conﬂict-affected and high risk areas,
   recital 7 at 3, C.O.M.(2014) 111 Final (March 5, 2014).



                                                 103
                                                       University of Bologna Law Review
                                                                           [Vol.4:1 2019]
                                                            https://doi.org/10.6092/issn.2531-6133/9420



 advocated for a mixed hard and soft law approach, in which companies
 partly manage self-certiﬁcates as “responsible importers” but, once in,
 they must fully comply with the O.E.C.D. guidelines and accept
 supervision and reporting.
            Another option would have been to make it compulsory to join the
 system, so that the number of Companies would be higher, but the
 requirements would eventually persuade them to leave certain risk areas
 looking for an alternative sourcing, to make it easier to comply with the
 standards. This would probably generate serious market distortions when
 abandoning already weak countries, in which companies would not
 source anymore. What is more, with these conﬂict-affected or high-risk
 areas abandoned, at the end, nothing would point to improvements on
 the ground.
            Since 2010, after the approval of Dodd-Frank Act, D.R.C. has
 undergone it has been assessed a drastic reduction of exports and increase
 of informal trade networks in and neighbouring countries of the Great
 Lakes Region where, again, we face the problem of failed States (D.R.C.).
 This negative impact, according to the Commission,71 could be minimised
 if the Regulation maintains the half-voluntary character of this
 self-certiﬁcation system, so as to avoid worsening the problems at source
 by simply abandoning these areas.
            The fact is that the E.P. called on the Commission to regulate this
 matter in 2010 but the proposal was only drafted and published in 2014.
 The outcome was unclear for a long time and constitutes an interesting
 example of the regulatory process chemistry. Politically speaking, the
 Commission united to the High Representative of the E.U. for Foreign
 Affairs and Security Policy to put pressure on the Council and the
 Parliament, stressing the development and human rights coherence of
 adopting such a regulation, in the exposed terms, consistently with the
71
     See Commission Staff Working, Executive Summary of the Impact Assessment Accompanying
     the Document Proposal for a Regulation of the European Parliament and of the Council Setting
     Up a Union 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 Areas, S.W.D. (2014) 52 ﬁnal (Mar. 5, 2014).


                                                 104
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



 values that should inform E.U.’s external action.72                      For instance, the
 Parliament reacted with a profusion of amendments adopted on 20 May
 2015, even asking for a tougher regulation and accentuating the human
 rights aspects.73
          The E.P. ignored that a too strict regulation would stimulate
 companies to leave these countries at their own mercy, thereby raising
 economic and social problems. Although the negotiations seemed to be
 delayed sine die, this E.U. Regulation was ﬁnally adopted in May 2017.74
 Its most positive aspect is precisely this balance between the necessary
 requirement of responsible imports and the development needs of those
 areas.
          In conclusion, both policy makers and T.N.Cs. should know that
 States’ fragility is only worsened if we just encourage companies to
 abandon high-risk areas: it is necessary to design more imaginative
 strategies. The K.P. and the smart mix of hard and soft law of this E.U.
 regulation are good examples, even if the latter could be improved as we
 will see next. We will have to wait until 2021 before it enters into full force
 and be vigilant on the concrete criteria, guidelines, lists of countries and
 companies.



     3.4. MISUNDERSTANDINGS OF THE PRIVATE SECTOR AND INCONSISTENCIES OF THE E.U. ROLE:
     REGULATORY LACUNAE, COBALT AND LAST ELECTIONS IN D.R.C.

 As explained above, Saint-Silvester Agreement foresaw an electoral
 process in 2017 that has been put off several times. The escalation of the
72
   See Joint Communication to the European Parliament and the Council, Responsible
   Sourcing of Minerals Originating in Conﬂict-affected and High-Risk Areas. Towards an
   Integrated E.U. Approach, J.O.I.N. (2014) 8 ﬁnal (Mar. 5, 2014).
73
   See also Eur. Parl., Amendments adopted on the proposal for a regulation of the European
   Parliament and of the Council setting up a Union system for supply chain due diligence
   self-certiﬁcation of responsible importer of tin, tantalum and tungsten, their ores, and gold
   originating in conﬂict-affected and high-risk areas, P8_TA-PROV(2015)0204 (May 20,
   2015).
74
   European Parliament and Council Regulation 2017/821 laying down supply chain due
   diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and
   gold originating from conﬂicto affected and high-risk areas, 2017 O.J. (L 130/1) (E.U.).



