Curbing Supply-Chain Human Rights Violations Through Trade and Due Diligence. Possible WTO Concerns Raised by the EU Conflict Minerals Regulation

Abstract

The recent adoption of the EU Regulation laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflictaffected and high-risk (CAHR) areas constitutes an important step to curb particularly heinous crimes connected to the so-called ‘conflict minerals’ supply chains. The EU measure is remarkable insofar it incorporates an international soft-law instrument, the Due Diligence Guidance for Responsible Supply Chain of Minerals from CAHR Areas, and makes it mandatory for EU importers. Importers are under a mandatory obligation to engage in supply chain due diligence to avoid dealing in conflict minerals, and thus regulating upstream entities. This contribution assesses the relation between such a regulatory strategy and provisions of WTO law. It assesses whether the EU bears responsibility for possible detrimental impact stemming from the incorporation of the OECD Guidance and from the delegation of certain regulatory tasks to economic operators. Subsequently, it evaluates the status under international law of the OECD Guidance, and discusses whether its status can justify possible detrimental impact stemming from the EU regime.