Conflict Minerals and Mandatory Disclosure, Part II

Guiding PrinciplesIn Part I of this post, I wrote about the momentum toward mandatory human rights disclosure in the US, as relates specifically to conflict minerals.  But the US is not acting alone.  Countries around the world are adopting their own disclosure regimes.

One day after the conflict minerals decision came down in Washington DC, a similar battle in the European Union (EU) ended in favor of disclosure.  After months of negotiations, the European Parliament adopted a reform Directive calling for mandatory non-financial disclosures, sending a strong message to businesses that the EU is responding to consumer and investor demand for corporate accountability and transparency.  The new Directive recognizes that non-financial reporting on business-related environmental, social, and human rights impacts is “vital” for sustainable economic growth. The language, which will be incorporated into an existing EU Directive on annual financial reporting, requires select large companies to disclose on their human rights policies, risks, and outcomes.

As with many other EU laws, the Directive only sets out minimum legal requirements and puts the onus on the Member States to implement.  Member States are free, for example, to require disclosure from companies other than those covered in the Directive, or to require that information in the reports be verified by an independent auditor.  Member States must also create their own compliance regimes, which must be available to all persons with a “legitimate interest” in ensuring compliance.

However, as with almost anything, there is much room for improvement.  Some of the language was watered down from an earlier iteration of the Directive.  Member States can exempt companies from disclosure in certain situations. Supply chain impacts only have to be disclosed when “relevant and proportionate.”  And there is no requirement to report existing abuses, only the risk of potential impacts.  More debates lay ahead as individual Member States move to implement the Directive in their own national contexts and address these shortcomings.

But even with these challenges, action in the EU is still indicative of the global trend. From Argentina to Ghana, more than twenty States have human rights reporting regimes.  India’s stock exchange requires its top 100 companies to file a mandatory “Business Responsibility Report,” which includes human rights impacts.  Brazil recommends that its listed companies publish sustainability reports, and the Brazilian stock exchange publishes an annual list of all the companies that report.

good businessFurthermore, governments are not acting alone in setting up disclosure regimes.  Socially responsible investors are calling for greater transparency with their investments and are publicly applauding even the qualified victories, including the US DC District Court’s decision.  They know that human rights impacts materially affect the bottom line and they are using their voting power to compel companies to report on their due diligence practice and procedures.

As both decisions last month have shown, crafting a perfect disclosure regime is difficult, and it is impossible to predict exactly how States will continue to implement their duty to protect people within their borders from business-related human rights abuses.  But if last month’s decisions are any indication, businesses need to get used to the idea that human rights matter.

Conflict Minerals Case Affirms Inevitability of Human Rights Disclosure

posted by Nicole Santiago, Northeastern University School of Law

No Conflict MineralsDuring my co-op at the International Corporate Accountability Roundtable (ICAR), one of my focus areas has been corporate transparency.  ICAR believes – and I strongly agree – that companies have a responsibility to report on their human rights impacts.  This means that businesses must know how their daily operations impact human rights, and must then publicly disclose those impacts to the public.  This applies not only to business activities at home, but also to the activities of subsidiaries and supply chains, even if they are outside the country. We see human rights disclosure as important for investors (in corporations speak, it is “material” to investment decisions), and necessary for businesses to respect human rights, which is a responsibility that they have under the United Nations Guiding Principles on Business and Human Rights.

Companies have been reluctant to share information about their human rights impacts.  Some corporations do not have the internal resources and know-how to conduct detailed human rights investigations. Others do not want to spend the extra money. And some do not want to know – or they do not want the public to know – that they are involved in human rights abuses.  Unsurprisingly, businesses are fighting against mandatory human rights reporting.

However, after last month it is clear that they are fighting a losing battle.   Governments around the world are moving ahead towards broader mandatory reporting, and even the most influential businesses cannot stop it.

