Blog: Business and Human Rights
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May 7, 2021
Posted by Taylor Landis
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School).
Disclaimer: Taylor Landis is an independent human rights expert who worked in Myanmar from 2013 to 2020. She is serving as the author of this piece on behalf of an individual in northern Burma who wished to contribute to this series but cannot be identified due to the serious security threats she currently faces. The opinions expressed here are solely those of the unnamed individual in northern Burma and do not reflect those of any institution with which Taylor is affiliated.
Over encrypted video chat, a long-time civil society leader from one of northern Myanmar’s many remote conflict-affected communities reflects on life in the midst of the country’s latest crisis. “We are lucky to be from here,” she explains, referring to her small town situated in a valley among what would be picturesque mountains. She explains that each of the five closest peaks is occupied by a different armed entity: four ethnic armed organizations (EAOs) control one apiece and the fifth is the territory of the Myanmar military (or Tatmadaw). The forested hillsides are contaminated with landmines, and the roads cutting through the valley are punctuated by EAO and Tatmadaw checkpoints where heavily armed soldiers closely control all movement. With this layout, travel in and out of town was dangerous and daunting before the military’s Feb. 1 grab for power. Now, with new checkpoints in place, it’s even more difficult. EAOs in this area have been in conflict with the Tatmadaw for decades, some since the country’s 1948 independence. In recent years, escalating armed violence between and among the EAOs has eclipsed their battles with the Tatmadaw. Over this civil society leader’s lifetime, ceasefires, alliances, and new armed entities have come and gone, but active fighting has never been far off. “We really are lucky,” she continues, “we grew up hearing gunfire. Now we are more resilient.”
When the Tatmadaw rolled tanks and troops into cities following the Feb. 1 coup, the woman’s community nervously followed the news, just like others all across Myanmar. The massive urban protests taking place throughout the country remained peaceful for weeks. Then the Tatmadaw began its crackdown. Having seen more than 700 people killed and over 3,000 detained by security forces across Myanmar by the end of April, her colleagues in Yangon have been shocked by the level of Tatmadaw violence they witness everyday. Like most people in Yangon, Myanmar’s biggest city, her colleagues had never seen the Tatmadaw in action before February 2021.
“For them, the first time they saw a Tatmadaw sniper target a woman who was only buying snacks in the street, and they saw her shot in the head even though she was not even participating in the peaceful protest, they were shocked.” She pauses for a moment and goes on, “For us, in the conflict areas, we have seen the Tatmadaw’s human rights abuses. We know they shoot to kill. We are not shocked. We are sad, but we are not shocked.”
In ethnic-minority communities like hers, first-hand experience with Tatmadaw cruelty was common [and well documented] before the crisis brought on by the 2021 coup. Having borne the brunt of Tatmadaw violence, many in ethnic-minority communities had long looked for protection from and been supportive of EAOs, considering them a protective barrier standing between their communities and Tatmadaw violence. Not everyone, however, shared this view. Having tired of the ever-evolving, ever-present armed violence in their areas, some had little patience for any entity taking part. In her community, the civil society leader says people’s views of EAOs varied widely, but no one supported the Tatmadaw.
As protests elsewhere turned violent, the situation has stayed calm in her area. It’s safer in the small towns now, she says. In the cities, online ‘social punishment’ campaigns identify and shame those who perpetrate and benefit from the crackdown, and encourage a range of actions be taken against them—from launching boycotts of Tatmadaw soldiers’ family businesses to calling upon foreign universities to refuse tuition payments made on behalf of generals’ children. But these social punishment campaigns provide only a limited check, at best, on the Tatmadaw’s use of excessive force.
“Here, it would be much easier, since everybody knows everybody,” she explains, suggesting security forces in her area are hesitant to use the kind of extreme violence against community members that has now become routine elsewhere in the country. “If the Tatmadaw shoots a civilian, we would know which commander gave the order. We would know who pulled the trigger. We would know where their families stay. People could seek revenge easily.” So far, in these parts of the rural north, police and Tatmadaw soldiers have thus seemed more restrained in their treatment of civilians, perhaps wary that excessive violence on their part could trigger immediate consequences directed at their own families living in and among the communities where they are stationed. But in these areas, it’s not just the threat of angry civilians that keeps the Tatmadaw in check. It’s the EAOs.