                                              105
                                                  University of Bologna Law Review
                                                                      [Vol.4:1 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/9420



 crisis may help President Kabila to hold on to power. In this context, a
 new U.S. Executive Order has established severe actions against a variety
 of global “malign actors”. One of these actors is the Israeli Dan Gertler,
 who has beneﬁted from his friendship with President Kabila, thus
 diverting from D.R.C. “over 1.36 billion in revenues from the underpricing
 of mining assets that were sold to offshore companies linked to Gertler”;
 for example, “in 2013, Gertler sold to the D.R.C. government for $ 150
 million the rights to an oil block that Gertler purchased from the
 government for just $ 500,000, a loss of $ 149.5 million in potential
 revenue.”75       Being close to Kabila, Gertler has become almost an
 indispensable partner for many T.N.Cs. operating in D.R.C. U.S. sanctions
 comprise companies doing business with Gertler. In the wake of this U.S.
 Executive Order, Glencore directors ﬁnd themselves in an awkward
 position trying to desperately break the ties with Gertler, to whom they
 have pending payments for royalties and other concepts (as explained, he
 is an indispensable “facilitator” of the extractive industry in D.R.C.).
         Shamingly enough for the E.U., Glencore may have found a way to
 bypass U.S. sanctions: make payments to Dan Gertler in euros, amid the
 silence of European institutions.           At the same time, the N.G.O. Global
 Witness reports that Glencore has also settled another possible dispute
 originated by U.S. sanctions,             but in this case with State-owned
 companies, “agreeing to pay hundreds of millions to opaque Congolese
 State-owned Company Gécamines.”76 These funds may end up ﬁnancing
 Kabila’s strategy to remain in power. The E.U.’s silence could be explained
 by the fact that some E.U. member States have strong economic interests
 in the Sub-Saharan country. Indeed, Belgium, Luxembourg and Spain are
 respectively the fourth and ﬁfth top export destinations of D.R.C. , while
 France is the ﬁfth among the top import origins of D.R.C. (amounting to
75
   Press Release, U.S. Department of the treasury, United States Sanctions
   Human Rights Abusers and Corrupt Actors Across the Globe (Dec 21, 2017),
   https://home.treasury.gov/news/press-releases/sm0243.
76
   Margot Mollat Du Jourdin, What Price Will Glencore Pay For Its Murky Deals in D.R. Congo?,
   GLOBAL WITNESS (June 22, 2018), https://www.globalwitness.org/en/blog/what-price-
   will-glencore-pay-its-murky-deals-dr-congo/.



                                            106
                                                   University of Bologna Law Review
                                                                       [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 261 million dollars).77         By the way, diamonds are the top import of
 Israel,78 which brings us back to Dan Gertler.                      Given this complex
 constellation of interests, it is rather inconvenient that the E.U. is the
 Chairmanship of the K.P. in 2018.79
         According to some analysts,80 the lack of funds eventually caused
 by U.S. sanctions could have motivated a recent important reform of the
 D.R.C. Mining Code, which includes a considerable rise in taxes in a clear
 confrontation with the seven most important T.N.Cs. operating in D.R.C.
 Kabila probably hopes that the strength of global demand of copper and
 cobalt will neutralize the boycott announced and headed by Glencore and
 Randgold.81      In any case, if declared a strategic mineral, royalties for
 cobalt could amount to 10% so that it would be difficult to defend its
 conﬁscatory character before an Arbitration tribunal.                                In such
 hypothetical arbitration, the State can reasonably argue its right to
 regulate and that such measures are not discriminatory (i.e., applicable to
 all investors) and proportionate.              Moreover, “the expectation of the
 investor to receive certain treatment is opposed to the State’s expectation
 to freely conduct its legitimate activities”, and “arbitral tribunals
 presume that the investor is an experienced and savvy businessman who
 has carried out adequate due diligence about the business and country
77
   See OBSERVATORY OF ECONOMIC COMPLEXITY (O.E.C.), supra note 69.
78
   See Latest data from 2018 of the World Integrated Trade Solutions, an initiative of the
   World Bank in collaboration with the U.N. Conference on Trade and Development and
   in consultation with organizations such as the International Trade Center, the U.N.
   Statistical Division and the World Trade Organization. See Israel’s trade proﬁle at:
   WORLD INTEGRATED TRADE SOLUTION (W.I.T.S.), Israel Trade at Glance: Most Recent Values,
   WITS.WORLDBANK.ORG, https://wits.worldbank.org/CountrySnapshot/en/ISR.
79
   It is remarkable that the E.U. External Action Service website cites projects in Côte
   d’Ivoire, Guinea, Liberia and Sierra Leone, but completely forgets D.R.C. But cf.
   EUROPEAN UNION EXTERNAL ACTION, E.U.Engagement in Kimberley Process: A Pledge to
   More Sustainable Livelihoods of Mining Communities, EEAS.EUROPA.EU (June 19, 2018),
   https://eeas.europa.eu/headquarters/headquarters-homepage/46605/eu-engagement-
   kimberley-process-pledge-more-sustainable-livelihoods-mining-communities_en.
80
   See International Institute for Strategic Studies: The Armed Conﬂict Survey 2018, July 2018,
   Routledge Ed., p. 178.
81
   See Making The Miners Sweat, 59 AFRICA CONFIDENTIAL, June 15, 2018.