The first victory came on April 14th, when a divided panel of the DC District Court of Appeals upheld the majority of a US Securities and Exchange Commission’s (SEC) rule for conflict minerals disclosure.  The SEC rule requires companies to determine whether they source select minerals from the Democratic Republic of Congo (DRC) and to publicly report on whether those minerals are “conflict free.”

Screening MineralsThe rule was developed by the SEC in response to a Congressional call for action.  For over 15 years, communities in the DRC and the surrounding region have been victims of brutal violence in a conflict that is substantially fueled by the trade in certain minerals: tin, tantalite, tungsten, and gold. Labelled “conflict minerals” because of their dubious association with murder, mass rape, and environmental desecration, these are minerals that are found in many of the electronics we carry and the jewelry we wear every day.  In the 2010 Dodd-Frank Act, Congress addressed the role of US companies in the humanitarian crisis, and ordered the SEC to come up with a rule requiring companies to publicly show whether they are contributing to the violence.  The rule–referred to as Section 1502, in reference to the corresponding section in the 2010 Dodd-Frank Act–requires businesses to find out where their minerals are sourced from, and determine whether the trade of those minerals directly or indirectly benefits an armed group.

Business and industry groups, led by the National Association of Manufacturers, were quick to challenge the rule on several grounds.  Yet, as the opinion last month illustrated, their efforts were almost entirely wasted.  The Court threw out their first two challenges, one based on the Administrative Procedural Act’s “arbitrary and capricious” standard, and other based on the 1934 Securities Exchange Act, which established the SEC and its mandate.

Mine SiteOn the whole, the Court agreed with the SEC rule-making decisions.  It made clear that companies cannot ignore warning signs from preliminary inquiries and they cannot contract-away responsibility.  The SEC has the authority to make rules even when the benefits are experienced “half-a-world” away, and those benefits cannot be directly compared to the financial costs–the Court likened it to comparing apples to bricks.  The Court also explicitly stated that the SEC need not have “particular expertise” to make a rule, so long as Congress stipulates that a rule would effectuate an end goal.  All in all, this is very powerful language for human rights advocates.

The only thing that the Association can claim victory on is a First Amendment challenge against the labeling provision, which would have required businesses to state on their websites whether the minerals they source are “DRC Conflict Free” or not.  It’s hard to believe that the costs–financial, reputational and otherwise–of fighting over those three little words was really worth it.  This is especially true when you consider that a different case, in which another DC District Court panel has already rejected a similar First Amendment argument in relation to meat labeling, may make the majority’s analysis of the appropriate standards of review irrelevant.

Moving forward, companies are still required to file their first reports in less than a month, and at least one company has already done so.  On May 1st, the SEC issued guidance for the roughly 6,000 companies affected by the rule, clarifying that the reporting requirements in the rule are still good law.

We still have a ways to go, and the future is not crystal clear.  But for reluctant companies, one thing is evident: Mandatory disclosure is going to happen.  Twenty years from now, these companies may find themselves in the same position as toxic polluters in the 20th century now find themselves: retroactively liable for failure to take action on an important issue.  There is no time to waste.

Colombia Part II

This blog post is part II in a continuing series of posts about my recent trip to Colombia. For Part I, scroll back in the blog to April, 2014.


My first stop was Bogotá, which would serve as a base for the rest of the trip. In Bogotá I met the staff and attorneys from the Solidarity Center, who were instrumental in setting up my subsequent interviews.

The second day in Bogotá I met with a number of leaders of the petroleum workers union at their headquarters. Metal detectors and armed government agents guard the entrance of the building, which also houses the largest trade union confederation in the country. Nearly all of the leaders I met with had received death threats for their organizing, and many had been forced to leave the region they were from, only to live under a constant threat of being assassinated in Bogotá. One union leader had recently returned from exile in Canada where he had spent the last ten years after members of his family were murdered.

Perhaps most shocking about these stories was the fact that the government appeared to be directly implicated in the threats. One leader, Hector Sanchez, explained how days after filing a complaint with local authorities concerning the first threats he received, an investigator from the government contacted him requesting that he provide information concerning the addresses of all his family members. Without fully understanding why this was necessary, he reluctantly provided the details. Within days, each of those family members received threats at the addresses he had provided.

