Power, Participation, and Private Regulatory Initiatives: Human Rights Under Supply Chain Capitalism 9780812299694

Citation preview

Power, Participation, and Private Regulatory Initiatives

PENNSYLVANIA STUDIES IN HUMAN RIGHTS Bert B. Lockwood, Series Editor A complete list of books in the series is available from the publisher.

Power, Participation, and Private Regulatory Initiatives Human Rights Under Supply Chain Capitalism

edited by

Daniel Brinks, Julia Dehm, Karen Engle, and Kate Taylor

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL ADELPHIA

Copyright © 2021 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 A catalog record for this book is available from the Library of Congress. ISBN 978-0-8122-5321-4

CONTENTS

Acknowledgments

ix

Key Acronyms

xi

PART I. FRAMING THE DISCUSSION: PRIVATE REGULATORY INITIATIVES, HUMAN RIGHTS, AND SUPPLY CHAIN CAPITALISM

Chapter 1. Private Regulatory Initiatives, Human Rights, and Supply Chain Capitalism Daniel Brinks, Julia Dehm, Karen Engle, and Kate Taylor Chapter 2. Closing Gaps in the Chain: Regulating Respect for Human Rights in Global Supply Chains and the Role of Multi-stakeholder Initiatives Justine Nolan

3

35

PART II. MULTI-STAKEHOLDER INITIATIVES AND THE MALDISTRIBUTION OF POWER

Chapter 3. The Kimberley Process and the Continuation of “Conflict Diamonds” Farai Maguwu Chapter 4. Reforming Commodity Certification Systems to Respect Indigenous Peoples’ Rights: Prospects for the Forest Stewardship Council and Roundtable on Sustainable Palm Oil Marcus Colchester

53

74

vi

Contents

Chapter 5. What Difference Can Certification Regimes Make? The Mapuche People’s Claims for Autonomy and the Forest Industry in Southern Chile Charles R. Hale and José Aylwin Chapter 6. Sustainability Certification and Controversies Surrounding Palm Oil Expansion in Guatemala Geisselle Vanessa Sánchez Monge

96

116

PART III. WORKER-DRIVEN SOCIAL RESPONSIBILIT Y PROGRAMS: AT TEMPTS TO REDISTRIBUTE POWER

Chapter 7. Assessing Feasibility for Worker-Driven Social Responsibility Programs Sean Sellers Chapter 8. From Public Relations to Enforceable Agreements: The Bangladesh Accord as a Model for Supply Chain Accountability Jessica Champagne Chapter 9. Transformation Through Transparency: Human Rights and Corporate Responsibilities in the Global Food System Erika George

139

154

180

PART IV. CRITICAL REFLECTIONS

Chapter 10. Reflections on Labor Standards in Global Supply Chains: Innovation and Scalability James J. Brudney Chapter 11. Situating Human Rights Approaches to Corporate Accountability in the Political Economy of Supply Chain Capitalism Dan Danielsen Chapter 12. Taking Consumers Seriously: Public Regulatory Tools of Accountability Lauren Fielder

205

224

242

Contents

Chapter 13. Private Regulatory Initiatives and Beyond: Lessons and Reflections Daniel Brinks, Julia Dehm, Karen Engle, and Kate Taylor

vii

258

Notes

271

List of Contributors

327

Index

333

ACKNOWLEDGMENTS

Our first thanks are due to the authors—academics, practitioners, and activists—who contributed to this volume. Their work has enriched and deepened our understanding of private regulatory initiatives and the political economy in which they operate. We are thankful to them for their willingness to engage with, and reflect upon, the insights from each other’s work and for their patience during the long process involved in bringing this book to fruition. This collection arises out of two events convened by the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas at Austin to examine the enforcement of human rights through private regulatory regimes in global supply chains: “Certifiably Fair: Can Consumers Monitor Human Rights?” and “Certifying Human Rights in Global Supply Chains.” Both events put scholars in conversation with practitioners and connected people from various regions, industries, and disciplines; the second provided the opportunity to workshop many of the essays included in this collection. We are enormously grateful to everyone at the Rapoport Center who helped make these convenings and the book arising out of them possible. Particular thanks are due to Rapoport Center assistant director Sarah Eliason and former assistant director William Chandler, who coordinated the logistics of the workshops, the work of student researchers and copy editors, and the final preparation of the manuscript. We are indebted to a number of Rapoport Center interns and human rights scholars who contributed research to the book and who copyedited chapters at various stages. Special thanks to Elizabeth Hamilton for her thorough work in copyediting and finalizing the manuscript for publication. Other students who worked on the project include Sofie Bonilla, Aaron Burroughs, Bethany Copeland, Xavier Durham, Meraal Hakeem, Annie Bares, Monica Mohseni, Kevin Trahan, Allison Gordon Wright, and Julie Wilson. We are also grateful for the support of the University of Pennsylvania Press. Peter Agree and Bert Lockwood encouraged the project from its

x

Acknowledgments

earliest stages. Jerome Singerman made sure the manuscript saw its way to publication. Our outside reviewers provided invaluable feedback for individual chapters as well as the book as a whole. Each of us thanks our coeditors for engaged, sustained conversation on these themes and all the hard work involved in systematizing, organizing, and articulating the key arguments and insights of the collection. Finally, we are all thankful to the friends, family members, and colleagues who have supported this project and encouraged us throughout this long process, including through the challenges posed by transcontinental moves, new jobs, family and other commitments, and a global pandemic we encountered along the way.

KE Y ACRONYMS

AJP ASI CAO CB CIW CRD CSR FFP FFSC FPIC FPP FSC HCV IFC ILO KP KPCS MSI NGO OECD P&C PRI RA RMG RSC RSPO TNC

Agricultural Justice Project Assurance Services International Compliance Advisor Ombudsman (of the International Finance Corporation) certification body Coalition of Immokalee Workers Centre for Research and Development (Zimbabwe) corporate social responsibility Fair Food Program Fair Food Security Council free, prior, and informed consent Forest Peoples Programme Forest Stewardship Council high conservation value International Finance Corporation International Labour Organization Kimberley Process Kimberley Process Certification Scheme multi-stakeholder initiative nongovernmental organization Organization for Economic Co-operation and Development Principles and Criteria private regulatory initiatives Rainforest Alliance ready-made garment RMG Sustainability Council Roundtable on Sustainable Palm Oil transnational corporation

xii

UNDRIP WRC WSR WWF ZANU PF

Key Acronyms

United Nations Declaration on the Rights of Indigenous Peoples Worker Rights Consortium Worker-Driven Social Responsibility World Wide Fund for Nature Zimbabwe African National Union—Patriotic Front

CHAPTER 1

Private Regulatory Initiatives, Human Rights, and Supply Chain Capitalism Daniel Brinks, Julia Dehm, Karen Engle, and Kate Taylor

From unsafe working conditions in garment manufacturing to the failure to consult indigenous communities on extractive projects that affect them, human rights violations remain pervasive in our contemporary global economy. While human rights law has traditionally treated states as the primary bearers of the duty to uphold and enforce human rights, many human rights advocates have called for those states to hold corporations directly accountable for violations throughout the supply chain. Most recently, particularly given seismic shifts in the nature and scale of global production networks, many advocates have also moved away from a focus on public regulation of businesses, turning instead to the development and enforcement of private regulatory mechanisms to prevent, monitor, and respond to rights violations caused by corporate activity. These private initiatives enroll corporations, workers, and consumers in the task of enforcing and even creating human rights standards. Thus, a number of stakeholders share responsibility for norm production, monitoring, and enforcement. Advocates see at least some of these initiatives as holding the potential to create better outcomes—whether for workers, affected communities, or the environment—within a global economy structured by “supply chain capitalism.”1 This label refers not only to the fact that global production and distribution are increasingly organized through disaggregated, geographically dispersed supply chains but also to the ways in which lead, generally global, firms use outsourcing and subcontracting arrangements to minimize responsibility and accountability and to capture an unequal proportion of the value produced.

4

Framing the Discussion

What the authors refer to throughout this volume as private regulatory initiatives (PRIs) span a range of industries, sectors, and contexts, with some focusing on discrete supply chains and others on industries and sectors in specific countries or regions. PRIs cover an equally varied range of substantive areas, from labor rights and environmental governance to the land and natural resource rights of indigenous and tribal peoples. Throughout the book, we group these issues under the umbrella of human rights because many PRIs draw standards and norms from international human rights law. Moreover, much of the advocacy to promote as well as critique various PRI initiatives uses rights-based rhetoric and frameworks. Ultimately, the contributions in this volume coalesce around one basic claim: the inequalities and disparities of power and wealth that are a key characteristic of the contemporary global economy also mark the origins and operation of PRIs (though to varying degrees). This collection highlights the need for discussions about labor, environmental, and other human rights accountability within supply chains to be situated within a broader analysis of the political economy of contemporary supply chain capitalism. It seeks to enrich discussions of PRIs by bringing into conversation the lenses of distributive justice and political economy alongside human rights. Together, the chapters suggest that PRIs will be more legitimate and work best when those workers and communities who are most directly affected are given significant roles in norm production, monitoring, and enforcement. The contributions in this volume demonstrate that understanding how value is legally and contingently created and unequally distributed to different actors along a supply chain is key to opening up opportunities for increasing participation, improving conditions at the “bottom” of that chain, and potentially shifting inequalities within production networks. As editors of this volume, we share a broad concern that business and human rights approaches to addressing abuses in global supply chains have been too narrowly focused, especially in their initial emphasis on promoting information exchange and transparency about human rights violations. Some business and human rights scholars have become increasingly wary of transparency initiatives as the sole or even primary means of bringing about greater respect for human rights by corporate actors.2 We share these concerns about the limitations of such measures and stress that promoting accountability and greater equity in global production requires understanding the structural dynamics of uneven development and the inequitable allocation of value and power within supply chains, as well as developing initiatives to redress these inequalities.

Private Regulatory Initiatives, Human Rights

5

This volume brings together contributions by academics and practitioners from a number of regions to engage in theoretical analysis, case study exploration, and cross-thematic reflection. The chapters explore the potential opportunities for using PRIs to create and enforce rights, as well as to redistribute power and resources.3 Many of the essays draw directly from contributors’ experiences. Some authors discuss prominent multi-stakeholder initiatives (MSIs), which generally rely on consumers for enforcement, counting on consumers to purchase only brands that are certified. Examples include initiatives that address the production of palm oil, timber, and diamonds. Other contributors have been at the forefront of PRIs that aim to go further, through what they term “Worker-Driven Social Responsibility” (WSR) programs. In addition to involving workers more directly at all stages, WSRs use private, legally binding contracts between unions and lead brands, in which the latter agree not to purchase from suppliers that do not meet certain codes of conduct. These include programs focused on improving the wages and working conditions of tomato growers in the United States and those addressing building safety in the apparel industry in Bangladesh. Although these initiatives still rely on certification processes to identify those entities that conform to certain codes of conduct, they self-consciously foreground worker participation in, if not control of, norm production, monitoring, and enforcement. And by using legally binding contracts with lead firms, they rely less on point-of-sale consumer purchasing decisions to enforce those standards. By theorizing from the engagements of practitioners and activists on the ground, this volume brings highly pertinent but often overlooked questions and challenges to the scholarly debates on business and human rights as well as on global governance. Specifically, we invited authors to discuss the PRIs covered in their chapters with an eye toward how power and resources are distributed within supply chains and the extent to which each PRI might be able to disrupt or dismantle the dynamics that lead to inequitable distribution. This study is the first not only to ask the questions in this way but also to compare such a wide range of initiatives. It also uniquely brings together the insights of those who are too often not in the same conversation: academics and practitioners; academics from different disciplines; and practitioners working on different issues, in different regions, and in different sectors. In sum, the volume offers thought-provoking contributions for those concerned with the unequal distribution of resources and power in the global economy, the role of both private and state actors in that maldistribution, and

6

Framing the Discussion

the possibilities for human rights to push against the apparent consolidation of a global marketplace rooted in inequality. It does so in four parts. This introductory chapter and a chapter by business and human rights scholar Justine Nolan comprise part I; together they set the groundwork for the case studies and analysis in the rest of the book. This chapter explores the emergence of PRIs within the political economy of supply chain capitalism. It provides an introduction to the PRIs considered in the volume, with special attention to the power relations that mark their norm production, monitoring, and enforcement processes. Nolan’s chapter frames the volume’s discussion of PRIs, locating their rise in the context of “governance gaps” in global supply chains and deficits in business and human rights accountability at both the domestic and international levels. Parts II and III offer a series of empirical case studies of PRIs, written primarily by prominent practitioners and activists in the field. Part II uses case studies to evaluate the ability of certification mechanisms to protect local community and indigenous rights in the context of natural resource extraction. Farai Maguwu, of the Zimbabwe Centre for Natural Resource Governance, discusses the failure of the Kimberley Process (KP) to protect communities from human rights violations related to diamond mining. Marcus Colchester, of the Forest Peoples Programme, reflects on prospects for ensuring indigenous rights through the Forest Stewardship Council (FSC) and the Roundtable on Sustainable Palm Oil (RSPO), focusing primarily on the grievance procedures and dispute resolution mechanisms offered by those initiatives. Together, José Aylwin, of Observatorio Ciudadano (Citizens’ Watch) in Chile, and anthropologist Charles Hale examine the potential for the FSC to respond to land conflicts and claims for autonomy by the Mapuche in southern Chile. Concluding the section, Geisselle Vanessa Sánchez Monge, of ActionAid, evaluates the operations of the RSPO in Guatemala, criticizing it as a market-oriented initiative that is largely inattentive to the voices of affected communities. The case studies offered in part III present a somewhat more optimistic picture than those in part II. The chapters provide explorations into WSR programs, which are a relatively new generation of PRIs. Both Sean Sellers, of the Worker-Driven Social Responsibility Network (WSR Network) and formerly of the Coalition of Immokalee Workers (CIW), and Jessica Champagne, of the Worker Rights Consortium, are at the forefront of movements that have received national and international attention for their success in transforming labor relations in two notoriously difficult contexts: agriculture

Private Regulatory Initiatives, Human Rights

7

and the apparel industry. Focusing on the Fair Food Program (FFP), Sellers’s chapter sets out key distinctions between WSR initiatives and other PRIs and explores the feasibility conditions for the former. Champagne discusses the current challenges and future prospects of the Bangladesh Accord on Fire and Building Safety (Bangladesh Accord). Human rights legal scholar Erika George focuses on PRIs seeking to transform agricultural supply chains, including the FFP, and highlights how transparency and consumer access to information underlies many of these initiatives. All three of these contributions speak in different ways to the emerging paradigm of WSR, identifying its potentially transformative structural features. Part IV includes contributions from legal academics reflecting on the earlier chapters, with a focus on the limitations of the PRIs as well as how these initiatives can be broadened, complemented, and enhanced to better protect human rights within current global legal and economic structures. James J. Brudney contributes his expertise on labor law and human rights to consider whether and how WSR models might be scalable, highlighting key features that must be present to make such schemes effective and equitable. Dan Danielsen employs both critical corporate governance and law and political economy to reflect on the ways that various PRIs and other worker organizing efforts are shaped by, and could potentially disrupt, the dynamics of supply chain capitalism. Finally, Lauren Fielder draws on her background in consumer law to suggest that domestic litigation could play a role in standardizing and regulating certification schemes and other PRIs to bring about stronger human rights outcomes. The final chapter of the volume offers insights gleaned from the various chapters in the book. As the editors, we reflect there on the critical limitations and challenges faced by many PRIs. We also explore whether any of the models might hold the potential for more counterhegemonic futures.

I. Human Rights, Global Supply Chains, and Corporate Accountability Over the past three decades production processes have become increasingly fragmented and geographically dispersed, in part due to the liberalization of international trade, technological and informational advances, and improvements in logistical services transporting goods globally.4 As such, production processes that in earlier periods were contained within one nation-state

8

Framing the Discussion

are now dispersed among and span many countries. These supply chains are made up of networks of producers—generally connected through contracts— in which a lead firm often plays a coordinating role. An estimated 80 percent of global trade operates through supply chains coordinated by transnational corporations.5 Human rights advocates have understandably found global supply chains vexing, often pointing to the “governance gaps” created by these supply chains. They identify both host states (where production and extraction occur, typically in the global South) and home states (the jurisdictional home of multinational corporations, typically in the global North) as unable or unwilling to regulate business conduct that violates basic labor and human rights.6 They often see host state incapacity as resulting from institutional failures, such as insufficient legal frameworks and weak or nonexistent labor inspectorates and environmental regulatory agencies.7 Attempts to regulate transnational corporations that are geographically and contractually removed from the adverse impacts of their corporate activities are not new. Indeed, as early as the New International Economic Order (NIEO) of the 1970s, countries of the global South sought to develop a binding code of conduct for transnational corporations, in large part to counter the increasing demand on host states to respect the rights of corporations.8 The resulting proposed code, like other NIEO initiatives, was ultimately not realized, and the rights of corporations were increasingly protected by bilateral and multilateral investment treaties. In response to the failure to create binding international norms, advocates and policymakers have pursued various approaches to promote corporate accountability. Some are largely private, while others are more state-based and multilateral. The following sections provide a brief overview of these models and their overlapping development over the past three decades. All these initiatives constitute part of a “polycentric” regulatory landscape concerned with corporate conduct.9 Applied in different contexts with diverse stakeholders, they are sometimes mutually reinforcing, providing spaces for iterative learning. At other times they stand in direct competition.10 This book highlights the need for greater engagement among advocates, practitioners, and scholars working across these contexts, as well as for critical discussion about how this increasingly sophisticated set of regulatory tools can be deployed to confront the inequitable conditions of extraction and production under supply chain capitalism.

Private Regulatory Initiatives, Human Rights

9

A. Corporate Social Responsibility

In the 1990s, public attention to sweatshop labor in the global South led to a number of consumer campaigns and targeted boycotts of garment brands in the global North—including Nike, Gap, and Levi Strauss—that were revealed to have sourced their products from factories rife with extreme labor and human rights abuses. Threatened with reputational harm to their brands, a number of corporations responded by advocating self-regulatory measures to promote corporate social responsibility (CSR), particularly through voluntary codes of conduct that contain labor, environmental, and other human rights standards the corporations attest they will strive to adhere to—including in their supply chains.11 CSR programs often generally contain a social audit mechanism, typically created and paid for by the corporation, to measure compliance with code standards.12 CSR rapidly gained popularity. In 2010, the United Nations Global Compact, the largest private and nonbinding business code established under UN auspices, had around thirty-five hundred corporate signatories.13 By 2019 it had more than twelve thousand signatories in over 160 countries.14 Yet many advocates have criticized CSR for being more concerned with the brand than about protecting human rights and therefore producing little more than hortatory endorsements and general statements of principles.15 For these and other reasons, most human rights advocates, including the authors in this volume, have come to reject CSR.16

B. UN Guiding Principles on Business and Human Rights

Partly in response to such concerns, in 2011 the UN Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights.17 The Guiding Principles, drafted by John Ruggie when he was the UN Secretary-General’s Special Representative for Business and Human Rights, treat states as the primary duty holders for the protection of human rights, calling for them to take appropriate judicial, administrative, legislative, or other steps to protect against, and ensure effective remedies for, human rights violations.18 The Guiding Principles also name the responsibilities of businesses to adopt policy commitments to respect human rights and conduct due diligence to identify and mitigate any adverse human rights impacts—not only

10

Framing the Discussion

in relation to their own activities but also regarding “other parties directly linked to its operations, products, or services.”19 At least for corporations, the Guiding Principles represent international soft law, as they are expressed in nonauthoritative terms within a nonbinding instrument.20 While many hoped that the soft law would eventually harden into binding international law, possibly through a business and human rights treaty, such a treaty is a long way from being finalized and is in any event likely to rely on state action to enforce corporate accountability.

C. Private Regulatory Initiatives

Some business and human rights advocates have taken a different tack, focusing on developing private regulatory means for holding businesses accountable. The chapters in this volume showcase a number of the resulting PRIs. Although the background and history of each is distinct, they all developed in response to a similar set of complex circumstances, including the entrenched inequities of supply chain capitalism and the clear limitations of corporate self-regulation in stemming human rights violations. The PRIs can be divided between MSIs and WSR models. 1. Multi-stakeholder Initiatives

MSIs were the first of the PRIs to emerge, beginning in the early 2000s.21 As the label indicates, they aimed to “bring together various stakeholders—such as corporations, civil society, government, and affected populations—to collaborate in addressing a specific issue.” 22 Although MSIs exist outside traditional government regulatory frameworks, MSI Integrity, an organization committed to evaluating MSIs for how they “include, empower, and impact affected communities,” notes that MSIs have become “new regulators” that create novel rules for corporate conduct.23 MSI Integrity notes that “estimates suggest there are hundreds—if not thousands” of MSIs.24 Its 2017 report identified forty-five MSIs engaged in “standard setting,” predominantly in industries producing consumer goods; in agriculture, forestry, and fishing; and in mining and energy.25 In addition to bringing a more diverse set of actors into the governance fold, a number of MSIs have developed certification processes, which are the focus of much of this collection. According to Graeme Auld, certification schemes “represent formalized governance arrangements for developing

Private Regulatory Initiatives, Human Rights

11

and promoting standards to give buyers information about products made through environmentally and socially responsible cultivation, extraction, production and manufacturing processes.”26 Auld identifies four key features of certification schemes: a logo or label on end products sold to consumers; some form of inspection and monitoring through an independent, third-party verification process (certifying bodies); governance structures and procedures for overseeing operations; and established standards as well as chain-of-custody tracking processes for following the product to the consumer.27 There is immense variation in how the numerous extant certification schemes set and enforce standards, including the timing, frequency, and methodology of their auditing; their degree of transparency; and the claims they make about the ethical production practices of goods that carry certifier logos.28 Such certification schemes are part of a broader trend of labeling consumer goods on the assumption that consumers want information to make ethical consumption choices.29 Indeed, the proliferation of these processes has led to competition among conflicting schemes purporting to regulate the same commodities, as well as questions about the credibility of competing labels.30 The FSC (discussed in this volume by Colchester and by Aylwin and Hale) is a prominent certification scheme. FSC-accredited certifying bodies audit each individual forest management operation to determine compliance with FSC standards. The FSC’s chain of custody system then allows certified timber and pulp products to be followed through the supply chain from the forest to the consumer. Once certified, companies are authorized to use the FSC trademark and the “checkmark-and-tree” logo on their products, which the FSC contends will “enable consumers to choose products that support forest conservation, offer social benefits,” and “enable the market to provide an incentive for better forest management.”31 Such mechanisms operate on the assumption that increased consumer demand for certified products will cover the costs of improved management and certification. Colchester and Sánchez also consider the RSPO, an MSI similar in structure to the FSC, which certifies the sustainable production of palm oil. Created in 2004, the RSPO aims to “create a more prosperous palm oil industry,” while also improving quality of life for directly affected communities and oil palm farmers and conserving natural resources.32 In 2018, RSPO-certified growers accounted for 19 percent of global palm oil production.33 Also in this volume, activist Maguwu writes about his experience as a civil society representative within the KP, an MSI dedicated to “eradicating

12

Framing the Discussion

conflict diamonds” by encouraging states to establish “internal controls” that prohibit the trade of conflict diamonds, coupled with chain-of-custody warranties used by retailers to signal to consumers that a diamond is “conflictfree.”34 The central premise of the KP is that member states cannot import or export rough diamonds unless a KP certificate accompanies those shipments, providing a strong incentive for nonmembers to join the KP.35 Even though only states can be members of the KP, it is still considered a multi-stakeholder collaboration because nongovernmental organizations (NGOs) and industry representatives participate in the scheme as observers. Further, an industrybased system of warranties, established by the World Diamond Council, requires all buyers and sellers of diamonds to make affirmative statements on their invoices about the diamonds’ compliance with the KP.36 2. Worker-Driven Social Responsibility Models

Over the past decade, a number of labor and human rights activists have worked together to create a new type of PRI, which has come to be known as WSR. Though WSR programs depend on collaboration and buy-in from a range of stakeholders, they boast that their organization and functions are worker driven. Greg Asbed, cofounder of the CIW, which designed the FFP, explains: “If a human rights program is to be effective, the humans whose rights are in question must be key players in—the subjects, not the objects of— the design and implementation of the program.”37 Thus far, WSR programs have been limited to labor, specifically in manufacturing, agriculture, and construction. However, the orienting principle—that the model be driven by the rights-holders most affected—could be transferable to nonlabor contexts.38 In his chapter, Sellers identifies six key characteristics of WSR programs that distinguish them from other PRIs. WSR programs (1) are worker driven, (2) are based on binding and enforceable agreements with global corporations, (3) provide for buyers to afford suppliers the financial incentive and capacity to comply, (4) lead to consequences for noncompliant suppliers, (5)  make gains for workers that are measurable and timely, and (6) verify workplace compliance through rigorous and independent audits.39 This collection discusses in considerable detail the two most established WSR programs. Chapters by Sellers, George, and Brudney consider the FFP, established in 2010 by the CIW and the first comprehensive, fully functional model of WSR.40 This model emerged as a result of years of CIW’s unsuccessful negotiations with suppliers (growers) over basic wage and labor standards in their fields. Growers claimed that they did not have the money to pay basic

Private Regulatory Initiatives, Human Rights

13

wages to farmworkers because buyers were using their market power to dictate prices.41 As a result, the CIW shifted its focus from growers to buyers.42 With the FFP, it began to recruit buyers, such as McDonald’s and Walmart, to sign contracts in which they agree to source tomatoes only from suppliers that adhere to the Fair Food Code of Conduct and to pay one to four cents more per pound for tomatoes to offset the cost of supplier compliance. The money also pays for a premium added to farmworkers’ paychecks. Importantly, the CIW designed the FFP to include a number of features—including worker-to-worker education, a twenty-four-hour complaint investigation and resolution process, and in-depth field and farm office audits—to ensure that workers can participate in the monitoring process, as well as to drive and inform enforcement of the FFP’s standards “as the frontline monitors of their own rights.”43 Present estimates suggest that around 20 to 25 percent of tomatoes in the United States are purchased from growers that take part in the program.44 The second prominent WSR program is the Bangladesh Accord, addressed in detail in this volume by Champagne and also considered in chapters by Brudney and Sellers. The Accord is an agreement among more than 220 global apparel brands, two international trade union federations, and seven local Bangladeshi trade unions. It is witnessed by four NGOs. It was signed in May 2013, just one month after the deadly Rana Plaza collapse, though international labor rights advocates had been laying the groundwork for a similar agreement for many years.45 The initial Accord had a five-year lifespan, though a revised 2018 agreement extended the program to May 2021 (or until a body set up by the Bangladesh government, Remediation Coordination Cell, can take over the Accord’s functions).46 Under the Bangladesh Accord, signatory brands agree to implement a joint fire, electrical, and structural safety inspection program under the direction of the Accord’s chief safety inspector. To provide for the cost of inspections, the companies pay an annual fee based on their annual garment production turnover in Bangladesh.47 Importantly, the Accord includes a provision requiring purchasing brands in the global North to ensure that it is financially feasible for supplier factories to implement the remediation processes identified as necessary by the safety inspector. Inclusion of this language was a core priority of unions and labor rights organizations because the “price pressures placed on suppliers from brands and retailers, and a failure to consider the costs of compliance when setting prices for apparel goods, are key factors in the persistence of pervasive violations in Bangladesh and elsewhere.”48

14

Framing the Discussion

Witnessing the relative successes of these two major programs, a number of other workers’ groups have designed and implemented WSR models.49 Through Migrant Justice, for instance, dairy workers in Vermont established the Milk with Dignity program, beginning with an agreement between Migrant Justice and Ben & Jerry’s, under which the ice-cream brand requires its supplier farms to comply with the Milk with Dignity Code of Conduct.50 Like the FFP, this and other WSR programs in the United States tend to originate from workers who are denied many of the protections of U.S. labor law, such as undocumented workers and independent contractors. The programs often emerge from worker centers and alt-labor organizations rather than from trade unions. Without recourse to traditional labor law tools such as collective bargaining, nonunion organizations are often forced to undertake more creative and innovative labor strategies than their union counterparts.51 In 2015 the WSR Network formed, with the purpose of expanding, promoting, and replicating the model in supply chains around the world.52 More than fifty leading labor and human rights organizations have endorsed its statement of principles, which demonstrates growing support for this new paradigm of human rights protection.53 This potential uptake of the WSR model across a range of new contexts could radically alter the PRI landscape.

II. Supply Chain Capitalism and the Role of Law The preceding analysis demonstrates a chronological, if overlapping, development of the frameworks of CSR, the UN’s Guiding Principles, MSIs, and WSR, with each framework at least in part responding to some of the perceived weaknesses of those that preceded it. Many business and human rights scholars have criticized the general reliance of PRIs on corporate self-governance and the limitations of mandating corporations to provide transparency about their supply chain operations. Scholars have paid less attention, however, to the broader arrangements that produce massive inequalities and power disparities in global supply chains.54 We contend that any analysis of corporate accountability mechanisms, including PRIs, needs to be situated in the global context of supply chain capitalism and to critically evaluate the extent to which such mechanisms take account of, leverage, subvert, or transform inequalities of power and wealth. These inequalities of power and wealth between lead firms, on the one hand, and governments, supplier firms, and workers in the global South, on the

Private Regulatory Initiatives, Human Rights

15

other, are both drivers and products of supply chain capitalism, as outlined in Danielsen’s chapter in this volume. The lens of supply chain capitalism helps us identify how the disaggregation and outsourcing of production has allowed lead, mostly global, firms to evade responsibility and accountability and capture an unequal proportion of rent along the supply chain. Paying attention to these dynamics of supply chain capitalism and the background legal structures that enable them can help highlight potential points and modes of intervention to redress some of these inequalities. Although supply chain capitalism describes a global structure, it cannot be understood without attention to local dynamics. In fact, as Anna Tsing explains, the concept of supply chain capitalism offers a way for us to imagine the “bigness” of global capital without losing sight of its heterogeneity and local interactions, including how capitalist firms adapt their production and commerce to local conditions, making use of local inequalities to reduce the cost of labor.55 The concept therefore calls attention to how even those arrangements that appear at first glance to be strictly local are shaped by the fluidity of goods, people, and capital that drive the race to the bottom and present an ever-present possibility of shifting sourcing practices to (or importing labor from) abroad.56 PRIs attempt to add teeth to calls for transparency, reporting, and due diligence, but the inequalities that drive and are produced by supply chain capitalism are often reflected in the very constitution of PRIs. Further, although PRIs seek to promote greater accountability for human rights violations in supply chains, they generally fail to address the asymmetric distribution of value and surplus among different actors within the chain. The chapters in this volume that discuss three dominant MSIs—the FSC, RSPO, and KP— reveal the multiple ways in which MSIs themselves are sites of social and political struggle, and how many are structured by relations of dominance and inequitable allocations of power. While some optimistic commentators have suggested that the rise of private regulation has helped to “empower global civil society by providing activist groups with political levers that exist outside the state system,”57 the chapters in this volume reveal that MSIs “are at once shaped by, and constitutive of, power relations and inequality in the global market.”58 As we demonstrate below, the MSIs depicted in this volume therefore share some of the pitfalls of the CSR paradigm: namely, industry involvement in norm production, monitoring, and enforcement has tended to result in initiatives that are ineffective, toothless, and do little to disrupt the grossly unequal allocation of profits and power in global supply chains.

16

Framing the Discussion

Some PRIs are attentive to and aim to leverage the maldistribution of power and value, which are the driving force and product of supply chain capitalism. The more successful PRIs recognize the critical spaces in supply chains that provide structural and discursive openings for political organization and resistance, to make demands of those actors that have both the leverage and the latitude to enforce standards in other parts of the chain. The Bangladesh Accord and the FFP, for example, not only recognize but call upon the power of large retailers at the top of the commodity chain to determine the conditions for workers at the bottom. However, as Danielsen suggests, to really challenge “dominant firm power through the very global chain structures that currently amplify that power” it might be necessary to “move beyond a conceptual framework of corporate violation, harm, and remediation to include identifying and challenging the wide array of legal regimes and business practices through which corporate power is aggregated and exercised under supply chain capitalism.”59 Significant redistribution within supply chains cannot take place without attention to the constitutive role of law in the distribution of value along supply chains, particularly through background legal norms that create and allocate value. Law is much more than a means to facilitate the free market or even to correct asymmetries within it; it is “a tool and terrain for struggle over the terms through which value is generated and distributed and power exercised in global production systems.”60 That terrain consists of “multiple, overlapping and often conflicting local, national, regional and transnational legal regimes, soft-law normative orders and private ordering mechanisms.”61 As Danielsen explains in his chapter, human rights advocates might make significant gains by focusing on already existing background legal arrangements, rather than simply calling for new or better-enforced law to respond to the harms or governance gaps they identify. Attention to how law structures the relations of supply chain capitalism provides a way not only to identify governance gaps but also to consider, as Penelope Simons puts it, “the root causes of these gaps.”62 We foreground here a number of insights that we believe are missed by dominant human rights approaches to addressing governance gaps, as a means to think more critically about how and the extent to which PRIs might in fact respond to them. First, governance gaps are in many cases (at least partially) the product of competitive strategies by weaker states to gain and maintain access to global markets. Many states that rely on production for export, for example, create and deploy legal regimes that aim to decrease the cost of that production,

Private Regulatory Initiatives, Human Rights

17

often including through hostility to the formation and operation of labor movements. As such, supply chain capitalism has significantly diminished the power of nationally bounded collective bargaining. As the International Labour Organization (ILO) observes, “the purchasing practices between buyers and suppliers and intense competition between firms at the end of supply chains place limits on how much value is available for distribution through [traditional forms of] collective bargaining.”63 Without taking into consideration the political economy of supply chain capitalism, efforts to improve human rights outcomes at the local level may be critically limited. Second, and related, the international legal system and the interventions of international financial institutions in the economies of states in the global South are implicated in creating “governance gaps” as well as the pressures on states and firms in other parts of the supply chain just described. As Simons puts it, “human rights impunity is deeply embedded in the international legal system” as “powerful states have used international law and international institutions to create a globalized legal environment which protects and facilitates corporate activities.”64 PRIs, despite being considered “private” initiatives, are themselves shaped by many of these background legal rules (public and private, as well as international and national). For example, as Tim Bartley explains in the context of forestries, the creation of a market-based certification mechanism emerged when states failed to reach an agreement on an international forest convention or any other international institutional action.65 The pushback on such proposed institutional responses—from timber-exporting states as well as North American and European governments—charged that “such a system would impinge on national sovereignty, discriminate against tropical timber, and constitute an illegal barrier to trade under the General Agreement on Tariffs and Trade.”66 While the FSC, as a PRI, provided an alternative way to achieve the same objectives, it is still limited by the parameters set in international economic law, including the possibility that alternative state-based enforcement through the use of trade restrictions might be a breach of World Trade Organization rules.67 Third, sometimes human rights violations, rather than being caused by an absence of law or a failure to enforce the laws in existence, are themselves the products of legal rules. Consider the widespread labor rights violations on Florida tomato farms that led to the establishment of the FFP as an example. During the formation of the New Deal, powerful Southern Democrats in the U.S. Senate successfully advocated to write agricultural and domestic workers out of the U.S. National Labor Relations Act and many of the provisions in

18

Framing the Discussion

the Fair Labor Standards Act. Many consider these exclusions as a proxy for exclusions on the basis of race, which—if originally intended to preserve the racial order of the Jim Crow South—continue today.68 In addition, migrant workers, even when they are covered by labor law, are subject to an immigration regime that in reality leaves them readily deportable if they advocate for economic justice.69 To attribute the emergence of the FFP to a “regulatory void” elides these highly racialized institutional choices that have left farmworkers unprotected in the fields. Finally, consideration of PRIs in the context of global supply chain capitalism demonstrates that PRIs do not simply bypass the state in the production of norms and enforcement of rights. As Bartley explains, rather than creating new rules for “previously ungoverned phenomena,” PRIs offer “an additional layer of rules for phenomena that are already embedded in complex political, legal, and regulatory orders.”70 Acts of worker solidarity, for example, can be hamstrung by secondary boycott laws, while multi-brand wage agreements might be constrained by the threat of antitrust regulations. And social movements that might grow out of or contribute to some PRIs might be suppressed by the threat and application of criminal laws. Foregrounding these other legal regimes both demonstrates the limits of PRIs that do not attend to them and opens up new sites of potential contestation and resistance.