                                             107
                                                University of Bologna Law Review
                                                                    [Vol.4:1 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/9420



 conditions and how they may change, including how they may be affected
 by forthcoming political changes.”82
         Against the new mining code and taxes, a C.E.O. of Randgold has
 expressed his bitter disappointment recalling that they have “invested $3
 billion over eight years, [and] built three hydropower plants.”83 Precisely
 at this point it is worth underscoring that Randgold main business does
 not consist of building hydropower plants for the State, but extracting
 minerals.      It would have been better to consecrate those ﬁnancial
 resources to improve its social and environmental performance in D.R.C. ,
 thereby convincing local authorities that the company does its best – in
 its ﬁeld of activity – to contribute to the countries’ sustainable
 development and stability. When a company sticks to its concrete social
 and environmental impacts, it will more easily avoid being drawn into
 conﬂict-ridden political scenarios and will possibly reduce the risk of
 arbitrary government decisions against its investments.                     Even from a
 merely cost-effective perspective, a proper C.S.R. designed in conjunction
 with public authorities is surely less expensive than three hydropower
 plants.
         Finally, even though the E.U. regulation on some minerals
 maintains an apparently positive balance between voluntary and
 compulsory aspects, it also has some negative points. For instance, ﬁnal
 consumers,      small-scale      importers      (for   example,         for     dentistry),
 intermediaries, transporters and secondary or recycled products are all
 outside the control of this regulation. Of course, it goes without saying
 that many other “conﬂict-minerals” fall beyond the scope of the
 European regulation, such as copper and cobalt, which actually represent
 the most important exports of D.R.C. (56% reﬁned or raw copper and 17%
 cobalt).84 The ﬁnal paradox is that the E.U. is actively promoting electric
 cars for environmental reasons but rechargeable batteries use between 6
82
   Andres Rigo Sureda, Investment Arbitration: Judging under Uncertainty 78, 80 (1st. ed.
   2012).
83
   Kabila Squeezes The Miners, AFR. CONFIDENTIAL, Feb. 23, 2018.
84
   See OBSERVATORY OF ECONOMIC COMPLEXITY (O.E.C.), supra note 69.