In her town, everyone has heard that the nearby Tatmadaw commanders received a cautionary letter from at least one EAO, though no one is saying which one. The letter is understood to contain a blunt warning: if the Tatmadaw attacks the people, the EAO will burn down the Tatmadaw’s bases and the town’s police station, all of which are built on the edge of forest areas where the EAOs are known to operate. “The EAOs are protecting the people in the rural areas now,” she says. “If the Tatmadaw shoots the people, they know the EAOs could easily go through the forest and burn down their bases.”
This is far from an idle threat. In both Kachin and Shan States, for instance, EAOs began attacking Tatmadaw and police positions in March in response to the junta’s forces increasingly violent treatment of civilians. EAOs have continued these attacks in April and early May. The Tatmadaw has responded with multiple airstrikes, and at least one Tatmadaw helicopter gunship has reportedly been shot down by EAO fire. The escalating violence, however, has displaced nearly 17,000 people, per UN estimates, taking a heavy toll on the conflict-weary region, which was home to roughly 105,000 internally displaced people prior to the current crisis.
At home in the relative “safety” of her native conflict area, the civil society leader says she could go outside, but she doesn’t anymore. Lately, exhausted by the sorrow and trauma of her work, she leaves the shopping to other family members, but worries that it may get more difficult. Joining the ongoing nationwide boycotts of all Tatmadaw-linked products did not affect her much: she doesn’t drink beer, never used State-run mobile networks, and doesn’t play the lottery. Unable to travel, there’s no risk of her supporting Tatmadaw-backed airlines and hotels.
But the newer boycott of Chinese goods and services could be a game-changer in her area. Like many in her community, she says she agrees in principle with the efforts underway to protest China’s long-time support of the Tatmadaw, alleged support of the coup, and ongoing protection of Myanmar within the United Nations Security Council. At the same time, options in her valley are limited. “Everything here comes from China; what will we eat if we stop eating food from China?”
Until February, she went often to the closest market to support local vendors reeling from the economic impact of coronavirus shutdowns. Buying far more than her family could eat, she would distribute extra vegetables to people in need. “I never spent much money, just 500 Kyat (.35 USD) here, 500 there, so the sellers could have cash and the local people out of work could cook something with their rice.”
But with banks shut since the coup and cash hard to come by, she can’t afford such generosity anymore. She can now make just one, small weekly cash withdrawal from her account at a closed bank, thanks to kind staff who quietly suspend their own participation in the Civil Disobedience Movement (CDM) for a few hours each week to open vital services for their neighbors. With so much uncertainty and so little cash, she has stopped going to the market. She is too sad to see vendors sitting with more than they can sell, while hungry villagers can’t afford to shop. “Maybe if I can get an ATM card, so it is easier to get cash, then maybe I can go again,” she hopes – despite her awareness of the new and lowering daily limits on ATM withdrawals and shortages of currency in machines across Myanmar. “Still,” she worries aloud, “Everything from the market is from China anyway.”
While indoors, she tries to remain focused on her work. “We are only doing ‘life-saving’ activities now,” she explains. An advocate for child protection and child rights across Myanmar, she now spends her days watching seemingly endless videos of police and Tatmadaw brutality. Using a virtual private network (VPN) to circumvent the regime’s Facebook ban and review footage shared across the social media platform, she and her colleagues work to identify children who are beaten, arrested, tortured, killed, and disappeared. Before the crackdown, they would go to hospitals and prisons and directly intervene to ensure children received necessary medical care, could access legal services, and were reunited with their families without delay. Now, this is impossible. “If we go in-person now, they will arrest us. We can only refer the cases to legal services online.”
In this new reality, she and her team spend their days alone in their homes across Myanmar, watching hours of violence against children on their computers and phones, coordinating around the country to determine what, if anything they can do to help. It’s taking a terrible toll on their mental health. Some of the team members work reduced hours and join protests; others stay inside to try to keep safe. She worries about all of them; security check-ins are now required every few hours, but she knows this is not enough. “In the past, if we faced a crisis in one place, we could send a team from somewhere else to support our colleagues there. We could go provide technical and psycho-social support. Now, the crisis is everywhere and we can’t move. We were stuck because of Covid, and now we are even more stuck because of the coup.”