III. Norm Production, Monitoring, and Enforcement of PRIs The unequal power relations that constitute supply chain capitalism are often replicated within the structures of PRIs. The chapters in this book suggest that the impact and effectiveness of PRIs depend upon who is included as stakeholders as well as the relative power relations among stakeholders involved in their establishment and implementation. Here we hone in on the five PRIs considered in this book: the RSPO, the FSC, the KP, the FFP, and the Bangladesh Accord. We call particular attention to the ways that different stakeholders (corporations and industry representatives, private auditing firms, NGOs, labor unions, workers, local communities inclusive of indigenous peoples, and even arguably consumers) are involved in the three key tasks any PRI must undertake: norm production, monitoring, and enforcement. This comparative analysis of the ways diverse stakeholders are engaged in norm production, monitoring, and enforcement makes visible how the structure of

Private Regulatory Initiatives, Human Rights

19

a PRI can determine the possibilities for stakeholders, especially the people most directly affected, to leverage power in a global economy structured by considerable inequities and injustices. Our analysis, summarized in table 1.1, demonstrates that one crucial difference between the MSI and WSR models we consider is that, in the WSRs, the most directly affected individuals and groups are more involved in crafting the initiative and monitoring compliance. A second crucial difference is found at the enforcement stage. While MSIs largely rely on a market-based Table 1.1. Differences Across PRIs in Norm Production, Monitoring, and Enforcement Type

Initiative

Norm producers

Monitoring

Enforcement

MSI

FSC (forestry products)

Multi-stakeholder participation: firms in negotiation with CSOs; no participation of directly affected parties

Social auditing firms (paid by company); grievance processes initiated by auditors, NGOs, or local communities that are difficult to access for the latter

Loss of certification, but not loss of access to wholesale or retail outlets, leaving decision whether to purchase up to consumers

MSI

RSPO (palm oil)

Multi-stakeholder participation, as above, but clearly dominated by firms

Social auditing firms (paid by company); grievance processes initiated by NGOs, workers, or local communities that are difficult to access for the latter

Loss of certification, with loss of access to markets driven by market demand for certified product; some peer pressure from competitors to comply

MSI

KP Member states: (diamonds) NGOs and industry “observing” only; no participation of directly affected communities

Working Group on Monitoring (partly multistakeholder)

Importing states must refuse to bring in diamonds that are not certified or engage in confidential discussions to resolve issues; no external enforcement (continued)

20

Framing the Discussion

Table 1.1. (Continued) Type

Initiative

Norm producers

Monitoring

Enforcement

WSR FFP (agricultural products, mostly tomatoes)

Primarily local workers, organized through CIW, in negotiation with lead firms

Independent: Fair Foods Standards Council audits, plus complaint hotlines and worker training

Producers lose certification, leading to loss of access to retailers, who can be sued if they buy noncertified products

WSR Bangladesh Accord (garment industry)

Initially, labor INGOs, later in consultation with some local worker organizations

Independent: chief safety inspector and worker safety committees, plus an accessible complaints mechanism

Producers lose certification, leading to loss of access to retailers, who can be sued if they do not verify compliance by producers

paradigm for enforcement that depends upon consumer demand, WSR programs require participating firms to enter into legal contracts, enforceable in courts or through binding arbitration.

A. Norm Production

Every PRI must produce the substantive and procedural norms that will bind the various participants in the initiative. These norms are shaped by the identity, interests, and bargaining power of the parties that take part in producing them. Despite representing themselves as the product of multi-stakeholder collaboration and often drawing directly on human rights instruments, the norms produced by the certification-based MSIs considered by the authors in this book reflect deep asymmetries in power and control. While the FFP and Bangladesh Accord explicitly attempt to subvert those asymmetries, their ability to do so in practice is tempered by the political economy of supply chain capitalism and the background legal rules that shape and constrain the form and function of these programs. The FSC and RSPO are relatively similar mechanisms—with the latter having been created, more or less, in the image of the former. A multi-stakeholder

Private Regulatory Initiatives, Human Rights

21

group of foresters, representatives of environmental NGOs, certification bodies, and a handful of retailers drove the initial formation and norm production of the FSC.71 Although concern about tropical deforestation and biodiversity loss in the global South provided the impetus for the program, in practice the most commonly certified forestry operations are in the global North. The FSC spent its initial four years drafting its international Principles and Criteria (P&C), which involved a “worldwide consultation,” as well as nationally or regionally appropriate indicators and verifiers for the P&C.72 They are continually revised, with those in effect in 2020 constituting the fifth version.73 In some ways, the FSC’s P&C constitute a “high bar for the ecological and social dimensions of forest management,” requiring loggers to safeguard soil, water, and biodiversity; maintain “high conservation value” areas; and respect the customary land rights of indigenous communities.74 Both the RSPO and FSC draw their standards from a suite of international norms on human rights, environmental sustainability, and labor rights. For instance, both initiatives’ P&C refer to international agreements and specifically state that the organization seeking certification “shall recognize and uphold the rights, customs and culture of Indigenous Peoples as defined in the United Nations Declaration on the Rights of Indigenous Peoples (2007) and ILO Convention 169 (1989).”75 Notwithstanding this high bar, the FSC has been criticized on multiple grounds, many of which can be traced to imbalances at the norm production stage, at both the international and domestic governance levels. The FSC’s General Assembly holds the decision-making authority at the global level. It votes on the policies, standards, and governance of the FSC. The assembly is divided into three interest-based chambers—economic, social (which covers indigenous peoples), and environment—each of which controls onethird of the voting rights. Each of the chambers consists of equal numbers of representatives from the global North and the global South.76 The FSC also has a number of national (as well as regional and subregional) offices, which hold their own regular meetings to allow local stakeholders to have some input into standard setting and certification processes. Some countries, such as Canada, have now added an additional chamber for aboriginal peoples as part of their national arrangements. Despite this apparently representative and multilevel governance structure, many critics contend that large companies with the most power in the supply chain set the rules for, as well as derive most of the benefits from, certification.77 Some contend that the FSC ignores domestic needs and context

22

Framing the Discussion

due to the assumption that one set of standards is broadly applicable and acceptable to all types of forest producers (albeit with some local interpretation), and relatedly, that global North scientific principles of forest management are the appropriate basis for certification standards.78 Though the FSC gives stakeholders within a country some ability to tailor or interpret the P&C according to the relevant local context, such tailoring has occurred sporadically and in selected countries only.79 At the same time, deference to domestic conditions often backfires, especially when it means adopting local laws. Colchester notes, for instance, that precedence is often given to national laws that do not comply with international standards on indigenous rights.80 Hale and Aylwin argue, in the context of Chile, that the state restricts indigenous peoples’ rights through its national interpretation of the FSC P&C, which narrowly construes the international law on indigenous rights on which they are based.81 This restrictive interpretation is one part of the explanation they offer for why the FSC has certified nearly all major forest corporations in southern Chile, notwithstanding serious ongoing conflicts between FSC-certified plantations and the Mapuche people.82 Although norm production in principle engages with civil society at multiple levels, the case studies in this book show that norm production generally takes place with very little involvement of rights-holders on the ground. The resulting mechanisms tend to replicate the relations of domination, subordination, and marginalization that characterize contemporary supply chain capitalism. Hale and Aylwin contend that consultation with civil society groups is not equivalent to consultation with and participation of locally affected peoples. Noting that indigenous participation in the FSC processes is “virtually nil,”83 they insist that “when central points of contention revolve around questions of indigenous autonomy, it is simply not viable to have the arguments made and defended by nonindigenous ‘allies’ in the absence of the protagonists themselves.”84 Inequitable dynamics and the marginalization of those most affected also plague the RSPO. The RSPO presents itself as a mechanism whose members represent the “seven key sectors of the industry”: oil palm growers, palm oil processors and traders, consumer goods manufacturers, retailers, banks and investors, environmental and nature conservation NGOs, and social and development NGOs.85 Notably absent from the list of “key sectors” are workers and locally affected communities. Workers’ representatives and labor unions were largely excluded (or chose not to participate) in the creation of the mechanism and its early work on norm production,86 resulting in notable

Private Regulatory Initiatives, Human Rights

23

gaps and inattention to labor rights in the RSPO’s work that continue to this day. Until recently, workers’ voices did not factor at all in debates of what “sustainable” palm oil meant within the RSPO, and even currently, workers’ rights and concerns are usually only represented through proxy reports published by international labor rights groups.87 While NGOs, such as Oxfam International and Sawit Watch (Indonesia), have forced the incorporation of relatively robust indigenous rights protections into the RSPO’s P&C, corporate interests dominate the RSPO’s norm production, producing a focus on “technical standards” rather than genuinely transformative and redistributive modes of governance.88 Recounting the RSPO’s history in Guatemala, Sánchez describes “the RSPO as a mechanism dominated by the business sector, with marginal representation from environmental and social organizations, and without any representation of palm farmworkers or affected communities themselves.”89 She explains that the “unequal distribution of power is reflected throughout the structure of the mechanism.”90 Although, like the FSC, the RSPO allows for national interpretation of standards, Sánchez explains that the national process in Guatemala failed to include those most directly affected. Specifically, it “did not follow a methodology of real participation and consultation with the interested and affected communities,” and granted corporate actors an “outsized role.”91 States have led the KP’s norm production. Some have lauded it as an effective MSI.92 But, as Maguwu’s chapter explains and exemplifies, civil society groups have criticized it for focusing exclusively on preventing rebel movements from controlling the extraction and trade in rough diamonds, thereby ignoring human rights abuses in the diamond trade in which states are implicated.93 The fifty-four members of the KP—all states and the European Union (EU)—produce its norms.94 Civil society organizations and the World Diamond Council can, as observers, express their views during KP intersessional and plenary meetings and participate in the activities of working groups, but they have no voting rights.95 While a number of prominent human rights organizations played key roles in the development of the KP and were observers of the process, many have since left it. Global Witness resigned as an official observer in 2011, for instance, stating that the KP’s failure “to evolve and address the clear links between diamonds, violence and tyranny has rendered it increasingly outdated,” in part because “the governments that run the scheme continue to show no interest in reform.”96 Perhaps owing to the influence of diamond-producing states in norm production, KP requirements are extraordinarily deferential to state sovereignty,

24

Framing the Discussion

leaving states with total control over the implementation of their minimal obligations. The Kimberley Process Certification Scheme (KPCS), which certifies compliance with the KP, does not incorporate any human rights norms or standards, making only a passing reference in the preamble to the human rights impacts of diamond-funded conflict. Further, it narrowly defines “conflict diamonds” as “rough diamonds used by rebel movements to finance wars against legitimate governments.”97 Rejecting the arguments of many NGOs, a select few participating states, and more recently, even the World Diamond Council, KP members have refused to expand the definition to include additional behavior. As Maguwu shows, this narrow definition precludes consideration of human rights violations committed by state actors, such as those he documents in the Marange diamond fields in Zimbabwe. He argues therefore that the KP has “turned a blind eye to the abuses committed by ‘legitimate’ governments, as these are the intended beneficiaries of the scheme, who are also responsible for making its decisions.”98 In sharp contrast to MSIs, WSR aims to make rights-holders (here, workers) the driving force behind norm production. Manoj Dias-Abey credits both the Bangladesh Accord and the FFP as the first two attempts at private regulation “brought about by social movement actors, rather than initiated by corporations themselves, or by third-party actors with almost no connection to grassroots movements.”99 In the FFP, the CIW—which has been organizing farmworkers in the town of Immokalee Florida since 1992—drives norm production, having designed the program and waged a difficult five-year campaign to get the FFP off the ground.100 The CIW does not have a hierarchical decision-making structure. Its self-appointed governing board meets on a monthly basis and consists of any tomato workers in Immokalee and its surroundings who volunteer to join.101 The FFP began with the purpose of ensuring a wage premium for tomato growers, but its Code of Conduct has since “evolved into a sophisticated document,”102 shaped over time through ongoing negotiations and dialogue among farmworkers, growers, and buyers (and, more recently, participating suppliers in a wider range of agricultural industries). Its provisions include that growers pay for all time worked, directly hire workers rather than using labor contractors, and institute stop-work systems for dangerous work.103 The FFP is particularly responsive to the needs and priorities of the tomato workers who designed it. For example, a pervasive problem in agricultural labor is that many workers are paid a piece rate per collection bucket. Growers often require workers to fill their buckets above the brim—a practice that

Private Regulatory Initiatives, Human Rights

25

effectively denies workers payment for up to 10 percent of the tomatoes they harvest. To address this common workers’ grievance, the Fair Food Code of Conduct requires that employers only require their workers to fill the buckets to the brim and not above.104 More recently, in response to farmworker complaints about sexual harassment and assault, the FFP has started to provide worker-to-worker education on sexual harassment as well as complaint processes that have proved adept at responding to such claims.105 Despite these strengths, the FFP does not include all the rights that workers have demanded or needed. Most notably, it does not provide for basic freedom of association rights for field workers. The Bangladesh Accord features a number of elements that were lacking in industry-dominated, multi-stakeholder responses to building safety in Bangladesh.106 Although it identifies as WSR and includes as signatories international trade union federations and local Bangladeshi trade unions, the Accord was initially designed by international labor rights advocates, rather than by the workers in the factories themselves.107 It contains strong procedural and substantive norms. The Accord’s provisions are predominantly focused on ensuring fire and building safety in textile factories. They require credible, independent safety inspections of covered factories and obligations to take corrective action that is necessary to ensure compliance with building, fire, and electrical safety standards.108 They also require training for workers on safety procedures, precautions, and how to voice concerns and participate in safety initiatives. They include workers’ rights, such as the right to refuse unsafe work and to participate in the monitoring and enforcement process. The Accord further obligates lead brands to provide funding for inspections and to ensure that it is “financially feasible for the factories to maintain safe workplaces and comply with upgrade and remediation requirements,” including by providing financial assistance to their suppliers.109 It goes well beyond the corporate accountability schemes it replaced, not only in terms of substance but by committing brands to binding arbitration in the event that they are not meeting their obligations under the Accord. The Accord’s coverage, however, is limited in scope, applying only to building safety rather than covering a broader range of workplace rights. Other substantive norms, such as those involving freedom of association and wages, were left off the table—almost certainly because they represent a suite of concerns that would have been too contentious to secure mass sign-on from lead brands.110 Further, its terms include several concessions to lead brands, meant to induce them to join and soften the burden of compliance. As Champagne

26

Framing the Discussion

explains, for example, the Accord does not require that lead firms publicly disclose supplier lists or whether they are financing remediation measures for some suppliers.111

B. Monitoring

Of course, norm production is only the beginning. Central to each of these PRIs is a means of monitoring and certifying that bound actors are adhering to the established norms. Monitoring, however, cannot totally be divorced from norm production, given that it involves at times contentious processes of norm interpretation. As Phil Paiement explains, the role played by auditors and others in the “spaces and moments between rulemaking and compliance” deserves greater analytical attention, in part because auditors can play an active role in interpreting norms, often providing “new interpretations of fundamental legal rights in order to overcome uncertainties and contradictions between legal systems and other private rules in codes of conduct.”112 At the monitoring stage of the MSIs considered in this volume, the ethos of multi-stakeholder governance falls away, with private auditing firms controlling and conducting the monitoring. The monitoring processes thus often exclude affected peoples and show bias against local ontologies and ways of knowing. By contrast, WSR programs at least attempt to remove some of the more pernicious structural components and biases that characterize monitoring within MSIs. They do so by vastly increasing the participation of those most directly affected in monitoring compliance and creating centralized, independent monitoring bodies that are resistant to co-optation and partiality. Both the FSC and RSPO rely on private auditing firms to monitor and certify that standards are being met. They vest these firms with considerable power to determine how to conduct forest management and chain of custody assessments. Critics point to key conflicts of interest in this process, given that auditors are paid by the individual company seeking certification. Rather than removing this conflict of interest, the FSC and RSPO rely on Assurance Services International (ASI) to check on whether the auditors are complying with their rules and procedures.113 In many instances, RSPO and FSC audits have failed to detect or address practices in the certified forestry operations and palm oil plantations that do not accord with applicable P&C.114 The authors in this volume express particular concern over whether the mechanisms are able to implement and monitor

Private Regulatory Initiatives, Human Rights

27

compliance with norms regarding free, prior, and informed consent (FPIC) for indigenous peoples. Although both the RSPO and FSC provide extensive guidelines for FPIC implementation, Colchester criticizes their application on multiple grounds. He notes that certifying bodies “have a limited understanding of what compliance with FPIC really requires”115 and therefore often do not require certified companies “to recognize the full extent of indigenous peoples’ customary rights,” such as their rights to control all the lands and territories to which they claim ownership (which go far beyond the access to sacred sites the bodies afford them).116 Authors in this volume also complain that the auditing process often turns disputed political issues into technical concerns. Sánchez, for example, explains that the RSPO certification of the Las Palmas company in Guatemala has done very little other than to force the company to ramp up its technocratic expertise to provide evidence to auditors.117 For Hale and Aylwin, FSC monitoring efforts are “exhausting, demeaning, and run the risk of displacing grassroots political fervor with juridically informed ‘expert’ knowledge.”118 What they describe is in line with Laura Silva-Castañeda’s critique that social auditors require rigid and “Western” standards of proof to establish the validity of FPIC agreements, refusing to recognize the forms of proof put forward by local indigenous communities as valid evidence, particularly in the event of a dispute.119 As part of their monitoring, both the RSPO and FSC also include grievance mechanisms to address complaints brought by individuals or organizations against companies certified under the scheme as well as complaints against the certifying bodies that audit compliance. Under the FSC, complaints that certified companies have breached the P&C are referred to the relevant accredited certifying body. Complaints against FSC certifying bodies are addressed by Assurance Services International, and there is no appeal mechanism. In contrast, the RSPO has an in-house complaint system, appeal process, and dispute resolution facility to address complaints against both certified companies and certifying bodies. Sánchez and Colchester both criticize these mechanisms for their limited accessibility. In particular, submitting complaints entails extensive documentation (including a requirement that they be in English) that is too burdensome for many locally affected communities, unless they have assistance from better resourced NGOs and transnational advocacy networks.120 The KP mandates that its Working Group on Monitoring (WGM) will conduct review visits in participating countries approximately every three years, to ensure that the internal control systems mandated by the scheme are

28

Framing the Discussion

being followed. The WGM is composed of representatives from participating states, civil society, and the World Diamond Council. At the end of each review mission, the team submits a written report and recommendations to the monitored state and the other members of the KP. The KP does not include a mechanism for individual complaints. This monitoring program has also been the subject of a variety of criticisms, including that many states have simply never invited the WGM to conduct monitoring within their borders and that it limits its information sharing to participants, with no provision for open publication of the data.121 From our perspective, empty promises of NGO stakeholder participation cause the greatest concern. Although some see NGOs as “monitors” of the KP that can “invoke public conscience through public auditing and awareness campaigns when the process falls short of expected or intended standards,”122 NGOs have no formal power to make determinations, have no allocated resources to do so, and are bound by confidentiality rules not to disclose issues addressed at the plenary and intersessional sessions.123 Because their participation in the process must be self-funded, many cannot take part in the monitoring trips conducted by the WGM. NGO observers of the KP must be part of an established civil society coalition, which is expected to speak within the KP with “one unified voice,”124 leaving no room for dissenting voices or conflicting opinions from participating civil society members. The cost of dissent can be high, as Maguwu’s description of his experience as a member of the coalition makes all too clear: he was subject to surveillance, personal attacks, threats, and arrest on politically motivated charges. As a result of the limited space for NGO participation and the myriad flaws in the process (including the scheme’s response to the human rights crises in the Marange diamond fields in Zimbabwe), several prominent NGOs have joined Global Witness in abandoning their formal role in the process. In fact, the entire civil society coalition decided to boycott the KP in 2011 and 2016.125 As WSR programs, the FFP and Bangladesh Accord have attempted to overcome the asymmetries and exclusions that characterize the traditional MSI monitoring process. In both programs, an independent entity overseen by workers, union representatives, and labor NGOs determines whether suppliers are compliant with the agreements and therefore eligible to receive lead firm orders.126 Not only does this approach address concerns about the lack of independence and impartiality in private auditing systems, but it makes workers’ voices central to the monitoring process.

Private Regulatory Initiatives, Human Rights

29

The Fair Food Standards Council (FFSC), an independent body established by the CIW, monitors the FFP. It conducts regular external audits of suppliers. It is led by a well-respected former New York judge, Laura Safer Espinoza, and is overseen by a board comprised primarily of worker advocates.127 Its staff includes full-time bilingual investigators, most of whom formerly worked in human rights, economic development, or labor or community organizing.128 The monitoring process involves examination of complete payroll records, discussions with all levels of management, and interviews with at least 50 percent of the workers employed by a certified enterprise (and 100 percent of workers on a small farm).129 The FFP’s creation of an independent monitoring entity that does not have a financial interest in maintaining relationships with any given supplier or brand has been crucial to the efficacy and credibility of the process. Additionally, the FFP includes extensive “know your rights” training for workers, a twenty-four-hour complaint line, and a process for investigating and resolving complaints. Worker complaints can generate unannounced inspections and have resulted in the dismissal of abusive supervisors and suspension of noncompliant growers.130 Some have lauded the FFP complaint mechanism, which had received over eighteen hundred complaints by 2018, for being “tailored to the linguistic needs, cultural expectations and legal status of the relevant workers.”131 The Bangladesh Accord also creates an independent monitoring arrangement, with individual factory inspections conducted by engineers working under the supervision of the Accord’s chief safety inspector. These engineers are accountable to the Accord itself, rather than to any individual brand or factory. Through a sophisticated process that includes collecting, tracking, standardizing, and verifying conditions at hundreds of factories at once, they review and approve corrective action plans for inspected factories, conduct follow-up inspections, and sign off on the remediation process when complete.132 As Champagne explains in her chapter, the Accord’s monitoring process makes a concerted effort to place workers at the center through the use of joint labor-management safety committees, and it provides the education, resources, and protection from retaliation that are necessary to empower workers to share their expertise, given that they are the best monitors of their own worksites.133 The Accord’s training team provides basic training to all workers in the covered factories, as well as more intensive training and support to members of safety committees.134 The Bangladesh Accord also offers what Champagne calls a “robust complaint mechanism for workers to raise concerns about health and safety in their

30

Framing the Discussion

factories.”135 Workers can raise confidential concerns about safety through the complaint mechanisms, which include a dedicated hotline. The Accord’s Safety and Health Complaints Unit investigates these cases, reaches findings, and where necessary, engages the employers and sometimes relevant buyers to address any violations.136 These avenues of redress in both the FFP and the Bangladesh Accord have been critical to the overall success of the programs. As Sellers and Champagne discuss, the grievance mechanisms provide local and responsive remedies to workers’ complaints. Importantly, they also aim to rectify the inequalities and disparities in power that characterize conventional MSIs, which place the power to hear and respond to complaints in the hands of processes in which corporations have outsized power and control.

C. Enforcement

The final piece of a PRI’s operation is the enforcement of the overall scheme. Independent and sophisticated monitoring methods might very well detect violations of PRI norms, but they will not in and of themselves ensure compliance or provide sanctions for corporations that violate those norms. Most MSIs lack binding enforcement mechanisms to punish violations of their norms, beyond withdrawing certification of products. When they decertify goods or corporations, they are, in a sense, enforcing the PRI scheme, but that internal mechanism has no teeth on its own. Instead, MSI certification schemes rely on informed consumers to generate demand for certified goods to provide the incentives for compliance and to punish violators. It is up to consumers to notice and lower demand for products that do not carry the requisite certification. In contrast, WSR programs also call on consumer power, but primarily at the recruiting stage, not at the enforcement stage. They leverage consumer power through social mobilization, including boycotts, to put pressure on lead firms—not suppliers—to join the program. They then require lead firms to enter into legally binding contracts that prevent them from buying products from suppliers that violate program standards. Suppliers join the scheme to secure access to those buyers. Those who do not join or who violate the terms of the PRI face real market consequences, not because of disaggregated and voluntary consumer choices, but because their most important buyers are legally bound not to buy from them. The schemes examined in this book illustrate this difference. Under the FSC and RSPO, noncompliant forestry operations and palm oil plantations, if

Private Regulatory Initiatives, Human Rights

31

discovered, may be forced out of the program and foreclosed from presenting their products as certified. They may be found not to comply with applicable P&C either through the ordinary auditing process or through complaints filed by individuals, affected communities, or NGOs representing them. If so, and if they fail to take corrective action, they may lose the right to hold themselves out as FSC or RSPO certified. Whether and how much that affects them depends on the extent to which the consumers of their products are aware of the existence of certified products and choose not to purchase noncertified ones. Consumer-based enforcement is particularly limited with the FSC, given that the consumer market for certified forestry products remains relatively small. Even though the FSC is the longest-lasting MSI—over twenty-seven years as of 2020—its certified forests produce just 16 percent of global timber by volume.137 So aware are companies of the limited impacts of noncompliance that some simply leave the process when they are dissatisfied with the social auditing processes and dispute resolution procedure. IndoFood, for instance, left the RSPO in late 2018 after a complaint panel found that the food giant had engaged in twenty-three violations of the P&C, including those involving working conditions, health risks, child labor, and gender discrimination. The RSPO called upon IndoFood to take corrective action and respond in what the company considered to be an “unrealistic timeline.”138 By contrast, WSR programs intentionally avoid depending on consumer power as their principal enforcement mechanism. To the extent that they use consumer power, they do so at the outset, as they build social movements to put pressure, including consumer pressure, on brands and retailers so as to recruit them into the programs. These campaigns are typically intense, episodic, and highly visible, thus avoiding the twin pitfalls of fickle consumer attention and lack of information that plague consumer-based attempts to prevent and address routine violations. The CIW’s Campaign for Fair Food, which began in 2001, built a U.S.-wide movement driven by a coalition of workers and college students to force retailers such as Taco Bell and Walmart to sign Fair Food agreements. Similarly, the witness signatories to the Bangladesh Accord— including the International Labor Rights Forum, Clean Clothes Campaign, Worker Rights Consortium, and Maquila Solidarity Network—played a crucial role in generating social protests and boycotts against key European and U.S. brands that refused to sign (and re-sign) the Bangladesh Accord. While these instances of consumer pressure were crucial to establish these WSR programs and recruit lead firms, the programs set themselves apart from MSIs by operating as binding agreements with legally enforceable

32

Framing the Discussion

obligations. The binding nature of WSR agreements and the fact that market sanctions are baked into the programs’ design means there are real consequences for supplier noncompliance. The FFP enforces its Code of Conduct through legally binding contracts between the CIW and large retail buyers of tomatoes. These agreements prohibit buyers from purchasing tomatoes from suppliers who have been found not to comply with the Code of Conduct. Given that FFP signatory brands currently constitute an estimated 30 percent of the market, growers have a strong incentive to opt into and comply with the program.139 The FFP includes a range of mechanisms to ensure that breaches of the Code of Conduct by growers are identified and remedied, including a bilingual toll-free complaint line for workers, in-depth audits, and providing training to workers to be monitors on the ground. When, through monitoring or complaints, the FFSC finds violations on a supplier farm, it proposes a corrective action plan. Failure to remedy the situation can lead to probation or suspension from the FFP. This is not an idle threat. In the FFP’s first six seasons, twentyfour growers have been put on probation, and seven have been suspended.140 The Bangladesh Accord similarly constitutes a legally binding contract, in this case between global brands and worker organizations. The Accord stipulates that lead brands are legally required to source exclusively from Accordaccredited suppliers: “Because the Accord’s lead firm signatories comprise a large fraction of Bangladesh’s export market, including many of the world’s largest apparel buyers, the program creates a powerful incentive for suppliers to cooperate with the process in order to maintain access to brand orders.”141 If, through the monitoring or grievance mechanisms and after multiple warnings, a factory is found unwilling or unable to make its factory safe for workers or engages in fraud to convince Accord inspectors that the factory is safe when it still poses serious risks, the factory can be terminated from the program.142 It is generally up to brands, however, to ensure that the factories they buy from are properly equipped to meet the Accord’s safety standards. Recall that part of the Accord requires brands to ensure that their factories remediate within stipulated time frames and negotiate commercial terms that make it financially feasible for factories to cover the costs of remediation. The Accord stipulates that claims against brands will be brought before its seven-member Steering Committee, which consists of three representatives of the trade union signatories, three representatives of the company (brand) signatories, and one neutral chair chosen by the ILO. Steering Committee decisions can be appealed to a final and binding arbitration process, governed

Private Regulatory Initiatives, Human Rights

33

by the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration.143 The inclusion of this binding enforcement model was key for workers’ representatives, and they were unwilling to back away from it even when a number of large U.S. retailers refused to sign onto the Accord because of its inclusion.144 In 2016, IndustriaALL Global Union and UNI Global Union, both parties to the Accord, each filed complaints before the Permanent Court of Arbitration against (unnamed) brand signatories for failing to require their factories to remediate and ensure that they had the financial means to do so. Both cases eventually settled, with brands paying a total of $2.3 million toward remediating unsafe conditions in supplier factories.145 In contrast to both the MSIs and the WSRs discussed, the KP enforcement mechanism relies on actions of participating member states. It specifies that those states that export rough diamonds to other participating states should ensure all exports are accompanied by a KP certificate. States that import diamonds from participating countries must require a properly validated certificate on all such imports. Additionally, all participants should “ensure that no shipment of rough diamonds is imported from or exported to a nonparticipant,” except for transit purposes.146 As with the WSR models, this approach does not rely on consumers for enforcement: by engaging importing and exporting countries; the scheme denies consumers access to noncertified goods, rather than presenting them with a choice between certified and noncertified ones. In theory the KP’s state-based enforcement process allows it to suspend or expel noncompliant states, with the aim of preventing their participation in the rough diamond trade altogether. The process has not worked effectively, however, for a number of reasons. First, the KP’s process specifies that if issues relating to compliance arise, all participants should be notified and engage in a confidential dialogue on how to address the issues. This approach is neither independent nor does it engage those communities most affected by any potential violations. Second, the KP’s history of expulsion and readmission demonstrates that expulsion is inadequate to stop the flow of diamonds. Readmission is also applied inconsistently. After the Republic of Congo was expelled from the process, for instance, it continued to export diamonds without being detected. It was then readmitted without any serious attempts to fix the problems.147 Perhaps most important, whether or not they have teeth or are consistently applied, the KP sanctions enforce overly weak norms. Maguwu explains in his chapter, for

34

Framing the Discussion

example, that even though NGO complaints about human rights violations in the Marange diamond fields played a role in the KP’s decision in 2009 to ban diamond exports from Zimbabwe, the KP lifted the ban in 2011, with a “new narrative . . . that the KPCS was not a human rights scheme.”148

IV. Conclusion This collection brings together insider accounts of established and newer PRIs with academic contributions that reflect on these accounts. In this chapter, we have aimed to situate these chapters and the PRIs they discuss within extant business and human rights approaches. We have also highlighted the ways in which the chapters call for attention to the broader legal, economic, and political context of supply chain capitalism in which private governance operates, demonstrating the urgent need to redistribute power within supply chains. In our review of the PRIs addressed in the volume, we described how they are shaped by the different roles played by stakeholders in the processes of norm production, monitoring, and enforcement—underscoring the importance of centering at each of those stages the individuals and groups most directly and negatively affected by supply chain capitalism. Table 1.1 summarizes this discussion. The examples in the various chapters demonstrate that when the most directly affected individuals or communities are excluded from norm production, the rules fail to consider their needs; when they do not participate in monitoring, violations go undetected; and when they are not active participants in enforcement, firms are able to violate the rules with minimal or no sanction. In contrast, when workers (or arguably affected communities) write the rules, workplaces become safer; when they are empowered to call out infractions, monitoring becomes effective; and when enforcement mechanisms go beyond reliance on consumer attention to, and demand for, fairly produced goods, PRIs seem to drive more significant improvement in conditions on the ground. In short, if the goal is to redress the imbalance in economic power that drives supply chain capitalism, PRIs must empower the people they purport to protect, involving them at all steps of the process. Otherwise, they threaten to reproduce the very problems that led to their formation to begin with.

CHAPTER 2

Closing Gaps in the Chain Regulating Respect for Human Rights in Global Supply Chains and the Role of Multi-stakeholder Initiatives Justine Nolan

Global supply chains have, for many, become synonymous with human rights violations. While a globalized economy has generated millions of jobs over the last quarter century, lifting hundreds of millions of people out of extreme poverty,1 the spread of these ubiquitous supply chains has come at a cost. The shift in production from the developed to the developing world,2 combined with highly fragmented global production networks, has had profound effects on the nature of modern global manufacturing and the lives of the workers involved in producing the goods.3 Global outsourcing has become a central feature of today’s globalized economy, and reliance on diversified and often opaque supply chains has given rise to major human rights accountability challenges.4 Despite decades of advocacy, awareness, and various regulatory efforts to address these challenges, human rights failures continue to make headlines because some business practices within supply chains have eroded respect for or simply disregarded human rights. High-profile labor rights scandals have drawn attention to a range of exploitative conditions in supply chains. The collapse of the Rana Plaza garment factory in Bangladesh in 2013, which killed more than eleven hundred workers, exposed the dark side of globalization and is emblematic of broader human rights abuses in supply chains in the garment sector across a range of countries. Revelations of human rights violations at sea on board Thai fishing boats provide further insight into the challenge of regulating opaque supply chains,5 and the

36

Framing the Discussion

recruitment and working conditions of low-wage migrant workers moving from South Asia to the Middle East to build football stadiums in Qatar has highlighted the human rights challenges in the recruitment supply chains of the construction sector.6 This chapter highlights some of the current approaches taken to address these human rights challenges in global supply chains and the potential synergy in combining public and private tools to regulate supply chains, with a particular emphasis on the use of multi-stakeholder initiatives (MSIs). There is no single definition of what constitutes an MSI, but the term “multi-stakeholder initiative” is often used to refer to voluntary initiatives in which two or more stakeholders cooperate to address some area of sustainability, corporate social responsibility, the environment, or human rights. Such stakeholders commonly include some combination of companies, industry associations, nongovernmental organizations (NGOs), government agencies, investors, academics, international organizations, and occasionally labor unions. Over the last three decades, a number of MSIs (varying widely in both form and function) have emerged across different business sectors—from agricultural to apparel to private security contracting—and some (not all) aim to regulate the impact of global corporate conduct on human rights. While it appears that global supply chains are an enduring feature of our global economy, what is less clear is how they might be effectively regulated and the role that both state and nonstate actors (such as MSIs) should or could play in regulating respect for human rights in these chains. This chapter begins by briefly canvassing the international and domestic regulatory landscape that has emerged from the business and human rights field, including the development of both soft- and hard-law initiatives relevant to the management of human rights impacts in global supply chains. It then examines the potential role and limitations of MSIs to address the human rights governance gaps that exist when transnational companies conduct operations across borders. The chapter concludes by contending that MSIs are not an effective governance mechanism for supply chains if relied on as the solitary regulatory tool. Hampered by the same power imbalances that are inherent in global supply chains, MSIs might more effectively be used in conjunction with a public mechanism (such as legislation) to employ their significant convening power to advance specific issues (such as increasing transparency and conducting due diligence) in aid of regulation. The International Labour Organization (ILO) describes such complementary regulatory mechanisms as synergistic governance, that is, “where public, private

Closing Gaps in the Chain

37

and social governance strategies are not merely layers of regulation, but are mutually reinforcing for effective compliance, and establish a level playing field of fair competition.”7

I. Public Regulation of Human Rights in Global Supply Chains Addressing human rights violations associated with global supply chains is the primary duty of states (governments), but the fragmented nature of supply chains, along with the ability and (sometimes) willingness of both home and host states to tackle these issues, can make cross-border regulation challenging.8 Logically, recourse to local law and a system of enforcement and judicial relief in the host countries where global corporations operate should be the first option for ensuring greater respect for workers’ rights, but in many countries such laws are weak, enforcement is weaker still, and corruption is endemic. Reliance on local remedies is vitally important, but in many places it remains a long-term proposition. However, the responsibility of businesses to respect human rights does not depend only on the existence of local laws or their enforcement. Developments in the last decade, particularly as reflected in the work of the United Nations (UN) Special Representative for Business and Human Rights, affirm that businesses have a responsibility to respect human rights, regardless of where they operate.9 To understand the potential role of both state and nonstate actors in regulating human rights impacts in supply chains, it is first useful to briefly review the broader business and human rights regulatory landscape that has emerged to address the negative impact of business on human rights.