Campo Elias Ortiz was another worker who had received threats yet persisted to organize with the union. He explained how employment was so precarious, and dangerous, that he believed it would never change without the power of a union to force the company to do the right thing. He added that he felt a responsibility to stand up in the face of such threats and fear, because as a younger worker, he did not have the same family obligations that some of his comrades had spoke about.

Both Hector Sanchez and Campo Elias Ortiz were planning to testify against Pacific Rubiales in a criminal case in December of 2013, a few months after my visit to Colombia. The Solidarity Center was helping them with their case and their testimony was to be instrumental in establishing a direct link between local authorities, the company, and the para-military groups executing the threats and violence in the region. I later learned that just days before their testimony, they were arrested by local authorities on specious charges relating to their involvement in a strike that took place in 2011. They were held for months in prison before finally being released just recently – due in part to international pressure from allies.


Image From left to right:

Campo Elías Ortíz, Rudolfo Vecino Acevedo (President of the Union), and Frederico Pulicio, stand together with Héctor Sánchez.Both Campo Elías Ortíz and Héctor Sánchez were arrested shortly after my interview and remain in jail with their lives in jeopardy.

The Colombian Free Trade Agreement & Labor Rights

Sugar Cane Workers ColombiaIn September of 2013, I visited Colombia for a research project organized with the American Federation of Labor – Congress of Industrial Organizations (AFL-CIO). The objective was to evaluate the progress of the alleged reforms to Colombian labor law, as agreed to under “The Colombian Action Plan Related to Labor Rights” (hereinafter “Labor Action Plain” or “LAP”). This ambitious side agreement was designed to reform Colombian labor and employment law, to ensure workers’ rights and freedom of association. I met with oil workers, sugarcane cutters, dockworkers, airline workers, and palm workers. The stories collected through my research serve as a vehicle to illustrate the failures of the LAP, which I believe can be best characterized as ineffective, naïve, and misguided. A full report has been published by the AFL-CIO International Affairs Department, and I have written further about the process for an independent study. For those interested in learning more about this work, feel free to contact me directly. Here is a link to the AFL-CIO report just published in April, 2014.

What follows are some excerpts about the research. I’ll post more photos in the forthcoming blog entries.

Had I known how far the city of Medellín was from the airport, I might have planned somewhat better. Nevertheless, I arrived around midnight and found myself in an unmarked gypsy cab, driven by a teenager who appeared so young, I wondered if he in fact had a license. In the pitch-black night, I was unaware of the lush Colombian mountainside rushing by us. The hour-long ride from the airport in Medellín provided ample time to consider exactly what I was getting myself into.

The young taxista offered me a cigarette and turned down the radio. Making small talk, he asked what brought me to Colombia. I thought to myself… “to investigate the murders of trade unionists like myself.” Instead I simply said I was doing legal research about the US-Colombia Free Trade Agreement. I figured he would have no interest or real knowledge about the topic. I couldn’t have been more wrong. Immediately he began retelling his participation in street protests just a few weeks earlier, where he joined other students from his school in games of cat and mouse with the local police. Massive demonstrations had rocked the rural areas of the country in July and August as small farmers and miners had staged protests against the provisions in the Free Trade Agreement going into effect that forced them to compete with subsidized products from the United States. In other areas of the country, there had been a number of deaths, as farmers and police engaged in hand-to-hand combat in the streets.

