Neocolonialism: Cobalt Mining in Democratic Republic of the Congo
By Anna Henson
The Democratic Republic of Congo (“DRC”) is one of the most resource-rich and biodiverse countries on the planet. It is home to both the world’s second-largest rainforest and the second-largest river, the Congo.[1] It also has significant arable land with rich soil and a benign climate.[2] “[B]eneath the soil abundant deposits of copper, gold, diamonds, cobalt, uranium, coltan and oil are just some of the minerals that should make it one of the world's richest countries. Instead it is the world's most hopeless.”[3]
DRC was once a country with sophisticated aristocracy and impressive civil service.[4] However, the arrival of Portuguese traders in the late 1400s brought with it the destruction of political force and order.[5] Rebels were armed, kings slaughtered, and succession encouraged.[6] “By the 1600s, the once-mighty kingdom had disintegrated into a leaderless, anarchy of mini-states locked in endemic civil war.”[7] In the 1800s, King Leopold of Belgium grew interested in the vast supply of rubber in Congolese rainforests.[8] He claimed the country as his “private property” and forced Congolese men to harvest rubber, murdered tribal leaders, destroyed society, and denied education.[9] “In a move supposed to end the brutality, Belgium eventually annexed the Congo outright, but the problems in its former colony remained.”[10]
DRC remains a significant source of precious metals with numerous mines. Courtesy UN.
As the industrial revolution boomed in Europe and the United States, Congolese mines exploded and workers endured appalling conditions.[11] During World War I, Congolese minerals were used to fuel explosives.[12] Additionally, the uranium used in the atomic bombs dropped on Nagasaki and Hiroshima during World War II was from DRC.[13] Throughout the Cold War, DRC was prized for its cobalt deposits.[14] While the West tried to support DRC’s economic stability, DRC’s tyrannical leader, Mobutu, bled the country of hundreds of millions of dollars while the West turned a blind eye to ensure resources did not fall into the wrong hands.[15] Mobutu eventually went into exile, leaving in his wake a broken and tumultuous country that would soon break out in a series of wars.[16]
Development has been stifled, government has been weak and the rule of law non-existent. This was not through any innate fault of the Congolese, but because it has been in the interests of the powerful to destroy, suppress and prevent any strong, stable, legitimate government. That would interfere — as the Kongolese had threatened to interfere before — with the easy extraction of the nation's resources. The Congo has been utterly cursed by its natural wealth.[17]
This resource curse — also called the “paradox of the plenty” and “resource trap” — is the paradox of economic underperformance in a country that has lots of valuable natural resources.[18] Despite DRC’s independence, the scars of its colonial past remain. Today, the need for coltan, cobalt, and manganese has skyrocketed with technological advancement, pushing DRC into a neo-imperialistic era.
DRC’s government utilizes competitive bidding (open or restricted) for both mining and quarry rights to “any deposit studied, documented and potentially worked on by the government through its services.”[19] This system is intended to improve the economy, increase revenue, create safer environments by halting hasty mining, and capitalize on the abundant resources.[20] It is unsurprising that countries rush to secure an interest, if not all the rights, to these mines given that DRC has the world’s largest known cobalt deposits, diamond deposits, and gold deposits, as well as the second richest copper region in the world.[21]
One country, however, had a particular advantage. China and Congo’s reciprocal relationship began during King Leopold’s reign.[22] The relationship has consistently taken roughly the same form: China helps DRC with their infrastructure and makes other investments, and in return they are given minerals or mineral rights.[23] In fact, Chinese companies have invested so heavily in copper mines that it is suspected that Chinese money influences DRC elections.[24] China has been accused of engaging in “a new form of colonialism.”[25] This haunting comparison gains even more traction in the mines, where there has been a dramatic decline in worker safety with the transition to Chinese ownership.[26]
This schema remains today. Most of the industrial mines in Congo are owned by Chinese companies.[27] In 2016, China purchased controlling stakes in one of the largest copper-and-cobalt mines, one of which was purchased from a U.S. company.[28] “China, Inc., has realized how important cobalt is . . . [t]hey’ve gone and tied up the supply.”[29] The impacts unethical working conditions and the technological sector because cobalt is a critical element in lithium batteries, which are used in cellphones and electric cars.[30]
Precious metal mines in DRC have altered landscapes within the country. Courtesy Pexels.
This raises a couple questions: (1) Is there some form of international antitrust law that protects against the monopolization of certain goods, and (2) what protections has DRC put in place to protect its people from human rights abuses in the mines?