The lower profile she and her team have been forced to keep has not gone unnoticed by families and communities desperate for support. Some take to Facebook to rail against her, her colleagues, her organization, or all of civil society in general. “Where are child protection workers now?” they demand. This has been especially hard to endure. The civil society workers can’t answer to defend themselves, or take credit for the few life-saving efforts they do have underway. Instead, they generate new anonymous profiles for case management, referrals, and advocacy. They try to keep out of sight in order to keep working. It’s exhausting and demoralizing. “We are so, so frustrated that we can’t do more. But even when we can do something, we have to hide it. We are doing our best, but it is very dangerous.”
She and her team are brainstorming ways to support one another at a distance, but so far it has proven difficult. By early March, no one wanted to participate in team-building psycho-social support activities via Zoom after a full day of staring at their computer screens, analyzing authorities’ brutal treatment of children. Now that new obstacles block internet access for the majority of Myanmar’s population, many of her colleagues can no longer even manage to get online to work. With her team in such dire need of psycho-social support but unable to provide it to each other, she can’t ask that they provide psycho-social support to families in their communities – even if it were safe to do so. “When we are not well, how can we take action for children’s well-being?” she asks. When community members in crisis take to Facebook to vent, accusing her and her team of being absent when the communities need them most, it hurts. But for those with access, staying offline is not an option. “Without Facebook, we can’t even do life-saving activities.”
When her team members do finally close their computers at 1 AM – or whenever the Tatmadaw shuts down the internet and mobile networks – few of them sleep. “For them, it is hard to hear gunfire and police raids every night,” the leader explains. Although people everywhere are on edge during the nightly communications blackouts, it’s easier to endure in the countryside, she says. “Here, we know how to sleep through gunfire.” She is well aware of the irony as she reiterates, “We are lucky to be from the conflict area.”
December 18, 2020
In July 2020, MSI Integrity and the International Human Rights Clinic launched the blog series, “Rethinking Multi-Stakeholder Initiatives.” Accompanying the publication of MSI Integrity’s major report, Not Fit-For-Purpose, the blog series sought to share several critical perspectives on the MSI field. The contributions largely honed in on two of the key questions posed by the report: are MSIs working for rights holders, and do we need to rethink the role of MSIs as human rights tools?
Beginning with Christie Miedema in her piece, “Binding Brands to Create Change,” and ending with Fola Adeleke’s “Rethinking Corporate Accountability,” the series amounted to nine thoughtful contributions. To close the series, Amelia Evans and Teddy Ostrow of MSI Integrity shared their thoughts on some of those perspectives, as well as what’s next for the organization.Continue Reading…
December 16, 2020
Posted by Dana Walters
For the Human Rights Program, fall 2020 was different — but no less busy. After a brief stint with remote schooling last spring, faculty, students, and staff committed to shifting their methods of advocacy and learning fully online this fall. Despite challenges, we all found ways of maintaining community and building connection virtually.
The International Human Rights Clinic held two introductory classes and an advanced seminar for third-year JDs. With almost 40 students this fall, projects examined the right to water in South Africa and the United States; killer robots; accountability for human rights violations by corporations and the United Nations; the arms trade treaty and gender-based violence; climate change and human rights; and more.Continue Reading…
December 14, 2020
Posted by Fola Adeleke
A version of this contribution was originally published by Afronomics Law on December 11, 2020.
Earlier this month, investigative journalists disclosed that Indian garment factories responsible for the supply to global supermarket chains such as Marks & Spencer, Tesco, and Ralph Lauren were exploiting their workers. Some of the allegations include poor wages, 22-hour work shifts with no toilet or water breaks. These conditions exist despite the existence of a local law, the Indian Factories Act, which sets out working conditions for workers in this industry. More importantly, the brands that use these suppliers in India are all part of the Ethical Trading Initiative (ETI) that was set up in 1998 shortly after the sweatshop conditions that engulfed major brands such as Nike and Gap in the 1990s.
