Human Rights Meets Securities Regulation

Abstract

Recent domestic legislation is blurring the line between securities regulation and human rights law. Securities law has traditionally regulated corporate disclosure on financial information, such as income statements and investment risks. By contrast, human rights law has traditionally operated in the international sphere and focused on state obligations.

That all changed in 2010 with the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which includes sections 1502 and 1504 on non-financial disclosure related to human rights and anti-corruption. In particular, section is the first regulation to create binding rules on due diligence with regard to a company’s supply chain. It imposes a new reporting requirement on publicly traded companies that manufacture products using certain conflict minerals. Companies must identify whether the sourcing of the minerals originated in the Democratic Republic of Congo (DRC) and bordering countries. If so, they must submit an independent private sector audit report on due diligence measures taken to determine whether those conflict minerals directly or indirectly financed or benefited armed groups in the covered countries.

The Dodd-Frank provisions are but one example of an emerging trend in international securities law. Over the past decade, an increasing number of governments and securities exchanges have passed mandatory regulations on corporate disclosure of social issues. In this Article, I take a step back from these recent developments to analyze a critical question: Is securities regulation the appropriate mechanism for achieving human rights compliance? By doing so, I seek to open a dialogue between two disparate streams of scholarship in private and public law and propose policy recommendations for effectively furthering the movement towards corporate accountability. While existing literature on sections 1502 and 1504 addresses the history of the legislation and critiques its efficacy, the main contribution of the Article is to analyze the normative implications of the broader strategy of using securities regulation to hold companies accountable for human rights abuses.

Keywords: human rights, securities regulation, conflict minerals, non-financial disclosure, corporate accountability