DRC generally lacks a legal framework for antitrust and competition law as well as human rights claims. However, in 2018, DRC joined a group of African countries that established domestic competition law frameworks.[31] However, the regulatory scheme only address three basic topics: unfair competition, pricing regulation, and the creation of a competition commission.[32] While countries seeking mineral rights and interests have established antitrust law, DRC does not and there is not concrete international antitrust regulation.[33] Without clear standards on how much a single country can dominate another country’s resources, monopolies are ripe for the taking, influencing both the developing country’s development and global commerce.
The burden of ensuring adequate working standards is on corporations.[34] “Companies have a responsibility to respect human rights wherever they operate in the world.”[35] The UN published “Guiding Principles on Business and Human Rights,” which outlines the corporate responsibility to respect human rights, which “exists independently of a state’s ability or willingness to fulfill its own human rights obligations.”[36] In other words, regardless of whether DRC has an adequate regulatory framework or is unwilling to enforce laws or protect workers from abuse, the responsibility rests with the companies.[37] Under the UN’s guidelines, companies are to “do no harm” or “take pro-active steps to ensure that they do not cause or contribute to human rights abuses within their global operations and respond to human rights abuses when they do occur.”[38] In practice, this boils down to the responsibility to conduct supply chain due diligence.[39]
The stories of those who have worked in the mines echo the atrocities DRC has faced in the past at the hands of their colonizers. Only this time, however, the prize isn’t rubber. Rather, it is the control of critical elements of clean energy and technological innovation, in addition to the land and people who mine it. Do we have a duty to protect against neo-colonialism?
“I . . . asked him if the residents of Samukinda had considered digging beneath the village. The young man shrugged and said that the people in his village didn’t want to suffer the same fate as those in Kasulo [Chinese companies for industrial mining evicted them from their homes]. Then he made a prediction: ‘In the end, they will come and kick us out of here.’”[40]
[1] Dan Snow, DR Congo: Cursed by its Natural Wealth, BBC News (Oct. 9, 2013), https://www.bbc.com/news/magazine-24396390; The World Bank in DRC, The World Bank (June 30, 2022), https://www.worldbank.org/en/country/drc/overview#:~:text=DRC%20is%20endowed%20with%20exceptional,not%20benefited%20from%20this%20wealth.
[2] Id.
[3] Snow, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Nicolas Nairchos, The Dark Side of Congo’s Cobalt Rush, The New Yorker (May 24, 2021), https://www.newyorker.com/magazine/2021/05/31/the-dark-side-of-congos-cobalt-rush; Snow, supra note 1.
[10] Snow, supra note 1.
[11] Id.
[12] Id.
[13] Id.
[14] Nairchos, supra note 9.
[15] Snow, supra note 1; Nairchos, supra note 9.
[16] Nairchos, supra note 9.
[17] Snow, supra note 1.
[18] Jason Fernando, Resource Curse, Investopedia (Aug. 22, 2022), https://www.investopedia.com/terms/r/resource-curse.asp.
[19] Harléne Ngalula & Anne Marie Nsaka Kabunda, Mining Laws and Regulations Congo – D.R. 2022, Int’l Compar. Legal Guides (Sept. 13, 2021), https://iclg.com/practice-areas/mining-laws-and-regulations/congo-d-r; Nairchos, supra note 9.
[20] Id.
[21] Joëlle Thambwe Mwamini et al., Spotlight: Mining Law in the Democratic Republic of the Congo, Lexology (Dec. 10, 2021), https://www.lexology.com/library/detail.aspx?g=4dc2320f-f8c2-465e-a42a-2d4c77adfbb9.
[22] Nairchos, supra note 9.
[23] Id.
[24] Id.
[25] Id.
[26] Eric Lipton & Dionne Searcey, Chinese Company Removed as Operator of Cobalt Mine in Congo, N.Y. Times (Feb. 28, 2022), https://www.nytimes.com/2022/02/28/world/congo-cobalt-mining-china.html.
[27] Nairchos, supra note 9.
[28] Id.
[29] Id.
[30] Id.
[31] Sergio Sorinas et al., The Democratic Republic of Congo’s New Pricing Freedom and Competition Act, Herbert Smith Freehills (Aug. 28, 2018), https://www.herbertsmithfreehills.com/latest-thinking/the-democratic-republic-of-congo%E2%80%99s-new-pricing-freedom-and-competition-act.
[32] Id.
[33] Anu Bradford, Antitrust Law in Global Markets, in Research Handbook on The Economics of Antitrust Law 283 (Einer Elhauge ed., 2012), https://scholarship.law.columbia.edu/faculty_scholarship/1976.
[34] Democratic Republic of Congo: “This is what we die for”: Human Rights Abuses in the Democratic Republic of the Congo Power the Global Trade in Cobalt, Amnesty Int’l (Jan. 19, 2016), https://www.amnesty.org/en/documents/afr62/3183/2016/en/.
[35] Id. at 40.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Nairchos, supra note 9.