Ibrahim Khalil Sanogo, Elodie Annamayer, Louis Fontenelle (de). La juridicisation des normes volontaires dans le secteur minier. Énergie - Environnement - Infrastructures : actualité, pratiques et enjeux, 2026, 6. ⟨hal-05666125⟩
At the origins of voluntary standards
The mining sector was long governed solely by states’ laws. Where do these “voluntary standards” come from?
These standards have existed for a very long time, but in areas where the state did not intervene. They arrived in the mining sector at most about thirty years ago. The starting point is that many European companies found it simpler and more profitable to exploit resources in countries with more flexible mining law — often in Africa or South America. By setting up there, they followed local law, so what they did was not illegal. But that law was not suited to mining, and there were many accidents, many scandals. It was NGOs and international organizations that raised the question: how to regulate better, and go beyond the law?
You draw a link with your dissertation topic on environmental protection through law.
Yes. In many countries, the law that was imported was done so to facilitate the exploitation of resources. In itself, that is neither good nor bad — the problem arises when that law is not adapted to the society to which it applies. In law, there is a Latin maxim, ubi societas, ibi jus: each society constructs its law according to its aspirations and beliefs. Copying a law from elsewhere, which evolved differently, does not work. Property law, for example, hardly existed in a large part of Africa. By introducing it to facilitate exploitation, many land conflicts were created, notably between literate and illiterate people after independence and even up to the present.
What norms do better than the law
How would these norms be better suited than the law of a State?
We need to start from what is called "the making of the standard" — the set of processes that lead to the creation of a standard. Historically, this making took place within the State: the government proposes, the Assembly votes (to oversimplify the process extremely). The problem is that the legislative process takes a lot of time, and laws are often outdated, rigid, and hard to change — whereas the mining sector, like many industrial sectors, moves very quickly. Voluntary standards first emerged because they were faster, more precise and more sector-specific. Not necessarily better adapted, however — adaptation comes later. But they made it possible to take into account issues that had not been: labor law, child labor…
You also emphasize the issue of adapting to local territories.
This is a point that comes up often: we have major standards designed in the West, but not on the continent where they will be applied.
As a result, local issues fall by the wayside. For example, artisanal and small-scale mining (ASM): the issue hardly arises in Europe, but it does a lot in Africa — and in France too, with French Guiana. Another example is local content: employing people from the area on a project.
This became an issue in the mining sector thanks to voluntary standards. Basically, what these standards have that the State doesn’t comes down to three things: more flexibility, a faster creation process, and the fact of involving many more stakeholders. When a standard like IRMA (Initiative for Responsible Mining Assurance) prepares a new version, it consults academics, associations, NGOs, but also the mining industry. That said, it is not a panacea: the question remains of who funds it, and what each party’s actual level of representation is.
The downside: uncontrolled proliferation
Does this proliferation of standards have a downside?
The main problem is that there is no oversight. Because these are voluntary standards, sometimes companies create their own standard and are also the ones who audit it: they are judge and party. There are more independent certifications, verified by third parties, but again with varying degrees: sometimes the "independent" auditors are chosen from a list provided by the label itself. It's a complex question, with no obviously correct answer. And there's a paradox: there are too many standards, making it hard to choose — but when stakeholders are asked which ones to eliminate, almost all of them seem to have their usefulness. A standard for gold is not a standard for cobalt or nickel; a standard for large-scale gold is not a standard for artisanal gold; and a standard in one country does not necessarily apply to another. Some try to play an "umbrella" role, like IRMA, but it does not cover small-scale mines — which represent a large part of the activity.
Ibrahim Sanogo (BRGM) lors de son intervention sur la normativité privée au colloque « De l’extraction à la réhabilitation : les dimensions juridiques de l’exploitation minière entre environnement, travail et santé », organisé par L’Université Littoral Côte d’Opale (ULCO) en mars 2026.
PEPR Sous-sol
When the market makes the rules
A voluntary standard does not oblige anyone. Why do companies follow it?
The first reason is reputational: showing that you go beyond the law gives a good image. But reputation alone is not enough, because a company’s primary role is to make money. If it makes that effort, it’s because there is a financial interest: a good reputation means more customers. Standards, labels and certifications are a bit like an eco-label or an organic label — a guarantee that a product was produced following certain rules. There are also financiers: more and more financial institutions only fund projects that comply with one standard or another. The result: in practice, the standard is not mandatory, but if you want the funding, you are obliged to follow it. And since a mining project must be financed, it ends up becoming essential.