The ETI is part of a trend known as multi-stakeholder initiatives (MSIs). MSI involve a “collaboration among various public and private actors—such as corporations, governments, CSOs, and rights holders—that have a stake in an issue.” These MSIs set global voluntary industry standards for its members to follow and are often punted as addressing issues of public concern such as human rights violations in specific industries. These MSIs are geared towards establishing a governance model to tackle a gap “where a state either cannot, or will not, fulfill its duty to protect its citizens against human rights violations by companies.” The stated aim of the ETI is to improve working conditions in global supply chains by developing effective approaches to implementing the Base Code of labour practice developed by the initiative.
Despite the increasing popularity of MSIs, it is clear that self-regulation through this governance model is not the answer to driving corporate accountability for matters of public concern such as human rights protection. In a report released in July 2020 by MSI Integrity, a non-profit originally dedicated to understanding the human rights impact and value of MSIs, it was found that MSIs are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims’ with access to remedy. The report showed that we need to rethink the role of MSIs and the presence of an MSI in an industry should not be a substitute for public regulation.Continue Reading…
December 1, 2020
Clinic Submits Amicus Curiae Brief on Behalf of Legal Historians
Today, Dec. 1, the Supreme Court of the United States hears oral arguments in a pair of corporate human rights cases against U.S. based chocolate companies Nestlé and Cargill for their role in aiding and abetting child slavery in West Africa. The plaintiffs, six survivors of kidnapping, trafficking, and forced labor, make use of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that allows foreign nationals to pursue accountability for law of nations violations in U.S. Courts. In examining the cases, the Supreme Court will consider the question of corporate liability under the ATS for the third time – this time focusing on whether or not the ATS permits cases against U.S. domestic corporations at all.
In October, the International Human Rights Clinic filed an amicus brief on behalf of legal historians in the case against the chocolate companies. The brief includes newly uncovered historical documents from George Washington’s first administration which clearly demonstrate how the founders intended the ATS to apply to violations committed by U.S. subjects. The documents include an opinion by Thomas Jefferson and affirm that the ATS was intended for the very purpose at issue in the current cases: to provide options for redress to foreign nationals whose rights have been violated by U.S. subjects.
A clinical team – Emily Ray JD’21, Jasmine Shin JD’21, Allison Beeman JD’22, and Zarka Shabir JD’22 – under the supervision of Tyler Giannini, Clinic Co-Director worked with the amici on the brief. Amici on the brief were Professors Barbara Aronstein Black, Nikolas Bowie, William R. Casto, Martin S. Flaherty, David Golove, Eliga H. Gould, Stanley N. Katz, Samuel Moyn, and Anne-Marie Slaughter.
The International Human Rights Clinic staff have played a major role in ATS litigation for decades, including in landmark corporate cases such as Doe v. Unocal and Wiwa v. Royal Dutch Petroleum Co. Since 1980, the law has been a critical means of holding perpetrators accountable for abuses such as extrajudicial killing, torture, war crimes, and crimes against humanity when redress might otherwise be unavailable elsewhere. Still, in recent years, the law has been curtailed and challenged.
Learn more about the case in the Nestlé & Cargill v. Doe symposium on Just Security and the case preview on SCOTUSblog. Read about all eighteen amicus briefs filed in support of the survivors of child trafficking on the Corporate Accountability Lab’s blog, and dive into Daniel Golove’s article exploring the significance of the new evidence the Clinic relied on in its brief supporting plaintiffs.
October 9, 2020
Posted by Zobaida Khan
After the devastating and avoidable collapse of the Rana Plaza in 2013 in Bangladesh, two innovative multi-stakeholder initiatives (MSIs) emerged: the Alliance for Bangladesh Worker Safety (“Alliance”) and the Bangladesh Accord on Building and Fire Safety (“Accord”).
They engaged a diverse group of regulatory actors (local suppliers/producers, foreign buyers, the International Labor Organization, the national government, and activist networks), regulatory mechanisms (for operating, financing and monitoring safety inspections), and detailed standards or rules in order to ensure factory safety for garment workers. Moving beyond voluntary codes of conduct and “Do No Harm” policies, these MSIs introduced significant institutional changes in corporate responsibility. They included stronger sourcing policy, improved safety of factory premises, and public reporting of corporate compliance. Indeed, unlike traditional international standard-setting MSIs, the Accord’s terms were legally binding between brands and trade unions. This is the first time an MSI allowed legal enforcement of its provisions and obligations in a transnational labor regulatory setting. Although the terms of both programs have ended, these MSIs attempted to address the regulatory deficiencies created or overlooked by the national government and the supplier factories.
