Supply Chain Due Diligence--From Human Rights to National Security and the Potential Broadening of Corporate Complicity Culpability

 

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I  have been considering the issue of supply chain due diligence, human rights obligations of private actors under legal and markets driven (private law) regimes, and the growing interface of both with national security and sanctions regimes of states engaged in multi-vector warfare.  The issue has again come to the foreground (as have so many others) in the course of the Russo-Ukrainian war and the tactic used by Russia in its invasion of Ukraine after 2022.

For interested states that are engaged in hostilities in all fields of combat other than the battle field (see here for Ukrainian President Zelenskyy's description of the three fields of war), the weaponizaton of sanctions regimes, and the heightening of barriers to trade touching on sensitive technologies,and related objects and processes (know.how for example) have been at the center of non-military engagement with Russia (and indirectly China and Iran). These are, in turn, aligned with the development of more intensely applicable regimes of culpability of market actors based on diligence driven complicity notions (as a compliance vector under formal legal or markets based private law diligence and prevention-mitigation-remedial regimes) grounded in complicity (here, here, here, here, and here). 

In the process, the alignment of human rights legalities, and the development of standards for and the administration of national security regimes are interpenetrated.  The result produces mutual weaponization--national security regimes as a means of furthering the objectives of compliance and diligence based human rights regimes applied in business in the legal and private spheres; and human rights as a means of furthering and amplifying sanctions and markets constraining regimes. The process is incomplete, and its complexities are only now being confronted.

That interpenetration, and its challenges are particularly acute where everyday objects and technologies can move within complex global production (primary and secondary market) chains to produce downstream effects that may be human rights harming and that may also reduce the effectiveness of sanctions regimes in conflict situations. It is with thsi in mind that one approaches recent reports of the potential complexities of global production in the construction, deployment, and use of Iranian drones by Russian forces to commit war crimes, crimes against humanity and general violations of human rights law and norms in Ukraine.  As recently reported by CNN:

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Parts made by more than a dozen US and Western companies were found inside a single Iranian drone downed in Ukraine last fall, according to a Ukrainian intelligence assessment obtained exclusively by CNN.  The assessment, which was shared with US government officials late last year, illustrates the extent of the problem facing the Biden administration, which has vowed to shut down Iran's production of drones that Russia is launching by the hundreds into Ukraine.  CNN reported last month that the White House has created an administration-wide task force to investigate how US and Western-made technology -- ranging from smaller equipment like semiconductors and GPS modules to larger parts like engines -- has ended up in Iranian drones. (CNN Exclusive: A single Iranian attack drone found to contain parts from more than a dozen US companies).

The difficulties this poses is also well understood:

There is no evidence suggesting that any of those companies are running afoul of US sanctions laws and knowingly exporting their technology to be used in the drones. Even with many companies promising increased monitoring, controlling where these highly ubiquitous parts end up in the global market is often very difficult for manufacturers, experts told CNN. Companies may also not know what they are looking for if the US government has not caught up with and sanctioned the actors buying and selling the products for illicit purposes.

But the effects will again put greater pressure on states, and the international economic system with respect to its organization, its monitoring, and the vectors of diligence that may fall to enterprises to operate.  The process will continue trends toward the governmentalization of enterprises as global administrative arms of sanctioning states, and as the international administrative bureaucracy for human rights regimes.  Their alignments and collisions can be anticipated, but no mechanisms are even conceived for meeting those challenges.  The for moment expect the media to develop elite interest and mass sentiment, but for some turbulence among analytic communities (military, security, economic, political, etc) over the development of an organizing narrative within which these issues may be rationalized and implementation protocols developed.