A. The International Regulatory Landscape

Over the last five decades, attitudes toward regulating business and human rights impacts have come full circle, starting and ending with an emphasis on international legal regulation. As explained in further detail in the introduction to this volume, the 1970s was an exploratory era, during which both some governments and intergovernmental organizations attempted to impose binding regulations on transnational corporations with respect to

38

Framing the Discussion

human rights.10 An unsuccessful attempt at the UN to draft a code of conduct for transnational corporations stands in stark contrast to the broader regulatory discussions that followed in the 1980s, which instead emphasized deregulation and corporate rights. Globalization gathered force during the 1990s. A growth in the number and influence of civil society actors, combined with media interest, largely in developed countries (focused on issues such as the use of sweatshops by well-known brands like Nike, Disney, and Levi Strauss), brought public attention to supply chain working conditions.11 Corporate social responsibility was the key buzzword, and the adoption of corporate codes of conduct (beginning in 1991, when Levi Strauss first introduced its code) signaled a new approach to regulating corporate impacts on human rights. Initially, many of these codes were company specific or drafted exclusively by industry. Over time, concerns around the content, legitimacy, and accountability of such codes have seen a trend toward the development of “multi-stakeholder” codes of conduct12 and the emergence of Worker-Driven Social Responsibility (WSR) initiatives as an alternative form of supply chain governance. Beginning in 2000, the UN signaled a renewed interest in the business and human rights field, and the last two decades have seen the emergence of both soft- and hard-law regulatory initiatives at the international and national levels. In 2000, the UN launched the Global Compact, which calls on companies to “embrace, support and enact” a set of ten principles in the areas of human rights, labor, the environment, and anti-corruption. This softlaw approach stands in contrast to the proposed draft “UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises” (introduced in 2003), which attempted to impose legal obligations on business with respect to human rights.13 In 2005, the UN appointed a special representative on business and human rights, and his mandate culminated in the endorsement of the 2011 Guiding Principles on Business and Human Rights (Guiding Principles) by the UN Human Rights Council. The Guiding Principles establish a three-pillared framework that acknowledges the interconnection between states, business, and human rights. The Guiding Principles acknowledge that while states have an obligation to protect human rights, business has a separate but complementary responsibility to respect human rights, and both have an obligation to provide remedies for those who have suffered harm. The Guiding Principles incorporate references to supply chains and state that a company’s responsibility to respect human rights applies not only to the company’s own activities,

Closing Gaps in the Chain

39

but also to those impacts that are “directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”14 The commentary accompanying the Guiding Principles clarifies that business relationships include “business partners, entities in its value chain, and any other non-state or state entity directly linked to its businesses operations, products or services.”15 The Guiding Principles thus clearly anticipate the need for companies to accept that their responsibility to respect human rights goes beyond the bounds of the enterprise (that is, formally affiliated entities) to reach extended networks of third parties, such as those in their supply chains. The Guiding Principles introduced the concept of human rights due diligence as a mechanism by which companies might discharge their responsibility to respect human rights. This reflects the continued reliance on what has been to date a largely self-regulatory process to curb corporate human rights violations. As the Organization for Economic Co-operation and Development (OECD) has rightly observed, “multinational enterprises, like their domestic counterparts, have evolved to encompass a broader range of business arrangements and organizational forms. Strategic alliances and closer relations with suppliers and contractors tend to blur the boundaries of the enterprise” and thus the boundaries of responsibilities.16 Many of the business relationships present in a supply chain will lie beyond the formal legal bounds of the corporate enterprise. Even though subcontractors, both authorized and unauthorized, may potentially be linked to those companies that are situated at the apex of the global supply chain, the terminology of the Guiding Principles does not directly attribute legal liability to the lead company for the activities of its supplier. Further, while the corporate responsibility to respect human rights applies to every company along the supply chain, in practice corporate responses and interventions may vary based on factors such as risk assessment and the potential leverage of a company to address human rights issues.17 Global attempts to move beyond soft law by implementing substantive human rights requirements in corporate conduct through international legal instruments have been limited. The private sector has largely resisted the creation of a business and human rights treaty, as have many governments.18 The adoption by the UN Human Rights Council in June 2014 of a resolution to pursue a business and human rights treaty revived this prickly debate.19 Discussions are ongoing, and in July 2019 the intergovernmental working group released a revised draft treaty, which is now the basis of negotiations.20 This resolution was passed with what has been referred to as “the thinnest of

40

Framing the Discussion

political mandates.”21 In many respects, devotion to this mechanism harks back to an era before globalization gathered force and states were the preeminent (and often sole) enforcers of rights.22

B. The Domestic Regulatory Landscape

New domestic legal attempts to regulate human rights violations in global supply chains have begun to emerge in recent years. Legislation developed in a number of jurisdictions renders companies accountable not for adverse human rights impacts but for the procedural failure to conduct due diligence or report on efforts to do so, albeit with limited guidance on what disclosures must entail.23 The assumption behind this human rights or social disclosure model appears to be that the transparency gained from corporate reporting will provide greater visibility of supply chain risks to investors and consumers and in turn incentivize corporate action. The model marks a shift from state regulators’ traditional role in only overseeing purely financial (as opposed to social) corporate disclosures.24 Research to date has focused far more on human rights impacts in supply chains than on assessing the conceptual premises or empirical effectiveness of these new transparency schemes. In particular, whether such transparency regulatory regimes actually reduce substantive human rights violations in supply chains is only beginning to be assessed.25 It is not obvious that disclosure alone will guarantee accountability or improved outcomes, but transparency can indeed shine a light on human rights abuses in a supply chain, showcasing the old axiom that “sunlight is said to be the best of disinfectants.”26 The use of mandated social disclosure laws in the human rights sphere is relatively nascent, and their potential effectiveness in regulating transnational supply chains remains to be tested. Yet the scope of these laws (targeting an entire supply chain) usefully challenges the traditional (and arguably outdated) corporate legal framework that views companies as separate entities regardless of their contractual connections throughout a supply chain.27 The United Kingdom, Australia, and the U.S. state of California have introduced laws—the Modern Slavery Act 2015 (UK), the Modern Slavery Act 2018 (Cth), and the California Transparency in Supply Chains Act of 2010—that require large companies to disclose publicly the steps they are taking to eradicate modern slavery, including, slavery, forced labor, and human trafficking, from their supply chains.28 Yet they do not impose a requirement

Closing Gaps in the Chain

41

on companies to undertake due diligence. Rather, companies must simply report on the extent to which they have done so and clearly indicate if they have not. Similarly, the European Union’s Directive 2014/95/EU (EU Directive), effective from 2017, requires companies with more than five hundred employees to report on how they manage human rights risks,29 including in their supply chains,30 without a requirement that the companies undertake due diligence.31 While such targeted disclosure legislation innovatively sharpens the focus on the direct connections between businesses and human rights issues in supply chains, reporting alone seems unlikely to ensure accountability. Such legislative mechanisms rely on the assumption that reporting is a tool that will increase transparency around corporate operations, which may then trigger pressure to improve the corporate human rights performance not only of the lead company at the top of the chain, but also of those companies with which it is linked. Without a mandated requirement of due diligence, corporate supply chain reporting is likely to be shallow and in many respects simply institutionalizes reliance on private regulatory methods (such as auditing, with or without the input of external stakeholders) to transform supply chain behavior (the limitations of which are discussed below). Importantly, France and the Netherlands have recently passed legislation that does in fact mandate due diligence. France’s 2017 Duty of Vigilance Law requires companies to both undertake due diligence and report on it.32 The Netherlands’s 2019 Child Labour Due Diligence Act requires companies to undertake due diligence to address and prevent child labor in their supply chains.33

II. The Role of MSIs in Regulating Global Supply Chains Global supply chains diffuse responsibility for the maintenance of human rights among states, tens or hundreds of discrete companies linked through contractual arrangements, civil society, trade unions, consumers, and workers. The development of MSIs has been in part a response to regulatory gaps in these supply chains, and their emergence stands in contrast to more recent legislative and WSR initiatives to regulate supply chains. However, as discussed below, while MSIs face significant limitations, they may have a role to play in utilizing their convening power in conjunction with a public mechanism to address specific issues (such as increasing supply chain transparency

42

Framing the Discussion

and conducting due diligence). Assuming MSIs remain a feature of the global economy, they should be relied on less as a compliance tool and more as a supplement to guide mandated responsible business conduct. Simply defined, an MSI is an entity “that works with multiple stakeholders (usually business and civil society, along with others including governments, universities, or investors) to solve a business and human rights problem that no actor can solve alone.”34 The involvement of labor unions in MSIs is rare, and some unions have been active critics of MSIs.35 MSIs typically form in moments of crisis affecting a particular industry—situations in which corporations are under pressure to respond to public human rights allegations that are more effectively addressed by multiple stakeholders working together. For example, in 2006, Google, Yahoo!, Cisco, and Microsoft came under congressional scrutiny in the United States for their activities in facilitating censorship and surveillance in China.36 The Global Network Initiative was born out of recognition by a variety of stakeholders, including the companies themselves and civil society groups, that all businesses in the information and communication technology industry would face similar challenges when seeking to do business in countries where governments constrain the free expression and privacy rights of their own citizens, and that there was an advantage in collaborating to address these issues.37 Early MSIs in the corporate responsibility space were initially focused on environmental issues. They include some that are still operating today, such as the Forest Stewardship Council (1993) and the Marine Stewardship Council (1997). Other MSIs soon emerged to address human rights concerns and were often sector specific. Some of the earliest MSIs focused primarily on the clothing and footwear sector, including Social Accountability International (1997), the Fair Labor Association (1998), and the Ethical Trading Initiative (1998). Each of these initiatives attempted to address what it viewed as a (partially) unregulated market. Since 2000, more industry- or sectorspecific MSIs have emerged, including the Voluntary Principles on Security and Human Rights (2000), the Kimberley Process Certification Scheme for conflict diamonds (2003), and the International Code of Conduct for Private Security Providers (2010). What these MSIs have in common is an attempt to forge consensus on an industry-specific set of standards. However, they differ vastly in terms of their structure, membership, governance, transparency, monitoring, and reporting requirements. While a wide range of initiatives fall under the broad heading of MSI, there is arguably a limited subset with the potential to regulate corporate

Closing Gaps in the Chain

43

conduct in markets where governments cannot or will not protect human rights. A 2017 study of MSIs identified forty-five in the business and human rights field that are “standard setting.”38 It noted that 80 percent of these were industry specific, and that 90 percent of this cohort are “clustered in three industries: consumer goods; agriculture, forestry and fishing; and mining and energy.”39

A. MSIs as Regulators: Some Critiques

Some MSIs specifically aim to govern the human rights conduct of transnational companies in their global operations by creating rules for groups of competitor companies in the same industry. Such initiatives can be defined as “deliberative and adaptive governance institutions designed to embed social and environmental norms in the global marketplace, that derive authority directly from interested audiences, including those they seek to regulate, not from sovereign states.”40 Examples of this type of human rights standard– setting MSIs are the Fair Labor Association, the FairWear Foundation, the Global Network Initiative, and the International Code of Conduct for Private Security Providers. It is arguable that this category of human rights standard–setting/governance MSIs offers the most viable potential mechanism for regulating supply chain impacts, but it has significant limitations. The effectiveness of MSIs in addressing human rights violations in supply chains remains an open question, particularly whether organizations that sometimes build on, rather than disrupt, the inherent power imbalances evident in global supply chains can successfully address poor working conditions in those chains. As MSIs have developed, they have been subject to some targeted critiques that raise legitimate questions about their potential effectiveness in regulating human rights impacts in supply chains.41 One of the principal overarching criticisms of MSIs relates to their legitimacy. Legitimacy in this context incorporates several factors, including the lack of participation from affected communities and the workers themselves, their co-option by corporations, their primary reliance on social auditing as the principal tool for measuring compliance, and the lack of access to effective remedies. In many MSIs, critical stakeholders are not represented in the governing body. Sometimes critical stakeholders are only represented in an advisory body; sometimes they are not represented at all.42 One study highlighted the lack of representation of affected communities in the Extractives

44

Framing the Discussion

Industry Transparency Initiative (EITI) and stated that “the EITI Standard and related guidance material contain no indication that local actors, especially affected communities, are crucial stakeholders to the EITI process.”43 The lack of direct worker input in the design and monitoring of MSIs is one of the fundamental features that distinguishes MSIs from WSR initiatives, and it means that the MSIs face greater challenges in developing a comprehensive approach to addressing human rights abuses that place workers at their core. Some critics argue that the self-selective nature of the standards created by MSIs plays into the hands of corporations that seek to privatize and shape a government function.44 In addition, NGOs often may not have the resources to fully participate in MSIs, and hence corporations, who often provide large portions of the funding for the MSIs, have a greater say in how the standards and their monitoring mechanisms are designed. While ensuring a balance of power is critical, some MSIs have aligned their standards with international human rights and labor standards and thus do not require less from their members than do governments. Several MSIs also ensure that all representatives of different stakeholder groups have equal voting rights in their governing bodies. Thus, while informal power imbalances cannot fully be excluded (and much is contingent on the strength of individual members), there are at least formal mechanisms that attempt to ensure equal decision-making power. The design of monitoring mechanisms, however, varies greatly. The idea that the differences in approach are the result of corporate lobbying inside MSIs is a plausible yet unproven explanation.45 MSIs that drive down standards by relying on softer monitoring mechanisms are a threat to the credibility of MSIs more generally, because such small but critical differences are often invisible to consumers and investors. Social auditing46—recognized as “probably the most important organizational challenge for MSIs”47—has been subject to extensive scrutiny and criticism by NGOs, trade unions, and scholars. The depth and scope of social auditing varies extensively from MSI to MSI, but any MSI that measures compliance with its standards depends to some extent on social auditing. Existing research reflects a growing consensus that social auditing is a very limited regulatory tool, capable of delivering only superficial and short-term outcomes at best, and wholly inadequate for detecting and addressing more serious and systemic human rights violations.48 Audits tend to be based on the “financial audit” model, with inspectors sometimes focusing more on ticking off checklists than on conducting in-depth investigations and addressing underlying causes.49 Further, audits are undertaken in a relatively short space of time and

Closing Gaps in the Chain

45

so can only provide a snapshot view, and they are simply not able to pick up all violations that may be occurring in a business operation at any given time. The compliance model underlying social auditing tends to create a cynical and antagonistic dynamic between suppliers and buyers. Buyers often find themselves engaged in a “cat and mouse game” with suppliers, with more time spent on evasion and superficial compliance than on cooperation and meaningful improvements.50 An independent case study review of the Ethical Trading Initiative found that social auditing had led to some improvements in health and safety and working hours but had had virtually no impact on more complex rights, such as freedom of association.51 While social auditing may be effective in providing a snapshot of factory conditions, it alone cannot be relied on as the regulatory tool to aid reform in reducing human rights violations in supply chains. Another common criticism of MSIs generally is that participation and compliance are voluntary and therefore will not result in lasting change.52 Some critics suggest that binding legislation is a preferable alternative.53 However, arguably for participants in MSIs, compliance with the standards is not strictly voluntary. Peer control can, in this context, serve as a powerful means to hold corporations accountable, even though the standards and the rigor of monitoring mechanisms can vary considerably across MSIs. Given the large variety of MSIs, the dichotomy of voluntary versus mandatory standards seems overly simplistic and does not capture the quasi-binding arrangements that some MSIs have developed. What is legally sanctioned is distinguishable from activities that are not, but reputational sanctions can be crucial to business.54 The reality is that, not unlike the global legal framework for enforcing international human rights law, such initiatives are only as strong as their members choose to make them, and they do not apply to those that do not want to join them. In the human rights standard–setting model of MSIs, the initiative establishes standards, sets up a mechanism to obligate compliance with those standards, and provides a mechanism for complaints to be received when violations occur. Such initiatives should also incorporate a high degree of transparency about their processes for ensuring that compliance with their standards is maintained. Another major criticism leveled against MSIs is their narrow scope—both in terms of the suppliers they target and the substantive content of standards that they develop. MSIs have significant convening power and are most effective in communicating with and creating change in the workplace with firsttier suppliers, creating regulatory enclaves in which “most improvements are

46

Framing the Discussion

concentrated among the group of employees with formal contracts in larger and first-tier supplier firms.”55 However, the reality of many supply chains is that most subcontracted workplaces are unmonitored, and workers in the lower tiers of supply chains remain at risk of suffering poor working conditions.56 Social pressure from NGOs is forcing change in this area, with some companies delving deep into their supply chains to track the supply of the raw materials that go into their products.57 There are also promising developments from some MSIs, such as the Fair Labor Association, which is developing the Cotton Project—whose goal is to map the entire cotton supply chain by tracing the goods from cut and sew to fabric mill, cotton gin, cotton production, and production of cottonseed—to enable brands to trace their cotton sources and begin monitoring working conditions across the entire supply chain. The Fair Labor Association anticipates “that covering the entire supply chain will take several years, except in those instances where the violations of labor standards and remediation are well documented.”58 The critiques outlined here point to several risk factors that undermine the MSI model as a potential governance mechanism for regulating supply chains. While the general criticisms noted above are very broadly phrased, it is arguably the human rights standard–setting MSIs that have the strongest potential to play some role in regulating supply chains. The human rights standard–setting model of MSIs establishes standards, sets up a mechanism to monitor compliance, and provides a mechanism for complaints to be received when violations occur. These MSIs will have a specific goal to regulate corporate human rights conduct and adopt a targeted sector approach to reform. However, they too continue to face some of the challenges set out above, particularly about their legitimacy. The question remains, given their significant convening power, is there a useful role they can play in improving working conditions in supply chains? Before exploring some ways in which MSIs might be more meaningfully used in supply chain governance, it is important to note that acceptance of some of these criticisms of the legitimacy of MSIs has influenced, in part, the emergence of WSR initiatives. As chapters by Sellers, Champagne, and others show, some WSR models counter critiques about worker inclusion by involving workers in the creation, monitoring, and enforcement of workplace standards. While they face questions about their scale, narrowness of scope, and replicability, MSIs are increasingly recognized as an innovative model that tackles the inherent power imbalances in global supply chain regulation. Yet given the ubiquitous nature of MSIs in a variety of global supply chains

Closing Gaps in the Chain

47

and also fully acknowledging their limitations, the question remains: What role, if any, should they play in supply chain regulation?

III. Synergistic Governance: A Way Forward for MSIs? The reliance on soft law and private regulation (such as MSIs) to drive corporate compliance with human rights is symptomatic of the fact that governments in many of the states where goods are produced are unable or unwilling to enforce a regulatory regime to improve working conditions. The logical involvement of the nonstate sector has been a useful, if not sufficient, tool to temper this governance gap. Private intervention alone is unlikely to be sufficient to develop longevity and consistency around corporate compliance for human rights and thus for more effective utilization of the convening power of MSIs. State action is also required. The potential interplay between national and international law and state and nonstate actors is crucial in establishing both a legal and quasi-legal basis and mechanisms for addressing human rights abuses in global supply chains. While it is uncontested that corporations should obey the law in the jurisdictions in which they operate, where the law is not enforced, there is a failure in the legal governance regime for protecting human rights. These problems are exacerbated in global supply chains, with a multitude of stakeholders (including home and host governments, multinational companies and their tiers of suppliers, civil society, and worker representatives) all having a role to play in regulation, but with differentiated powers to regulate. It is relatively simple to assess the flaws in the current business and human rights regulatory landscape. Whether via voluntary or mandatory mechanisms, enforcing corporate adherence to human rights is a complex task. Some of the well-documented fundamental limits of voluntary approaches are also applicable to mandatory legislative schemes at both governmental and intergovernmental levels, particularly around enforcement and the provision of remedies for victims. While recognizing that corporate attitudes and approaches to human rights have advanced significantly in some companies, the existing market system does not encourage corporate management to place human rights concerns front and center in their business decisions. While the “rules of the game” have changed since Milton Friedman’s pronouncement in 1970 that companies do not possess any social responsibilities, it is incumbent on states to further advance approaches that not only encourage but mandate

48

Framing the Discussion

respect for human rights in the totality of corporate operations.59 The power of regulation to influence business practices derives from a combination of carrots (for example, generating incentives to encourage collaboration and compliance) and sticks (for example, mandating transparency and due diligence and penalizing nonparticipation). As such, it seems logical that a level of involvement is needed by the state to harden the societal expectations foisted on some companies and more readily assumed by others. MSIs are a current feature of many global supply chains, and if they have a role to play in regulation, there is a need to utilize a blend of public and private methods. This might be described as co-regulation, or as the ILO terms it, “synergistic governance”: “where public, private and social governance strategies are not merely layers of regulation, but are mutually reinforcing for effective compliance, and establish a level playing field of fair competition.”60 Compliance by companies with soft-law human rights standards is more likely if some aspects of those initiatives encouraging certain behaviors are mandated in the form of a hard-law requirement.61 For example, in a study of the efforts of European companies to trace their mineral supply chains, a comparison was conducted between European companies that have a dual listing in the United States (and are therefore required to comply with section 1502 of the Dodd-Frank Act62) and those companies that are only listed in Europe and are therefore not required to comply with such requirements. The research concluded that of the companies that are solely listed in Europe, only 13 percent provided public disclosure about their efforts to trace their supply chains. This suggests that those companies that are not required to address conflict minerals by law are not taking any steps to ensure that their supply chains are free of minerals that contribute to armed conflict and grave human rights abuses. Legal requirements that harden compliance with human rights standards might, as already suggested, take the form of state-mandated due diligence and reporting requirements. Nonstate actors such as MSIs could assume an important role within such a public regulatory scheme by offering a mechanism to conduct supply chain due diligence and provide increased transparency Let me offer two examples. In the early 2000s, several state governments in Australia introduced supply chain regulation in response to a strong and sustained civil society campaign focused on safeguarding the rights of homebased workers in the garment industry.63 The Australian legislation sets up a regulatory framework that requires the insertion of contractual tracking mechanisms in supplier contracts to follow production and mandate

Closing Gaps in the Chain

49

disclosure up and down the supply chain. Liability for contraventions of the laws is imposed on lead companies in order to shift the overarching legal responsibility to the top of the supply chain. The mandated disclosure requirements operate up and down the supply chain, in that retailers are obligated to establish whether homeworkers are being used in the production of their goods, and suppliers at all levels are obligated to provide that information to parties further up the chain. The information is then provided by the retailer to a designated trade union so that the supply chain is transparent and able to be monitored. The legislative regime is supplemented by a voluntary mechanism administered by an MSI—Ethical Clothing Australia64—that accredits businesses operating in this specific sector and assists companies with the process of mapping their supply chains and verifying that all workers within them are receiving their legal entitlements. Though focused on a narrow issue and a specific sector, this regulatory regime offers a critical example of how legislation can be specific and targeted in attaching liability for wrongdoing to disparate actors in the supply chain and is also able to utilize and maximize private regulatory efforts to improve respect for workers’ rights. Another example can be found in the migrant worker recruitment supply chain, in which workers, typically from the global South, are often recruited to work in developed countries in areas such as domestic labor or construction. The Netherlands has adopted a public-private hybrid approach that establishes domestic employer accountability for the conduct of recruiters and other subagents (generally operating abroad) in what is often quite an opaque supply chain.65 Under Dutch law, all entities up the supply chain are responsible for a staffing agency or subcontractor’s failure to pay minimum wages and other benefits.66 Alongside the law, the NGO Foundation for Employment Standards (Stichting Normering Arbeid, SNA) offers a voluntary certification program for employment agencies based on regular audits for compliance with standard worker protections.67 In a manner that bridges the public and private, a firm that contracts with an SNA-certified labor provider (and the firms above it in the subcontracting chain) is protected against worker claims under Dutch law and is eligible for mitigated penalties from the government. Despite the voluntary nature of SNA certification, firms have begun to demand certification of all agencies in their subcontracting chains.68 Accepting that rights must be respected by corporations, wherever in the world they operate, is one thing; making it happen is quite another. In practical terms, in some global supply chains nonstate actors have either deliberately or by default assumed the protective duties of states while some states

50

Framing the Discussion

have sat idly by. Involving all relevant stakeholders in a synergistic manner reinforces state requirements and recognizes that a joint regulatory effort may at times be more effective than simply relying on one actor to improve compliance with human rights. The significant challenges that many MSIs face in terms of both their governance and operational structures may mean that they are not effective regulators of working conditions if operating in isolation. However, if used in conjunction with laws that mandate transparency and due diligence, they may have a more meaningful role to play in addressing human rights abuses in supply chains.

IV. Conclusion The dominance of soft law as a business and human rights regulatory tool and the subsequent emergence of MSIs as a mechanism for driving corporate compliance with human rights are symptomatic of the fact that governments in many of the countries where the goods are produced are unable or unwilling to protect workers’ rights, and likewise the governments in the home countries of the multinational companies are generally reluctant to impose extraterritorial human rights requirements on businesses operating abroad. However, with respect to select issues (such as modern slavery), and sometimes select sectors (such as mineral sourcing), there is evidence that some states are willing to develop laws that mandate disclosure (and occasionally due diligence) around compliance with human rights standards. It is logical to involve nonstate actors (such as MSIs, NGOs, and labor unions) in ensuring compliance with those standards. This chapter has discussed the limitations of relying solely on one mechanism or actor to regulate global supply chains and the limitations of MSIs when acting as the sole regulators of supply chains. A blend of private and public regulation is required to tackle these inherent problems in supply chains, as well as a willingness to adjust power structures to foreground worker input into the design and monitoring of initiatives that aim to address labor abuses. To be effective, synergistic governance requires strategies that are mutually reinforcing and involve all relevant stakeholders in ensuring the human rights of workers in global supply chains are protected.

CHAPTER 3

The Kimberley Process and the Continuation of “Conflict Diamonds” Farai Maguwu

The Kimberley Process (KP) is a multilateral trade regime that was created by governments to ensure total control of the rough diamond trade and, as it turned out, was never about protecting the rights of communities. It is implemented through the Kimberley Process Certification Scheme (KPCS) under which participating governments must comply with minimum standards which include establishing national legislations and import and export controls, exchange of critical data, trade only with KP participants and “certify shipments as ‘conflict free.’ ” The KP was established with a very narrow mandate to ensure that rebel movements do not control the extraction and trade in rough diamonds. Once that goal was attained, the KP began to protect governments that in some instances commit the very same atrocities the certification scheme was formed to address. The KP has turned a blind eye to the abuses committed by “legitimate” governments, as these are the intended beneficiaries of the scheme, who are also responsible for making its decisions. As such, the KP remains limited by its origins and has been unable to fulfill even its stated initial objectives and mandate to protect human rights of affected communities in the context of diamond mining more broadly. Consequently, the KP has deepened the asymmetrical power balance between mining companies and host communities that are forced by their governments to bear the costs of diamond mining without ever sharing in the profits thereof. There seems to be no remedy for the mining communities that do not participate in the KP. Mining companies are represented in the KP by the World Diamond Council, which has observer status. The failure by the KP to create a grievance mechanism for affected communities creates

54

Multi-stakeholder Initiatives and the Maldistribution of Power

the false impression that less than 1 percent of conflict diamonds are still in the global supply chain, when a significant proportion of diamonds on the world markets is deeply mired in conflict. This chapter argues that the KP is a scheme created by governments to protect their own interests in the rough diamond trade while turning a blind eye to social impacts of diamond mining on communities. Consequently, diamond mining continues to be a major cause of human rights abuses, which range from murder, torture, and rape to community displacement. Additionally, land grabbing, water grabbing, and ecological and cultural violations are all associated with diamond mining and will affect communities for generations to come. The KP fails to address these social, cultural, and environmental impacts, as these abuses are committed by mining companies licensed by supposedly legitimate state governments. Governments, which shield mining companies from responsibility, present annual reports to the KP that paint a very positive picture of the diamond mining industry. In this chapter I reflect upon my work as a human rights activist with the Zimbabwean nongovernmental organization (NGO) Centre for Research and Development. CRD was instrumental in bringing to light the horrific human rights abuses that took place in the diamond fields of Marange after the military takeover in November 2008, and it played a key role in investigating human rights abuses and sharing this information with human rights organizations and diplomatic missions in Harare. This alerted the KP, leading to the KP sending a fact-finding mission to Zimbabwe from May 29 to June 4, 2009. As the then director of CRD, I was also the chief communications officer and participated in several KP meetings at which the Zimbabwe case was discussed. I also presented at the 2009 KP plenary held in Namibia, after which Zimbabwe was allowed only KP-supervised exports following significant evidence of noncompliance with the KP minimum standards. I also participated at the 2011 KP intersessional and plenary, at which the KP decided to lift the embargo it had placed on Zimbabwe despite overwhelming evidence of continuation of human rights violations. Due to the standoff over Zimbabwe, a key KP civil society founding member, the NGO Global Witness, announced its withdrawal from the scheme in protest. The Zimbabwe case further exposed the shortcomings of the KP, resulting in growing calls for reform, including the widening of the definition of conflict diamonds to include human rights abuses committed by states. I draw here from my personal experiences as a researcher in Marange diamond fields and as a member of the KP civil society coalition. As director of the Centre for Natural Resource Governance I have continued to participate in the KP.

Kimberley Process

55

This chapter unfolds in three sections. Section I provides a background to the KPCS, setting out its origins and describing its options. Section II provides a case study discussion of the failures of the KP to redress the human rights abuses in the Marange diamond fields in Zimbabwe. This section in part provides a firsthand account of my own engagement in the struggle to protect the affected communities and to call for accountability through the KP. In section III of the chapter I reflect on why the KP is failing to protect human rights and identify several key issues that urgently need to be addressed.

I. Background to the Certification of Conflict Diamonds A. Origins of Kimberley Process Certification Scheme

The KPCS, an international certification scheme intended to regulate the trade in rough diamonds, was formed in 2003, following years of civil wars in Central and West Africa that left hundreds of thousands dead and millions more displaced. The development of the scheme followed the publication of research reports on the role of rough diamonds in fueling civil wars in Central and West Africa toward the end of the twentieth century. In 1998, Global Witness produced its seminal report, A Rough Trade: The Role of Companies and Governments in the Angolan Conflict, which implicated companies and governments in the rough diamond trade that funded the Angolan Civil War.1 In 2000, Partnership Africa Canada (PAC) published The Heart of the Matter: Sierra Leone, Diamonds & Human Security, which exposed “how diamonds—small pieces of carbon with no great intrinsic value—have been the cause of widespread death, destruction and misery for almost a decade in the small West African country of Sierra Leone.”2 In March 2000, the UN Panel of Experts on Violations of Security Council Sanctions Against National Union for the Total Independence of Angola produced its report, also known as the Fowler Report, which again confirmed that diamonds played an integral role in the political economy of the Angolan Civil War.3 Following the publication of the Fowler Report, the United Nations General Assembly adopted Resolution 55/56 in December 2000, which called for the creation of an international certification scheme for rough diamonds.4 In January 2003, the United Nations Security Council followed suit with Resolution 1459,5 which noted with deep concern “the linkage between the illicit trade in rough diamonds from certain regions of the world and the fueling of

56

Multi-stakeholder Initiatives and the Maldistribution of Power

armed conflicts that affect international peace and security.” Resolution 1459 fully supported the 2002 Interlaken Declaration, a multilateral ministerial declaration that resolved to launch the KPCS.6 However, governments agreed to form the KPCS not because of their commitment to protecting human rights, but rather because the rough diamond industry was facing a consumer backlash due to widely publicized civil society reports of gross human rights abuses in diamond mining communities. In the wake of such reports, the image of the diamond industry was heavily damaged and desperately in need of a makeover. Both African and Western governments were threatened with the looming consumer boycott of diamond products. In addition, African governments were also struggling to deal with rebel movements that were threatening to drive them out of power with the aid of diamond revenues. Thus, controlling the producing and trade of rough diamonds would suffocate rebel movements into oblivion. The KPCS seemed to be the solution. The scheme had to be carefully designed to ensure that governments, not rebel groups, would be in control of the rough diamond trade through the issuance of certificates for all diamond shipments. Apart from appreciating the role played by civil society in pushing for the formation of the KPCS, the United Nations Security Council resolution did not call for the continued role of civil society and affected communities in the proposed scheme. Instead, the resolution noted “the importance of the major diamond producing, and trading, and processing countries participating in the Kimberley Process system of self-regulation.”7 This marginalization of civil society and diamond-producing communities is at the heart of the ineffectiveness of the KP Civil society was then co-opted as an observer and not a participant.

B. Founded by Governments to Protect Governments

The main conflict that necessitated the formation of the KPCS was between governments and rebel movements. As part of its mandate, the KPCS aimed to ensure that governments are in full control of the rough diamond trade, and that rebel movements are denied access both to the diamond fields and to the markets in which rough diamonds are traded. Governments that produce, process, and trade in rough diamonds are encouraged to participate in the scheme. The KP includes both participants and observers. Currently, the KPCS comprises fifty-four countries, with the European Union (EU) countries

Kimberley Process

57

counting as a single participant. Participant status (and therefore decisionmaking powers) is only given to individual states. Civil society actors and industry representatives, in particular the World Diamond Council and the World Council of Diamond Bourses, are relegated to “observer” status. Observers are limited to influencing the KP decision-making process through lobbying participants; they cannot formally veto a resolution or vote for its passage. While civil society was instrumental in the formation of the KP, its role diminished once governments gained the full control of the diamond value chain they desperately sought. Most of the demands put forward by civil society to make the KP more responsive to the human rights and other social impacts of diamond mining have been rebuffed and resisted by KP participants.8 Although the KPCS core document recognizes in its preamble “the devastating impact of conflicts fueled by the trade in conflict diamonds on the peace, safety and security of people in affected countries and the systematic and gross human rights violations that have been perpetrated in such conflicts,”9 the communities that live in diamond-producing areas are not represented in the KP, let alone invited to present reports on the (continuing) impacts of diamond mining on their rights. Once the KPCS had helped governments to gain full control over diamond mining and trade, there was little interest in addressing the human rights violations that occur in the diamond value chain, chiefly because governments, not rebel movements, are now the main perpetrators of human rights abuses. This is especially so in fragile states, which are characterized by weak institutions and poor human rights records. The principle of sovereignty and equality of all participants means the KPCS is unable to intervene even where participant states are committing human rights abuses against their own citizens.10 While states with stronger governance institutions have had fewer problems implementing the KPCS minimum standards, it is those fragile states, such as Zimbabwe, that expose the ineffectiveness of the KPCS. Thus, the KP is strong where it is least needed and ineffective where it is most needed. Although the KP claims it has reduced conflict diamonds in the global supply chain to less than 1 percent, this claim is based on one of the KP’s most serious structural flaws: its weak definition of conflict diamonds. The KPCS core document defines conflict diamonds as “rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments.”11 The KPCS website defines conflict diamonds as “rough

58

Multi-stakeholder Initiatives and the Maldistribution of Power

diamonds used to finance wars against governments that are recognized by the United Nations.”12 This definition leaves out violence committed by legitimate governments against communities living near diamond fields, the widespread displacement of villages, and unfair labor practices by diamond mining firms. It also fails to include scenarios in which governments use diamond revenues to finance dictatorships, political violence, and state-sponsored terrorism. Even after the 2008 events in Zimbabwe’s Marange diamond fields, in which the government’s deployment of troops to massacre villagers and artisanal miners provided ample evidence that governments can commit the same atrocities committed by rebel movements on the same scale and intensity, the KP retained its narrow definition of conflict diamonds. Another critical problem with the KP is its consensus-based decisionmaking, which means the scheme struggles to make key decisions. The KP is forced to reach decisions through compromise, so as to satisfy all participating states. While such a democratic governance arrangement might seem laudable at first, the KP, just like the United Nations, is fractured along geopolitical fault lines, with participating countries making decisions on the basis of their foreign policy priorities, as opposed to the objectives of the organization. For instance, during the impasse over Zimbabwe, the African Diamond Producers Association, Russia, China, India, and UAE all defended Zimbabwe and led the calls to have the export ban lifted, while the EU, United States, and Australia wanted to see more reforms.13

II. Case Study from the Diamond Fields of Marange A. Marange Diamonds: Putting the KPCS to the Test

Until 2006, the KPCS had been celebrated as a highly successful mechanism that had managed to eliminate so-called conflict diamonds from the rough diamond trade.14 This claim was, however, put to the test by events that have unfolded in Zimbabwe’s Marange diamond fields since 2006. The Marange diamond rush began around April 2006, when the world’s largest diamond company, De Beers, did not seek an extension of its exclusive prospecting order, which it had obtained in 1993. De Beers itself, a founding industry member of the KP, was operating secretively and illegally in Marange up to 2006 in collusion with Zimbabwe’s ruling elites.15 Section 94 of Zimbabwe’s Mines and Minerals Act states that “no order shall be granted for a period in excess of three

Kimberley Process

59

years but an order may be extended by the Minister, on the recommendation of the Board, for a further period or periods not exceeding three years in all.” In April 2006, De Beers was replaced by the British-listed African Consolidated Resources. However, after their departure, some De Beers officials showed some locals pieces of diamonds and asked them to pick the stones that De Beers officials would return to buy fortnightly. At first, the locals didn’t even know they were picking diamonds. This marked the beginning of artisanal mining in Marange. Thereafter, when the locals learned what they were picking were actually diamonds, the number of artisanal miners grew from about a hundred in May 2006 to over ten thousand by December. Scores of foreign dealers invaded Mutare and Marange to buy and smuggle diamonds toward the end of 2006.16 The government estimated that by October 2008 more than thirty-five thousand artisanal miners were working in Marange.17 These developments produced a thriving informal market for Marange diamonds in Zimbabwe and neighboring Mozambique. The economy of Zimbabwe was boosted by the injection of tens of millions of U.S. dollars through the informal diamond trade. In 2008, former Reserve Bank governor Gideon Gono estimated that the government was losing $1.2 billion a year to “illegal” panners and stated that the army would be called in “to try to drive the ‘illegal’ diggers out.”18 According to leading sociologist Obvious Katsaura, “the labels of illegality or illicitness that have been passed on artisanal diamond miners in Chiadzwa are problematic and contested, given that they are a reflection of the locus of economic and political power.”19 The contestation, according to Katsaura, is between legal entitlements granted by the government and social rights to mining of the commons, as understood in local customary law.20 This was particularly the case given that the government also appeared to be alluding to customary law when it encouraged artisanal mining in 2006. According to Human Rights Watch, Mugabe’s Zimbabwe African National Union—Patriotic Front (ZANU PF) government “effectively encouraged a diamond rush by declaring the fields open to anyone to mine.”21 The KPCS’s distinction between legal and illegal diamond extraction is determined by the domestic law of the state in which the mining takes place. Section 1V (d) of the KPCS core document calls on participants to “amend or enact appropriate laws or regulations to implement and enforce the Certification Scheme and to maintain dissuasive and proportional penalties for transgressions.”22 The penalties are not stipulated by the KPCS, but rather are left to the discretion of governments. This is problematic, given that “proportional penalties for transgression” means different things to different

60

Multi-stakeholder Initiatives and the Maldistribution of Power

countries. In repressive states where governments are the main perpetrators of human rights violations, the KPCS statutes can be manipulated to commit atrocities in the name of enforcing internal controls, while in democratically run countries, the KPCS implementation is aided by the existing regulations and democratic practices that protect human rights. In the case of Zimbabwe, diamonds were discovered at a time when the government was battling a legitimacy crisis following years of political violence and hotly contested elections. The country had witnessed a rapid shrinking of democratic space ever since the emergence of a popular opposition party in 1999, the Movement for Democratic Change. By 2006, Zimbabwe was experiencing record-breaking hyperinflation and a shortage of basic commodities. The government was desperately in need of money to avert an uprising. In 2007 and 2008 the Reserve Bank of Zimbabwe, working in partnership with the Minerals Marketing Corporation of Zimbabwe, carried out “mop up” operations to acquire diamonds from artisanal miners in Marange,23 comprising mobile diamond purchasing teams sent into Marange to buy diamonds from artisanal miners and diamond dealers. The purpose was to ensure diamonds in possession of artisanal miners would be brought into a legitimate chain of custody. Between 2006 and October 2008, Marange diamond fields were effectively under the control of artisanal miners. A thriving black market for smuggled diamonds from Zimbabwe mushroomed in Mozambique’s border town of Manica.24 However, after Mugabe lost the first round of the presidential elections in March 2008, and following a discredited run-off election in which Robert Mugabe was the only candidate, the country entered a deep financial and political crisis. Zimbabwe had the second highest inflation rate ever recorded in history, reaching 231 million percent in November 2008.25 The government worsened the situation by criminalizing the use of foreign currency, thereby promoting a parallel market for almost everything. There was a shortage of cash and basic commodities, as the country was increasingly becoming ungovernable. The government decided to capture the diamond fields to appease the increasingly restricted population.