I was silent – partly out of surprise, and partly out of exhaustion. I sat in the passenger seat and digested the fact that many parts of the country were in a state of uprising against the trade agreement, and wondered if I could link these rural protests to my narrower topic of workers’ rights under the agreement. I also was beginning to wonder exactly where we going. We had been driving for nearly 45 minutes and there were no signs of a city. The kid sensed my unease, and turned the radio back on. Ironically, the radio commentators were deep in a debate about the price of milk and the effects of ‘leche americana’ now lining the shelves at supermarkets. Reporters interviewed dairy farmers who were asking the government to delay implementation, or renegotiate the provisions concerning milk products under the Free Trade Agreement. I thought about how many people in the United States even knew that the US-Colombia Free Trade Agreement existed – definitely not most 17-year-old taxi drivers.

After some preliminary research in Medellín, meeting with different researchers and investigators from the Escuela Nacional Sindical (ENS) (National Trade Union School), I began traveling the country conducting interviewers for my report.  I’ll post stories and photos about those experiences in the coming weeks.

Life After NUSL and PHRGE

It stuns me to think that it has been nearly a year since I walked across that stage, in that decked-out gym surrounded by happy classmates and proud families, and graduated from Northeastern University School of Law. I moved from Boston to D.C. the day after graduation and began studying for the Maryland bar. On August 1, the day after the bar exam, I started my current position as an immigration attorney at Faegre Baker Daniels LLP.


grad                                                         hooding

Starting at FBD felt like coming home, in many ways. I had worked in the firm’s Minneapolis office in 2005 as a paralegal in the immigration group right after finishing my Peace Corps service. Now, as an attorney working from the D.C. office, I am a peer to the same attorneys for whom I had worked so many years ago.

My practice focuses on employment-based immigration, and my days are spent preparing non-immigrant and immigrant visa petitions to be filed with the U.S. Citizenship and Immigration Services (USCIS). I assist employers – large multinational corporations and small organizations alike – in obtaining work authorization for highly skilled employees from all over the world. I counsel clients on immigration strategies to assist in workforce planning, and I am just now starting to advise in the areas of I-9 and E-Verify enforcement and auditing. I write legal updates on employment-based immigration issues with my colleagues, and I provide information and guidance to non-immigration lawyers within the firm when they have immigration-related questions that come up in their practice.

While I had always envisioned working in a nonprofit or governmental setting after law school, I enjoy my work at FBD every day and am grateful to be here. My colleagues are smart and funny, and they know how to have full lives outside of the office. Each meeting seems to start with at least 30 seconds of group laughter at some joke, and even when we’re all staying late to meet a tight deadline, there’s always time to send a funny cat .gif to the team to lighten the mood.

Another benefit I’ve found in working at such a large firm is the seriousness with which the lawyers approach pro bono work. The Minneapolis office in particular has an incredible track record of pro bono and community service, and the firm takes great pride in it. In the smaller D.C. office, there has not been such a strong pro bono presence, but community service is popular. In the past seven months, we in the D.C. office have planted trees to green a neighborhood and collected clothing and raised a few thousand dollars for a local homeless advocacy organization.

Soon after I started at FBD, I reached out to my former PHRGE co-op employer, Physicians for Human Rights, to see if they had any work I could do on a pro bono basis. I was tasked with writing an NGO report on Russia’s upcoming review under the International Convention on Civil and Political Rights (ICCPR), using medico-legal affidavits prepared in support of Russian asylum cases. I was so happy to be able to continue working for such a great organization – and it felt like a great way to maintain my PHRGE roots at the same time.


I also saw that there might be an opportunity to do ongoing pro bono work in D.C. with an organization I worked with while at NUSL – the Iraqi Refugee Assistance Project (IRAP). IRAP provides individual legal representation for refugees, partnering with law firms and law schools to assist individuals and their families fleeing persecution. Although the firm’s bureaucracy meant that launching the project took longer than my impatient DNA would have preferred, FBD has now decided to form case teams in D.C. and Minneapolis and will take on a handful of cases starting this spring.



I couldn’t be more thrilled that my colleagues and I will be able to help refugees through IRAP with the firm’s strong support. It feels like a continuation of my favorite activities at NUSL, and it allows me  to advocate for a marginalized population in need – even when my day-to-day work focuses elsewhere. It goes to show that you can take the girl out of NUSL, but you can’t take the NUSL out of the girl.