Yet, with continued evidence of a race to the bottom for wages and working conditions in supplier factories, brands offering cut-rate sourcing prices, and recent reports on the costs to the jobs, health and work entitlements of millions of laborers due to COVID-19-related supply contract cancellations, academic and policy debates are focusing on MSIs’ structural and functional effectiveness and the possibility of restructuring these to deliver social justice oriented results:
How could MSIs be more inclusive in their formation?
How could MSIs lead to long-lasting influence on corporate sourcing policies and improvement of work conditions and entitlements?
Although these issues appear separate, I argue that to properly address diverse compliance challenges in supply chains, there needs to be a coherent and connected restructuring of MSIs that both strengthens their participatory mechanisms and influences the transformation of our liberal market system’s dominant business model.Continue Reading…
October 1, 2020
Posted by Bennett Freeman
MSI Integrity’s Not Fit-For-Purpose report is the culmination of a decade of examination of 40 standard-setting multi-stakeholder initiatives (MSIs) focused on corporate accountability and human rights. Its release in July 2020, coincidentally but significantly, comes amid the epic disruption of a global pandemic and a historic movement for racial equality. Both COVID-19 and Black Lives Matter have separately and together exposed (literally) fatal weaknesses of national and global governance; both have challenged governments and businesses to confront inequality and injustice. At a time when corporate accountability and government responsibility are under critical scrutiny, it is useful to revisit what Not-Fit-for Purpose calls “the grand experiment of multi-stakeholder initiatives.”
Despite what the report argues, however, I believe that it is premature to declare MSIs no longer “fit-for-purpose.” We must be clear that the “grand experiment” was indeed bold but not quite so grand. The aim was to supplement, and not supplant, the role of governments where governments could not, or would not, act to protect human rights connected to corporate misconduct. It was an essential start, a beginning but not an end that would be complemented and reinforced by law and regulation when possible. We must not only revisit but revitalize MSIs at a time when, ironically, multi-stakeholder governance models are setting standards across the policy arena beyond the human rights field where they first gained significant influence.
The number and type of MSIs across issues, industries and regions—and their different forms and missions—make it difficult to make broad generalizations that address them all. But I offer a perspective based on my work over the last two decades with four flagship MSIs: as the leader of the process that produced the Voluntary Principles on Security and Human Rights (VPSHR); as a co-founder and longtime board member of the Global Network Initiative (GNI); and as an early board member of the Fair Labor Association (FLA) and the Extractive Industries Transparency Initiative (EITI).Continue Reading…
September 17, 2020
Posted by Judy Gearhart
The phenomenon of multi-stakeholder initiatives (MSIs) has spread rapidly across the globe since the 1990s, with governments and multinational corporations (MNCs) alike promoting them as the new solution to the global governance gap even before they were fully road-tested. Civil society organizations (CSOs) saw them as a way to engage MNCs on the environmental and social problems exacerbated by global trade. MNCs saw a means to inoculate their global reputations from the risks of doing business in places where human rights scandals were greater than at home. Just as MNC staff required vaccines against tropical diseases before departing, the corporation needed to guard against the risk of coming into contact with the plagues of corrupt governments and abusive employers.
Yet MSIs, at least those focused on the impact of global supply chains, were only set up to address the symptoms, not the cause of these plagues. Most failed to recognize how MNCs were actually fueling corruption and employer abuse by constantly demanding lower prices and faster production times. Thus, the global governance gap grew wider as MNCs diversified their supply chains and effectively played one producer country against the other. When the scandals multiplied and children were found making clothing for Wal-Mart in Honduras or soccer balls for adidas and Nike in Pakistan, global brands sought help from MSIs.
The majority of MSIs are set up as public charities and their goals express the intent to protect a public good. This includes MSIs working with public sector institutions to improve accountability such as the Extractive Industry Transparency Initiative (EITI), those covering workers’ rights such as Social Accountability International or the Fair Labor Association, and environmentally focused groups such as Rainforest Alliance and Marine Stewardship Council. What nearly all of them have in common is a mission to address a lack of regulation or the weak legal protections of national resources, the environment, or workers. Yet MSIs focused on supply-chain monitoring—as distinct from MSIs engaging the public sector—have been largely silent or disengaged on advocacy for legal reforms and rule of law, often turning a blind eye as member MNCs’ suppliers pursue multi-year legal battles against whistle-blowers or worker organizers.