B. Operation Hakudzokwi (You Shall Not Return)

In November 2008, the government of Zimbabwe deployed the army to violently take over control of Marange diamond fields from artisanal miners. The

Kimberley Process

61

Zimbabwe National Army announced its arrival with hundreds of deaths, mass torture of artisanal miners, and gang rape of scores of women artisanal miners and dealers.26 The military invasion of the Marange diamond fields was code-named Operation Hakudzokwi, meaning, “Operation You Shall Not Return.” Marange communal lands were immediately declared a protected area, entry to which required a clearance letter from the police. The violence and brutality released upon the Marange community by the Zimbabwe National Army was reminiscent of the horrific human rights abuses that took place during the diamond-fueled civil wars in Angola, Liberia, and Sierra Leone in the 1990s.27 The key difference was that while in West Africa the bloodshed was mainly perpetrated by rebel movements, in the case of Zimbabwe, the perpetrator of this abuse was the “legitimate” state government. While in the case of Angola the Jonas Savimbi–led National Union for the Total Independence of Angola rebel movement was fighting to overthrow Angola’s “legitimate government,” in Zimbabwe the main objective of the military takeover of Marange was to strengthen the weakening ZANU PF government.28 Nevertheless, the impact was the same: death, rape, torture, displacement, and elite enrichment at the expense of the poor. Writing in the state media under his pen name, Nathaniel Manheru, presidential spokesperson George Charamba described the torture of artisanal miners in Marange, also known as Chiadzwa, in the following words: “The untouchables of Chiadzwa are either slaving, wounded or dead. . . . It is a season of tears as man becomes beast to get beastly men and women to repair the heinous damage they have wrought on innocence. It is painful payback time. The deep gullies are being refilled with bare hands. Fingers are sore and finishing, well before a quarter of the job is done. Chiadzwa, once a place for dashing fortune-seekers, has become Chiadzwa the place of unrelieved pain.”29 The killings were intense from the first week of November 2008 to early January 2009, when the army started organizing mining syndicates with artisanal miners. Human Rights Watch also observed that “with control established, the army rapidly turned to forming syndicates, often using forced labor, including of children.”30 As the then director of CRD based in Mutare, which is situated about 70 kilometers north of Marange, I took it upon myself to lead my organization in investigating and exposing the abuses. CRD had produced numerous reports that were widely circulated among human rights organizations and the diplomatic community in Zimbabwe. However, up until March 2009, I had never heard of the KP.

62

Multi-stakeholder Initiatives and the Maldistribution of Power

We began the difficult task of investigating how the violence had started, identifying the actors involved and tracing victims of military abuse to their homes and hospitals. This meant visiting hospitals to talk to victims, taking pictures of their wounds where possible, and using this opportunity to get a clear picture of what was happening in the diamond fields from the victims’ perspectives. Sometimes we went to hospital mortuaries posing as relatives of missing persons who had last been seen in Marange, as this enabled us to access hospital mortuary records of those “Brought in Dead” from Marange. In January 2009, CRD released A Preliminary Report of the Atrocities Committed by the Police and Army in Mutare and Chiadzwa under “Operation Hakudzokwi” (You Will Not Return).31 This was the first comprehensive report ever produced casting light on the military crackdown. The first recipients of the report were diplomats, who expressed great appreciation and interest in our work. The report would soon be used as an important source of information by the KP Review Mission to Zimbabwe of June 30–July 4, 2009, which cited it as a key document in its final report, released in June 2009.32 Due to the leading role I had personally taken in exposing human rights abuses in Marange, I was invited to attend the KP plenary in Namibia in November 2009, where the situation in Marange featured prominently on the agenda. CRD managed to send two officials to the Namibian meeting. However, the Zimbabwe government, knowing how damning the review mission report was, and aiming to avoid censure and penalties at the hands of the KP, deployed a large delegation to Namibia. With thirty to forty delegates in attendance, the Zimbabwe government was clearly trying to create an intimidating atmosphere for its civil society critics. Members of the Zimbabwean delegation followed me everywhere I went, including to the toilet! They monitored every conversation I had and possibly even recorded some. I felt insecure and highly vulnerable, but I refused to be cowed. I was determined to speak for the victims of violence in Marange, at whatever cost to my personal security. During the meeting I was invited to the podium to speak about what CRD had observed in Marange. I confirmed the contents of the KP Review Mission’s report as a true reflection of events unfolding in Marange, adding some specific cases that I had personally come across. Predictably, the Zimbabwean delegation did not take lightly my contributions during the plenary. However, the first to attack me was the Namibian chair, Mr. Bernard Esau, who accused me of speaking without a mandate. This accusation was made despite the fact that I spoke during the session allotted to the Review Mission, which had invited me to the podium as a key witness to confirm

Kimberley Process

63

its report. Mr. Esau, however, turned a blind eye to the speech by Mr. Newman Chiadzwa, a Marange resident who had been brought to the plenary by Zimbabwe’s then mines minister Obert Mpofu to rescind his allegations of human rights abuses in Marange. Mr Chiadzwa, who had been arrested and released a few weeks before the plenary, surprised everyone by speaking glowingly of the mining operations in Marange, a complete reversal of his well-documented stance on military violence in Marange. The open and unusual rebuke from the Namibian chair was likely intended to appease the Zimbabwean delegation, due to the historical and political ties that exist between the ruling parties of Zimbabwe and Namibia. However, the attacks did not stop there. Subsequently, Minister Mpofu dedicated a significant amount of time during his KP presentation to attacking me, claiming I was Western sponsored and paid to tarnish the image of Zimbabwe’s gems. Later, during a reception hosted by the Namibian chair, Zimbabwe’s ambassador to Namibia confronted me, personally attacking me for being a “sell out.” Her public rage was witnessed by—and shocked—many delegates. Zimbabwe’s Central Intelligence Organization’s operatives also followed me wherever I went during the plenary.33 But evidence spoke louder than threats. At the conclusion of the KP plenary meeting, and on the basis of the overwhelming evidence of noncompliance with the KP’s criteria for “clean” diamonds, the KP plenary imposed a restriction on diamond exports from Marange, while it pledged to assist Zimbabwe in achieving compliance with its minimum standards.34 Additionally, a year-long Joint Work Plan was agreed upon between Zimbabwe and the KP, based on negotiations involving the tripartite members at the plenary. It stipulated the conditions and processes Zimbabwe would have to put in place in order to bring Marange diamonds into compliance with the KP’s criteria.35 The intense lobbying by civil society that forced the KP to use strong language on human rights in Marange was only matched by the civil society campaign that exposed the links between rough diamonds and civil wars in Central and West Africa in the late 1990s. The plan provided for the appointment of a KP monitor for Zimbabwe, and subsequently, South African Abbey Chikane was named to this position. At the conclusion of the Namibian meeting, several Western diplomats advised me not to return to Zimbabwe, offering me the safety of their countries. But I turned down such offers, preferring to return to Zimbabwe to continue my work. Accepting these offers would have meant an end to the important work we were doing to expose human rights abuses in Marange.

64

Multi-stakeholder Initiatives and the Maldistribution of Power

C. Monitoring with a Mission?

Back in Mutare, it was not long before the limits of the KP’s commitment to monitoring and improving the situation in Marange became apparent. On his first visit to Zimbabwe in March 2009, KP monitor Abbey Chikane refused to meet with CRD to discuss the current situation in Marange. Diplomats in Harare—whose countries were KP participants—tried to facilitate meetings between Mr. Chikane and local activists, but he did not avail himself of the opportunity. At CRD, we wrote numerous emails requesting a meeting, but he did not respond. His silence and lack of engagement sparked a crisis within the KP. KP participants from Western states threatened to discredit Chikane’s first monitoring report, arguing that his work needed to reflect the tripartite nature of the KP by including not only evidence provided by the government but also industry and civil society in Zimbabwe. Pressure from other KP state participants seemed to have an impact. In May 2010, I received an email from Mr. Chikane, requesting a meeting with me on his second visit to Marange. He asked me to prepare a monitor’s file, with reports and documents that would help him appreciate the situation in Marange better. He told me the dates he would be in Manicaland and asked me to choose a day to meet from two options he proposed. I responded with my choice and we confirmed a date. In the lead-up to our agreed meeting date, I received numerous emails and calls from diplomats and other stakeholders, who wanted to make sure I met with Mr. Chikane. In the end that proved difficult, as circumstances that appeared contrived by Mr. Chikane almost prevented me from meeting him; the time for our meeting was changed by Chikane without warning, then changed again with such short notice that it was nearly impossible for me to make the appointment. In fact, I had to rush so quickly to his location that I had no time to bathe! My suspicions were further raised when I arrived at Mr. Chikane’s hotel. I noticed several people at the hotel who appeared to be state security agents. Witnessing this, I quickly rushed to another location to deposit my printed dossier of new evidence from Marange in safekeeping, before returning to meet the KP monitor. When I did find him, he was in a public space and surrounded by several people. I expressed my discomfort with speaking to him about such sensitive issues in a hotel lobby. He told me he had diplomatic immunity, and nothing would happen to me because Zimbabwe had given him assurance that his informants would not be victimized.

Kimberley Process

65

However, Mr. Chikane proceeded to hand over the confidential reports I had given him to state intelligence officials.36 In his report to the KP chair on his fact-finding mission, Mr. Chikane dedicated two pages to denouncing me for having passed on to him a top secret state security document he claimed had been fraudulently acquired. On May 26, 2010, one day after I had met Mr. Chikane, President Mugabe appeared on the state broadcast station, ZTV, claiming there were some local NGOs, sponsored by Western interests, trying to block the sale of Marange diamonds. He warned that the government was going to take action against them. The next day I did not go to work as I feared arrest. I planned to leave Mutare for a week or two until the dust settled. Before I had a chance to leave, state security agents encircled my home. I was lucky; I managed to evade the agents and hid in the neighborhood until dark, when I finally left the area and went into hiding. While I was in hiding, a number of human rights organizations and Western diplomats reached out to me, suggesting they could help me leave the country. I turned down the offers. A week later, in the company of my lawyers, I turned myself in to the police and was arrested and charged with publishing or communicating falsehoods prejudicial to the economic interests of Zimbabwe. The charge carried a maximum sentence of twenty years. I was repeatedly denied bail on frivolous grounds, such as the need for the state to carry out extraterritorial investigations in South Africa, it they allegedly wanted to interview Abbey Chikane. In all, I spent five weeks in prison as the courts repeatedly denied me bail. My release from custody on July 12, 2010, was the culmination of two different challenges to the government. The first involved the fierce battle waged in the courts by my excellent legal team, led by prominent human rights lawyers Tinoziva Bere and Beatrice Mtetwa. The second, perhaps more decisive challenge, came from the KP—which had no legal jurisdiction in my case—but nonetheless used political pressure effectively. My detention had cast a spotlight not only on the events unfolding in Marange but also on the effectiveness of the KP itself. There was pressure on the KP to act and save its credibility. While I was being held in prison, the KP intercessional meeting in Tel Aviv put pressure on President Mugabe’s government to release me. Several senior KP officials, including the 2010 KP chair Boaz Hirsch of Israel, condemned my detention. Mr. Hirsch said, “Harassment or mistreatment of the civil society members of the Kimberley Process is intolerable. . . . The Kimberley Process was founded on the basis of respect for the rights of all

66

Multi-stakeholder Initiatives and the Maldistribution of Power

its members, governments, the diamond industry and civil society. The KP cannot and will not accept injurious actions taken against any of its members, all the more, if they are carried out by a participating government.”37 Negotiations for my release continued beyond the KP meeting in Tel Aviv. An agreement was finally reached during the annual meeting of the World Diamond Council in July 2010 in St. Petersburg. Effectively, in exchange for my release, Zimbabwe was allowed to conduct two KP-supervised exports, in August and September 2010. Former World Diamond Council president Eli Izhakoff, who played a leading role in negotiating my release from custody, demanded that the charges against me be dropped altogether. Izhakoff categorically stated that my continued detention had virtually blocked debate on Zimbabwe’s rough diamond exports, and that my release was needed as part of measures to break the broader impasse around rough diamond exports from Marange.38 Another important aspect of the agreement struck at the St. Petersburg meeting was the appointment of a civil society “local focal point” (LFP) for the KP in Zimbabwe. The rationale behind the LFP, we were told, was to protect organizations like CRD and persons like myself who had helped the KPCS in its efforts to get Zimbabwe to meet its minimum standards. However, we later understood that the LFP was created to control civil society’s reporting on Marange and to ensure there was a working relationship between the Zimbabwe government and local civil society in order to reduce the likelihood of arrests of activists that would put the name of the KPCS into disrepute. CRD’s relations with the KPCS changed as the Marange story changed. In 2009, CRD had been the leading organization reporting on human rights in Marange, and we were perceived as trustworthy, reliable key informants concerning human rights abuses and informal mining in the area. When I was nominated to lead the LFP by the Zimbabwe civil society, the government rejected my nomination. It was backed by several governments in the KP, chiefly South Africa, which argued that the LFP must be acceptable to government. Consequently, I stepped down and allowed someone who was acceptable to the government to replace me. CRD was, however, one of the seven organizations that constituted the LFP. Intense pressure was exerted on the LFP to report on progress on implementation of the Joint Work Plan by Zimbabwe, even though there was neither significant progress nor the political will to do so. The LFP was given a template to use in reporting that excluded a significant number of critical social impacts, including human rights, from KP matters. Between 2010 and 2011, the KP began to move toward lifting the export ban on

Kimberley Process

67

Zimbabwe, despite easily verifiable reports of gross human rights violations by security forces. A review mission sent to Zimbabwe in August 2010 reported that “progress has been made in addressing areas such as security system and handsfree processing systems in mining operations run by the new investors, the relocation of families affected by the mining operations, an education campaign to inform local residents on the dangers of illegal diamond mining and trading, reducing the overall level of violence, as compared to the findings of the June 2009 review mission, as well as reducing levels of the illicit trade in, and smuggling of, rough diamonds.”39 There was no mention of the fact that the fourteen hundred families who had been forced out of their ancestral homes without compensation to pave way for diamond mining were dumped in the middle of nowhere, in a place where social services were nonexistent. A makeshift school and clinic that was not even registered with the Ministry of Health and Child Welfare was set up. Indeed, these were internally displaced people. A retired military official, Major Nyakunu, was stationed at the relocation site to ensure civil society and the media had no access to the displaced villagers. Meanwhile, the military continued to commit all manner of human rights abuses, ranging from murder, torture, and rape to forced labor. By mentioning “reducing the overall level of violence,” the report acknowledged the continuation of violence in Marange, yet the KP did nothing more to ensure state violence in Marange was halted altogether. Civil society protested the lifting of the ban on Zimbabwe, but these protests were contemptuously dismissed by the KP participants. The new narrative was that the KPCS was not a human rights scheme and that civil society should continue monitoring human rights in Marange but submit such reports to international instruments mandated to deal with human rights, such as the UN High Commission for Human Rights. Consequently, one of the founding organizations of the KP, Global Witness, resigned as an observer of KP in November 2011, citing the failure by the KP to protect communities as the main reason for its decision.40

D. Continued Presence of the Military in Marange

One key goal of the Joint Work Plan was the phased withdrawal of the Zimbabwe army from Marange. This was because the 2009 review visit team cited the military as the chief perpetrator of human rights abuses. However, the

68

Multi-stakeholder Initiatives and the Maldistribution of Power

phased withdrawal of the army never happened. In October 2020, hundreds of soldiers remained camped in Marange, where they continued to engage in illicit diamond deals and rights abuses. Workers and artisanal miners were sometimes taken to the military diamond base, where they were beaten by the soldiers.41 The military has been accused of leading scores of artisanal miners into the protected diamond mining area, taking security guards hostage and assaulting them while artisanal miners take diamond ore, which they later process and share the diamonds with the soldiers.42 The only reason the KP is not taking action is that the military is in Marange on behalf of a “legitimate government,” despite committing the same acts done by rebel movements so widely condemned by KP and the international community more broadly.

E. Discarding Social Impacts as “Non-KP Issues”

During the life of the Joint Work Plan, Zimbabwe’s civil society continued to produce quarterly reports, which furnished the KP with updates on Marange. The updates covered human rights, illicit activities, accountability, and social impacts on the community, which included displacements and the welfare of the displaced families. However, the KP began to push back against efforts by civil society to protect the Marange community from the social impacts of diamond mining by declaring all social impacts as “non-KP issues.” In the following subsections I discuss some of the conflicts that have been dismissed and discarded by the KP as of no interest to the organization. 1. Displacement of Villagers

In 2010, the Zimbabwe government began to forcibly displace and relocate more than thirteen hundred families from their ancestral home of Marange to a government-owned farm 80 kilometers north of Marange. The displacement was coordinated by the military and other security arms of government, including the police and the Central Intelligence Organization. The community tried to resist but were subjected to serious intimidation until their resistance was broken. Most of the families were displaced in the midst of the planting season and were not given adequate land for farming, thus condemning them to perpetual food insecurity. Homes were razed to the ground without any valuation for future compensation. None of the affected families has been compensated, and it is unlikely this will ever happen. The KPCS

Kimberley Process

69

argued that the issue of displacement must be handled by local government institutions, yet it certified as “conflict free” diamonds that were extracted from the homes of displaced families. 2. Turning a Blind Eye to Human Rights Abuses

In its core document, the KPCS recognized “the devastating impact of conflicts fueled by the trade in conflict diamonds on the peace, safety and security of people in affected countries and the systematic and gross human rights violations that have been perpetrated in such conflicts.”43 However, as it sought to lift the export ban on Marange diamonds amid continued reports of state-sponsored violence in and around the diamond fields, the KP denied its responsibility to deal with human rights violations in the diamond mining communities. It argued that it is not a human rights organization but a certification system for rough diamonds.44 The KP advised those concerned with human rights in Marange to approach human rights bodies, such as the Office of the United Nations High Commissioner for Human Rights. The KP proceeded to lift the ban in November 2011. The decision by the KP to allow Zimbabwe’s blood diamonds onto the markets despite overwhelming evidence of gross human rights abuses prompted one of its founding civil society members, Global Witness, to quit the group in November 2011.45 3. Financing a Parallel (Rebel) Government

The Zimbabwe government never accounted for Marange diamonds to its citizens. In 2012, Global Witness published a report, Financing a Parallel Government, which revealed how Mugabe was diverting diamond revenues away from the treasury to finance his ZANU PF party’s 2013 election.46 The minister of finance during the “Government of National Unity” of 2009, Tendai Biti, repeatedly complained that diamond revenues were not finding their way to the treasury.47 In 2016, President Mugabe said Zimbabwe had lost in excess of $15 billion through illicit financial flows from the seven diamond mining firms in Marange.48 By diverting diamond revenues from the treasury, Mugabe was undermining a legitimate government, yet the KP refused to intervene, saying that to do so would interfere with the internal affairs of a sovereign state. 4. Unfair Labor Practices

The treatment of workers in Marange diamond fields was a form of modernday slavery.49 The workers were subjected to racist abuses by the Chinese,

70

Multi-stakeholder Initiatives and the Maldistribution of Power

whose company, Anhui Foreign Economic Construction Group, was in partnership with the Zimbabwe Mining Development Corporation through Matt Bronze, a subsidiary of Zimbabwe Defense Industries.50 The workers were sometimes physically assaulted; ultimately, they were unfairly dismissed without severance packages when production declined after 2013. Although it certified diamonds produced by abused workers as conflict free, the KPCS refused to entertain calls for a probe into working conditions in Marange, arguing that this was better addressed through domestic remedies. It is unlikely the retrenched workers will ever get their remuneration, given that their employers have since been forced out of Marange by the government.

III. Why Is the KPCS Failing to Protect Human Rights? A. State-Centric Approach

The KPCS was formed to ensure all rough diamonds are traded through a “legitimate chain of custody,” which means that they have been traded through governments or agencies designated by governments. The immediate and most pressing goal was to ensure all diamond-producing countries become members of the KPCS, so as to minimize illicit diamond trade. Thus, the KPCS framework was designed to make states feel comfortable to join: hence the emphasis in the core document “that state sovereignty should be fully respected, and the principles of equality, mutual benefits and consensus should be adhered to.” The concept of sovereignty cripples the KPCS when dealing with sensitive issues, as some countries may limit the extent to which the KP can intervene. Governments have swept violations under the carpet by pleading sovereignty. For instance, in 2005, PAC published The Failure of Good Intentions: Fraud, Theft and Murder in the Brazilian Diamond Industry, which pointed to a litany of violations of KPCS minimum standards, including the illicit diamond trade.51 In its letter of response addressed to the KP chair, Brazil complained that PAC had intruded into its sovereignty and dismissed the findings as false.52 While the KP was quick to post the response of the Brazilian government on its website, the response from PAC was only posted after PAC had written the chair demanding a right of reply by way of posting its own response on the website.

Kimberley Process

71

B. Narrow Definition of Conflict Diamonds

As alluded to above, one of the key limitations of the KPCS is its narrow definition of conflict diamonds. The KPCS defines conflict diamonds “as rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments, as described in relevant United Nations Security Council resolutions.”53 This definition overlooks the possibility of “legitimate governments” committing gross human rights violations to secure diamond fields, as well as the misuse of diamond revenues to finance terrorism abroad or dictatorships at home. Furthermore, the narrow definition of “conflict” by the KP excludes any consideration of conflict other than that “aimed at undermining legitimate governments.” Conflicts such as the widespread displacement of communities, localized conflicts over land ownership between diamond mining companies and local communities, pollution of rivers, theft of diamond revenues by ruling elites, and the process of incorrectly invoicing trade, among other vices in the diamond value chain are excluded. Consequently, and ironically, diamond mining communities experience a new poverty—the paradox of plenty. The social effects of diamond mining on a community are severe, especially in the case of alluvial diamond mining. Alluvial diamonds have been removed from the primary source (Kimberlite) by natural erosive action over millions of years and eventually deposited in a new environment such as a riverbed, an ocean floor, or a shoreline.54 Alluvial diamonds are difficult to manage because they are easily accessible in addition to having a ready market. This makes them prone to conflict over access and ownership.

C. Excluding the Jewelers

Jewelers are not part of the KP family, yet most of the rough diamonds end up with them. If they manage to source diamonds from conflict zones through manipulating customs loopholes, the diamonds are never accounted for in the KP. The current KP chair, Australia, wrote on its website that “although the Kimberley Process does not certify individual jewelers, reputable businesses should only buy from suppliers that can guarantee that their diamonds are conflict-free.”55 One can argue that this is because now that governments are in total control of the rough diamond trade, jewelers can only buy

72

Multi-stakeholder Initiatives and the Maldistribution of Power

diamonds from governments or their agents; hence such diamonds cannot be used to overthrow legitimate governments. Nevertheless, the omission of jewelers means there are tens of millions of carats that enter the global supply chain unaccounted for. Diamond dealers are a well-connected global syndicate operating using both commercial and private jets, which are not subject to rigorous security checks.56

D. Absence of Footprinting and Fingerprinting

In the diamond certification lexicon, “footprinting” is the study of the overall characteristic of production, whereas “fingerprinting” is the identification of individual stones. While the KP Working Group of Diamond Experts can scientifically footprint and fingerprint diamonds, this scientific method of verification has not yet been adopted as a standard procedure to detect and authenticate the actual source of origin of a diamond. The KP relies on administrative controls to track stones from mine to export to subsequent trading. Thus, once a parcel has been certified by a legal authority as “conflict free,” it is treated as such by the KP family on the basis of trust. This creates a major loophole, wherein diamonds from conflict zones can be traded through “compliant” states. When Zimbabwe was under the KP embargo between 2009 and 2011, its diamonds continued to be traded through KP-compliant countries such as Angola, Namibia, and South Africa, while others were smuggled directly through private jets to various destinations all over the world.57 In 2013, local media reported on official documents that revealed how some international diamond dealers and the Zimbabwean and Angolan generals were illicitly shipping diamonds from Marange to Angola, where these were KP certified and re-exported.

E. KP Reform Cycle

Following years of denial, in 2016 the KP began a three-year reform cycle, in which it was expected to institute internal reforms to ensure it would be remodeled to address emerging diamond-related challenges and ensure it is fit for purpose. The Ad Hoc Committee on Review and Reform was created to lead the reform process. At the center of the reform agenda was the need

Kimberley Process

73

to revisit the definition and scope of “conflict diamond” to include systemic human rights violations committed by governments, quasi-governments, and private security firms. Draft resolutions were proposed by the World Diamond Council, Canada, and the United States, but at the end of the reform cycle, presided over by India during the plenary held in New Delhi in November 2019, the reforms failed to pass because of lack of consensus. India, Russia, China, and African producer countries resisted the calls to widen the scope.

IV. Conclusion The KP was created by governments to protect the interests of governments in  the rough diamond trade. Although its formation followed investigations by the UN and civil society groups which unearthed gross human rights violations against civilians in diamond producing areas, particularly in Angola, governments narrowed the KP focus to regulating trade only and not protecting people. Given that the motivation for creating the scheme was control of the trade and not to eradicate human suffering, the KP was not formulated within a human rights framework. This is evidenced by its weak definition of conflict diamonds, which focuses only on diamonds in the hands of rebel movements. Human rights violations of monumental proportions continue to take place in diamond mining communities, and these are downplayed by the KP because the main perpetrators are now governments and not rebel movements. The lack of representation of communities within the KP creates an unequal power balance between the perpetrators and victims of human rights abuses in the diamond value chain. Governments are responsible for setting the agenda, debating, and making resolutions at KP meetings for and on behalf of communities. The consensus-based decision-making process makes it less likely that the KP will reform itself and focus more on protecting the rights of communities affected by diamond mining. In the absence of community involvement, civil society would be expected to highlight the plight of communities, but its observer status means it plays a very marginal role in influencing decisions.

CHAPTER 4

Reforming Commodity Certification Systems to Respect Indigenous Peoples’ Rights Prospects for the Forest Stewardship Council and Roundtable on Sustainable Palm Oil Marcus Colchester

This chapter draws on a long-term effort by the Forest Peoples Programme (FPP) to hold governments and corporations accountable for violations of the human rights of peoples who live in forests. Forest peoples are estimated to number about 1.5 billion people, of whom about 600 million access lands and forests through customary laws and are referred to as indigenous peoples in international human rights discourse.1 Voluntary commodity certification schemes evolved as a response by civil society to the failure of national governments and intergovernmental processes to regulate international trade in commodities derived from forestand land-based enterprises and to protect critical social and environmental values.2 Despite long-term efforts, voluntary certification schemes such as the Forest Stewardship Council (FSC) and Roundtable on Sustainable Palm Oil (RSPO) fail to consistently uphold indigenous peoples’ rights. Indigenous rights are not respected by companies that are members of these schemes. The schemes’ standards are effectively enforced neither by the schemes themselves nor by the certification bodies (CBs) that they rely on for verification of corporate compliance. If complaints are filed, and even if they are resolved in favor of the complainants, remedies are too often not provided. The underlying problem is that national laws, which do not uphold indigenous

Reforming Commodity Certification Systems

75

people’ rights, are in effect overriding the higher standards of these voluntary schemes,3 while efforts to reform laws in accordance with international human rights standards are making slow progress.4 This chapter explores these dilemmas by examining three specific cases in which remedies have been sought for violations of indigenous peoples’ rights in Indonesia: the first concerning an FSC-certified logging company in East Kalimantan, the second an RSPO-member palm oil company operating in West Kalimantan, and the third an RSPO-member palm oil company operating in West Sumatra. This chapter proposes various reforms that are needed to improve these schemes in order to protect and remedy violations of indigenous peoples’ rights. While serious efforts are underway to strengthen compliance with FSC and RSPO standards, effective reforms are frustrated by collusive relations between supposedly independent auditors and the companies whose performance they verify, the weaknesses of complaint procedures, and the contradictions between national laws and voluntary standards seeking to uphold international human rights law. The chapter concludes that despite these deficiencies, RSPO and FSC do provide some opportunities for indigenous peoples to hold companies accountable when their rights are violated, even though these opportunities usually require the collaboration of specialist nongovernmental organizations (NGOs) to work through cumbersome complaint procedures.

I. Business and Human Rights: The Framework of International Law Under international human rights law, it is the duty of states to protect the human rights of persons and peoples and to provide remedies in the case of violations. It is likewise the obligation of states to ensure that businesses operating in their jurisdictions, as well as those incorporated in their jurisdictions but operating abroad, respect human rights.5 The UN Guiding Principles on Business and Human Rights—the so-called respect, protect and remedy framework—sets out detailed norms that clarify the obligations of states to ensure that companies respect human rights. The framework also affirms the responsibility of business enterprises to respect human rights independent of states’ abilities or willingness to fulfill their own human rights obligations, a duty over and above compliance with national laws and regulations protecting human rights.6

76

Multi-stakeholder Initiatives and the Maldistribution of Power

It is a norm of international law that the violation of a human right gives rise to a right to remedy. Remedy can be in the form of restitution, compensation, rehabilitation, satisfaction, or a guarantee of nonrepetition.7 Where legal frameworks are inadequate and access to justice is frustrated, companies are required to offer nonjudicial remedies. These remedies must be accessible, predictable, equitable, and transparent; must provide for continuous learning and dialogue; and must be “rights-compliant,” that is to say, consistent with internationally recognized human rights.8 Under international law,9 indigenous peoples enjoy rights to: selfdetermination (albeit within the framework of state sovereignty); ownership, control, and management of the lands, territories, and resources that they have customarily owned, occupied, or otherwise used; self-governance; selfidentification; self-representation, and legal personality; exercise their customary law; control the application and use of their traditional knowledge; and give or withhold their free, prior, and informed consent (FPIC) to any measures that may affect their rights. These collective rights of indigenous peoples derive from indigenous or customary law and do not depend on any act of the state, which they very often precede.10 Many of these rights extend to other peoples who may not self-identify as indigenous peoples but who have long-term connections with their lands and territories and traditionally or currently govern themselves through customary law.11 Article 28(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) explicitly notes: “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”12 Despite the international law norms that provide for remedies in response to human rights violations, persistent violations of these rights are widely reported across the entire indigenous world.13

II. Tropical Forest Logging and Oil Palm Plantations: Implications for Indigenous Rights Tropical forest logging and land clearance for oil palm plantations have a dismal track record in respecting indigenous peoples’ rights. A sector review for the Office of the High Commissioner for Human Rights found that forestry

Reforming Commodity Certification Systems

77

laws commonly curtail customary rights; generate land conflicts; and lead to forced resettlement, exploitative labor relations, increased malnutrition, and demographic decline due to changed disease ecology.14 Even where logging concessions are initially welcomed by local people due to promises of employment, roads, and services, tropical forest logging tends to result in a “boom and bust” economic cycle. After the forests have been logged, the industry moves on, employment declines, and roads soon wash out. These operations have a disproportionately negative impact on women and children.15 Plantations of pulpwood or monocrops like oil palms have even more serious impacts, as they may permanently extinguish customary rights and lead to massive habitat loss, making forest peoples’ livelihoods unviable.16 Forestry and plantation laws also often lead to collusive relations between industries and government agencies, which facilitate permits for logging and plantations at the expense of local rights and interests.17

III. Commodity Certification Systems: An Introduction A. Certification Standards

Given the chronic failure of national laws to hold corporations accountable,18 timber and palm oil commodity certification schemes seek to bridge the gap between national laws and practices and international requirements. They therefore go beyond corporate social responsibility (CSR) and companies’ efforts to self-regulate by providing an additional, albeit voluntary, regulatory layer. Certification efforts entail developing standards through multi-stakeholder consultations regulated by agreed procedures,19 accrediting independent organizations and CBs to carry out third-party audits to verify compliance, issuing certificates, and regulating the labeling of compliant products. Both the FSC and RSPO set out agreed standards, in the form of Principles and Criteria (P&C), and agreed indicators, with which producer operations are required to comply. In the case of FSC, its P&C require logging and pulpwood plantations to, inter alia, adhere to the International Labour Organization’s Convention 169 on Indigenous and Tribal Peoples and the UNDRIP. FSC’s P&C also require recognition of indigenous peoples’ legal and customary rights to own, control, and manage lands, requiring companies to avoid or resolve disputes consistent with customary law and to respect that communities have the right to FPIC over management plans. A serious shortcoming of the FSC standard,

78

Multi-stakeholder Initiatives and the Maldistribution of Power

however, is that it does not require indigenous peoples’ FPIC prior to the award of concessions, nor is it clear about the requirement for self-representation.20 This seriously weakens indigenous peoples’ negotiating position with companies seeking access to their lands because the standards do not prescribe that communities can choose how they are represented, nor does it require their consent before companies obtain legal permits to operate on their lands.21 RSPO’s standards, which evolved a decade after FSC’s, drew on the lessons learned from the FSC experience. They require palm oil growers and millers to bring their operations in line with national and ratified international laws, recognize legal and customary rights to land, ensure communities the freedom to choose how they will be represented, and require FPIC before land acquisition and land clearing.22 In addition, through its “New Planting Procedure,” RSPO requires member companies to post plans to open up new areas for plantations on the RSPO website at least thirty days prior to land clearance, after an upfront third-party verification of their compliance with key criteria, including the initial steps of FPIC.23

B. The Challenge of Compliance

Both FSC and RSPO standards look good on paper, but their value depends on adequate implementation and enforcement. Indeed, the credibility of all certification schemes depends on the rigor and independence of the auditing mechanisms that assess companies’ compliance with standards. NGOs have long claimed that audits are too lenient and superficial and fail to identify company violations.24 This problem stems from the inherent conflict of interest that results from CB auditors being chosen and compensated by the companies that they assess.25 This clientelistic relationship drives a pattern of collusion between the auditors and the company. Academic reviews of certification have shown problems ensuring the quality of audits and that the longer auditors engage with their clients, the less exacting their reviews.26 In some cases, the audit process may become thoroughly corrupted.27 NGOs have long recommended that both FSC and RSPO break the direct link between CBs and their clients by establishing escrow accounts into which member companies pay a fee for auditing. The audit teams would then be chosen by the schemes and paid from the escrow account, not directly by companies. An experiment in India showed that random selection and indirect payment of auditors improves both the rigor and independence of

Reforming Commodity Certification Systems

79

audits.28 To date both FSC and RSPO have not chosen to adopt such reforms. In 2006, FSC opted instead to establish Assurance Services International (ASI), a wholly owned subsidiary of FSC, to accredit and monitor the performance of CBs. ASI has also been contracted to perform the same service for RSPO and a number of other certification schemes.