Despite Chemical Weapons Agreement, Crisis Continues for Syrian Refugees and IDPs

The historic deal brokered by the United States and Russia facilitating Syria’s compliance with international chemical weapons norms has drawn wide attention from the international community. And while the work of the joint mission of the Organisation for the Prohibition of Chemical Weapons and the United Nations (OPCW-UN) is critical to enhancing global security, dismantling Syria’s chemical weapons program is overshadowing the more immediate humanitarian crisis facing the region: the ongoing and burgeoning Syrian refugee crisis.

Currently, more than 2 million individuals have fled Syria and 4.25 million have been internally displaced. Efforts to dismantle Syria’s chemical weapons program have done nothing to quell the violence within its borders or stem the tide of refugees fleeing the country. As the civil war rages on, the provision of assistance to those trapped inside Syria becomes increasingly difficult. The delivery of aid is hampered by rapidly-changing front lines as well as by blockades imposed by armed groups. Meanwhile, many continue to flee the country daily, swelling the already-large ranks of refugees and creating the world’s largest humanitarian crisis.

The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) expects the number of refugees to reach 3.2 million by the end of 2013 and increase by another 2 million in 2014. By the end of 2014, OCHA predicts that more than one-third of Syria’s pre-war population of 23 million people will be either refugees or internally displaced people (IDPs).  Such alarming levels of displacement have serious regional implications, particularly for Egypt, Iraq, Jordan, Lebanon, and Turkey, the countries that currently host the majority of Syria’s refugees.

 These nations are already at their limit as they work to provide shelter and services to displaced Syrians. Despite UN appeals to the international community for increased funding, host countries continue to shoulder the bulk of the burden. Both Turkey and Jordan have spent close to $2 billion each caring for refugees with the majority of that money coming from their own coffers. Lebanon, a country of only 4 million residents, currently hosts 750,000 Syrian refugees, in addition to hundreds of thousands of Palestinians. Jordanian authorities likened the presence of Syrian refugees in Jordan to “the United States absorbing the entire population of Canada.” The influx of people in all host countries has a marked effect on local economies, health infrastructure, and education systems, thereby straining both resources and relationships.

 With no end to the conflict in sight, the prospect of more refugees requiring a prolonged stay has created an unwelcoming environment for refugees in many countries. There are reports of some refugees facing indefinite detention  or deportation back to Syria. Poor camp conditions, tense dynamics with local populations, and harassment from government officials has created a sense of desperation among countless Syrians. Many pay thousands of dollars to smugglers and risk their lives attempting dangerous journeys to Europe in search of asylum. However, reaching Europe does not mark the end of these refugees’ struggles, as they face overwhelmed and inconsistent asylum systems in the European Union.


PHR applauds the difficult work being done in challenging environments on behalf of refugees and the countries hosting them. But we urge the international community to recognize the need for continued support of these efforts and to not allow other issues to overshadow the ongoing displacement crisis in Syria and the region. As winter approaches, these humanitarian needs become more urgent. The international community must seize opportunities to provide assistance and security to those fleeing armed conflict – not just in Syria, but around the globe.

The original version of this blog post can be viewed on the website of Physicians for Human Rights.

Protecting Cultural Heritage through Community Storytelling and Legal Research

I spent my final semester of law school living in the southern Caribbean region of Costa Rica and learning about the volatile land rights situation threatening to displace native Afro-Caribbean residents. In an effort to learn more, I began interviewing people about their history, the current challenges facing their communities, and their hopes for the future. I quickly realized there was a story to be told – one that asks how environmental conservation measures can and should be balanced against the needs and rights of local communities to economic development and sustainable livelihoods – and that this community’s story could help inform better decisions and smarter policy for the benefit of communities around the world facing similar challenges.

The post below provides an overview of the background, progress, and goals of The Rich Coast Project. We are raising money now to support a community storytelling campaign. Donate to the project’s indiegogo campaign and spread the word to your networks. Thank you in advance for your support!