                                          108
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/9420



 and 15 kg. of cobalt per car and D.R.C. has around two-thirds of the global
 mine resources of cobalt (reportedly using child labour).85
         Cobalt and governmental deals with T.N.Cs.                     will determine the
 near future of the country and the credibility of last elections. President
 Kabila could ﬁnd new ways of ﬁnancing his offshore corporate structures
 in order to remain in power. In an interview with Radio France before the
 elections, the opposition leader Felix Tshisekedi suggested again that
 they might not take place “ou à défaut d’élections crédibles” [in the absence
 of credible elections]. At the same time he promised that if he would have
 won the general election he would have not planning any “chasse aux
 sorcières” [witch-hunt] meaning that Kabila should not fear a judicial
 prosecution: “Au nom de la stabilité de l’État, je crois qu’il faut fermer les
 yeux sur certaines choses” [in the name of national stability I believe it is
 necessary to turn a blind eye on certain things.]86 The situation remains
 extremely ﬂuid even after the post-electoral coalition Kabila-Tshisekedi.
         What is clear is that some companies have misinterpreted their
 role in the country, deliberately inﬂuencing local politics. Companies’
 own actions have partly contributed to increase political and regulatory
 risks, in a totally unnecessary way: in different statements, the Swiss ﬁrm
 Glencore had reassured shareholders saying that the new Congolese
 mining code would be amended to include a ten-year grace period before
 new taxes affect the already established mining companies. None of that
 happened of course; on the contrary, Glencore received a subpoena from
 the U.S. Department of Justice to investigate their deals in D.R.C., for
 suspected corruption and money laundering. A bribery probe is also being
 considered in the United Kingdom. Glencore is certainly aware that the
 U.K.’s Bribery Act has extraterritorial reach including foreign companies
85
   See ZANDI SHABALALA, Cobalt to be declared a strategic mineral in Congo, REUTERS.COM
   (Mar. 14, 2018), https://www.reuters.com/article/us-congo-mining-cobalt/cobalt-to-
   be-declared-a-strategic-mineral-in-congo-idUSKCN1GQ2RX.
86
   See generally CHRISTOPHE BOISBOUVIER, Félix Tshisekedi: «Je n’ai ni l’intention ni l’ambition
   de me mesurer à ce qu’a été mon père» [I have neither the intention nor the ambition to
   measure myself against what my father was], LES VOIX DU MONDE [THE VOICES OF THE WORLD]
   (Apr. 5, 2018), http://www.rﬁ.fr/emission/20180405-felix-tshisekedi-je-ai-intention-
   ambition-me-mesurer-ete-pere.


                                              109
                                                    University of Bologna Law Review
                                                                        [Vol.4:1 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/9420



 with operations in the U.K., creating a backdrop which is anything but
 rosy. Glencore’s stock lost 13 % in London in a single day and a group of
 shareholders considers bringing an action against the company.87




           4. THE POTENTIAL OF A PROPER C.S.R.: SOME RECOMMENDATIONS

 The objective of this article was not to provide a rosy view, and all subjects
 and actors involved have a share of responsibility. For example, the blame
 is frequently assigned to T.N.Cs. but we do not pay enough attention to the
 institutional terrain. It goes without saying that, in many occasions, it is
 the governments themselves that are interested in maintaining endemic
 corruption, by imposing opaque royalties, forced partnerships with State-
 owned companies and extraordinary taxes, which irregularly ﬁnance the
 ruling political party. Precisely in these situations it is justiﬁed that M.N.Es.
 exercise the less friendly side of their power of inﬂuence, threatening to
 withdraw investments or to source in other countries, as a mean of exerting
 pressure to ensure that the State does not request companies to perform
 tasks which are not part of the private sector duties.
           Under I.L., human rights obligations fall on States; companies
 should not be asked to make social investments which have no relation
 with the impact of their daily activities. Companies must be clear in this
 regard: the private-sector contribution should be limited to responsibly
 conduct its operations, including human rights. This is predominantly a
 preventive task: to reduce the negative impact of business activities and,
 to the extent possible, to clean supply chains for the sake of sustainable
 economic development. If done, that is no small contribution. To go
 beyond that would risk putting companies on a slippery slope, in this sort
87
     Emily Gosden, Shareholders Could Sue Glencore amid U.S. Inquiry, TIMES (July 13, 2018),
     https://www.thetimes.co.uk/article/shareholders-could-sue-glencore-amid-us-
     inquiry-wz295xsqb.




                                              110
                                               University of Bologna Law Review
                                                                   [Vol.4:1 2019]
                                                  https://doi.org/10.6092/issn.2531-6133/9420