C. Reform Efforts by the FSC and RSPO

Both FSC and RSPO are undertaking concerted efforts to improve their human rights performance. FSC has performed detailed case studies of member companies’ compliance with the P&C requirements on FPIC, of which only the interim findings have been made public.29 These studies show that, in practice, FSC certificate holders are not required by CBs to recognize the full extent of indigenous peoples’ customary rights. For example, they are only required to allow community access to sacred sites, not to allow community control over the wider lands and territories to which they claim ownership— often obtaining only partial community consent prior to timber extraction. As such the procedure fails to fully uphold indigenous rights.30 Additionally, independent studies reveal a lack of transparency in FSC’s complaint procedures and apparent failure to uphold indigenous peoples’ rights.31 An expert group working with the FSC’s Permanent Indigenous Peoples Commission is now developing a revised FPIC guide, to advise on improved implementation. In the palm oil sector, studies have shown consistent failures, including by leading RSPO member companies, to adhere to basic requirements of the RSPO P&C on land acquisition and FPIC.32 In partial response, the RSPO P&C were tightened33 and a revised guide on FPIC was adopted.34 This left unaddressed the fact that studies have exposed systematic failures by assessors and auditors to enforce standards.35 In 2015 the RSPO membership was persuaded to pass a resolution in the RSPO General Assembly calling for reforms.36 This pushed the RSPO Board, tardily, to set up its Assurance Task Force to develop procedures to strengthen the performance of assessors and auditors and to develop procedures to monitor company compliance with the New Planting Procedure. The RSPO Assurance Task Force asked ASI, the body charged by both RSPO and FSC to oversee CB performance, to review the performance of RSPO-accredited CBs. ASI’s review was startling: “All the CBs (assessed by ASI) have systematically failed in auditing the compliance of their certificate holders against the selected indicators.”37

80

Multi-stakeholder Initiatives and the Maldistribution of Power

Additionally, there have been concerns about the shortcomings of the RSPO complaint procedure. This led to a detailed review,38 and subsequently, the RSPO complaint procedure was overhauled. Furthermore, after a series of shocking cases in which community complainants were harassed, criminalized, and even killed, RSPO adopted a protocol designed to provide protection for whistleblowers, human rights defenders, complainants, and community spokespersons.39 These reforms are a step in the right direction; however, the question remains: Are these measures enough to make certification systems compliant with internationally recognized rights of indigenous peoples? This question is especially urgent in a context wherein national laws and policies do not adequately recognize these rights. The following case studies from Indonesia, where the author has worked for the past thirty years, illustrate some of the challenges. Similar challenges have been illustrated by cases in other countries in the region, such as Malaysia, as well as countries in West Africa and Latin America.40

IV. Indigenous Rights and Indonesian Land Tenure Systems This section examines the recognition of indigenous rights in Indonesia and finds that while customary rights were never wholly ignored in Indonesia, they have never been properly recognized, either. During the period of Dutch rule, the colonial authorities adopted a policy of indirect rule in which native peoples were administered through traditional institutions and customary law. Custom therefore remained a source of rights.41 The diversity of custom was also encouraged by the Dutch as a counter to early uprisings, which mobilized unity by invoking Islam.42 Even after the Dutch gradually shifted from a trade-focused economy to one more oriented to the capitalized exploitation of lands and natural resources in the nineteenth century, attempts to apply a legal doctrine that all untitled lands were owned by the colonial state (domeinverklaring) were resisted by both local communities and an influential faction of Dutch administrators and lawyers, who advocated instead for respect of customary (adat) law and rights to land.43 However, custom was extensively manipulated by the Dutch to favor the interests of plantation industries. By exaggerating the extent and authority of the local sultans to make decisions over land, planters were able to pay personal benefits to the sultans in order to lease lands for plantations, while ignoring the

Reforming Commodity Certification Systems

81

rights and interests of the indigenous tribes and Malay peasants who actually owned, and worked on, these lands.44 Dutch forest policy also imposed severe restrictions on indigenous peoples’ rights, especially on those practicing shifting cultivation, in order to secure timber resources for logging enterprises.45 Since Indonesian independence in 1945, when custom was asserted to repudiate colonial rule, these same tendencies have prevailed. Custom is recognized in the Basic Agrarian Law of 1960, but customary lands (ulayat) are not titled, and customary rights are treated by the administration as weak rights of usufruct on state lands that must give way in the interests of development. To this day, some 80 percent of rural landholdings outside Java are untitled.46 According to the Agrarian Law, when plantation permits—currently extending over some 23 million hectares of land—are issued to companies, the companies are required by law to compensate farmers for the loss of their customary rights, but in practice communities’ rights are permanently extinguished without compensation. Similarly, forests—classified as covering 70 percent of Indonesia—are administered as State Forest Areas, a class of forests defined in the Forestry Law of 2000 as areas without rights. This classification is clearly erroneous, and the forestry administration now admits that some thirty-three thousand administrative villages have lands that overlap these forests. In 2013, a groundbreaking Constitutional Court decision ruled that “customary forests,” where customary territories overlap areas classified as forests, are not State Forest Areas.47 Despite the judicial victory, the decision has not been properly enforced. More than six hundred logging concessions have been issued in State Forest Areas covering some 56 million hectares, while a further 10 million hectares have been leased to companies for pulpwood plantations.48 An estimated sixty million forest people and one hundred million people in other rural communities face formidable difficulties because the state has allocated their lands to industrial interests. In the next section, three examples demonstrate the problems these gaps in the law create.

V. Case Studies from Indonesia A. Logging the Heart out of Borneo: PT KBT v. Long Isun

The Dayak Bahau people of East Kalimantan migrated down to the Upper Mahakam from the Apo Kayan area in the early nineteenth century, during a period of tumultuous social change and movement. A large group of Dayak

82

Multi-stakeholder Initiatives and the Maldistribution of Power

Bahau had already settled on the Meraseh River, an affluent of Upper Mahakam before 1890,49 and they remained in the area at a site called Long Isun until 1990, when the government resettled them on the banks of the Mahakam River as part of its Population Resettlement Project (Resetelmen Penduduk),50 designed to facilitate the extension of government services to what were then officially referred to as “isolated and alien tribes” (suku suku terasing).51 They maintained their customary rights over an extensive area of forests totaling about 80,000 hectares around the original Long Isun site and continued their swidden agriculture, hunting, foraging, and fishing. At the time of resettlement, the original settlement of Long Isun was divided into two administrative villages (desa), named Long Isun and Naha’ Aruq, so that the local administration could claim twice the budget for providing services to the area. In 1996, PT Kemakmuran Berkah Timbers (PT KBT) secured a logging concession52 overlapping the customary lands of three Dayak Bahau communities, Long Tuyoq, Naha’ Aruq, and Long Isun. The logging permit was issued by the state without consulting the indigenous people, as it considers State Forest Areas to be void of rights. In 2007, the World Wildlife Fund (WWF) publicly announced an international program to conserve the “Heart of Borneo.” The aim of the Heart of Borneo initiative, which was formally endorsed by the governments of Brunei, Malaysia, and Indonesia, was to “conserve the biodiversity of the Heart of Borneo for the benefit of the people who rely upon it through a network of protected areas, sustainable management of forests and other sustainable land uses.”53 Responsible logging of areas defined as Permanent Forest Estate in Sarawak, Malaysia, and Production Forest in Indonesia was presented as a core part of the program. Responsible logging was to be assured by certifying timber operations through the FSC certification scheme and timber tracing using new techniques being pioneered by The Nature Conservancy.54 The Heart of Borneo efforts to certify timber operations got underway in the Upper Mahakam in the logging concessions of PT Sumalindo Lestari II and were then extended into the headwaters to embrace the logging operations of three subsidiaries of Roda Mas Timbers, including PT KBT. All three subsidiaries provided quality hardwoods for a large plywood factory, Tirta Mahakam.55 Tirta Mahakam guarantees sustainable production and claims to have an FSC chain of custody certificate. In terms of respecting indigenous rights, PT KBT got off to a shaky start. The company first ran into objections from the community of Long Tuyoq, which the CB, Rainforest Alliance (RA), found had not given consent to the

Reforming Commodity Certification Systems

83

extraction of timbers from their lands. Despite the lack of FPIC from the community, the company was certified by the CB.56 This is possible because FPIC is not deemed to be a major requirement, and failure to comply does not prevent certification. Instead, it is treated as a minor nonconformance that the CB can address by making corrective action requests, which the company should undertake. Classing FPIC as a minor requirement significantly weakens communities’ leverage to have their rights taken seriously.57 Consequently, the dispute with Long Tuyoq remained unresolved.58 In 2014, PT KBT extended its operations over 2,000 hectares of the customary lands of Long Isun, which had been “transferred” to Naha’ Aruq without the agreement of Long Isun under a contested mapping program undertaken by The Nature Conservancy in 2011. The community of Long Isun immediately protested the entry of loggers onto these lands, which include their ancestral grave sites. They initially sought dialogue with PT KBT but were rebuffed. In an effort to oblige the company to meet with them, community members halted logging tractors entering the contested area and removed the keys, sending a message to the company that they wanted to parley. Instead, the company sent in the police, and one Dayak Bahau was arrested, charged, and jailed for 109 days. The arrest led to the formation of a coalition of thirteen NGOs from East Kalimantan that carried out a concerted media campaign in support of the community and the criminalized Dayak, which in turn led to an investigation by the National Human Rights Commission and the Forestry Ministry. Notwithstanding this serious and unresolved dispute, the CB, RA, twice renewed PT KBT’s certificate, in 2015 and 2016.59 This led to the FPP carrying out a detailed field investigation. With the agreement of the community and a local Dayak women’s organization, Perkumpulan Nurani Perempuan (PNP), FPP filed a detailed complaint—including a dossier of official letters, transcripts of interviews, chronologies, and testimonies—alleging PT KBT was in breach of FSC’s standards to respect customary rights and FPIC.60 After some delay, the FSC Secretariat responded and requested that all the evidence be translated into English, noting they would be unable to determine if they could act on the case until later in the year. FPP agreed to translate the materials (entailing considerable effort), but highlighted to the FSC Secretariat that such demands in effect made the FSC complaint process inaccessible to local NGOs and indigenous peoples, who do not speak English. The complaint was also copied to RA, which undertook its own annual audit of PT KBT. There were numerous problems with how the RA audit was

84

Multi-stakeholder Initiatives and the Maldistribution of Power

conducted. In the days prior to the audit, FPP learned that RA was planning to hold a community meeting in Naha’ Aruq, not in Long Isun. FPP complained, and although RA provided assurances it would hold a community meeting in Long Isun, it failed to do so. At the community meeting in Naha’ Aruq the auditors were accompanied by the subdistrict military, the mobile police brigade, and personnel from PT KBT. The community of Long Isun was not formally invited and did not attend. The following day the auditors made a short visit to Long Isun (which is only 500 meters along the riverbank from Naha’ Aruq), again accompanied by PT KBT staff, and carried out short interviews with just four members of the community. Most of the community leadership was absent. In April 2017, FPP staff carried out a further field investigation of the audit process and filed a detailed record with FSC, noting the inadequacy of RA’s audit procedure.61 In July 2017, RA released its audit. While the audit did note that PT KBT was in violation of FSC’s FPIC requirements, this was again classed as a minor nonconformance. Nonetheless, because of other nonconformances, the company’s certificate was withdrawn, and the company was required to refrain from reentering lands claimed by Long Isun for three years.62 FPP and PNP then submitted a complaint to FSC about RA. In the letter, Marta Doq of PNP noted:63 “We were very disappointed with the Rainforest Alliance audit. Despite promises to listen to our complaint, they never held a proper village meeting to hear our concerns directly. Does the FSC consider this an independent investigation? We don’t. As an indigenous organization supporting the community, we feel ashamed by the lack of respect and breach of trust displayed by FSC. We hope FSC will now take this matter more seriously.” In response to FPP and PNP’s concerns, rather than look into the case itself, the FSC asked ASI to review the concerns. ASI then conducted a desk review of RA’s audits. On the basis of this documentary review, ASI concurred that there was an “insufficient approach taken by PT KBT to resolve the land tenure and land use rights conflict . . . implementation of the FPIC process was weak. . . . PT KBT should have been more proactive to handle complaints . . . [and before PT KBT reenters the FSC scheme] the company implements a fully effective FPIC and fully effective Conflict Resolution Mechanism with close monitoring by a new CAB [certification and audit body].”64 Although ASI found there was prima facie evidence that the RA verification was weak, it could not check RA or PT KBT’s compliance because “there is no more FSC-related contractual relationship anymore that would bind parties to agree on an ASI assessment.”65

Reforming Commodity Certification Systems

85

This case exposes major weaknesses in the FSC complaint system. There was a seven-month period of prevarication, during which FSC avoided looking into the complaint itself. In July 2017, FSC unilaterally announced that the case was closed.66 At the end of this long process, no remedy had been provided to Long Isun to compensate the people for the damage to their lands and to the ecosystems they rely on for their livelihoods.67 In July 2017, the now uncertified PT KBT again commenced extracting timbers from Long Isun’s lands without the community’s consent, leading to further protests.68 Concerted pressure by the community, PNP, and allied local NGOs led the provincial office of the Ministry of Environment and Forestry to convene a meeting of ministry officials, community representatives, NGOs, and PT KBT, in which it was agreed that PT KBT would relinquish the part of its concession overlapping the disputed area.69 Since then, the community has been in talks with the local government to get their forests formally recognized as Customary Forest (hutan adat).

B. Remedy for Land Grabs: Golden Agri-Resources v. Melayu and Dayak Villagers

Golden Agri Resources (GAR) is a Singapore-based palm oil conglomerate that trades under the name Sinar Mas (Golden Rays). GAR is Indonesia’s largest palm oil company; it currently manages 169 plantations totaling some 488,252 hectares.70 In 2006 and 2007, the Sinar Mas group signed initial contracts for nine palm oil concessions in the most upriver district of West Kalimantan, Kapuas Hulu. These concessions form part of a ring of land clearances around the Danau Sentarum National Park, an area prized for its biodiversity, lucrative fisheries, deep peat swamps, and blackwater lakes. While GAR retained three of these concessions, the other six were transferred to a shadowy palm oil group of uncertain ownership called Kencana.71 GAR is an RSPO member, but the Kencana group is not. In 2009, Greenpeace launched a media campaign targeting Nestle and Unilever for buying palm oil from GAR because GAR’s new concessions in Kapuas Hulu—operated by GAR subsidiary PT Kartika Prima Cipta (PT KPC)—were clearing forests and planting on peat. In 2011, under pressure from its buyers, GAR announced a new social and environmental policy that committed it to halting deforestation and land clearance on peat. This led to

86

Multi-stakeholder Initiatives and the Maldistribution of Power

collaboration between GAR, Greenpeace, and The Forest Trust to develop the high carbon stocks approach, a forest stratification methodology to distinguish vegetation in fragmented landscapes.72 In 2013, Greenpeace suggested that FPP look into the social complexities of this approach. The initial field survey, undertaken by FPP and the Indonesian NGO Transformasi Untuk Keadilan-Indonesia (TUK-I) in July 2013, revealed major problems in the way GAR was dealing with the local Malay and Dayak communities. Interviews with impacted communities and company personnel showed despite commencing operations in 2007, by October 2013 the company had not yet completed the high conservation value (HCV) assessment required by the RSPO. Nor had GAR completed land tenure studies and participatory mapping of customary land claims. The communities had not been free to choose their own representative institutions for participation in negotiations. Nugatory compensation had been paid to community members in an obscure process designed to give communities the impression that GAR would only use their lands for thirty years, after which their rights would be restored. In fact, they were surrendering their lands in perpetuity. None of the hundreds of farmers who had unwittingly alienated their lands to PT KPC had a copy of the contract setting out the conditions of land release or the debt repayments required for promised smallholdings. Some communities refused to surrender their lands, resulting in sustained pressure from GAR to relinquish them—a breach of the RSPO requirement that communities have the right to say no in land negotiations. There were no discussions with the communities about how much of their lands should be set aside for their own livelihoods; instead, the communities were assured that palm oil smallholdings and new jobs would bring them major benefits. In reality, most of the jobs were very low paid. The smallholdings, which are run by GAR, when established after significant delay were half as extensive as promised, and came encumbered with debts and overheads. Inland, affected Dayak communities experienced a land shortage, while along the affected rivers, Malay fisherfolk complained of river pollution from the palm oil plantations, which caused declining fish stocks and problems for local fish-breeding ventures. The imposition of the palm oil scheme caused major rifts in almost all of the communities. Protests and demonstrations against these perceived injustices occurred from the time the concession was announced in 2007 until 2013. The company paid the police to disperse protesters. In short, FPP found major failures of compliance by PT KPC and GAR with the RSPO’s P&C.

Reforming Commodity Certification Systems

87

After six months of fruitless meetings to persuade GAR to redress these injustices, FPP and TUK-I published these findings in a detailed report in January 2014.73 The report garnered extensive press coverage, forcing GAR to admit to mistakes in its land acquisitions process, commence revisions of its standard operating procedures, and promise to provide remedies to the affected communities. In mid-2014, before any of the promised reforms came into effect, GAR announced plans for further land clearance in PT KPC and seventeen other concessions in conformity with RSPO’s New Planting Procedure. These notifications included confirmation by an RSPO-accredited CB, Mutuagung Lestari, that GAR had carried out adequate HCV assessments; had undertaken a participatory social and environmental impact assessment; and was acquiring lands in conformity with RSPO requirements on FPIC—even though the previous study showed each of these claims to be untrue, and GAR had admitted these shortcomings. Mutuagung Lestari’s certificates of compliance with RSPO P&C were manifestly false. FPP submitted a detailed complaint to the RSPO Complaints Panel in September 2014.74 In an effort to forestall sanctions, GAR withdrew all eighteen of its New Planting Procedure notifications in October 2014. However, the RSPO Complaints Panel took up the case, and in May 2015 ruled that GAR was in violation and must halt all further land acquisition and land clearance in all eighteen concessions, revise its HCV assessments, increase the area of smallholdings provided to communities, and make remedies for all lands taken in violation of the RSPO P&C.75 The RSPO Complaints Panel actively encourages parties to complaints to resolve disputes through bilateral dialogues and, if resolution through dialogue is not possible, to seek mediation through the RSPO’s Dispute Settlement Facility.76 Regular meetings have been held between the parties to seek solutions. GAR has also worked with The Forest Trust, now renamed Earthworm, and various consultancies to revise its land acquisition procedures and HCV assessments. As a result of the dialogue, two of the communities that had refused the establishment of palm oil plantations agreed to participatory mapping of their customary lands and entered negotiations with GAR. The company then agreed to redraw the boundaries of the lands over which it was seeking a lease and amended its application to the National Land Bureau accordingly. This agreement set an important precedent that the lands of communities refusing oil palm plantations should be excised from licenses.

88

Multi-stakeholder Initiatives and the Maldistribution of Power

Additionally, in response to these complaints, GAR has carried out participatory mapping; provided backdated contracts to all those who had relinquished lands; held meetings to clarify an FPIC process, the legal status of lands, and the conditions under which smallholdings are provided; and brought in a consultancy to redo the HCV assessments.77 These hard-won gains show that the RSPO’s Complaints Panel process does have value. In key respects, however, the company has made only limited progress. The company has not provided remedies for lands taken without consent, has not provided the required smallholdings to provide alternative livelihoods, and has not completed the HCV assessments.78 Its slow progress has been repeatedly brought to the attention of the RSPO’s Complaints Panel,79 and in August 2018 FPP and TUK-I filed five further complaints with RSPO alleging continued violations.80 Meanwhile, GAR continues to harvest oil palm fruits from lands it has acquired without proper FPIC, and the communities have access to only half the smallholdings they were promised.

C. Taking Lands Without Consent: The Wilmar Case

Singapore-based Wilmar International is one of the world’s largest agribusiness conglomerates. It controls as much as 45 percent of the global trade of palm oil. The company brings together extensive oil palm plantations and refining. In the early 2000s, the Wilmar conglomerate secured financial support from the World Bank’s private sector arm, the International Finance Corporation (IFC). This sparked significant protests81 and prompted a formal complaint by a consortium of NGOs to the IFC’s independent accountability mechanism, the Compliance Advisor Ombudsman (CAO), in 2007. The complaint highlighted Wilmar’s systematic taking of lands in violation of the IFC Performance Standards and RSPO’s P&C, to which both the IFC and Wilmar were party.82 Following a field investigation, the CAO agreed to provide mediation to two communities contesting Wilmar’s expansion plans in Sambas District in West Kalimantan. That mediation was partially successful: one community acquired some additional smallholdings, and the other community received compensation for lands cleared without consent, an agreement from the company to refrain from further incursions on their lands, and the rehabilitation of some degraded lands. The CAO audit found that the IFC had violated the Performance Standards.83 Nevertheless, the IFC continued to finance Wilmar.

Reforming Commodity Certification Systems

89

This led to a second NGO complaint in 2009, demanding systemic changes to the way Wilmar was acquiring lands without consent.84 The CAO again offered mediation in a handful of cases, which provided moderate gains to two communities in Riau, but no more systemic reforms were undertaken.85 One of the cases subject to CAO mediation was a long-standing land dispute that Wilmar had inherited when it took over PT Asiatic Persada (PT AP) in Jambi province. The CAO’s mediation efforts were not successful. The land disputes escalated after the company unilaterally canceled a proposed smallholder allocation agreed by the previous holding company and declined to provide acceptable alternative lands as a remedy to the indigenous peoples whose lands had been taken without consent. Aggrieved community members were accused of pilfering fruits, and in August 2011 the company evicted them from the estate. In response to NGO protests and allegations of human rights violations, Wilmar contracted the CB, TUV-Rheinland, to carry out a review,86 which Wilmar claimed exonerated them.87 FPP and local partners also carried out their own detailed field investigation,88 which found that after an ugly incident involving a palm fruit trader and company security forces, PT AP contracted the local mobile police brigade to evict the residents of three settlements. The police fired guns to chase the inhabitants away, and one person was wounded. Over the next three days, the company bulldozed the people’s dwellings into creeks. The local people, rendered homeless and destitute, fled into the surrounding forests or took refuge in nearby villages. FPP and local NGOs alerted the RSPO Complaints Panel and filed yet another formal complaint with the CAO.89 Wilmar and the impacted communities accepted a renewed effort at mediation by the CAO, but the mediation effort stalled after one ombudsman alleged Wilmar staff attempted to bribe him. The case was subsequently taken to the highest level of World Bank Group’s ethics body. However, this was dropped due to jurisdictional issues.90 Shortly after, Wilmar sold PT AP to the Ganda group, a move heavily criticized by the CAO.91 The case remains unresolved. Another long-standing land dispute in a Wilmar concession that has been raised at both the RSPO and CAO concerns the Minangkabau community of Kapa, impacted by one of Wilmar’s subsidiaries, PT Permata Hijau Pasaman 1 (PT PHP 1), in West Sumatra.92 The Muslim but matrilineal Minangkabau are famous for their strong adherence to customary law and self-governance through village-level republics (nagari).93 Under custom, lands are owned collectively by families, matrilineal lineages, and by nagari, but cannot be

90

Multi-stakeholder Initiatives and the Maldistribution of Power

alienated—although they can be loaned to third parties after a symbolic payment is made. PT PHP 1 had purportedly gained access to community lands with the agreement of traditional elders (ninik mamak), but disputes later arose about the details of the agreement. Extensive community interviews showed that many community members and some of the ninik mamak denied that they had sold their lands to the company. They argued that they had only accepted customary payments to allow the company to use their lands in exchange for smallholdings provided by the company. Disputes then arose about the company’s delay in providing such smallholdings, as well as their limited extent. In 2015 the company approached the head of the Kapa community nagari, Gampo Alam Alman, asking that he sign a letter permitting the company to secure a business use permit (Hak Guna Usaha, HGU) for community land. Gampo Alam refused to sign, as an HGU would permanently extinguish the Kapa community’s customary rights to their land. Shortly afterward, the Kapa community learned that Wilmar had filed an application for an HGU with the National Land Bureau (BPN) despite their objections. The community then filed a complaint with the RSPO Complaints Panel, asserting that by disregarding the community’s refusal to agree to an HGU for its customary land, Wilmar was in clear violation of the RSPO P&C. The community demanded that no HGU be awarded. In November 2015 community representatives, including Gampo Alam, with FPP assistance, traveled to the annual RSPO meeting in Kuala Lumpur to engage with the company and appeal to the RSPO. In Kuala Lumpur, a meeting took place between RSPO complaints coordinators, Wilmar, PT PHP 1 staff, community representatives, and FPP staff, in which it was agreed, inter alia, that the company and community representatives would meet with the National Land Bureau in Padang in December to seek legal alternatives to an HGU to regularize company operations.94 Despite this agreement, Wilmar obtained an HGU over the Kapa community’s land from the government. In response, the community made another appeal to the RSPO. In January 2016, Gampo Alam and the other ninik mamak of Kapa were summoned by the police to Padang, where several were arrested on false claims of misappropriating community funds. Gampo Alam was detained by the police for a month, forced to dismiss his lawyer, and obliged to sign a document relinquishing his official role as nagari head. After being released, he and the other ninik mamak were required to make monthly visits to the police station in Padang. FPP and the community made

Reforming Commodity Certification Systems

91

further appeals to the RSPO Complaints Panel, urging it to make a determination on the case.95 After an initial review of the case, the RSPO Complaints Panel decided it needed a legal study of the situation, carried out by a lawyer mutually agreed to by both parties. On the basis of the lawyer’s draft report, the Complaints Panel ruled that the company was in violation of the law, should have secured the community’s consent, and should hand the disputed land back to the community.96 After initially agreeing to respect the ruling, Wilmar later decided to appeal, arguing that the Complaints Panel had reached its conclusions on the basis of a draft, not final, report. In late 2017 Wilmar withdrew this appeal and agreed to abide by the Complaints Panel ruling, confirming that it would now pay for independent participatory mapping of the disputed lands and then hand them back. Wilmar also guaranteed it would not intimidate or harass the complainants.

VI. Conclusions and Recommendations These three cases expose the collision between national laws and indigenous peoples’ internationally recognized rights. In Indonesia, customary rights to land are recognized in principle but not protected in practice. Logging permits are handed out without consideration for indigenous peoples’ rights, as the Forestry Law defines State Forest Areas to be areas devoid of community land rights. Palm oil companies are expected to compensate farmers for taking their lands, but companies fail to inform the people that the grant of a business use permit to companies permanently extinguishes the communities’ customary rights. These underlying injustices and the inequitable power relations between companies and communities lead to disputes and sometimes escalate into conflict. Voluntary certification systems are designed to overcome the limitations of national laws and systems of land and forest management that fail to adequately protect internationally recognized human rights and environmental values. Despite their imperfections and failures, communities engage with certification schemes because they are “better than the alternative.”97 Among the alternatives to FSC and RSPO are competing certification schemes that have far weaker standards on indigenous peoples’ rights, less independent and rigorous audits, and more limited complaint mechanisms.98

92

Multi-stakeholder Initiatives and the Maldistribution of Power

The three cases from Indonesia presented in this chapter illustrate some of the achievements and shortcomings of both FSC’s and RSPO’s accountability mechanisms. By using the complaint procedures, communities, supported by NGOs, have been able to expose land grabbing, violations of standards and human rights, and failures of audits. This has resulted in certificates being refused and withdrawn, CBs being suspended, and a freeze on the expansion of company operations. As a consequence, some companies have lost market access for their products and experienced difficulties securing further capital for their ventures. These processes have opened up space for dialogue between companies and communities and provided some leverage in circumstances where none existed before. Participation in the complaint process has also exposed community spokespersons and complainants to harassment and criminalization, exacerbating divisions within the impacted communities. The provision of remedies to the communities for lands taken or damaged and their concomitant economic, social, and environmental losses has proven elusive.99 Therefore, the certification schemes do not appear to provide effective remedies in line with requirements of the UN Guiding Principles on Business and Human Rights.100 The underlying asymmetries in national law frustrate the certification schemes’ efforts to level the playing field by requiring respect for customary rights and FPIC. The cases explored in this chapter also reveal that companies are able to gain certification even when they do not adhere to prescribed FPIC procedures or respect customary land rights. Neither FSC nor RSPO requires communities’ FPIC before permits are issued by the government. Rather, FPIC is only required before logging or land clearance starts. Armed with their licenses, companies have the dice heavily weighted in their favor. Moreover, the CBs routinely overlook noncompliance by the companies they are meant to be independently verifying. In FSC, because FPIC is not treated as a major compliance requirement, companies are certified even when violations are identified. Corrective action requests are not enforced. In RSPO, reviews show CBs have a limited understanding of what compliance with FPIC really requires. The three cases also show that complaints procedures are very onerous, inaccessible to communities without NGO help, and take a long time. The complaint panels lack the capacity or willingness to carry out independent investigations, and they are reluctant to sanction companies even when the companies delay acting on adjudications. This means that complaints can

Reforming Commodity Certification Systems

93

drag on for months or even years without remedies being provided to the impacted communities. FSC’s complaint process is especially difficult for communities to use because it expects complainants to first ask the CBs to investigate their own failures, then it asks ASI to check on the CBs’ performance. The use of FSC’s own complaint panel is actively discouraged. Both FSC and RSPO are now in the process of reviewing and strengthening their complaint procedures and enforcing their standards more rigorously. FSC has adopted global generic indicators designed to ensure a more level playing field between countries and to clarify compliance requirements for companies and auditors.101 RSPO’s Assurance Task Force has begun to train CBs in the compliance requirements for FPIC at the time of audits for the New Planting Procedure. It is establishing a global information systems unit that will monitor whether land clearance is occurring in members’ permit areas without following the New Planting Procedure. Meanwhile, the RSPO Secretariat has set a precedent of filing complaints against members proprio motu, (partially) obviating the need for NGOs to carry the burden of compliance monitoring. To restore the credibility of certification schemes, a new arrangement is necessary to break the clientelistic links between CBs and the companies that they audit. Long advocated by NGOs, this option is now finally beginning to be discussed by RSPO’s Assurance Task Force. The result should be a more independent audit process, paid for through a trust fund that reports directly to the schemes. The complaint procedures also need reforms. They need to be more clearly separated from scheme governance, as the IFC’s CAO and the Inspection Panel of the World Bank are. Complaint procedures should be triggered not only by complaints by NGOs and communities but also by the schemes themselves when they detect violations by members. The complaint mechanisms must be made more accessible to communities and should be able to receive complaints in local languages. Information about complaints should be prominently listed on scheme websites, and all documents and submissions should be publicly available and easily accessible. The complaint secretariats should have adequate discretionary funds to contract reliable independent investigators to speedily review complaints in the field. This is something the RSPO has taken on board by establishing its Independent Monitoring Unit. Complaints Panel personnel need to be remunerated, independent, trained, legally competent, and versed in human rights. Mechanisms are urgently needed to

94

Multi-stakeholder Initiatives and the Maldistribution of Power

provide anonymity and protection to whistleblowers, complainants, community spokespersons, and human rights defenders who face harassment and intimidation. The question remains whether these reforms are sufficient to redress the imbalance that results from national legal frameworks that only weakly uphold indigenous peoples’ rights and very obviously favor corporate access to land. Indigenous peoples assert their right to FPIC, grounded as it is in their collective rights to property and self-determination, in the expectation that decision-making will therefore be determined in accordance with customary law and not national law.102 As researchers Mahanty and McDermott explain: “FPIC as an explicit policy has focused particularly on peoples governed by traditional or ‘informal’ social systems who frequently lack clear legal identities and rights and/or lack equal access to legal defense and the information and power needed to defend their informal rights. FPIC thus functions as a tool promoting the formal recognition of property rights among legally disadvantaged peoples.”103 In practice, companies and certification schemes feel bound to give priority to national laws, as “legality” is one of the core principles of both FSC and RSPO P&C. It is then left to “national interpretation” working groups to determine how the P&C are best applied in any given national context. What happens when national laws make compliance with voluntary P&C almost impossible? Can certification schemes themselves engage in advocacy for national legal reforms? In practice, neither FSC nor RSPO has shown a strong disposition to argue for national legal reforms. The schemes’ standards are by definition voluntary, and the multi-stakeholder membership is not open to government bodies. However, at least in the case of RSPO, under international pressure to halt deforestation and avoid human rights abuses, the national membership in Indonesia saw the advantages of legal reforms. From 2014 to 2016, the leading palm oil companies in Indonesia formed an industry association called the Indonesian Palm Oil Pledge (IPOP), which had as one of its goals the aim of engaging with the Indonesian government to reform land use regulations. The IPOP initiative collapsed after only eighteen months, when it ran into concerted resistance from medium-scale palm oil companies and the Ministry of Environment and Forestry, raising doubts about whether voluntary standards can evolve into national regulations. Some NGOs lamented the dissolution of IPOP, seeing it as a major setback to efforts to reform the palm oil sector. As Dave McLaughlin of WWF noted: “For all its efforts, the

Reforming Commodity Certification Systems

95

private sector alone cannot protect forests, peatlands, and basic human rights without stronger government regulation and enforcement.”104 A second initiative for reform is a jurisdictional approach, whereby RSPO seeks to persuade subnational governments to make the RSPO standard binding on all oil palm operations within their jurisdictions.105 The approach is most advanced in the state of Sabah, Malaysian North Borneo, but is also being carried out in Seruyan District in Central Kalimantan.106 It remains to be seen if this leads to stronger legal protections of indigenous peoples’ rights to land, to self-determination, and FPIC, or whether these initiatives will dilute the RSPO standards.

CHAPTER 5

What Difference Can Certification Regimes Make? The Mapuche People’s Claims for Autonomy and the Forest Industry in Southern Chile Charles R. Hale and José Aylwin

The Mapuche people of southern Chile, living under colonial rule of the Chilean state since the late nineteenth century, suffer from multiple forms of inequality and exclusion, stemming from unmet demands for political, economic, and cultural autonomy.1 Central to these demands is the return of ancestral territory expropriated at the time of colonial-state subjugation. An important part of this ancestral territory is presently under the control of forestry companies certified by the Forest Stewardship Council (FSC), a multi-stakeholder organization that generates a “certification” when forest products “comply with the highest social and environmental standards on the market.”2 Drawing on a two-year study of forestry certification and Mapuche territorial claims, this chapter assesses the efficacy of certification regimes, focusing on three central questions: (1) When a voluntary certification program requires actions on indigenous rights that reach beyond what the state performs, how, and to what extent, can certification help obligate the state do what is right? (2) When a certification program stipulates respect for indigenous rights and then fails to enforce these standards, what measures are available for remediation? (3) If indigenous rights claims go beyond what a given certification program guarantees, what are the potential benefits and risks of using this program as a strategy for achieving partial progress toward

What Difference Can Certification Regimes Make?

97

protecting full claims? Although the legal experience and expertise brought to bear (by Aylwin) is mainly focused on the southern cone of Latin America, and the anthropological experience and expertise (of Hale) is mainly in Central America, we recently collaborated, along with a larger interdisciplinary team, on a study commissioned by the FSC. The FSC is the largest international multi-stakeholder organization that certifies forest products. Certification from the FSC grants the use of its seal of approval to those who meet an elaborate ten-point standard of environmental and social responsibility. Prominent among these ten standards is principle 3 (Version 4 or v. 4), currently in place in Chile, which guarantees that “the legal and traditional rights of indigenous peoples to possess, use, and manage their lands, territories and natural resources should be recognized and respected.”3 Nearly all major forest companies that operate in southern Chile have achieved FSC certification, yet continue to play a direct role in the serious ongoing conflict with Mapuche people, who are struggling to reclaim their ancestral territory. National and international indigenous rights law comes into play in the analysis of FSC certification because it frames the Chilean state’s obligations to address the problem at its roots, and more specifically, because FSC certification principles reference and endorse these legal instruments. The report that resulted from our research is framed around one central question: If FSC certification guarantees respect for indigenous rights, why the persistent and widespread conflict between FSC-certified forest plantations and the Mapuche people?4 This ostensibly straightforward query opens onto immense complexity and can only be grasped through sustained historical and cultural-political analysis. We provide a brief summary of that analysis here, beginning with a summary of Mapuche claims and specific consideration of the relationship between FSC certification and indigenous rights in the Mapuche and Chilean contexts. We then review the two-part finding that has emerged from our research: first, the FSC in Chile to date has not adopted a rigorous and robust notion of indigenous rights, with the justification that it must follow the lead of the state; and second, a widespread local expression of Mapuche territorial claims, glossed in Mapudungun (the Mapuche language) as lof mapu, provides a possible way forward, allowing the FSC to comply with the minimal requirements of its own standard while deferring to the Chilean state on the unaddressed monumental challenges that Mapuche claims for justice bring to the fore. In the remainder of the chapter, rather than dwell on the viability of this “way forward”—still a

98

Multi-stakeholder Initiatives and the Maldistribution of Power

speculative matter—we turn to consideration of the three questions posed at the outset. Our overarching argument is that rights-based strategies like the one we propose in the conclusion to the chapter are viable but compromised. Only if protagonists (ourselves included) proceed with an awareness of this predicament can we anticipate, and perhaps prevent, the serious unintended consequences that these strategies are apt to produce. A key facet of this “eyes-wide-open” approach is to affirm Mapuche-centered notions of autonomy, which reject key premises of the rights-based approach, while at times using such claims to open space for yet to be fully imagined alternative political horizons. We locate our analysis and political intervention in this frankly contradictory, but deeply generative, space. Two additional provisos to this chapter are in order. First, we form part of an interdisciplinary and intercultural research team, which by design was majority Mapuche. In taking on the research contract, we pledged to give prominence to a “Mapuche perspective” on the central research question, placing it in dialogue with analysis embedded in critical traditions of western social science and law. While such a dialogue might bring to mind an image of the four Mapuche researchers having a unified Mapuche perspective, and the non-Mapuche a unified “critical” western counterpart, this was not the case. The four Mapuche scholars are trained in various western social science disciplines and have developed hybrid approaches that push against the grain of this training to open space for Mapuche-centered ways of knowing, generally achieved from outside formal academic settings. The three non-Mapuche scholars (two Chilean white/mestizos and one white North American), with varying degrees of experience in Mapuche cultural contexts but always as outsiders, have forged different versions of this same fusion. The result is an internal dialogue among a range of positions, all intercultural in distinctive ways. With this complexity in mind, we draw a distinction between a rightsbased strategy for Mapuche empowerment and a strategy that begins by asserting a notion of Mapuche autonomy which, although deeply influenced by the rise of international indigenous rights frameworks, rejects rightsbased recognition as an end in itself. Second, we situate our analysis at the crossroads between legal frameworks—both national and international—on the one hand, and voluntary certification regimes, on the other. As such, this case study fits into the larger category of work by global civil society organizations that mobilize international legal and political norms to support various political objectives, indigenous struggles for well-being against oppression being one of many. The

What Difference Can Certification Regimes Make?