Katie Beck

Founder, The Rich Coast Project

PHRGE Fellow (2010 and 2012)

George Hansel has lived in Punta Uva his entire life, a small town founded by his grandparents. He has many fond memories of growing up in this tight-knit community, where neighbors treated one another like family and shared whatever they had.

“This is a big conflict. For at the moment you don’t own something that you had owned. We used to be owners, until now we comes to be squatters. In everything you supposed to be going up, not down. But in this we are going down.”

-George Hansell, Punta Uva

George Hansell has lived in Punta Uva his entire life, a small town founded by his grandparents.  He has many fond memories of growing up in this tight-knit community, where neighbors treated one another like family and shared whatever they had. His family has lived on the same plot of land for several generations. About 35 years ago he built, with his own hands, the house in which he now lives. He has owned the 11,000 m² of land since his grandmother handed it down to him when he was five years old. Sixty years later, George looks forward to passing the same land to his children, grandchildren, and the “ones that are coming.” His ability to do so, however, is seriously threatened by Costa Rican conservation and land use policies.

George’s community is in the canton of Talamanca, located in the southeast of Costa Rica and bordered by Panama and the Caribbean. It is home to a rich Afro-Caribbean culture, fostered over centuries by descendants of the area’s original founders, fishermen and coconut farmers from Jamaica and Panama. It is the country’s poorest region in terms of socioeconomic and human development, and the richest in terms of biodiversity and tropical forest systems.  In total, 88% of the land in Talamanca is restricted by some form of conservation protection.

These conservation laws, especially the Gandoca Manzanillo National Wildlife Refuge (REGAMA) and the Maritime Zone (ZMT), are squeezing out the very people who have cared for and called these lands home for centuries.

The effects of unstable land tenure and stunted economic development are pervasive: opportunity for personal advancement is increasingly limited, and many young people must leave their homes and families to pursue education and employment. Homes and businesses have been threatened with demolition orders and residents have faced criminal charges for pursuing better lives for their families.

These communities face losing their lands, their culture, and their very history. Conscious of these challenges, residents are working hard to protect their rights and reinforce their cultural traditions while seeking a more balanced approach to the government’s regulation of their natural resources.

The Rich Coast Project wants to make sure that these communities have a chance to tell their own story. 

The Rich Coast Project aims to connect local experience to broad questions of international law and policy through a combination of new media storytelling and legal research.  We will create a living archive of the Talamanca coast by collecting the stories of the people who call it home and hearing firsthand how these issues are impacting their communities and way of life. We’re teaming with law students, librarians and scholars from a range of disciplines to reconsider how conservation law works, and letting this community’s experience help us explore better approaches to the competing aims of environmental conservation and sustainable development.

The goal of the project is to use creative advocacy to build the case for keeping the local people on their land, showing that not only is it the right and just thing to do, it will also produce better results for the people and the environment.

So far we have set up a non-profit, found a fiscal sponsor, organized a team of lawyers, researchers, photographers and filmmakers, and developed several exciting partnerships, both in Costa Rica and in the United States. This year a group of law students at Northeastern University will research the issue from Boston, and experts in archival studies at Simmons College, the top rated program in the country, will help us develop a digital community archive.

We are raising money for the first phase of the storytelling project now. Our crowdfunding campaign on Indiegogo is ongoing until November 22, 2013. Contributions will help us buy equipment, work with experts from the Center for Digital Storytelling, and support a small team working on the ground in Costa Rica.


The Rich Coast Project is a sponsored project of Fractured Atlas, a non-profit arts service organization. Contributions for the charitable purposes of The Rich Coast Project must be made payable to “Fractured Atlas” only and are tax-deductible to the extent permitted by law.

More information can be found on the project’s website, Contact us directly by emailing Katie Beck at

Tita Hansel

“The only good thing about this problem is that it has helped us grow as a community and be more united.” 

- George Hansell