Voluntary Codes of Conduct: Legal Implications?

1. Voluntary Codes of Conduct:Legal Implications? Dr Elizabeth Bastida Lecturer & Mining Programme Director CEPMLP/Dundee CSR and the Mineral Resources Industry St Andrews – Dundee Workshop Hosted by St Andrews Sustainability Institute 26 September 2008

2. Background to CSR in Mining • Generally: Governance gaps due to “misalignment between economic forces and governance capacity” (Ruggie, 2007); • Relevance in mining: • Scale of operations • Presence of transnational corporations • Can operate without linkages with local economies • Major projects in weak governance zones –mismatch between regulatory needs & capacity

3. The Normative Framework for Mining • Traditional Binding or “Hard” Law • Soft Law • Other phenomenon: Self-regulation

4. Mining Initiatives • United Nations Environment Programme (UNEP), Fundamental Principles for the Mining Sector or ‘Berlin Guidelines’, http://www.mineralresourcesforum.org/workshops/Berlin/docs/Guidelines.pdf • ISO 14001, EMS standards, 1996 • Australian Mining Industry Code for Environmental Management, 1998 • Global Mining Initiative, 1999 • UNGA Resolution: Certification scheme for rough diamonds, 2000 • Awareness and Preparedness for Emergencies at a Local Levell (APELL) for Mining, 2001 • ICMM, 2001 http://www.icmm.com/html/icmm_principles.php • Extractive Industries Review (EIRE) initiated at World Bank, 2001 • International Cyanide Code launched, 2002 • Kimberley Process Certification Scheme launched, 2002 • MMSD Report published, 2002 (www.iied.org/mmsd) • Work in Partnerships for Sustainable Development; presence in the 2002 World Summit on Sustainable Development in Johannesburg, which represented a major success of tri-sector partnerships

5. Mining Initiatives • Agreement not to explore or mine operate at existing sites that carry United Nations World Heritage site status. The agreement resulted from a dialogue process with the IUCN. See ICMM, “Landmark ‘no-go’ pledge from leading mining companies”, Press Release 20 August 2003,available from <http://www.icmm.com/news/158ICMMPressRelase-nogoareas-20August03.pdf> • First Green Lead Workshop, 2004 • Tiffany & Co Open Letter, 2004 • Council for Responsible Jewellery Practices established, 2004 • Extractive Industries Transparency Initiative Criteria established, 2004 • Framework for Responsible Mining, 2005 • Mining Certification Evaluation Project Report, 2007 Mining Certification Evaluation Project Report, 2007

6. Codes & Standards The defining elements of voluntary codes are: • "...commitments not required by legislation or regulations; • agreed to by one or more individuals or organizations; • intended to influence or control behaviour; • to be applied in a consistent manner or to reach a consistent outcome..." Webb, 1999

7. Trends & Developments • From ‘codes fatigue’ towards standardisation of Codes of Conduct and voluntary initiatives • From guiding principles towards inclusion of third-party verification processes as standard to guarantee effective compliance. • From environmental to sustainable development focus • From broad issues (e.g. reporting) to particular sectors (mining) and more specifically commodities (diamonds) • ‘Convergence and co-acknowledgement between different initiatives’: ICMM, GRI, EITI – see Mine Certification Evaluation Project Report

8. Implications? • Judicial interpretation? • Inclusion in contractual clauses • Interface with legislation • Supplementary, not alternative to regulation

9. My Research

10. Law • An overview in introductory book • A planned note on analysis of legal implications of voluntary codes of conduct in civil law jurisdictions • “doctrina de los actos propios” (based on good faith principle)

11. About the CEPMLP International Mining Programme The aim of the CEPMLP International Mining Programme is to advance and share knowledge and to contribute to capacity-building in the law & policy aspects of minerals investment and development <http://www.cepmlp.org/mining>