99

FSC’s endorsement of these objectives (expressed in this case as “indigenous rights”) illustrates the complexities, and perhaps the promise, of such efforts to mobilize global civil society. In our reflections focused on the limited scope of the FSC certification regime in relation to the much broader reach of Mapuche claims, we distinguish sharply between two distinct facets, which often blur together and end up being analyzed as a single problem. While there is some justification for this “blurring,” we view it as generally ill-advised, on both analytical and political grounds. The first facet revolves around entanglements with dominant institutions, when collective actors contest those institutions’ noncompliance with their own norms or regulations. Any regime characterized by the rule of law requires all parties to submit to a higher authority, which serves as guarantor that justice will be done. If that higher authority forms part of a colonial project, predicated on the racial subordination of the claimants, then prospects for using legal and political rights claims are inevitably conditioned by the reality that the claimants must work within a system that disrespects, disciplines, and oppresses them. Claimants can certainly work to overcome these entanglement problems, but such efforts inevitably face limits. They are exhausting, demeaning, and run the risk of displacing grassroots political fervor with juridically informed “expert” knowledge. A second distinct category of limitations is ontological. While Mapuche activists are generally obliged to make their political claims legible to the state, they also very often assert alternative philosophical groundings for their struggles, which stand in critical juxtaposition to the western nation-state system and to the systemic underpinnings of global capitalism. Our study invoked these groundings with the term “Mapuche rakizuam,” which translates both as “knowledge” and “philosophy.” Recently, anthropologists have attempted to represent this juxtaposition not simply as political-economic, or even cultural, but fundamentally as two radically distinct ways of being.5 The term “ontology” invokes this difference, challenging first-instance precepts such as the commonsense western binaries, nature and culture, mind and body, emotion and rationality, and refusing to endorse allegedly universal concepts of rights, rule of law, and the modern state form, which arise from these same precepts. This leaves protagonists with the perpetual dilemma of how to use rights regimes to advance their struggles, while also refusing these regimes, as always already suspect, except as a prop, a doorjamb that enables passage to a radically different space. The authors do not claim to offer a satisfying resolution to this dilemma; indeed, we are not even completely

100

Multi-stakeholder Initiatives and the Maldistribution of Power

in agreement between ourselves regarding its nature and implications. Our strategy in this chapter, instead, is to air the dilemma explicitly and to encourage sustained reflection on it.

I. Mapuche Conflicts with the Forest Industry: A Nutshell Summary With a population of approximately 1.5 million, the Mapuche people inhabit the central southern part of what is now Chile and Argentina. The Chilean military occupied their territory in the late nineteenth century, placed it under state control, and forced the Mapuche to live in reducciones (literally “reductions”). They settled the Mapuche into roughly three thousand reducciones, covering a half million hectares, which totaled 6 percent of the territory the Mapuche previously occupied. The remaining lands were left for colonization by European settlers or sold in auctions, generating latifundios (large holdings). During the twentieth century state policies encouraged further division of these reducciones into individual plots, which nonindigenous settlers gradually appropriated. An agrarian reform implemented from 1966 until 1973 resulted in the restitution of some usurped Mapuche lands. However, Pinochet’s military coup of 1973 reversed this policy, returning the lands to their previous owners. In the years after 1973, forest companies, largely with Chilean capital, acquired these “counterreform” lands, marking a three-decade process of steady expansion. By enacting Decree Law 701 in 1974, which provided direct subsidies for planting and management of exotic species of trees (radiata pine and eucalyptus), and tax exemptions for these monocrop forest plantations, the military dictatorship promoted monoculture plantation forestry. In keeping with this legislation, which remained in effect until recently, the Chilean state allocated a total of U.S. $850 million, 70 percent of which ended up in the hands of large forest conglomerates.6 As a consequence of these policies, forest companies planted 2.8 million hectares of exotic species, 1.5 million in the four regions (Bio Bio, La Araucania, Los Rios, and Los Lagos) that form the heart of the Mapuche people’s historic territory. Two conglomerates of Chilean capital (Arauco and Mininco [Compañía Manufacturera de Papeles y Cartones]) own 1.8 million hectares, most planted with exotic species. Forest monocultures have generated severe environmental and social impacts. In many cases, these plantations overlap with lands that Mapuche

What Difference Can Certification Regimes Make?

101

claim—either because they were acquired in the agrarian reform (and then lost in the counterreform), or because they constitute ancestral territory. The rise of plantations—often involving the replacement of native forests with exotic monocrops—has caused massive environmental damage, such as the loss of native flora and fauna and the overall biodiversity central to Mapuche livelihood and culture, soil contamination, erosion, and reduction of water resources. Plantations also have generated social problems, impoverishing the Mapuche population, excluding them from the economic surplus that the forestry sector produces. La Araucanía, home to more than half a million hectares of forest monoculture, with one-third of its population selfidentifying as Mapuche, is the poorest region of the country. Seven of the ten poorest municipalities in the country are located in this region, in areas densely populated by the Mapuche, with large adjacent areas covered by forest plantations.7 Migration to urban centers is common in areas where forest plantations are located. The state has criminalized Mapuche social protest against the imposition of forest plantations, which began in the early 1990s. Hundreds of Mapuche community members and traditional leaders involved in protest have been prosecuted, in some cases accused of terrorist acts, in accordance with antiterrorist legislation enacted during the dictatorship. Many have been sentenced to prison or held in pretrial detention for long periods of time. Crimes committed by police agents against communities resisting forest plantations—which include homicide, torture, and mistreatment—remain for the most part unprosecuted. Clashes between police and Mapuche communities in conflict with forest companies have become frequent. The state has purchased some lands in contention and returned them to Mapuche communities, in accordance with the so-called indigenous law, promulgated in 1993.8 These purchases have been made at market prices, amply compensating the previous owners and focusing on former reducciones, leaving most Mapuche lands, claimed on the basis of traditional occupation, in the hands of third parties.

II. Enter the FSC: Which “Indigenous Rights” Does It Certify? When FSC began work in Chile in the 1990s, most Chilean forest companies vigorously opposed the introduction of a certification regime. Eventually, in

102

Multi-stakeholder Initiatives and the Maldistribution of Power

response to political pressure, they joined CERTFOR, a national certification system based on sustainable forest management, with a more pliable, lenient, and pro-company system than the FSC. In addition to seeking CERTFOR certification, these companies pledged support for corporate social responsibility, which mainly entailed “good neighbor” policies that provided funds— small amounts in proportion to profits—for adjacent Mapuche communities. These funds aided local schools, agricultural programs, and the like, all with remote possibilities for transformative impact. By the beginning of the new century, challenges to CERTFOR, combined with international campaigns against the forest corporations launched by Chilean and international environmental nongovernmental organizations (Forest Ethics, among others), began to affect forest industry exports to the U.S. market. This threat of declining profits convinced Chilean forest companies to embrace FSC certification. By 2015, a total of twenty-one Chilean forest corporations had achieved FSC certification, an area totaling some 2.4 million hectares, of which 1.6 million corresponded to monoculture plantations. Six forest corporations own 80 percent of FSC-certified forest patrimony.9 According to FSC procedures, certification of an entire company’s patrimony is decided based on approval of a random sample of that company’s plots. Now that these large companies have incorporated certification protocols as standard procedure, it is unlikely that they would abandon the system. They do, however, maintain certification by CERTFOR as well, to keep all bases covered. FSC International has developed a set of Principles and Criteria (P&C) for good forest management and a third-party audit system to verify compliance. In 2005, FSC Chile adopted these P&C, adapted to national conditions, including the clause related to indigenous rights (principle 3).10 In addition to principle 3, other clauses in the P&C are relevant to indigenous rights. According to principle 1, forest companies must respect all applicable laws of the country where they work and all international treaties and agreements to which that country’s government is a signatory. According to criterion 1.3, this includes all binding international agreements, with explicit reference to International Labour Organization (ILO) conventions and the Convention on Biological Diversity, which the Chilean state has ratified. ILO Convention 169 has special importance in this context.11 It asserts, among other things, indigenous peoples’ rights of ownership and possession of the lands that they traditionally occupy (article 14.1), to be consulted whenever an administrative or legislative measure that might affect them is being adopted (article

What Difference Can Certification Regimes Make?

103

6.1.a), to decide their own priorities for the process of development that affect their lives (article 7.1), and to stewardship and conservation of their natural resources (articles 4.1. and 15.1). In accordance with the Chilean Constitution, rights contained in ratified international treaties, such as Convention 169, create firm obligations for the state; the Chilean courts have affirmed the binding status of these obligations. The Chilean state maintains an interpretation of these rights that stands in stark contrast to that of the ILO itself, as well as that of other international bodies (such as the Inter-American Court of Human Rights). While the Chilean government considers ownership rights to be based on prior recognition granted by the state (for the Mapuche this would mean the post1880s reducciones), the ILO understands ownership rights to be based on traditional occupation, regardless of prior state recognition. Another example of the Chilean state’s restrictive interpretation of indigenous peoples’ rights concerns the environmental impact assessments (EIAs) that FSC principle 6 requires be conducted, according to the scale and intensity of forest management to maintain ecological productivity. While the ILO requires active state protection of indigenous peoples’ environment and natural resources, Chilean legislation only requires an EIA of forest plantations if they surpass 500 hectares. This has resulted in the widespread practice by forest companies of dividing their extensive plantation patrimony into multiple “parcels,” all just under the 500-hectare cutoff, consequently avoiding the EIA requirement. Such practice is in open contradiction not only to principle 6, but also to principles 1 and 3. Once the state endorses this restrictive interpretation of FSC standards, the third-party auditors that grant certification follow suit. This in turn explains why auditors rarely find substantial violations of indigenous rights commitments in the P&C, even though by international standards, the forest company’s presence clearly violates the legal and customary rights of the Mapuche and poses a threat to environmental resources that the Mapuche claim as their own. In the context of increasing conflict between Mapuche communities and forest corporations certified by FSC, a coalition of Mapuche organizations made a formal complaint to FSC International in 2012. These organizations alleged that the FSC granted certification to companies that had appropriated their lands through fraudulent purchases; that large-scale plantations had generated loss of native forests, biodiversity, and surrounding waters; and that certified forestry companies, far from generating wealth in communities, actively impoverished them. All these factors, they pointed out, had severely

104

Multi-stakeholder Initiatives and the Maldistribution of Power

impaired Mapuche culture and livelihood and deepened political conflict. They asked, in light of these problems, that the FSC commission an independent study on certification processes in relation to the Mapuche, with the involvement of the Mapuche themselves. This is the origin of the study that we draw on for this chapter.12 The adoption of new standards in 2012 (v. 5) by FSC International poses additional challenges for Chilean forest corporations operating on Mapuche territory.13 According to these new standards, which FSC Chile is currently in the process of adapting and implementing, forest corporations certified by the FSC must recognize and uphold the rights, customs, and culture of indigenous peoples as defined not only by ILO Convention 169, but also by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).14 UNDRIP recognizes indigenous peoples’ right to selfdetermination, autonomy or self-government; compensation for those lands, territories, and resources appropriated by third parties; and a process of free, prior, and informed consent (FPIC) in relation to third-party actions that might directly affect them. In accordance with these new standards, FSCcertified companies must “identify and uphold Indigenous Peoples’ legal and customary rights of ownership, use and management of land, territories and resources affected by management activities.”15 FPIC of indigenous peoples includes the delegation of control over management activities to third parties; third-party use of traditional knowledge and intellectual property; and most important, “the right to grant, modify, withhold or withdraw approval” of forest operations.16 Our research came to the conclusion that FSC-certified forest companies operating in central southern Chile in the traditional territory of the Mapuche people do not comply with the v. 4 standards on forest management, especially those related to indigenous rights. Compliance will be even more questionable when the new standards go into effect. The continuation of forest activities in this territory will require enormous transformations, which the forest corporations do not appear ready to make.

III. The Lof Mapu and the Challenge to FSC Certification The central argument of our study is best understood, at this juncture, as a proposal to be presented to Mapuche communities and organizations for their consideration. Since the reemergence of the Mapuche movement in the

What Difference Can Certification Regimes Make?

105

1990s—after nearly two decades of dictatorship—their powerful territorial claim has rested on the historic facts of colonization. As mentioned earlier, Mapuche people occupied a large swath of territory and fended off the Chilean state until the 1880s, when outright military conquest took place. Since that time, and especially in the past two decades, Mapuche organizations have made that historic territory the focus of their struggle, which they argue makes any agricultural fundo, or forest plantation located in the region, fair game for “recuperation.” The Chilean state program for land redistribution—managed by the National Corporation for Indigenous Development (CONADI)— focuses on a combination of three factors, which form a largely incoherent blend of selective historical consciousness and stripped-down pragmatism: (1) the reconstitution of the titulos de merced, associated with the post-1880s reducciones; (2) the return of lands taken away from Mapuche communities through the dictatorship’s “counteragrarian reform”; and (3) attention to the cases in which conflict is most serious. Not surprisingly, CONADI purchases of “lands in conflict” between Mapuche and third parties, while substantial— approximately 150,000 hectares—have contributed little to addressing the roots of the conflict. In an attempt to develop a community-based analysis of this conflict, our study focused on the local unit of territorial identity—the lof mapu—which we suggest could help the FSC resolve its predicament by offering Mapuche communities a means to use FSC certification to advance their efforts to recuperate traditionally occupied lands. This strategy will only be possible, however, if the Mapuche understand it as working alongside, rather than displacing or subtly delegitimizing, their expansive territorial claim. In this important sense, this argument remains a proposal to be scrutinized. The lof mapu concept is multifaceted and variable in its own right, made more complicated still by the disorienting and dismembering effects of more than one hundred years of colonialism. After much discussion, we came to this preliminary and inevitably imprecise definition: a lineage-based area of nature/culture meaning, use, and influence. In clear contradistinction to western notions of property rights, the lof mapu does not start with, or even use, a property line or boundary, except for strictly pragmatic ends.17 Instead, it starts with a group of people who have especially dense relations of affinity or consanguinity with one another. Historically, this group likely was understood as lineage based; today it could be glossed as a community or association of related communities. Perhaps the most accurate way to understand the grouping—conceptually if not literally—is to think about it as the people who participate in a given Nguillatun, the place-based periodic feast and spiritual

106

Multi-stakeholder Initiatives and the Maldistribution of Power

celebration that marks the onset of the agricultural cycle. The next step in the demarcation of any given lof mapu is to develop a spatially indexed inventory of the sites that have special importance to this group of people: from cemeteries, to hills that serve as water sources, to native forests, to agricultural lands. We use the conjunction nature/culture to mark these spaces and to prevent the dichotomy from blocking a fuller understanding: hills can be a source of water, while also being animate forces in people’s lives; native forests can think.18 The third and final step in the exercise—by far the most controversial—is an attempt to draw provisional boundaries to mark the outer perimeter of the lof mapu. Quite apart from the basic problem that boundaries do not form part of the original concept, two additional complexities arise: a given nature/ culture space (a prominent hill for example) may well have deep meaning for more than one lof mapu. A given boundary line, drawn to encircle the most densely occurring nature/culture spaces, will inevitably exclude the most farflung ones. Despite these and other complexities, the boundary line is essential in order to achieve minimal legibility in the eye of the Chilean state, as well as the range of international organizations involved in the land disputes, such as the FSC and associated regulatory regimes. In a large, impassioned, community-based dialogue of how we would proceed with the case study in the comuna of Lumako, one of the four sites of research, an elderly Mapuche man made an intervention that stopped us short: he gave his consent to making a map of their lof mapu, but only if it was a “revolutionary map,” which would guide their efforts to challenge oppressive power relations in the region and advance community well-being. Our lof mapu proposal is more modest and incremental. While it certainly could be argued that FSC certification of any private forest patrimony within the expansive Mapuche territorial claim is illegitimate, that would place the FSC in a position so directly at odds with the Chilean state regarding the ongoing conflict that the state would almost certainly close down the FSC on the grounds of intrusion in internal affairs. If, however, the FSC were to ask for boundary maps of any lof mapu adjacent to the forest patrimony subject to audit, the practice would arguably remain in line with practices already enacted by the state.19 In the case studies for our project, polygons associated with each of the four lof mapu encompass significant acreage currently occupied by privately owned, FSC-certified plantation forests. Our argument, simply stated, is that FSC certification in these plots must be reconsidered and revoked. Whether or not this argument, and the lof mapu maps on which it rests, have the potential to be “revolutionary” must for now remain an

What Difference Can Certification Regimes Make?

107

open question. Its most immediate positive effect, in our view, would be to loosen the logjam created by an increasingly violent governmental response to Mapuche protest, and the conviction by a significant, probably growing, sector of the Mapuche people that outright contestation of the state is the only response left open to them. The lof mapu proposal, in contrast, opens a dialogue on the expansive territorial claims through rights-based FSC certification, without submitting to preemptive constraints imposed by the state.

IV. The Lof Mapu, FSC Certification, and Questions of Indigenous Rights Regardless of whether subsequent consultations with community leaders move the lof mapu proposal to the realm of active strategy, we can proceed here with preliminary reflections on the three questions posed at the outset. The first question revolves around a problem that, in its most generic form, is ubiquitous in the world of voluntary certification regimes; indeed, it describes a principal reason that such regimes have proliferated in relation to so many products and services. When states drag their feet in complying with social rights, either in law or practice, consumers can step in to apply pressure for compliance with a given standard, by refusing to buy goods whose producers do not meet rights-based standards. At least in practice, the standards are then met, independent of the particular stance of the state. The complicating condition, in the case of the Mapuche territorial rights, is twofold. First, the more expansive language favoring respect for indigenous rights (found in principle 3 of the FSC P&C) stands in tension with criterion 1.1 of the FSC P&C, which commits all parties to the voluntary certification regime to “respect all the national and local laws, and all the administrative requisites in the country where they operate.” The argument—explicit or otherwise—common to FSC-certified forest companies is that obligations contracted through certification would place them in violation of Chilean state laws. This acts as a serious deterrent to compliance on complex and controversial issues such as Mapuche territorial claims.20 Second, although this same principle 3 also requires certified companies to comply with international conventions such as ILO Convention 169 and the Convention on Biological Diversity, the auditors have a strong tendency to endorse the Chilean state’s restrictive interpretation of these commitments. This is especially the case when it comes to complex issues such as the state’s legal commitment to

108

Multi-stakeholder Initiatives and the Maldistribution of Power

restitution of Mapuche territory. Once the state’s interpretation is established, the auditors follow suit. Given these two factors, our answer to the first question is highly contingent. We found very few occasions when the auditors pushed certified companies on the Mapuche territorial rights questions beyond the “comfort zone” established by state dispositions and interpretations. By contrast, our lof mapu proposal is clearly oriented toward the possibility of achieving this outcome in the future. That is, if the auditors, with instructions from the FSC, were to insist on knowing the extent of lof mapu claims in the area of the forest parcel under scrutiny before granting approval on principle 3, this would apply pressure on the state to adopt that same approach, endorsing the lof mapu concept and working with communities to clarify these claims. The first question essentially asks: How viable is this scenario? Especially in the recent political context of corruption scandals and social unrest, citizen trust in these institutions is low;21 prospects for the state taking assertive corrective actions of this sort are slim. This low level of citizen trust may give the FSC more room to maneuver, but it also raises the political stakes of taking action that highlights the state’s limited efficacy. Our second question starts with the implicit premise of the lof mapu proposal—that is, the recognition of this local territorial unit as “traditionally occupied lands” and the idea that forest operations on these lands require prior consent from the community—asking whether the FSC is willing and able to take up this challenge. In the course of our research, we found considerable evidence that points to an affirmative response. In the past decade, as the FSC has grown, it has demonstrated a deepened interest in keeping principle 3 strong and effective. One clear indication of this interest is the founding of the Permanent Indigenous People’s Committee (PIPC) in November 2013. This committee is composed of high-profile Native and indigenous representatives from across the world who have assumed the mandate of lobbying and monitoring the FSC in relation to indigenous rights.22 The PIPC has been keen to receive and work from the conclusions of our study. Another indication is the extensive time and effort invested in updating and strengthening commitments to indigenous rights, codified in the new version of the standard (v. 5), approved in 2012, and soon to be adopted in Chile. The strengthening of the new FSC standards, including the UNDRIP guidelines, will orient certified companies in their relationship with indigenous peoples. A third indication is the Mapuche study on which we report here, contracted with the objective of obtaining a critical, independent, and

What Difference Can Certification Regimes Make?

109

Mapuche-centered assessment of the central problem; that is, why is there so much conflict if the forest companies are certified? This study, in itself, could constitute a step toward remedial action. However, a series of countervailing factors tempers this sanguine assessment. First, while the “business model” of the FSC does in theory use consumer pressure in favor of full and rigorous compliance with the certification regime, it also depends crucially on “clients” like the forest companies of Chile, who pay FSC for each unit of certified merchandise that goes on the market. This factor, combined with the “multi-stakeholder” governance principle, gives the “economic sector” considerable clout, especially as members with veto power against initiatives that might significantly tip the balance in favor of more expansive interpretations of Mapuche territorial rights. Second, perhaps distinctively in Chile and despite the positive steps noted above, indigenous participation in FSC Chile is virtually nil. Especially when central points of contention revolve around questions of indigenous autonomy, it is simply not viable to have the arguments made and defended by nonindigenous “allies” in the absence of the protagonists themselves. Third, with some notable but limited exceptions, the level of expertise on the complexities of indigenous rights in FSC International, and among the half dozen auditor organizations charged with upholding the P&C, is very low. This expertise deficit on the part of the auditors, combined with a certain degree of ingrained skepticism toward Mapuche claims, makes for subtle forms of refusal and subterfuge that are always well-justified through invocations of the dense bureaucratic proceduralism of certification, difficult for nonexperts to understand, much less contest. How the balance of these favorable conditions and obstacles will play out in the future is difficult to predict. Our proposal proceeds from the affirmative assumption that the forces favoring remediation of the problem, through the reform and internal organizational initiative of FSC itself, will win the day. Indeed, we fashioned the recommendations of the report to serve as strong incentives in this direction. Still, if organizational change is to occur on this issue, it will result from internal mobilization and the effective use of the elaborate internal democratic procedures of FSC International. This has already occurred to some extent on a country-specific basis (Canada being the most prominent example).23 Yet there is a world of difference between the advances in rights and empowerment on the part of indigenous peoples in Canada and the conditions that face the Mapuche in Chile,24 where change will only come through long processes of dialogue and struggle led by the

110

Multi-stakeholder Initiatives and the Maldistribution of Power

Mapuche themselves. Whether or not Mapuche activists and professionals are inclined to take up this struggle, among many possible lines of strategy and action, is the subject of the third and final question. Even if our proposal were fully embraced, indeed especially if it were, our overarching argument would still dictate extreme caution and critical scrutiny. The first set of dangers facing Mapuche who would engage in efforts toward reform of the FSC from within are entanglement and noncompliance, and they are especially distinct in our minds. Presently there is virtually no Mapuche participation in FSC Chile, even though certification includes an indigenous rights principle, as well as many social and environmental stipulations that most rural Mapuche would undoubtedly support. The proposed “internal reform” strategy encompasses—as virtual precondition for success—a radical shift in this regard: Mapuche intellectuals would need to become experts in the internal workings of the FSC—the organization itself and the process of third-party audits—both of which are highly regulated, with rules and procedures, checks and balances, evaluations and studies (ours is one in a very long list) of Byzantine complexity. Other non-Mapuche groups who have attempted to advance social and environmental agendas overlapping with Mapuche concerns have expressed exasperation at how little they have achieved and frustration at what they perceive as the unchecked power of industry representatives within the organization.25 Mapuche organizations would have to invest similar amounts of time and resources in developing the expert knowledge necessary to engage in this way, and they would have to contend with what are sure to be mixed results, winning on some points and losing on others. The potential benefits of this strategy are considerable, but they could come at the cost of diminished emphasis on direct action and mobilization, which has been key to all that the Mapuche territorial recuperation movement has achieved to date.26 The second facet of this problem is even more daunting. The expansive claim for territorial autonomy is grounded, at least in some settings, in the assertion that the Mapuche struggle proceeds according to an alternative ontology. The central argument of our study, regarding the lof mapu, affirms and expands on that assertion. The conceptual building blocks of the lof mapu—the shared spaces of nature/culture meaning, use, and influence—are conceived to highlight their Mapuche-specific character. While “traditional use and occupancy” can be made to encompass the specifics of a given lof mapu, the former is an extrapolation of western property law to encompass indigenous realities. This is even more the case for the expansive Mapuche

What Difference Can Certification Regimes Make?

111

territorial claim, which evokes a way of life destroyed by military dispossession, potentially recuperated through sustained anticolonial thought, practice, and struggle. Any rights regime that passes through the nation-state is incompatible with this alternative ontology, not only because the state is the occupying colonial power, but fundamentally, because the very concept of state-endorsed rights is inextricable from its western ontology foundations. International indigenous rights regimes may soften this contradiction, but they cannot eliminate it; they emerge only through consent by the plurality of the nation-states that deliberate, and they remain predicated on recourse to a universally legitimate authority for interpretation, implementation, and compliance. By endorsing a politics grounded in an alternative ontology, these struggles relegate rights regimes to what de la Cadena refers to as “partial connections”: realms to be engaged tactically and refused philosophically, as too compromised to embrace.27 This is a highly controversial matter on which the two coauthors do not completely agree, and on which Mapuche research term members also have a range of positions. The previous paragraph, written by Hale, stakes out one position, while this paragraph, written by Aylwin, presents a different perspective. As James Anaya argues, reform of the international legal system to encompass the rights of indigenous peoples is the consequence of a political strategy designed and carried forward by indigenous peoples themselves in alliance with others.28 These reforms have been successful in transforming the system from an individual rights to a collective rights frame, which is more consistent with indigenous cultural perspectives. It also has been instrumental in restricting the principle of state sovereignty through the application of human rights principles and instruments. Moreover, these reforms have expanded norms concerning the right to self-determination, making them consistent with indigenous perspectives. Finally, they have opened space for nonstate actors, such as indigenous peoples, to participate in law-making processes. Following this line of argument, human rights law, although alien to indigenous ontologies and originating in the colonial practices of nationstates, may be sufficiently influenced by indigenous peoples (in conjunction with other nonstate actors) to advance political strategies that emerge from the alternative ontology frame. The argument and proposal presented in this chapter incorporate both positions outlined above, leaving ample space for divergence and debate while still staking out ground that could be transformative. We argue for this two-pronged approach, putting the rights-based strategy on the table

112

Multi-stakeholder Initiatives and the Maldistribution of Power

and encouraging this avenue to be explored and perhaps implemented by the Mapuche protagonists of the four lof mapu, followed by other lof mapu yet to be fully documented. At the same time, we encourage rigorous critical scrutiny of this strategy, especially with the skepticism generated by commitments to alternative ontologies, which portray any rights-based approach as a potentially harmful external imposition. Along these same lines, we are especially keen to advance rights-based struggles that are viewed not as ends in themselves—that is, an instrument to gain state-recognized property rights— but rather as doors that open onto and enable sustained thinking about alternative political horizons. Finally, while colonialism’s most devastating legacy is to have suppressed and invalidated essential thinking on and with these alternative ontologies, it does not follow that simply by virtue of being subordinated and indigenous, these alternative ontologies necessarily offer a fully developed way forward in relation to our current (civilizational?) crisis of the political. By encouraging reciprocal scrutiny, our two-pronged approach is intended to affirm both positions and to use each to raise critical questions about the other. We prefer not to frame this as “intercultural” dialogue—a term that keeps the premises of rights-based strategies firmly in place—but we are not sure what a better term is, given that this reciprocal scrutiny in the mode we advocate here has no established name or practice.

V. Conclusions The study that we report on here had its origins in a collective act of Mapuche protest against certification of the two largest forest companies and a demand that FSC investigate the relationship between certification and Mapuche claims to territory and autonomy. In keeping with their demand, our research team had a majority Mapuche composition and gave prominence to Mapuche perspectives. The central proposal that emerged from the research, while perhaps interesting in strictly academic terms, is only meant to be advanced and to be put into practice if it is endorsed by Mapuche organizations and communities. That is, although the report was commissioned by the FSC, the proposal in the first instance is for Mapuche consideration. Throughout the research project there was a strong complementarity among the various perspectives brought to bear, from western social science and law to Mapuche knowledge and philosophy (rakizuam). All research team members—Mapuche scholars

What Difference Can Certification Regimes Make?

113

and nonindigenous alike—converged in our focus on the central problem of an industry that has ignored and appropriated the lof mapu, the lands of traditional occupation of the Mapuche, and that has threatened the cultural and material subsistence of the Mapuche people. We identified lands of traditional occupation, mapping patterns of nature/culture meaning, use, and influence, and showed how significant portions of these areas have been occupied by FSC-certified forest corporations. This work could not have been accomplished without indigenous expertise, both in the research team itself and in the communities under study. The main task of Aylwin—the legal expert on the research team—was to identify and interpret the legal standards applicable to forest activities and their interface with established indigenous rights, an analysis that the whole team supported. After all, the Mapuche organizations’ complaint to FSC International that triggered this research project cited indigenous peoples’ rights standards; referred to the violation of Mapuche people’s rights to land, biodiversity, and culture, among others; and insisted that FSC certification routines acknowledge and respect these rights. The FSC adheres to these legal standards not because it is a benevolent entity, but because—in keeping with Anaya’s argument summarized earlier—indigenous peoples themselves have pushed for international recognition, which cannot be ignored by states, international organizations, or business enterprises. One key goal of the research project was to document Mapuche claims and to highlight the international legal instruments that support them. Yet while affirming the centrality of rights regimes to this research, and to the Mapuche struggle more generally, a further goal of this chapter has been to subject this “rights regime” strategy to critique. By invoking “rights regimes” in this way, we have referred to three overlapping realms: (1) rights guaranteed by the Chilean state, codified in national laws; (2) international rights instruments, which in some cases the state has endorsed; and (3) the FSC standard itself, which references both these national and international realms. The goal of this further scrutiny is not to undermine the strategy of appealing to this “rights regime,” but rather to specify its limits and to affirm an approach that both “uses” and “refuses” its resources. This is a tricky balance to strike. A large part of the potential of rights-based strategies to move indigenous struggles forward is their powerful aura of unquestionability. Once a given set of “indigenous rights” has been codified—in the UN Declaration or ILO Convention 169, for example—states and nonstate actors can drag their feet in innumerable ways, but there is a strong sense that history is on the side of eventual compliance.

114

Multi-stakeholder Initiatives and the Maldistribution of Power

Yet this aura ends up cutting both ways. It draws all parties into a universalist frame and commits them all to agreed-upon norms and procedures, whether for conflict resolution or for the advancement of specific political goals. While it is certainly the case that collective indigenous activism has shaped the contents of these rights regimes and closed the gap between state interests and those of a given indigenous perspective, this has not eliminated what might be called the “double jeopardy” effect.29 That is, energies devoted to realizing the promises of the rights regime bring inevitable entanglements with institutions that are hostile to the deeper goals of the struggle, and this leaves less energy to devote to alternative strategies, which refuse those institutions from the start. Even those indigenous rights codified in the most progressive of international instruments inevitably fall short of endorsing the political horizons that such alternative strategies often seek. The Mapuche struggle for territorial recuperation, and its relationship to FSC certification, illustrate this dilemma acutely. Rather than choosing between these two paths—full-fledged engagement with the rights regime or radical refusal of its premises to open the way for alternative political horizons—we simultaneously endorse both lines of action and both routines of analytical engagement, placing them in dialogue with one another. Even if indigenous rights regimes are intended to stop with what Mark Goodale has termed “symbolic-political” achievements,30 avoiding a confrontation with underlying processes of political-economic exploitation, protagonists can still opt to employ these regimes toward radically transformative ends. The key factor here may be less the formal scope of the rights in question—the right to “traditionally occupied lands,” for example— and more the critical consciousness of those who claim that right in the first place. In this sense, it is crucial that we keep our analysis and action grounded also in Mapuche perspectives that refuse rights and challenge the dominant political-economic system at its core; this skepticism of rights-based regimes, paradoxically, makes them more likely to achieve their full potential. At the same time, critique that flows in the inverse direction—rooted in rightsbased strategies—helps to keep our invocation of Mapuche perspectives from becoming reductionist or romanticized. One of the larger ambitions of our project—beyond the scope of this chapter—is to explore the relationship between Mapuche struggles and what some anthropologists are calling the “ontological turn.” On the one hand, the assertion of an “alternative ontology” can be an effective shorthand to signal the “refusal” facet of our argument. On the other hand, critiques of the

What Difference Can Certification Regimes Make?

115

“ontological turn” are mounting, both on theoretical and political grounds. One especially gnawing criticism, which rights regimes strategies bring to the fore, is how “ontology” can at times collapse into a depoliticized cultural relativism: an affirmation of multiple ontologies (“western” as well as others) and a pluralist call for them all to exist harmoniously alongside one another. In the face of this illusory image, the legal strategy of using the system to fight the worst abuses of the system is a salutary antidote. To be convincing, proponents of alternative ontologies must offer a basis for collective political action to challenge systemic inequalities in political-economic (as well as symbolic) terms, as they are experienced in the here and now. This brings us back to our mildly contradictory resting place: alternating between these two approaches—one emerging from critical western legal-social science traditions, the other from Mapuche ways of knowing and being that refuse these traditions—and placing them in creative tension. Whether and how the Mapuche might adopt this two-pronged approach to advance their struggles, putting FSC certification to the service of their broader quest to recuperate territory and achieve autonomy, is a key question that we are not yet in a position to answer.

CHAPTER 6

Sustainability Certification and Controversies Surrounding Palm Oil Expansion in Guatemala Geisselle Vanessa Sánchez Monge

Emerging in the context of unsustainable extraction marred by numerous violations of human rights and environmental standards, the Roundtable on Sustainable Palm Oil (RSPO) defines its objective as “transforming markets to make sustainable palm oil ‘the norm.’”1 That is to say, the RSPO sets its parameters to improve the functioning of palm oil companies within the framework of profitability and administrative and operational processes, in addition to concerns for environmental and social rights. Positioned as a regulatory entity of agroindustry, the RSPO attempts to transform the industry’s irresponsible practices from the starting point of market relations. Since its creation in 2004, the RSPO has been gaining popularity among the business sector. It has been seen by industry stakeholders as an opportunity to improve the reputation of the palm oil sector worldwide, which has faced significant reputational damage on account of the negative social and environmental impacts generated by the expansion of the crop, well documented since 1999. This chapter uses the case study of Guatemala to examine the potential of the RSPO certification mechanism to achieve greater respect for human and environmental rights in a given national context. Many of the insights in this chapter are the result of my experience as a program manager and researcher for ActionAid Guatemala, where I work to defend the land rights of indigenous people and other marginalized groups.

Sustainability Certification and Controversies

117

This chapter proceeds in six sections. The first examines the expansion of oil palm cultivation in Guatemala, which began in the 1990s, rapidly growing to approximately 165,000 hectares (approximately 407,723 acres) by 2017.2 Though the expansion of the industry is relatively nascent, there have already been multiple complaints of human rights violations, especially from the Q’eqchi’ Maya indigenous communities. The second and third sections focus on the internal structure and functioning of the RSPO at the international level and in Guatemala, respectively. These sections reiterate the oft-cited criticism of the RSPO as a mechanism dominated by the business sector, with marginal representation from environmental and social organizations and without any representation of palm farmworkers or affected communities themselves. The RSPO has a regional office that serves Guatemala in Ecuador, but its role is limited to providing technical support to RSPO member companies to facilitate the certification process. For affected communities or other stakeholders, the main access point to the RSPO is through its complaint mechanism, which is difficult to utilize and geographically remote. The fourth section sets out to examine the Las Palmas company and examines the changes to the company’s extractive practices since it received RSPO certification. I find that many of these changes center around the company’s internal functions and on the administrative personnel’s familiarity with the RSPO’s technical standards and the production of documentary evidence to prove compliance therewith. To a limited extent, Las Palmas started the process of “putting things in order,” which involved improvement plans across a range of areas, such as environmental, social, and fiscal policies and labor. However, the fifth section describes the contradictions and limitations of the RSPO’s attempts to increase respect for human rights within Guatemala’s palm oil industry, reflecting upon some of the particularities within the national context. In the sixth and final section, I offer some concluding thoughts on the opportunities and limitations of certification mechanisms in general.