The recently released MSI Integrity report, Not Fit for Purpose, tracks the uptake of MSIs as a reference point for addressing gaps in global governance. MSI Integrity cites how the UN Guiding Principles (UNGPs) on Business and Human Rights extended legitimacy to MSIs by directly referencing them, and the 23 countries that have referred to MSIs in their National Action Plans for implementing the UNGPs. Yet most MSIs are a weak stopgap for failing legal protections. They are also poor exemplars of good governance given the extent to which they have eschewed the key elements of transparency, accountability, and participation.
Not Fit for Purpose could have distinguished more among distinct MSI approaches, e.g. supply-chain versus public governance-focused MSIs, and those treating symptoms through risk mitigation among suppliers versus Fairtrade’s work to gain market access for small farmers. The report is very helpful though, especially in identifying patterns and quantifying how the majority of MSIs fall short on models of good governance:Continue Reading…
September 3, 2020
Posted by Rebecca Tweedie JD'21 and Tyler Giannini
The opening blog in this series laid out two different paths MSIs could have taken:
The allure [of MSIs] was (and still is) obvious. If we bring the right players together, they can learn from each other and solve the given problem by setting up a democratic institution that can prevent future abuses and sanction violators, and governments will not have to pass hard laws and unnecessary regulations. The potential flaws were (and remain) just as obvious—the power imbalances amongst the players are acute and asking industry to voluntarily give up power and self-regulate is a fool’s errand that puts the fox in charge of the chicken coop.
August 27, 2020
Posted by Jaff Bamenjo, Coordinator of RELUFA/Cameroon
Multi-stakeholder Initiatives (MSIs) emerged in the 1990s as frameworks for engagement between governments, the private sector and civil society organizations (CSOs) to address human rights issues in business. There are currently several sector-specific MSIs around the world originally conceived to address problems, ranging from labor abuse to corruption, in agriculture, extractive industries, forests, the environment and beyond. After more than two decades, however, local communities are now questioning whether MSIs have proved relevant and effective in addressing these problems.
As a civil society actor who works closely with communities affected by resource extraction in Cameroon, I have closely followed the implementation of two MSIs: the Kimberley Process Certification Scheme (KPCS) and the Extractive Industries Transparency Initiative (EITI) for close to a decade. The KPCS and EITI were both created in the early 2000s and received with a lot of enthusiasm by some CSOs as tools to promote transparency and accountability in the extractive sector and prevent diamond-fueled conflicts, respectively. Though almost twenty years later, it is quite telling how these MSIs are oblivious to the concerns of the local communities that were the intended beneficiaries of their creation.
The Kimberley Process Certification Scheme: Sidelining civil society and not addressing key issues
Formed in 2003 by the United Nations (UN) General Assembly, the KPCS is a joint government, industry and civil society initiative aimed at eliminating the trade in conflict diamonds. The KPCS was created in response to public outcry at the end of the 1990s over diamond-fueled conflicts in certain African countries. Today, the KPCS takes credit for eliminating about 98.8% of conflict diamonds in the world.
The commonly used definition of conflict diamonds, however, is incredibly narrow: “rough diamonds used by rebel groups or their allies fighting to overthrow a legitimate government.” While it can be argued that, apart from in the Central African Republic, there are no rebel movements currently using diamonds to fund wars to overthrow legitimate governments, human rights violations and massacres have reportedly continued in diamond mines around the world. And in turn, they disproportionately impact local communities near the mines.
Per the narrow definition of conflict diamonds, KPCS pays little attention to such human rights violations. Instead, they classify them as outside their scope. But such neglect by the KPCS to include other forms of abuse committed by the military or private security agents is incomprehensible to those most affected. In the Marange diamond fields of Zimbabwe, some CSOs have reported security agents for private mining companies unleashing dogs on and shooting defenseless local artisanal miners. Yet diamonds sourced from these fields are certified and allowed to enter the international market.Continue Reading…
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