 of externalization of State functions, which is particularly dangerous in
 conﬂict-affected or post-conﬂict scenarios with factionalised elites.
        In terms of risks and opportunities, the criterion of relevance
 applied to C.S.R. can signiﬁcantly reduce both operational and
 reputational risks if companies concretely prove how their business
 project contributes to the country’s economic development. In order to do
 so, public-private dialogue is needed to design a relevant C.S.R. (not
 philanthropic and paternalistic actions). From a public image perspective,
 the government of these States will have great difficulties to explain to
 the public opinion that they ﬁre a foreign company that just wanted to
 responsibly conduct its concrete business, in cooperation with public
 authorities, but did not want to meddle in politics (not paying improper
 taxes for the ruling party, or building infrastructures only in regions that
 support the government). Glencore would not be so bitterly disappointed
 in D.R.C., when, in return for building three hydropower plants, it
 received new mining code that increased taxes and, if it was not enough,
 found itself in the spotlight of the judicial authorities of the U.S. and the
 U.K. for possible corrupt practices.
        Western companies can overcome traditional reluctances and more
 probably avoid arbitrary regulatory changes against their investments. In
 this line of work, responsible business conduct and P.P.Ps. can “provide a
 common       reference      point     for     constructive        engagement             in
 conﬂict-affected and high-risk areas, as opposed to divestment.”88 At
 this point it becomes clear to what extent the private sector and policy
 makers must prioritise S.D.G. No. 1689 if we make the effort to design
 long-term strategies for sustainable and successful businesses.
88
   GLOBAL COMPACT: Guidance on Responsible Business in Conﬂict-Affected and High Risk
   Areas: a Resource for Companies and Investors, New York, 2010, p. 6.
89
   See generally, GLOBAL COMPACT: STATEMENT: “GOAL 16: HARNESSING THE POWER OF
   RESPONSIBLE BUSINESS TO PROMOTE SUSTAINABLE DEVELOPMENT”, NEW YORK 2015, (2015)
   (last visited Nov 30 2018).
   SURIA DEVA, supra note 35, at 208.




                                         111
                                                         University of Bologna Law Review
                                                                             [Vol.4:1 2019]
                                                                https://doi.org/10.6092/issn.2531-6133/9420



Table 2: Recommendations for the private sector and policy makers

         Recommendations for                                     Recommendations for
             the private sector                                        policy makers
                                                        Promote            and      design           P.P.Ps.,
 Paradigm shift from risk management
                                                        especially in areas where the State’s
 to responsible management,                   from
                                                        effective          control         is         under
 philanthropy           to          responsibility.
                                                        question, because the private sector
 The S.D.Gs.       are an end; C.S.R. is
                                                        is        quicker           (while            public
 one     of       the        means.
                                                        institutions             root).

                                                        Less       information            and          vague

 Move “from policies to processes”                      guidelines and more concrete and

 through due diligence protocols:                       active accompaniment of business
 a) Understand the context (legal and                   enterprises        in     difficult     scenarios.

 economic         framework,               without      Work         on          common              formats

 underestimating the socio-historical                   (codes       of     conduct)          and      avoid

 terrain);         b)        direct        impact;      the multiplication and privatisation

 c) indirect impact; d) follow-up.                      of certiﬁcation schemes (lack of

                                                        credibility and cost for companies).

                                                        Balance         policies        and     correctly

                                                        understand the complementarity of
 Avoid        maximalisms              that     are
                                                        soft        law         and       hard          law.
 only    viable    in        rich     countries
                                                        Too        rigid        legal     requirements
 (example: “never contract with people
                                                        can      lead      companies            to     leave
 who had contact with F.A.R.C. in
                                                        risk areas, condemning them to
 the     past”)         but         also      reject
                                                        poverty        and       violence.             Only
 undue         cynicism.
                                                        voluntary           self-regulation             also

                                                        falls             short.




                                                  112
                                             University of Bologna Law Review
                                                                 [Vol.4:1 2019]
                                                  https://doi.org/10.6092/issn.2531-6133/9420




                                             Multilateral      endeavours         and

                                             international            institutionalised
 Reduce marketing based strategies
                                             cooperation. Use International Law
 and increase research development
                                             as    an      umbrella         to    protect
 and innovation (hereinafter R.+D.+i.)
                                             initiatives from changing internal
 for the sustainability of the operations
                                             politics.    New forms of proactive
 in the ﬁeld.      An effective C.S.R.
                                             hybrid pressures must be considered
 is technical and interdisciplinary.
                                             before      resorting     to    traditional

                                             sanctions.


In contexts of fragility and conﬂict, almost never a risk will be turned into
an opportunity, at least in the long term; only if we change the paradigm
from managing risks to managing responsibilities, companies will be able
to responsibly foster business opportunities in high-risk areas. Finally, it
is crucial to highlight the positive effects of regional integration and, in
more general terms, of institutionalised cooperation to alleviate internal
tensions within some States – as it is even the case within some E.U.
member States such as Belgium.
       The potential of a proper C.S.R. is quite evident in conﬂict-affected
and high-risk areas. If adequately designed, it can enable synergies with
the S.D.Gs. Western companies need a paradigm shift to regain credibility,
in their relationship with governments and with the population, and there
is an opportunity to make C.S.R. a comparative advantage in the global
economy.      Reality shows more and more that, thanks to R.+D.+i.,
economic development and sustainability can be compatible.




                                       113