I. Palm Oil in Guatemala Oil palm cultivation has rapidly expanded as a monoculture in Guatemala since the 1990s.3 The first oil palm plantations were established in the southern coast area of the Pacific Ocean, displacing cotton plantations and some ranching areas. The expansion of the crop proceeded rapidly and spread to

118

Multi-stakeholder Initiatives and the Maldistribution of Power

the Northern Lowlands area (northern and northeastern), affecting Q’eqchi’ Maya community lands. The expansion of monoculture oil palm plantations has been marked by negative impacts on the people of Guatemala, and on indigenous communities in particular.4 Among the most important problems are water hoarding, water contamination, land grabbing, the violation of labor rights, and the absence of state oversight. Problems with water hoarding, including through the diversion of rivers, arise because the use of irrigation is key to increasing the productivity of oil palm cultivation. In Guatemala, a plantation without irrigation produces six clusters per plant, whereas a plantation with irrigation produces an average of twenty-three clusters per plant. Fertilizers are limited in increasing the productivity of the plant, because even when the application of fertilizers is maximized, the number of bunches will be the same until more water is added. For this reason, the operators of oil palm plantations have diverted rivers, as in the case of the Madre Vieja and Coyolate Rivers, which for more than twenty-five years were diverted by the oil palm, sugarcane, and banana agroindustry on the South Coast. The Ministry of Environment and Natural Resources determined that the detour of tributaries caused the death of 400 hectares of mangroves.5 For years the community leaders and residents of Nueva Concepción and Tiquisate, Escuintla, have demanded that the oil palm plantation operators no longer divert the rivers, and on February 17, 2016, in light of the indifference of the authorities to the demand of the population, they decided to occupy the riverbed.6 A closely related concern is that of water contamination. The contamination of water sources has increased conflict in areas affected by oil palm plantations. One of the most important cases has been Río La Pasión, an ecologically important river that represents the third largest water source in northern Guatemala. In 2015, a massive spill of toxic palm oil effluent overflowed into the river, killing fish within 100 miles of the spill and devastating the health and food security of the Q’eqchi’ Maya communities living alongside it who rely on the river for subsistence.7 The resulting pollution affected the economic livelihood of at least twelve thousand people from twenty-two communities. Twenty-three species of fish were reported dead, five of which were threatened with extinction.8 The communities filed suit against the responsible palm oil company, Reforestadora de Palmas S.A. (REPSA), after which the company was ordered to suspend its operations following what the court deemed to be “ecocide.”9 The court’s decision was subsequently

Sustainability Certification and Controversies

119

overturned, and as of 2018 there has been no resolution by the corresponding authorities. A serious impact of the palm oil industry has been the dispossession of people from their land through processes of “land grabbing.” These dynamics are particularly evident in the Tierras Bajas del Norte region (the Northern Lowlands). After the peace agreements were signed in 1996, the land was occupied by the Q’eqchi’ Maya indigenous communities, and about eighty-five thousand families were given access to land. However, it is estimated that by 2011, about 45 percent of the land that had been titled in favor of indigenous communities in Tierras Bajas del Norte had passed into the hands of private companies.10 One example of land grabbing involved the land titles of 2,113 families located in the protected area of San Román. By 2008, close to 60 percent of the farmland had passed into the hands of palm oil companies.11 The dispossession and land grabbing in many cases occurred through forcing the sale of the land by deception, coercion, or violence against indigenous families.12 The palm oil industry has also been implicated in labor rights violations. As a result of the concentration of land for the expansion of the palm industry, families have no option but to work on the palm plantations. A study on the type of employment in palm companies in Petén (including REPSA, Nacional Agro Industrial S.A. [NAISA], Tikindustrias, and Palmas del Ixcán) concluded that in 2011 no company paid the then-current minimum wage; Palmas del Ixcán and REPSA paid the 2010 minimum wage, and NAISA and Tikindustrias paid even less than that. Further, the study found that no company provided the statutorily required benefits, including bonuses, social security contributions, and leave.13 A persistent problem has also been the companies’ “goals” or “assigned tasks” for each day, which often exceed the reasonable capacity of workers employed on the plantations. An underlying cause of many of these issues is the absence of state oversight and regulation of the industry. The government of Guatemala has actively encouraged the expansion of oil palm monoculture through numerous state policies and programs. However, the state has failed to properly regulate the industry, and this has created a permissive regulatory environment for palm oil companies operating in the country, leading to innumerable human rights and environmental violations committed by companies with total impunity. For instance, REPSA, the company responsible for the toxic spill in the Río La Pasión in 2015, had never conducted an environmental impact assessment (EIA) for its operations in Sayaxché prior to the disaster.14 The failure of many

120

Multi-stakeholder Initiatives and the Maldistribution of Power

state institutions produces favorable outcomes for companies, to the detriment of the rights and livelihoods of impacted communities.15 In response to the violations documented and reported by communities, universities, social organizations, and others, many of the players in the Guatemalan palm oil sector have joined the RSPO certification scheme. Currently, eight oil palm grower companies are registered as members of RSPO (see table 6.1). It is important, however, to mention two things. First, it is possible for a company to be listed as an “RSPO member” (and thus part of the scheme), but it may be the case that the company’s plantations have not yet been audited in order to receive certification. That is, companies have a grace period in which to put their plantations in order, then subsequently request an audit. Of the eight RSPO members in Guatemala at the time of this writing, only three Table 6.1. Guatemalan Companies Linked to the RSPO Name

Date joined RSPO

Certification

Locationa

AGROACEITE

10/17/2011

No

Sur Occidente

AGROCARIBE

09/03/2008

Yes

Izabal

Las Palmas

09/09/2014

Yes

Escuintla

Santa Rosa S.A

12/13/2011

No

Escuintla

Olmeca S.A.

10/29/2016

No

Petén

UNIPALMA

—

No

Petén

NaturAceite

08/10/2010

Yes

Izabal

Palmas del Ixcánb

05/18/2016

No

Alta Verapaz

Nacional Agro Industrial S.A.

03/28/2017

No

Petén

TIKINDUSTRIA

—

No

Petén

Note: Table generated by the author based on bibliographic review. Though the RSPO website does not list UNIPALMA and TIKINDUSTRIA as members, RSPO officials in Guatemala have represented these companies as part of the mechanism and in “transition.” a The companies usually have a presence in several of the country’s departments and municipalities. However, the area that is subject to certification by the RSPO is indicated since not all of the companies’ plantations are certified. b Palmas del Ixcán no longer appeared as a member of the RSPO in 2018.

Sustainability Certification and Controversies

121

have been certified. Second, RSPO certification is not granted to individual companies, but to the areas of plantation, farms, or extraction plants that have been audited. It is therefore important to pay attention to the location of the certified area. According to information collected for this chapter, to date no business group has 100 percent certified plantations or extracting plants. Of the total established monoculture areas in Guatemala, 15 percent are certified, and a further 18 percent will receive certification in 2018.16 Although many companies in Guatemala have shown interest in joining the RSPO since 2008, the auditing and certification processes accelerated after 2015, in response to greater demands in the international market for sustainable palm oil products and following the Río La Pasión disaster. However, not all companies are currently interested in certification processes. The Industria Chiquibul S.A. company, for example, has no interest in joining the RSPO process. Its plantations are located in Alta Verapaz (Raxruhá and Chisec).

II. The Roundtable on Sustainable Palm Oil The RSPO is a certification mechanism for the palm oil supply chain,17 which arose from the pressure generated by environmental organizations concerned about the deleterious effects of palm oil cultivation. Beginning in the late 1990s, information campaigns highlighted the environmental and social impacts of the expanding monoculture in Malaysia and Indonesia, including deforestation, loss of biodiversity, greenhouse gas emissions, displacement of communities with ancestral rights over their territories, lack of land use permissions and titles, and poor labor practices.18 In 2001, the conservationist organization World Wide Fund for Nature (WWF; the international environmental nongovernmental organization) started approaching various sectors of the palm oil industry supply chain. The following year, AarhusKarlshamm UK, the Malaysian Palm Oil Association, Golden Hope, Sainsbury’s United Kingdom, Migros Switzerland, and Unilever joined WWF’s initiative to promote the creation of a sustainable palm oil mechanism, which culminated in the establishment of the RSPO in 2004. This mechanism quickly gained ground, and by 2017 there were approximately thirty-six hundred RSPO members from eighty-four countries.19 The structure of the RSPO favors the large producers. The RSPO has three classifications of membership: (1) associates, including buyers of less than 500 tons per year; (2) affiliates, comprising consultants, organizations, and people

122

Multi-stakeholder Initiatives and the Maldistribution of Power

interested in the production of palm oil, especially corporate auditors; and (3) ordinary members, encompassing companies and organizations directly involved in the supply chain. Only ordinary members, not associates or affiliates, have the right to speak and vote in the General Assembly, representation on the Board of Governors, and access to materials produced by the Secretariat. There are currently around 1,604 ordinary members, including manufacturers of consumer goods, palm oil processors and traders, oil palm growers, retailers, environmental nongovernmental organizations (NGOs), banks and investors, and development NGOs. The composition of members is dominated by the business sector. Environmental organizations, especially social organizations, have only marginal participation in decisions and limited ability to raise standards related to the environment and human rights. This unequal distribution of power is reflected throughout the structure of the mechanism, including on the Board of Governors. The Board of Governors is elected by the General Assembly of Ordinary Members and is made up of sixteen representatives: four oil palm growers, two consumer manufacturers, two palm oil processors or traders, two retailers, two banks and investors, two environmental conservation NGOs, and two social development NGOs. The board plays a decisive role in the RSPO’s functioning, because through its standing committees it is in charge of monitoring finances and communication and proposing and reviewing changes in trade and standards. Although there is mandated participation from social and environmental organizations, the business sector still holds the dominant position in this leadership body. The Secretariat is responsible for the day-to-day running of the RSPO, for example, organizing the meetings of the Board of Governors and coordinating the activities of the standing committees, the working groups, and the Roundtable and General Assembly meetings. However, its main work is in communication and political negotiations. Access to markets is linked to the political work of the RSPO Secretariat. In recent years, Belgium, France, the Netherlands, the United Kingdom, Germany, Austria, Switzerland, Denmark, Sweden, Norway, and Italy have made national commitments to exclusively import palm oil certified by the RSPO by 2020. The Secretariat is working to add the United States to the list of countries with a national commitment.20 The structure of the RSPO (see figure 6.1) also includes working groups, which are formed according to the needs identified by the Secretariat and the Board of Governors. The working groups are made up of twenty to

Human Rights

Smallholders

Biodiversity and HCV

Emission Reduction

Working Groups

External Guests

Advisors/Consultants

Individuals (5)

Associations (7)

Organizations (126)

Affiliate

Trade

Communication

Finance

Standards

Standing Committees

Board of Governors (16 members)

Ordinary

Indonesia

Oil Palm Growers (174)

Ghana

Technical

Communication

Policy

Human Resources

Malaysia

Ecuador

Palm Oil Processors and/or Traders

Consumer Goods Manufacturers (763)

Secretariat (Darrel Webber)

Social/ Development NGOs (12)

Enviromental/ Natural Conservation NGOs (39)

Banks & Investors (14)

Retailers (66)

Figure 6.1. The structure of the RSPO. Generated by author based on bibliographic review.

Supply Chain Associates (1,838)

Supply Chain Group Managers (3)

Associate

General Assembly

124

Multi-stakeholder Initiatives and the Maldistribution of Power

twenty-five people and can include affiliate and ordinary members of the RSPO or external participants, such as consultants or invited experts on the topic addressed by the group. The RSPO explains that working groups are designed to “encourage members to address complex and difficult challenges” and are conducted as multi-stakeholder, participatory roundtables.21 Topics of the working groups include calculating greenhouse gas emission from palm oil operations; remediation for loss of biodiversity and high conservation value (HCV); support for smallholders and the establishment of new plantations; and human rights, including free, prior, and informed consent.

III. The RSPO’s Certification Mechanism in Guatemala As everywhere, the RSPO certification mechanism in Guatemala is controlled by the business sector. As shown in figure 6.2, eight palm-oil-producing companies are registered as ordinary members of the RSPO. José Roberto Montenegro, general manager of the Agrocaribe company,22 participates on the Board of Governors.23 The following groups participate from the social sector: (1) Solidaridad, an NGO from the Netherlands, which through its director, Flavio Linares, works with the business sector to promote the RSPO mechanism in the country; and (2) Oxfam, which has not been an active participant in the discussion or promotion of the RSPO in Guatemala. From the environmental sector, the WWF office in Guatemala, together with Solidaridad and Proforest,24 facilitates the “National Interpretations of RSPO Principles and Criteria”25 process. The RSPO works in each country on the basis of a “national interpretation” of the international Principles and Criteria (P&C). The first local interpretation of the P&C in Guatemala was made at the request of palm oil companies. Through a dialogue between the RSPO and the palm-oilproducing companies, policies were elaborated with which each company had to comply. However, this modality stopped being accepted. Currently, the RSPO has two modes of interpretation: (1) the national interpretation for countries with more than 5 percent global production and (2) the national interpretation for smaller producing countries. The interpretation for countries with more than 5 percent of global production must respond to all of the P&C, while the national interpretation for smaller producing countries need only respond to twenty-eight of the criteria. Guatemala, in accordance with the parameters established by the RSPO, is a smaller producing country. In 2014 the country started the RSPO’s

Solidaridad Guatemala

National Intrepretation

Ecuador Office Francisco Naranjo

Ordinary

General Assembly

Technical Committee

Proforest Honduras

Action Plan

Final Decision Complaint Closed

Complaint Legitimacy/ Preliminary Decision

Affected/Interested Report

Complaint Mechanism

Complaint Panel (RSPO)

Malaysia Office

Secretariat

José Roberto Montenegro Agrocaribe/Guatemala

Board of Governors

Figure 6.2. RSPO structure for Guatemala. Generated by author based on bibliographic review.

WWF Guatemala

Santa Rosa

Palmas del Ixcán

Olmeca S.A.

NaturAceites

Las Palmas

NAISA

Agroaceite

Agrocaribe

Oil Palm Growers

Solidaridad (Social NGO) Flavio Linares

126

Multi-stakeholder Initiatives and the Maldistribution of Power

national interpretation of the international P&C, focusing on the review of sixteen criteria (far fewer than the usual number) in the following areas: principle 2, compliance with applicable laws and regulations; principle 4, appropriate use of best practices by growers and millers; principle 6, responsible considerations of employees, individuals, and communities by the farmers and processors; and principle 7, responsible development of new plantings. A Technical Committee was established and charged with formulating and leading a national consultation on these principles. During a sixty-day period, the Technical Committee conducted informational meetings that were supposed to be a public consultation, a means to connect sectors that are not part of the mechanism. In response, social and environmental organizations and affected communities spoke out, arguing that the public consultation process did not follow a methodology of real participation and consultation with the interested and affected communities, since only four national-level meetings were held, in Guatemala City, Cobán, Sayaxche, and Escuintla. In Sayaxche and Cobán, the meetings were conducted by the palm oil companies themselves and were informative in character rather than consultative. The criticisms expressed by the communities were not addressed in the meetings, and in some cases the attending community members were asked to sign blank pieces of paper. The public consultation was also criticized for the disproportionate power and influence held by palm oil companies throughout the process. Corporate actors were invited to participate as both stakeholders and judges. The outsized role of corporate actors in the process also resulted in transparency and conflict of interest issues, marring the overall process. Despite the weaknesses and inconsistencies of the public consultation process, Guatemala’s national interpretation was finished in December 2015. With respect to the grievance mechanism, the RSPO has a complaint system through which affected parties can report noncompliance with the P&C defined by the RSPO. Complaints can be filed online; however, all supporting documentation must be submitted in English, since the Secretariat in Malaysia is responsible for the grievance process. Therefore, communities cannot access this mechanism on their own, but instead must be accompanied by international NGOs that can assist with submitting and managing the complaint. The process is slow; on average a complaint takes two years to be reviewed and receive a response. Upon finding that a certified company has not complied with the P&C, the RSPO proposes an improvement plan in response to the complaint, which does not include the suspension of

Sustainability Certification and Controversies

127

members or market loss, as one would expect. Communities and organizations in Guatemala have not yet used the complaint mechanism, but it has been used in other Latin American countries, such as Colombia. Finally, in 2016 a point of contact between members and the Secretariat of the RSPO was set up through the establishment of a satellite office in Ecuador, which in 2020 was under the responsibility of Francisco Naranjo. The objective of the office is to support the technical processes of the certification system, inform members of the standards, create new tools, and review the materials generated by the companies seeking certification. With this, the time frame for the companies’ certifications is reduced. The regional headquarters does not address complaints or grievances expressed by the communities; its role is more technical.

IV. Changes Since “Certification” Certainly the palm oil certification process, or more concretely the chances of accessing new sustainable markets, is forcing corporations to adjust their goals and ways of working. Even though that is true, the goal of the palm oil companies continues to be profitability and profit maximization. As a result of certification, in order to access so-called sustainable markets, they have to be more open to addressing social, fiscal, labor, and environmental problems generated by the agroindustry itself. However, businesses still do not recognize or conceive of these problems as rights violations. Instead, they treat such problems merely as context that is unfavorable for their investments. As one executive put it, from the corporate perspective: “The environment of the palm grower has become more complex. Fifteen years ago, palm producers only needed to worry about producing and about having fruit, low costs and a good extraction rate. Nowadays that environment has completely changed and we have a multitude of challenges that compel us to organize ourselves. We have to get certified, communities have become much more demanding, increased wages, environmental issues are becoming more complicated, and a long list of issues from the outside that are pushing us, as producers, to become more and more sustainable.”26 We can use the Las Palmas company as an example to identify the changes that businesses have made because of certification.27 Las Palmas has developed work plans across a range of areas (environmental, social, fiscal, and labor), in which many actions were identified as necessary in order to “bring

128

Multi-stakeholder Initiatives and the Maldistribution of Power

order” to the company’s operations. Nevertheless, it is important to mention that the main changes the company has undertaken relate to its internal functions and processes—for instance, bringing in more personnel and training them to produce evidence that auditors can use in the certification and monitoring processes. For the operationalization of the Las Palmas working plan, a number of new personnel were hired to guide the implementation of the P&C and fill in gaps in company procedures that were inconsistent with the standards. The company hired a corporate quality manager and expanded the Department of Human Resources. Working responsibilities were redefined (e.g., the administrative manager assumed a role as community liaison, which entailed establishing and maintaining contact with local authorities of neighboring communities). Many of the company’s employees, who were identified as having leadership potential, were given responsibility for disseminating RSPO regulations and documenting the “good practices” that the company was carrying out. Las Palmas also identified a number of employees to receive training on the RSPO’s P&C. A smaller group participated in training to become “audit leaders” and were trained to assess HCV land. During the training sessions, the company received support from a number of stakeholders, including international NGOs interested in and committed to implementing the RSPO in Guatemala: Solidaridad, the WWF, and Empresarios (a coalition of nine business owners). Within the company, guidelines were developed to document its practices and provide information to the RSPO auditors, who visit annually to monitor the work’s progress. The company also documents the activities undertaken with photos, videos, and meeting minutes. These aspects (personnel, training, and documentation) show how the company adjusted to the RSPO norms at the internal level and through the elaboration of manuals and guidelines in order to organize the operations of different areas within the company. The company states that it also carried out some actions regarding the environmental, labor, and fiscal aspects of its operations. With regard to environmental aspects, prior to certification, Las Palmas was operating without having done an EIA for its plantation. Thus, in keeping with national legislation and particularly with the requirements of the Ministry of Environment and Natural Resources,28 an EIA and a review of HCV areas were finally completed twenty-seven years after the plantation was set up. The review of protected areas was coordinated by the Council

Sustainability Certification and Controversies

129

of Protected Areas (Consejo Nacional de Áreas Protegidas). The review also included an initiative to save the Parlama turtle.29 The adjustments made to the company’s labor practices were limited to seeing that workers were formally registered in the Social Security Register (Instituto de Seguridad Social). Additionally, some workers were provided protective personal equipment, depending on the type of work. Yet a range of labor issues still has not been addressed by the company. One is the length of time for which workers are hired (usually for no more than three months). Temporary workers include those known as “acampamentados,” or workers who arrive at the plantation from other towns and who live on the plantation during the working season. There are also laborers from nearby areas who work only on a temporary basis during that time of the year. Other issues include the burdensome nature of the daily work tasks: many plantation workers have observed that it is often impossible to accomplish the daily work goals that are set for them. There is ambiguity around the fiscal changes the company made. During the company presentation, Las Palmas stated that it had completed paperwork with the Administrative Fiscal Agency (Superintendencia de Administración Tributaria) and complied with municipal taxes by paying the Impuesto Único Sobre Inmuebles (single property tax). Nevertheless, it would be necessary to do further research on the fiscal responsibilities of palm oil companies and to consult other sources to verify this information. In addition, the palm oil sector has used the maquilas law (intended for the assembly plant sector) to exempt itself from taxes. Finally, a number of wastewater treatment plants were built, and pesticide warehouses were refurbished, since the previous storage areas on farms did not comply with RSPO standards. Reviewing the Las Palmas case, it initially appears that the RSPO certification process marks a new chapter in the sustainable management of oil palm plantations. Even the president of Las Palmas remarked, “We thought we were doing things well, but the RSPO really organizes you, helps you to make plans and to better acquire the resources you do not have and do it all in an environmentally conscious way.”30 However, a more critical reading makes evident that these adjustments do not escape market logic, and that companies are committed to embracing such changes provided they remain competitive in the market. Moreover, although the changes made are all framed as necessary to solve practical problems, the structural causes from which the problems originate remain unaddressed.

130

Multi-stakeholder Initiatives and the Maldistribution of Power

One clear example is the relationship between the company and the communities surrounding the plantation. The company refers to its “good relationship with the local community” but does not address the problems that most affect them: water scarcity and pollution. Company representatives tend to minimize the nature and extent of these conflicts, on one occasion referring to the issue of water scarcity as a “bit of a problem” but failing to identify it as a social issue with enormous ramifications for the local communities.31 The same approach—minimizing the problem and denying the fundamental social contestation—is taken in relation to labor rights issues and conflicts over land and other natural resources.

V. Contradictions Within the RSPO The RSPO aims to “transform markets to make sustainable palm oil ‘the norm’”; that is, certification mechanisms are promoted as a way to create socially, environmentally, and economically sustainable business practices. However, the RSPO standards tolerate contradictions in both their focus and their practices that undermine the credibility and legitimacy that the RSPO seeks. More important, the standards do not guarantee a real fulfillment of human rights contained in national and international legislation. It can be concluded, therefore, that the RSPO is little more than a means to “legitimize the expansion of monoculture.”32

A. The RSPO and Its Sustainability Vision

The initiative responds to a global trend in which companies operating in the palm sector seek to present themselves to society as being committed to sustainability, particularly to the environment. However, these commitments have clearly defined limits, given that, in practice, the companies do not allow the pursuit of social and environmental sustainability to jeopardize their market competitiveness. To the extent that profitability might be affected, initiatives such as the RSPO are deliberately designed to permit flexibility in compliance. For example, the RSPO makes the distinction between small producing countries and large producing countries, mandating different P&C for each. As a result, countries like Guatemala are held to less rigorous standards than large producing counterparts. Similarly, a distinction is made

Sustainability Certification and Controversies

131

between small and large producing firms, with more flexible rules for small producers. For example, small producers do not necessarily have to comply with the same labor rights commitments that are demanded of larger firms. This creates an inequitable structure wherein the fulfillment of human rights is determined and mediated by the production size of the country as well as the individual firm, all in the name of keeping the activity profitable.

B. Palm Oil Companies Make Good Neighbors

In essence, the RSPO defines sustainability as living in harmony with one’s neighbors. The RSPO does not simply engage companies; a range of consulting companies has emerged for the purpose of verifying compliance as well as resolving conflicts. Consulting companies intervene in conflicts at the request of the palm oil companies and are paid by such companies to support negotiation with affected communities in order to produce a better investment climate. The focus of such interventions is to establish “good neighbor” relationships between companies and communities through negotiations and agreements; however, such negotiations generally fail to address the root causes of communities’ grievances or the conflict. This strategy of mediation has been adopted in Guatemala. Although there is considerable talk about the need to maintain good relationships with neighboring communities, companies in practice do almost nothing to redress or resolve problems related to land disputes (such as boundary disputes) or irregular land title registrations with affected communities. Instead, these problems are addressed in ways that are favorable to the companies and do not disturb the processes of palm oil production, such as offering temporary work in the plantation and superficial community improvement projects. In the end, these approaches have operated as mechanisms of control and power over the people, workers, and communities. In cases where conflict intensifies, companies undertake retaliatory measures, refusing to hire any person from the community who is demanding rights compliance and only resuming the hiring of workers in the community in exchange for “forgetting” the land problem. These examples highlight that while relations between palm oil corporations and communities can be stabilized, and superficial conflicts can, at various points, be mitigated, this does not ensure that the central issue—namely disputes over land—has been resolved or that the conflict will not intensify again in the future.

132

Multi-stakeholder Initiatives and the Maldistribution of Power

C. Absence of Independent Evaluation for Certification

As part of the certification process, private firms with specialized evaluators and auditors are in charge of conducting social, environmental, labor, and other studies to determine whether or not the palm oil companies meet the sustainability standards for a certification of compliance. This is the only requirement the RSPO has for labeling them as sustainable producers. That is, studies, investigations, or opinions of other stakeholders, which could provide a participatory review of a given company’s compliance with the RSPO P&C, are not taken into account. The auditors are hired by the palm oil company seeking certification, and their continued recruitment is dependent on results that are satisfactory to the company. Prior to hiring an auditor, the company does an analysis of auditors’ profiles to identify the aspects that they emphasize: “We did our homework. . . . Just like investigators, we knew which auditors belonged to the certification organization, so we dedicated ourselves to investigating a little into the personality of each person, their profession, and their work experience because that would be how they were going to evaluate us, what it was that they could attack us on, and the conduct and experience of these auditors with other companies. We also did the homework of investigating the behavior and personalities of these auditors.”33 On the other hand, during the process the auditor’s team gives the company the option to reframe the weaknesses found in the business: “During the auditing process, we have the option to reframe some of the observations that are being made during the process. It’s something that one can consider during the process. We had situations in which we saw that need. And what one is interested in as a business is showing the auditors that we are prepared and that we have the capacity to make corrections along the way, because what everybody wants obviously is to pass the audit.”34

D. Continuous Improvement Processes, Rights Violations, and Nonexpansion

The implementation of the RSPO sustainability vision is based on the idea of a “continuous improvement process,” as described in RSPO principle 8, whereby all actions are subject to improvement through plans. This reflects a functional logic that allows companies to make incremental changes, in a way

Sustainability Certification and Controversies

133

that is not discordant with their profitability. As one company representative explained, “the RSPO helps you a little bit. It says that you have to have a plan and with the plan you decide, how quickly or how slowly you can implement it.” However, when applied to a company’s social and environmental practices, this logic becomes harmful. Egregious rights violations—such as loss of livelihood due to the pollution of rivers, land and water grabbing, or forced displacement of families due to crop expansion—should not be subject to continuous improvement processes. Remediation and improvement plans are set by the companies, and they have discretion as to the timing of the fulfillment of the plans; remedies can be medium or long term. Moreover, the RSPO does not question the timing to implement the mitigation or remediation plans, but only ratifies that they must be implemented. Thus, the result of the audits is the creation of a gradual improvement plan, even though the situation may merit a much more urgent response. RSPO principle 7—which corresponds to criteria and requirements for establishing new plantations—is particularly problematic. In no way does principle 7 contemplate the nonexpansion of the crop in light of the social conflict from the dispossession and appropriation of the land, water, and other natural resources that leave the population in greater vulnerability and poverty and absolutely dependent on the jobs that oil palm plantations promise to create. Based on this principle, the palm oil sector in Guatemala is currently counting on a total of 1 million hectares (approximately 2.5 million acres) for the expansion of the crop, considering that expansion cannot occur in areas of HCV.

E. Companies Do Not Take Responsibility for the Actions of Their Intermediaries

It is inevitable, in the palm oil sector, that companies outsource various tasks and services, leaving in the hands of others—whether companies or people— the terms and conditions under which such services will be provided. In Guatemala, the purchasing of land for oil palm plantations in Petén was carried out by vicious and exploitative intermediaries known as “coyotes.” The hiring of personnel for the plantation in some companies is still carried out using subcontractors, which is typically a community leader close to the plantation in charge of obtaining and transferring workers from other municipalities. It is usually the contractor who is in charge of keeping track of the work, paying

134

Multi-stakeholder Initiatives and the Maldistribution of Power

the workers and attending to them in the case of a serious accident within the plantation. The actions and inactions of these intermediaries are shielded from the company and are easily hidden from RSPO auditors, so as not to constitute part of the company’s (non)compliance with P&C.

VI. Final Reflections Certification mechanisms like the RSPO have only a limited ability to promote respect for and fulfillment of human rights. As this chapter has explored, the RSPO process is marred by a number of problematic practices and inequitable dynamics. First, the RSPO’s commitment to a “process of continuous improvement” does not adequately address or resolve the litany of social and environmental problems generated by the expansion of the oil palm crops, either through the measures taken or with regard to the expected timelines for carrying out operational adjustments by the companies. Second, there are serious power asymmetries in the mechanism’s membership and governance bodies. These bodies are dominated by the business sector, include only marginal participation of social organizations, and lack direct or even indirect representation of affected and interested parties (including, but not limited to, representation during audits). Third, there is a lack of appropriate grievance procedures for the affected communities, as the RSPO’s grievance mechanism is inaccessible. Complaints must be filed in English directly with the Secretariat and must be extensively documented, requirements that pose clear barriers to the monolingual Mayan communities typically affected by palm oil plantations in Guatemala. Additionally, the response to grievances filed is not immediate, and the outcomes very rarely extend beyond corporate-controlled improvement plans. Most fundamentally, the standards clearly contemplate the continued operation and expansion of palm oil cultivation, thus not even considering the harm that the activity itself may cause to the environment and the affected communities when vast tracts of land are dedicated to this monoculture. The Guatemalan case study examined in this chapter shows how only limited changes have been brought about by the RSPO’s introduction into the country. Regarding labor issues in the palm oil sector, there have been some positive changes made by companies such as Las Palmas. Companies have moved forward with some changes, such as improvements in temporary workers’ camps and access to potable water for their consumption. Nevertheless, the central issues for workers, namely the continued use of precarious

Sustainability Certification and Controversies

135

work contracts, intense workdays, and the setting of unattainable daily goals, remain unresolved. In terms of environmental issues, the RSPO has helped to instigate a new era of EIAs, although some such assessments have not been completed until years after the plantation or extraction plants have been established. In general, EIAs have generally been approached more as an administrative requirement than as a tool that could provide for a real evaluation of the potential impacts. Further, the findings of an EIA are unlikely to result in a new project being rejected outright, and therefore EIAs are severely limited as tools for contesting the expansion of oil palm monoculture. In light of the breadth and depth of these failures, it is not easy to make recommendations to improve these certification mechanisms or to ensure that in the future, human rights, labor, and environmental organizations can really rely on them to enforce the rights of communities, workers, and the environment. In the short term, perhaps a handful of changes could be enacted to bring about better outcomes, though I offer these with the caveat that they would not address the very real structural change needed to reform such mechanisms. These short-term reforms include assuring independent audits that allow for having an objective assessment of the operation of the companies, taking advantage of the audit opportunity to train affected communities to carry out a social audit, requiring the RSPO mechanism to address the central problems with workers and communities in coordination with the state’s responsibilities as the guarantor of rights, and ensuring that the changes that are proposed are durable and do not only occur while the approval of the certification is being achieved. Finally, it is important to mention that private certification mechanisms alone cannot ensure compliance with human rights, especially because they are voluntary. These mechanisms must be accompanied by communities demanding their rights, by stronger corporate accountability norms accepted by firms, and finally, as is deeply needed in the case of Guatemala, by a capable state, whose policies—redistributive fiscal policies and meaningful environmental impact studies, to name just a couple—will benefit the population, rather than primarily serving the business sector.

CHAPTER 7

Assessing Feasibility for Worker-Driven Social Responsibility Programs Sean Sellers

In a world of increasingly globalized markets, low-wage workers at the base of corporate supply chains remain isolated, vulnerable, exploited, and abused. Governments, which should be responsible for protecting the rights of their citizens, often lack the resources or political will to do so. State-based enforcement agencies and policy frameworks consistently fail to protect workers from dangerous sweatshop conditions and even severe abuses, including forced labor, sexual harassment, and rape, in no small part because those suffering the abuse are largely powerless. Where collective bargaining rights exist and are enforced, unions can provide effective workplace protections. But even when those rights exist in the law, they are ignored in practice for millions of workers, while millions more are excluded from the legal right to form a union altogether. Corporations, of course, also bear responsibility for ensuring that human rights are respected in their suppliers’ operations, but they tend to treat the discovery of abuses in their supply chains as public relations crises to be managed, rather than as human rights violations to be remedied. Seeking to protect their brands from reputational harm, corporations embrace strategies that profess adherence to fundamental human rights standards but establish no effective mechanisms for enforcing those standards or relieving the downward price pressure that incentivizes abuse in the first place. This approach, known broadly as corporate social responsibility (CSR), is characterized by voluntary commitments, broad standards that often merely mirror local law, ineffective or nonexistent monitoring, and the absence of any commitment to or mechanisms for enforcement of the meager standards that do exist.1

140

Worker-Driven Social Responsibility Programs

Multi-stakeholder initiatives (MSIs) have sought to address the shortcomings in the traditional CSR model by bringing nongovernmental organizations (NGOs) and other institutions into standard-setting and monitoring roles. While they have been successful in setting higher standards and shifting expectations, MSIs have generally failed to secure the commitment necessary to implement sustainable change. This has been reflected in the lack of effective monitoring and—most tragically—enforcement in most MSI efforts.2 Both the Ali Enterprise fire in Pakistan that killed nearly 300 workers and the Tazreen fire in Bangladesh that killed 112 workers occurred at factories certified by MSI monitors.3 In the United States, the two farms that used workers held against their will in a particularly brutal slavery case in 2008 in Florida were certified “socially accountable” by an industry-controlled MSI.4 CSR and MSIs have failed to address the ongoing human rights crisis in global supply chains in large part because they do not put workers—the very people whose rights are in question and who have the most direct knowledge of the relevant environment—at the center of developing and enforcing solutions to the problem. This failure is evident at all levels of these schemes—in their structure, governance, operation, and allocation of resources—and it is this fundamental design flaw that makes the failure of these systems inevitable. In recent years, however, this bleak portrait has begun to change. Both in the United States and abroad, workers and their organizations have forged effective solutions that ensure the real, verifiable protection of human rights in corporate supply chains. This new paradigm has come to be known as Worker-Driven Social Responsibility (WSR). It has been tested in some of the most stubbornly exploitative labor environments in the world today—including the agricultural fields of Florida, which were once dubbed “ground zero for modern-day slavery” by federal prosecutors,5 and the apparel sweatshops of Bangladesh, the locus of some of this century’s most horrific factory fires and building collapses. In these oppressive environments, WSR has proven its ability to eliminate longstanding abuses and change workers’ lives for the better every day. Consequently, interest in the model is growing from beyond these initial sectors.

I. The Origins of WSR The concepts and analysis informing the WSR model arose from efforts in agricultural and manufacturing supply chains. The Coalition of Immokalee Workers (CIW) was formed in the early 1990s by farmworkers in Immokalee,

Feasibility for Worker-Driven Social Responsibility Programs

141

Florida, to confront rampant labor abuse in the fields, including frequent sexual assault and, in the most extreme cases, forced labor. In 1997, North American students and labor unions, in consultation with garment workers and their unions in Central America and Asia, began to develop corporate accountability campaigns to win improvements for workers in the garment industry, where conditions are also horrific and, in some cases, fatal. In analyzing their respective industries, both groups realized that it was the corporations at the top of the chain—not the workers’ direct employers—that had the resources and power to improve wages and working conditions.