You draw a rather striking conclusion.
Basically, it’s the market that makes the law. After a while, everyone follows the standard, because otherwise you lose competitiveness: it becomes a commercial argument. But that raises a real problem, which is eminently political — in the sense of “choice.” Ideally, each state should be able to say what its priority is: the economy, the population, or the environment. Depending on that priority, laws more or less restrictive are put in place, for example on the environmental conditions of a mining permit. When we rely on technical standards, technical considerations decide instead of the political. That raises a question of sovereignty: it’s no longer entirely the state that chooses.
How do States react
Faced with standards that move faster than they do, what do states do?
There is no universal answer — that is precisely one of the core issues of my postdoc. An important starting point: when a mining company sets up in a country, the only thing it is obliged to comply with is the legislation of that State. Standards and labels, for their part, allow for going further. States can then draw on them to change their legislation. The Kimberley Process on diamonds has thus been incorporated into several national laws; the EITI (Extractive Industries Transparency Initiative), a transparency standard, is included in the mining codes of several countries, such as Côte d’Ivoire. In France, some texts refer to a standard that will be specified later by decree. What leads a State to adopt one standard rather than another? I have not identified any specific criterion — states are sovereign and choose according to their interests, most often economic. The Kimberley Process, for example, does not primarily aim at economic development; but certifying the origin of diamonds makes it possible to sell them on the market. We always come back, in the end, to the economic argument.
Is there a body that oversees all of this?
Not really: it’s largely the market that self-regulates. There are attempts — national standardization bodies, like AFNOR in France, or ISO at the international level, which work hand in hand with states. The OECD guidance on due diligence also serves as a reference, incorporated into many standards. And the European Union is moving forward with the Critical Raw Materials Regulation (CRM Act): one article provides that, upon its entry into force, critical materials entering EU territory will have to be certified by a scheme previously accepted by the EU. But the control will only apply to schemes that agree to go through this filter.
The contract, a new tool of control?
Can the contract be used to better enforce compliance with these standards?
It's an interesting tool, based on the same principle as funders: a contract clause — for public works, or within the framework of a mining concession — can require compliance with a given standard. If it is considered that the standard has not been respected, the administrative judge can then take it up and verify. In case law, I have not yet seen any concrete instance where a company committed to follow a standard in a call for tenders and was then subject to a legal challenge for failing to comply. That does not mean it does not exist.
Towards a few major standards?
How will this landscape evolve?
At some point, it will probably stabilize. We will likely have one or two major standards that take on a larger role. Either a standard like IRMA, because of its international scope and cooperation with other frameworks; or standards recognized by states, like the Kimberley Process; or standards accepted by the European Union — more and more companies will say that, to continue trading on that large market, they must follow them. There is also the avenue of regional organizations. In Africa, the African Union is developing AMREC-PARC (African Mineral and Energy Resources Classification and Management System - Pan-African Resource Reporting Code), following the African Mining Vision (AMV), to harmonize mining law across the continent by staying as close as possible to local realities — since the mining situation varies greatly from one country to another, in both resources and infrastructure. China, for its part, is developing its own environmental standards.
Producers and importers: interests that collide
Can the standards of importing regions, like the EU, and those of producing regions respond to each other?
There will inevitably be overlaps, but also disagreements, because the interests differ. To caricature: the European Union’s interest is to secure the resources necessary for the energy transition. Either it extracts and refines them on its own soil — that’s the logic of the CRM Act, which aims to reduce dependence on critical materials — but opening a mine takes ten to fifteen years, and most rare earth refining is done today in China. African countries, for their part, have their own interests: some want to sell the raw resource to finance their development, others to refine it locally to capture the added value — but a refinery requires time, technology, and investment. There is an added paradox: it is hard to ask Africa to supply the resources for the global energy transition when, in many areas, electricity is lacking. When interests collide so sharply, we often leave the realm of law for that of diplomacy and negotiation — or, in case of a dispute, the courts.
Would the EU have an interest in a single interlocutor on the African side?
Economically, I don't think so. Having multiple interlocutors leaves room for negotiation. It could, however, serve the interests of local populations or the environment. That said, AMREC-PARC is not mandatory and has so far been implemented by very few countries: it is a standard that aims to raise standards, thereby upgrading products — which has a cost and takes time. It always comes back to political choices: what each state prioritizes, and what it is able to prioritize.