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

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

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

Mining Initiatives United Nations Environment Programme (UNEP), Fundamental Principles for the Mining Sector or ‘Berlin Guidelines’, lines.pdf lines.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, Extractive Industries Review (EIRE) initiated at World Bank, 2001 International Cyanide Code launched, 2002 Kimberley Process Certification Scheme launched, 2002 MMSD Report published, 2002 ( 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

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 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

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

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

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

My Research

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)

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