A. Agriculture in Florida

In 2011, after a decade of organizing in partnership with a national network of student, faith, labor, and community allies, the CIW launched the Fair Food Program (FFP). The FFP was the first comprehensive, fully functional model of the new WSR paradigm. In the case of the FFP, the CIW’s Fair Food agreements (FFAs) leverage key brands’ wealth and purchasing power to ensure workers’ fundamental human rights in the workplace. The CIW designed the FFP to include a number of mechanisms, including worker-to-worker education, a twenty-four-hour complaint investigation and resolution process, and in-depth field and farm office audits. This was to ensure that workers not only participate in the monitoring process but in fact drive and inform enforcement of the FFP’s standards as the frontline monitors of their own rights. The FFP emerged from the CIW’s successful Campaign for Fair Food. Because farmworkers are excluded from the National Labor Relations Act, the CIW had no access to traditional collective bargaining processes and was obliged during its first decade of existence to pursue a voice on the job through community-wide strikes and other labor actions. By 2000, the CIW had shifted its focus from directly confronting local growers through traditional labor mobilizing tactics to instead holding fast-food brands accountable for the conditions in their supply chains. In 2005, the CIW won its first FFA following a four-year boycott of Taco Bell, establishing several fundamental precedents for the emerging paradigm, including •

a binding legal agreement between workers at the bottom of a global supply chain and a retail brand at the top, conditioning the brand’s purchases from the workers’ employers on human

142

Worker-Driven Social Responsibility Programs

•

•

rights compliance in the workplace, even when those rights are not guaranteed by existing law; the first-ever ongoing payment from a food industry leader to its suppliers dedicated to addressing workers’ substandard wages; and 100 percent transparency for tomato purchases in Florida, allowing workers to monitor conditions on participating growers’ farms and communicate with the buyer when sanctions are required.6

The CIW has since incorporated and expanded these principles, including a worker-drafted Code of Conduct, into thirteen subsequent FFAs with corporate buyers. Over the past six years, the FFP has been implemented across 90 percent of the Florida tomato industry (approximately thirty thousand workers) and currently operates across seven Eastern Seaboard states and three crops. The FFP has, without exaggeration, transformed these workplaces. The program has been widely hailed by human rights observers, from the United Nations to the Obama administration, for its unprecedented success in eliminating slavery, sexual assault, and violence against workers. Other labor rights abuses, such as wage theft and health and safety violations, have become the rare exception rather than the rule, and when they do occur, workers have access to a protected complaint investigation and resolution program that is fair, expeditious, and effective.7 To date, nearly two thousand worker complaints have been brought forth under the FFP, and most have been resolved within days and often with systemic reforms that benefit workers beyond the individual who brought forward the complaint. This degree of participation is a remarkable achievement, given the culture of impunity and retaliation that long reigned in the fields and still haunts many low-wage industries. The complaint investigation and resolution process has allowed workers to identify bad actors and bad practices and fix them, backed by the purchasing power of the signatory buyers, gradually but inexorably reshaping the industry from the ground up, complaint by complaint. Health and safety committees provide another structured channel for worker voice on FFP farms. The program is jointly administered and monitored by the CIW and an independent third-party monitor created specifically for that purpose, the Fair Food Standards Council (FFSC). In addition to staffing the twenty-four-hour complaint line, the FFSC conducts in-depth field and office audits, interviewing

Feasibility for Worker-Driven Social Responsibility Programs

143

thousands of workers and all levels of management, to verify compliance with the code. Recently, the FFP provided the blueprint for the Milk with Dignity program that is being implemented in the Vermont dairy industry by another worker-based human rights organization, Migrant Justice. 8 CIW coined “Worker-Driven Social Responsibility” to refer to this new paradigm.9

B. Garment Manufacturing in Bangladesh

In the context of global garment supply chains, students and the Worker Rights Consortium (WRC), an organization founded in 2000 by students and universities as an independent monitor of factory conditions, have developed and implemented several related models. First, students successfully pressed universities to integrate legally binding labor codes of conduct into their licensing contracts with companies that produced logo apparel, such that apparel companies that failed to respect workers’ rights could lose their licenses and thus their ability to produce university logo apparel. The WRC was given the mandate to assess compliance, and licensees were required to publicly disclose their factory names and locations. While workers were not a party to these agreements, this was an early attempt to create legally binding agreements with financial consequences to protect workers’ rights in supply chains. Workers and advocates have used these codes to successfully press for improved conditions, as well as for new forms of binding agreements between workers and brands, including both bilateral agreements between specific unions and brands and preferential procurement initiatives such as the WRC’s Designated Suppliers Program. The WRC combined lessons learned from its work enforcing apparel industry labor codes, from the CIW’s Fair Food Program, and from the early efforts of labor unions to curb sweatshops in the United States to develop with its partners the Accord on Fire and Building Safety in Bangladesh. Union and witness signatories to the 2013 Accord included two global labor unions (IndustriALL and UNI), eight Bangladeshi labor federations (Bangladesh Textile and Garments Workers League; Bangladesh Independent Garments Workers Union Federation; Bangladesh Garments, Textile and Leather Workers Federation; Bangladesh Garment & Industrial Workers Federation; IndustriALL Bangladesh Council; Bangladesh Revolutionary Garments Workers Federation; National Garments Workers Federation; and United Federation of Garments Workers), and NGOs (WRC, Clean Clothes

144

Worker-Driven Social Responsibility Programs

Campaign, International Labor Rights Forum, and Maquila Solidarity Network). Formed in 1989, the Clean Clothes Campaign (CCC) had seen the failure of voluntary CSR play out in their own efforts with workers and unions around the world. The CCC was, like WRC, developing new approaches to more effectively compel brands to ensure that workers’ rights are respected in global garment supply chains. The second largest exporter of apparel in the world, Bangladesh was also the site of a series of deadly fires and building collapses that killed nearly two thousand workers between 2005 and 2013. The WRC and its partners developed the Accord in 2010. By 2012, however, only two brands had agreed to implement it. It was not until the Rana Plaza building collapse in April 2013, the deadliest disaster in the history of the global apparel industry, that brands felt sufficient pressure to join the Accord. As a result, more than two hundred companies signed the agreement to make their supplier factories safe. Under the Accord, signatory brands are legally obligated to •

• •

• •

•

require their supplier factories in Bangladesh to undergo fire, building, and electrical inspections conducted by qualified engineers (most of these buildings had never undergone such an inspection before, despite being in operation for many years); publicly disclose the results of those inspections (virtually all brand inspection reports had previously been kept confidential); require suppliers to carry out the renovations and repairs necessary to make their factories safe, pursuant to the inspection results, and provide financial support that allows them to do so (such support can take a variety of forms, including direct payment for renovations, a higher price per piece, upfront payment for goods, or the provision of low-cost loans); maintain purchase orders for at least two years at factories that implement the necessary renovations and operate safely; require suppliers to allow worker representatives access to their factories for the purpose of educating workers about workplace safety and their rights; and terminate business with any factory that fails to comply with the terms of the agreement.

As a result, Accord-covered factories have undergone a tremendous transformation. Many factories have installed fire doors and proper fire exits, which

Feasibility for Worker-Driven Social Responsibility Programs

145

were virtually nonexistent in Bangladesh prior to the Accord’s implementation, while others have reinforced dangerously weak building structures or finally installed code-compliant electrical wiring. The Accord reports that as of February 2018, more than 90 percent of remediation has been finished at 726 factories, while 136 factories have completed remediation.10 Moreover, for the first time, workers have access to a protected complaint mechanism if they experience retaliation for speaking up about unsafe conditions and are learning about what constitutes a safe workplace. On the factory floor, the Accord trains and develops joint labor-management safety committees to conduct factory inspections and identify safety hazards, respond to employee complaints about health and safety, review accident reports with an eye toward prevention, and communicate about health and safety goals to the workforce. To date, 846 safety committees are undergoing training, another 196 safety committees have completed training, and nearly 998 all-employee meetings have reached more than 1.3 million workers at Accord factories. The Accord has led to unprecedented improvements in safety for approximately two million workers. Unfortunately, at this writing, in 2020, it is in a transitional phase in which the outcome is still uncertain. The Bangladesh government has required that the inspection work within Bangladesh be passed to the Ready-Made Garment (RMG) Sustainability Council (RSC), a new entity. The Accord union and NGO signatories are advocating for the creation of a new binding international agreement that would restore the brand commitments and enforceability that have been key to the Accord’s success.

II. Principles of WSR Drawing on the success of the Fair Food Program and the Accord, the Worker-Driven Social Responsibility Network (WSR Network) was founded in 2015. The principal objectives of the network are to build understanding of the model among a wide range of actors, provide support and coordination for worker-led efforts to replicate the model, and create a paradigm shift within the field to establish the model as the baseline for workers’ rights programs within global supply chains. Currently, the network’s coordinating committee is comprised of the Alliance for Fair Food, Bangladesh Center for Workers Solidarity, Business & Human Rights Resource Centre, Centro de Trabajadores Unidos en la Lucha, Coalition of Immokalee Workers, Migrant Justice, National Economic and Social Rights Initiative, T’ruah: The Rabbinic

146

Worker-Driven Social Responsibility Programs

Call for Human Rights, and United Students Against Sweatshops. The WRC and FFSC serve as technical advisers. Over the past two years, the WSR Network has carefully cultivated collaborative practice and strategic alignment among its members, often against a backdrop of complex political terrain and varied experiences in the domestic and international arenas. Additionally, the network and partners have provided support for the WSR adaptation efforts now taking root in Vermont’s dairy industry as well as apparel factories in Lesotho. Another important early milestone has been the publication of a statement of principles regarding effective programs to protect the rights of workers in global supply chains, based on agreements between global corporations and worker organizations. The principles are as follows: •

•

•

Labor rights initiatives must be worker driven. Workers are the only actors in the supply chain with a vital and abiding interest in ensuring their rights are protected. If, therefore, a program intended to improve their situation is to work, workers and their representative organizations—global, national, or local labor unions; worker-based human rights organizations; or other organizations that genuinely represent workers’ interests— must be at the head of the table in creating and implementing the program, including its priorities, design, monitoring, and enforcement. An initiative’s labor standards must be based on universal labor and human rights principles, which are embodied in the Universal Declaration of Human Rights and defined by the conventions of the International Labour Organization. Obligations for global corporations must be binding and enforceable. Respect for human rights in corporate supply chains cannot be optional or voluntary. Effective enforcement is key to the success of any social responsibility program. Worker organizations must be able to enforce the commitments of brands and retailers as a matter of contractual obligation. Buyers must afford suppliers the financial incentive and capacity to comply. Corporations at the top of supply chains place constant price pressure on their suppliers, which inexorably translates into downward pressure on wages and labor

Feasibility for Worker-Driven Social Responsibility Programs

•

•

•

conditions; the market incentivizes abuse. Corporations must instead be required to incentivize respect for human rights through a price premium, negotiated higher prices, and other financial inducements that enable suppliers to afford the additional cost of compliance with the agreed labor standard. Consequences for noncompliant suppliers must be mandatory. The obligations of global brands and retailers must include the imposition of meaningful, swift, and certain economic consequences for suppliers that violate their workers’ human rights, whether or not ending the supplier relationship suits the economic and logistical convenience of the brand or retailer. Only programs that include such economic consequences can ensure protection for workers. Gains for workers must be measurable and timely. The ability of brands and retailers to obscure the failure of voluntary labor rights initiatives is greatly aided by the absence from these initiatives of the obligation to achieve concrete, measurable outcomes at the workplace level within specific time frames. To ensure accountability, any program designed to correct specific labor rights problems must include objectively measurable outcomes and clear deadlines. Verification of workplace compliance must be rigorous and independent. Workplace audits—often infrequent and perfunctory and never free of buyer influence—are the exclusive monitoring mechanism in traditional CSR programs and have proven inadequate time and again. Effective verification of supplier compliance is essential and must include the following components: inspectors who have deep knowledge of the relevant industry and labor issues and who operate independently of financial control and influence by buyers or suppliers; in-depth worker interviews, carried out under conditions in which workers can speak freely, as a central component of the process; effective worker education that enables workers to function as partners with outside inspectors; and a complaint resolution mechanism free of retaliation that operates independently of buyers and suppliers and in which workers’ organizations play a central role.

147

148

Worker-Driven Social Responsibility Programs

More than fifty leading organizations and individuals from the field of labor and human rights—from the AFL-CIO and Clean Clothes Campaign’s International Office to Human Rights Watch and Freedom Network USA, as well as several leading scholars and researchers—have endorsed the WSR statement of principles in a short period of time, demonstrating growing support for this new paradigm of human rights protection.

III. Feasibility Conditions for WSR As interest in WSR grows, the network has also begun to reflect on the conditions that are necessary to successfully establish the model on the ground. These factors pertain to the problem, the industry, and the practitioner organization in question; these three factors are considered in turn below. While some of the characteristics discussed are highly resistant to change (e.g., the market structure of a given industry or sector), others are more malleable with sufficient time and determination (e.g., the capacity and power of a worker organization). Still others may be addressed with even shorter time horizons and in collaboration with other parties (e.g., the documentation of abuses). Therefore, assessment, or self-assessment, with these criteria should be viewed as a dynamic, iterative process that may help to inform an organization’s ongoing strategic choices and paths of development, as well as the eventual design of a WSR campaign and program.

A. The Nature of the Problem to Be Addressed

There are several considerations for assessing whether or not WSR is an appropriate strategy given the specific nature of the abuses prompting calls for change. First, there must be credible documentation of the problems facing workers. Third-party documentation of human rights abuses within a supply chain may be demonstrated through a combination of academic and NGO research, media exposés, regulatory agency findings (departments of labor, health, etc.), and perhaps successful litigation or criminal prosecutions that spotlight routine or worst-case examples. It is also possible for the practitioner organization to publish firsthand research, though collaborating with an external partner such as a university may improve the credibility of the final product for some audiences.

Feasibility for Worker-Driven Social Responsibility Programs

149

Second, any WSR effort must be tailored to the scope of the problem. Around the world, low-wage workers at the base of corporate supply chains experience similar human rights abuses, which are the result of underlying economic pressures that are similar across countries and industries. At the same time, factors unique to a given sector, location, or specific worker population may result in particular concerns and priorities for workers that must be reflected in program design. Ideally, a WSR agreement would address human rights abuses at a broad regional or global level in order to impact the greatest number of workers. It is possible, however, that there are other factors—such as highly concentrated levels of production, the uniqueness or quality of a product, and logistics considerations such as geographical proximity to consumer markets and delivery timelines—that could strengthen the relative bargaining position of workers in those industries and improve the feasibility of a more delimited solution. It is important to bear in mind the intense price competition that exists between suppliers and the consequences this can have when WSR agreements are relatively limited in scope. If a supplier’s costs increase because it has implemented improvements mandated by the WSR program, there is a danger that buyers will terminate the supplier and switch to lower-cost suppliers with worse conditions. This is known as “cutting and running.” The scope of a WSR agreement should be as broad as possible to prevent this dynamic. The challenge of achieving a living wage in the garment industry is illustrative. Were a garment-producing country to significantly raise wages, buyers would simply shift their purchases to a competing country with lower wages. In this instance, regional or even global approaches, with a WSR program spanning multiple countries, may be optimal for a sustainable solution. Third, a mapping of the landscape should summarize the histories and track records of other worker organizations and supply-chain initiatives in the sector or geographic region. Similarly, if previous attempts have been made to address the problem, it is useful to assess their origin, structure, and outcomes. A comprehensive analysis can be performed by utilizing the principles of WSR as metrics. This assessment can be performed based on media, academic, and NGO reports, the program’s own publicly available data (often more revealing for omissions than content), and through firsthand experience that the practitioner organization or others in the field may have with the program. Two factors are crucial to any such analysis: the presence of certain key elements, such as an effective monitoring regime and market consequences for violations; and concrete, measurable outcomes that

150

Worker-Driven Social Responsibility Programs

demonstrate the on-the-ground changes achieved, or not achieved, by the existing initiative.

B. The Nature of the Industry

There are also specific considerations for assessing whether or not WSR is an appropriate strategy, given the specific nature of an industry and supply chain. For example, understanding the structure, layers, and timing of the supply chain, including product and financial flows, is a necessary precondition for designing a WSR program with an enforcement mechanism that applies to both buyers and suppliers. In the case of buyers, the agreement is enforced through legal mechanisms via judicial systems or private arbitration. In the case of suppliers, enforcement is enacted through market consequences, whereby the buyer is legally obligated to cease doing business with any supplier that commits violations and fails to provide sufficient remedies. If the product or service is not traceable or cannot be segregated within the supply chain, there must be an alternative method for establishing supply-chain responsibility. There must be an ability to separate bad and good actors within the supply chain so that those that are in compliance with program standards can be rewarded, and those that are in violation can be effectively identified and sanctions, including market-based consequences, can be applied. Relatedly, a similar level of knowledge about end consumers is also required. Corporate accountability campaigns have repeatedly demonstrated that brands are sensitive to public revelations of worker abuse in their supply chains and have proven effective in compelling concrete changes. The bigger the brand’s market and cultural footprint, the more susceptible the brand may be to external pressure. A successful WSR program requires the presence of brands that can be effectively pressured through public campaigns to address conditions in the supply chain. It is imperative that the target markets of the brands be likely to respond favorably to such a campaign. Given that many corporations are vulnerable to this approach, a cottage industry of public relations and crisis management consultants has arisen to help companies navigate these turbulent waters; indeed, CSR and many MSIs are a part of this industry. A brand’s history, if any, of responding to similar issues or campaigns may reveal its strategic tendencies when responding to human rights issues in its supply chain. Taken together, these factors can help illuminate the likely fit of a WSR approach to any given brand.

Feasibility for Worker-Driven Social Responsibility Programs

151

C. The Capacity of the Practitioner Organization

Finally, there are also considerations for assessing whether or not a worker organization has the capacity to campaign for and implement WSR. To start, on a practical level, effective application of the WSR model requires deep participation from the worker community. In effect, the WSR model should offer tangible and concrete opportunities for further strengthening of worker organizations. This participation is necessary for such tasks as identifying workplace problems and solutions for an enforceable code of conduct or standard, creating an effective and credible worker education program, evaluating and refining the program’s workplace inspection protocols, assisting as needed in the investigation of worker complaints filed under the code or standard, and providing overall strategic direction for the program. Therefore, an organization’s ability to engage workers in a participatory and sustainable manner is a necessary condition for it to be able to serve as an effective spearhead for a WSR program. This participation is best channeled through a worker organization—including trade unions, workerbased human rights organizations, or other organizations that genuinely represent workers’ interests—that is viewed as accessible, trustworthy, and credible by its members. Because deep power imbalances exist within corporate supply chains, there is no shortcut or “trick” that can compensate for a worker organization having insufficient power to secure a WSR agreement. The most reliable way for the worker organization to build that necessary power is through a public campaign driven by a worker-consumer alliance. In the absence of such a campaign and the leverage it provides, it seems unlikely that a worker organization will be able to negotiate a strong agreement with a corporation. Accordingly, it is useful to review the scope, arc, and impact of the organization’s previous campaigns. This will establish whether the organization has the experience and capacity to negotiate and enforce settlements stemming from these campaigns. This will also reveal the nature of the organization’s relationship to employers. A list of previous partners may provide a window into the organization’s milieu and identify active and passive allies, as well as active and passive opponents, for the WSR campaign and program. In the final analysis, such an organization should understand or be willing and able to learn negotiating strategies and positioning; have a history of regular planning, persistence, and focus in its campaigning practices; demonstrate an ability to engage and challenge employers strategically (with power but also

152

Worker-Driven Social Responsibility Programs

dialogue); and demonstrate that it either has an existing web of strong and willing allies or has the capacity to develop one. A worker organization’s ability to develop effective strategy—a plan of action to achieve an objective within the constraints of limited resources— is necessary for the organization to become a successful WSR practitioner. Exploring the organization’s strategy development process will likely intersect with its campaign history and leadership model. While successful outcomes are a clear indicator of effective strategic planning, it is also important to understand the planning process itself, including how key decisions are made and on what timelines. Specifically, it is important to assess whether decisions are made deliberatively and with broad participation within the organization (and even input from key allies) and whether there is follow-through on implementation and accountability to the plan. Additionally, the organization must demonstrate a willingness and capacity to enter into a long-term planning process leading to a focused multiyear campaign, as well as the ability to accurately assess its internal capacity in relation to its planned activities. There are also resource access issues to consider. Though the “return on investment” is quite remarkable in terms of WSR’s ability to protect workers’ rights, these programs cannot be done on the cheap. Even as WSR programs incorporate self-financing mechanisms, such as buyer support payments to underwrite implementation costs and labeling agreements, there will be a need for resources for the worker organization and an independent monitor. Possible sources of funding include dues, broad-based consumer sponsorship, foundation grants, and a fee for service. If a program generates buyer support payments to underwrite monitoring costs, practitioners must be careful that the overall proportion of funding from this source does not pose the risk of undue influence or introduce potentially compromising dependencies. A diversity of funding streams serves as a necessary check against this risk. Similarly, legal support is necessary for navigating the fine lines required by a corporate accountability campaign as well as for drafting the code or standard and binding WSR agreements with corporate buyers. If the organization does not have in-house legal counsel, it must evaluate whether external support can be obtained and whether that support will be sufficient for, and attuned with, the identified objectives. In this context, it is important to determine whether there are legal constraints the worker organization could face in pursuing WSR agreements and/or implementing a WSR program. Finally, the worker organization’s external environment must be reasonably conducive. The WSR model requires that workers enjoy sufficient access

Feasibility for Worker-Driven Social Responsibility Programs

153

to their rights of assembly and expression. While organizing is dangerous in many contexts, it is particularly difficult to imagine a WSR program taking root where worker organizations cannot operate aboveground in a formal and relatively secure manner. The model may not then be suited to the current realities of China, to cite one prominent example, where independent worker organizing is forbidden by the state. However, even in environments as difficult as Bangladesh, the model has proven effective at leveraging sustainable change.

IV. Conclusion There are several challenges to creating new WSR initiatives. These include limits to workers’ and allies’ organizational power and campaign capacity, as well as the timeframe required for necessary stages of organizational, campaign, and program development for hundreds if not thousands of supply chains. Additional constraints abound. We might ask, for example, whether the WSR model would work for state-owned enterprises, such as Zimbabwe’s notoriously brutal diamond sector?11 Last, given corporate hegemony, can a tipping point be reached in which WSR would constitute the “new normal” for supply chain labor rights programs? Despite these uncertainties, the initial returns on WSR, from Florida to Bangladesh, are too promising to ignore. The creation of new WSR initiatives will therefore provide more data points for evaluating the potential paths for the model’s wider application, while also protecting the rights of workers in those particular supply chains. This initial set of feasibility criteria will need to be field tested and revisited as new data are generated through existing WSR programs as well attempts to explore the feasibility of WSR programs in new contexts. It will be particularly useful to receive feedback from organizations that use these criteria to perform self-assessments. Likewise, by creating a clearer understanding of the material, organizational, and information needs of a successful WSR program, this set of metrics may prove useful for establishing collaborative divisions of labor between frontline practitioner groups, supportive NGOs, and academic researchers. By fleshing out the key preconditions for WSR, this tool may also prove useful to advocates and researchers who seek to shift discourse and dialogue from voluntary and nonbinding social responsibility programs to a binding enforcement model with workers in the driver’s seat: one that is better able to protect the rights of low-wage workers so desperately needed in the supply chains of the twenty-first century.

CHAPTER 8

From Public Relations to Enforceable Agreements The Bangladesh Accord as a Model for Supply Chain Accountability Jessica Champagne

Launched in 2013, the Accord on Fire and Building Safety in Bangladesh marked a new approach to tackling deadly safety risks and other workers’ rights violations in the apparel industry. Over its first five years, the Accord ensured the remediation of more than 100,000 safety hazards.1 Cathy Albisa of the National Economic and Social Rights Initiative has said—and it is no exaggeration—that “there are kids who are not orphans because of this.”2 The Accord was initiated by global unions and workers’ rights advocates to address a political challenge. Year after year, Bangladeshi garment workers were dying in fires and building collapses due to the industry’s failure to implement basic safety standards. The challenge was not a technical one: the structural, electrical, and fire safety flaws in the factory buildings violated both the Bangladeshi building code and universally recognized building safety standards that date back to the first half of the twentieth century. The challenge was not identifying what repairs and improvements were necessary to make workers safe—facts well understood within industry circles—but rather finding levers of accountability to make the garment industry commit to undertaking these improvements and to hold it to those commitments. The Worker Rights Consortium (WRC) and other advocates presented global apparel firms with a legally binding, enforceable agreement to achieve

From Public Relations to Enforceable Agreements

155

these goals in 2010, but at that time only two firms were willing to sign. In the wake of the Rana Plaza building collapse in 2013, which killed more than 1,100 workers and injured many more,3 the industry came under immense pressure from worker organizations, advocates, consumers, students, and universities. As a result, more than two hundred brands and retailers signed the Accord, creating an agreement and inspection program that covered more than half of the Bangladeshi garment industry, including sixteen hundred factories and 2.4 million workers.4 The Accord was also signed by ten organizations representing workers: two global unions (IndustriAll Global Union and UNI Global Union) and eight Bangladeshi garment worker unions. International workers’ rights advocates are also at the table; four nongovernmental organizations (NGOs) involved in developing the Accord, including the WRC, serve as witness signatories.5 While the Accord is primarily focused on lifethreatening safety issues, it also provides one of the only redress mechanisms available to Bangladeshi workers who experience retaliation in response to their efforts to speak out about broader health and safety issues on the job. In 2018, the Accord completed its initial five-year term and was extended through a new revised agreement, known as the 2018 Accord. As of this writing, the Accord is now scheduled to transition to a new phase. As a result of the Bangladeshi government’s opposition to the program,6 the inspection work of the Accord will be transitioned to a new domestic body, the RMG [Ready-Made Garment] Sustainability Council (RSC).7 The success of this new phase will depend on the successful negotiation of a new international agreement that would incorporate Accord elements lacking in the RSC; at this writing, it is too soon to say whether such an international agreement can be reached. The Accord’s design, particularly its structure as a legally enforceable agreement with potential financial consequences for noncompliance, has enabled it to have an unprecedented impact in the global garment industry. This chapter sets out the key elements of the Accord, including the 2018 updates and 2020 Transition Agreement; examines its impacts and key limitations; and reflects on how the Accord’s implementation offers valuable lessons in designing future agreements. The Accord has not only brought unprecedented change to the Bangladeshi garment industry, it has also proven to be a valuable experiment in WorkerDriven Social Responsibility (WSR). WSR, a term coined by and exemplified by the transformative work of the Coalition of Immokalee Workers, is further explored in Sean Sellers’s and James Brudney’s chapters in this volume.8

156

Worker-Driven Social Responsibility Programs

The global garment industry offers a unique opportunity to explore the contrast between the binding agreements and robust enforcement mechanisms that define WSR, and the typical industry approach of voluntary corporate social responsibility (CSR) and multi-stakeholder initiatives (MSIs). Media exposés and protests by students and consumers over the past twenty years have placed significant pressure on major apparel brands to address workers’ rights abuses in the factories that produce their apparel. As a result of this attention, the debate on lead firms’ accountability for workers’ rights in garment supply chains is more advanced than in many other sectors. International brands’ and retailers’ response to public pressure has been to construct their own voluntary CSR initiatives by establishing codes of conduct and monitoring programs. Many CSR programs appear directed more toward protecting the reputations of the apparel companies than the workers who produce their clothes, and the failure of CSR programs to achieve their stated goal—actual improvements for workers—is well documented. Despite this, workers and advocates have been able to use these voluntary, highly public proclamations of adherence to labor standards as a lever to win some improvements.9 Many of those victories were the direct and indirect result of applying universities’ codes of conduct dealing with university logo apparel, which (unlike buyer codes) are an enforceable part of licensing contracts.10 It is therefore crucial to draw a bright line between ineffective, unaccountable, industry-driven CSR and enforceable, binding agreements through WSR, like the Accord. The first section of this chapter describes failures of CSR in the garment industry, the second provides an overview of the Accord, the third provides some reflections on the Accord, and the final section offers some suggestions for areas of improvements and ways forward.

I. The Smokescreen of Corporate Social Responsibility Thirty years after CSR programs emerged as the dominant corporate response to workers’ rights abuses in global supply chains, garment workers around the world continue to receive poverty-level wages, work in conditions that damage their bodies, and experience retaliation and violence when they speak out about violations. In Bangladesh between 2005 and 2013, nearly two thousand workers were killed in more than a dozen fires and building collapses.11 An analysis of the six most deadly fires and building collapses between 2000 and 2013 found each of these factories supplied buyers that have established or

From Public Relations to Enforceable Agreements

157

participated in CSR programs, and each factory had been audited by buyers not long before the catastrophe.12 Despite the mounting death toll and the fact that these safety risks were well known,13 buyers failed to instruct their auditors to inspect for building and fire safety issues, such as checking for simple violations like a lack of fire doors and enclosed stairwells, let alone conducting more thorough inspections by trained safety engineers. As a result, factories could obtain clean bills of health without obvious structural, electrical, and fire safety risks being assessed, although these presented serious risks to workers’ lives.

A. An Emblematic Failure: Deadly Oversights by Walmart in Bangladesh

The case of Walmart, extensively documented in a 2012 New York Times article based on interviews and leaked internal documents, provides an illustration of the failure of CSR in Bangladesh.14 Although the company conducts more than nine thousand factory inspections per year, one of its top executives acknowledged in a private email that “fire and electrical safety aspects are not currently adequately covered in ethical sourcing audits.” One of the for-hire monitors used by Walmart in Bangladesh, UL Verification Services, confirmed that it did not monitor for basic fire safety elements such as fire doors and enclosed stairwells and stated, “that’s the responsibility of the local building code inspector. . . . We don’t have jurisdiction to inspect the building code.”15 Walmart had audited the Tazreen factory twice in 2011 and once in 2012, prior to the November 2012 fire that killed 117 workers at the factory. Although the audit was inadequate, Walmart still found that the factory had an “orange,” or high-risk, assessment, due to a number of factors including inadequate fire extinguishers and fire alarms. These findings were confirmed by a further audit seven months later, indicating that the factory’s management felt no urgency to correct these violations after they were identified. As labor specialist Dara O’Rourke told the Times, “It is not enough to have a system that does a checklist of problems and keeps track of what happens to those problems every six months. . . . They should say, ‘. . .What can we do immediately to solve these problems and eliminate these risks?’”16 During this period, Walmart simultaneously opposed any efforts to press buyers to cover costs of repairs or make binding commitments, arguing that it was not “financially feasible for the brands to make such investments.”17

158

Worker-Driven Social Responsibility Programs

B. The Failure of Audits

The failure of corporate audits in addressing fire and building safety in Bangladesh is not an aberration. Many auditors view their core work as pertaining more to issues commonly defined as labor law compliance, rather than building code compliance; however, their performance is abysmal here as well. Observers have noted for-hire auditors’ failures to address common abuses such as suppression of workers’ associational rights,18 discrimination, and abusive treatment, both in the context of individual apparel firms’ compliance programs and also in the context of industry associations and industry-dominated MSIs, such as the Ethical Trading Initiative and Fair Labor Association.19 The technical failings of audits commissioned by apparel firms and corporate-dominated MSIs have been widely documented. These include failures to interview workers off-site, in order to build the necessary trust, and susceptibility to being fooled by temporary fixes and double books, as well as inspectors’ lack of training in technical issues key to workers’ safety.20

C. Structural Contradictions Underlying CSR Failures

The structure of garment supply chains and the nature of the relationship between buyers and suppliers also undermine the effectiveness of CSR approaches. Structurally the garment industry is marked by four features that lead to dangerous and degrading working conditions:21 first, firms do not directly own the factories that produce their goods and instead use contract factories; second, their relationships are governed by short-term contracts for specific orders, with no guarantee of continued business; third, any given brand or retailer generally only uses part of a factory’s productive capacity, so factories supply multiple buyers; and fourth, barriers to entry in garment production are low, and large numbers of workers are seeking employment, leading to excess production capacity. These dynamics give brands and retailers significant power to bargain down prices and turnaround times by pitting suppliers against each other. Factory owners know that if they fail to match a requested price or schedule, another factory will do it instead. Given that raw material and energy are relatively fixed costs, labor-related costs are one of the only areas in which the factory owners can squeeze out savings to remain competitive. Lack of government

From Public Relations to Enforceable Agreements

159

enforcement of labor law, building codes, and other related laws often allows supplier factories to drive these costs down through means such as wage theft, failure to provide legally required protective equipment, outsourcing to informal and home-based workers, and retaliation against workers who engage in collective action to demand better wages and working conditions. In light of these structural factors, it is unsurprising that CSR programs have failed to bring about meaningful change. Even if audits identify violations, and the CSR personnel press factories to change their practices accordingly, the same company’s sourcing team is likely to be pressing the factory to produce faster and cheaper. In a context wherein few brands exit factories even when violations are identified, the latter pressures are more likely to be determinative.22 Moreover, voluntary codes of conduct lack any third-party verification or enforcement. As a result, buyers are not bound to take any action when violations are identified, nor are they held accountable when they fail to engage in the verification and changes in purchasing practices that would be required to achieve full compliance. In the absence of accountability from significant buyers or proper national enforcement of labor law, suppliers have no incentive to make improvements or change their practices. This lack of accountability includes a lack of accountability to workers. There is no meaningful way for workers to voice their complaints and concerns, and the recent proliferation of hotlines, cell phone surveys, and traditional audit interviews is an insufficient response, as workers have no reason to trust that these avenues will maintain their confidentiality or lead to meaningful action. Where workers present complaints, there is no accountability to workers or worker organizations in terms of outcomes, and in many cases workers are not even informed of audit findings or factory commitments to remedy the violations that they report. Lack of transparency also insulates companies from public accountability. Students, consumers, and advocates have succeeded in forcing a number of apparel firms to disclose the names and locations of their supplier factories over the past twenty years. However, many firms still refuse to take this basic step. Moreover, it is virtually unheard of for firms to provide factory-level information about audit methodology and findings, let alone information about order decisions and purchasing practices that would enable outside observers to assess the buyers’ own performance. Generally, the only information available is the information that companies choose to present in their own self-promotional CSR or sustainability reports, over which they have total editorial control.

160

Worker-Driven Social Responsibility Programs

It is worth keeping in mind that increasing respect for workers’ rights is not the primary goal of corporate social responsibility; many “corporate codes are aimed primarily at consumers and investors, not at employees,” and treated as an “important reputational asset” designed to ameliorate reputational damage with consumers and investors or, in some cases, regulation.23 Providing real protection for workers requires obligating brands to make fundamental changes to the way they govern their supply chains—and creating structures to bind them to these commitments. Ideally, governments or international governance institutions would step into this regulatory role and impose rules on how global corporations comport themselves internationally, with buyers’ home governments taking a leading role. Unfortunately this has not happened, and advocates have had to pursue other private regulatory means to constrain apparel brands.24 The Bangladesh Accord builds on earlier experiments and has set a new standard for what can be achieved by constraining brands’ actions and creating an enforceable, legally binding structure for accountability.

II. The Accord on Fire and Building Safety in Bangladesh The 2013 Accord on Fire and Building Safety in Bangladesh offers the most robust example to date of an alternate model of supply chain accountability. It is unprecedented in the global garment industry both in its form—as a legally binding, enforceable agreement—and in the scope of the lifesaving improvements it has brought in Bangladeshi garment factories.25 The Accord requires that fundamental improvements be made to garment factories that for years have posed serious safety risks. To identify the repairs needed and verify that they are appropriately completed, the Accord sends engineers trained in fire safety, structural safety, and electrical safety to conduct repeated independent fire and building safety inspections in every factory. Most of these buildings had never been subjected to such inspections prior to the establishment of the Accord. Detailed reports of these inspections, and on the progress of repairs, are available on the Accord website.26 In order to compel its signatory buyers and their supplier factories to complete expensive repairs, the Accord’s architects constructed a legally binding agreement between the lead firms (the buyers and retailers operating

From Public Relations to Enforceable Agreements

161

at the top of supply chains) and worker organizations. By signing the Accord, each brand or retailer is making a legally binding commitment that can ultimately be enforced through arbitration. The Accord takes steps toward addressing some of the key structural elements of the garment industry that have seriously compromised the effectiveness of voluntary codes. It creates real financial consequences for noncompliance for both factories and buyers and requires that buyers make funds available for repairs. The Accord originally had a five-year term; most Accord signatory buyers have now signed a new Accord agreement that covers an additional three-year period, from 2018 through mid-2021.27 The new 2018 text includes a number of provisions that strengthen protections for workers, described further below. When a brand or retailer signs the Accord, it commits to take several steps for the duration of the Accord: • • •

• •

disclosing to the Accord, and regularly updating, a list of supplier factories in Bangladesh; ensuring that supplier factories participate fully in the Accord inspections and worker training programs; ensuring that factories promptly remedy violations identified by the Accord, including fire, electrical, and structural safety violations identified by Accord inspectors as well as violations identified through the complaint process (which may include retaliation and violations of other health and safety standards in addition to the three core areas assessed by Accord inspectors); ensuring that it is “financially feasible” for the factories to engage in this remediation; and annually paying dues to the Accord.28

The Accord has developed its own Building Standard, based on the Bangladesh National Building Code, which is used as a reference in identifying needed improvements.29 The Accord also requires that factories respect workers’ right to refuse work that they believe to be unsafe30 and addresses other related issues, including the impact on workers’ livelihoods of ceased or suspended production by their employers. The Accord has protected the workers’ right to raise health and safety issues without fear of retaliation, and its complaint mechanism will consider health and safety complaints on a range of issues, beyond the scope of the Building Standard.

162

Worker-Driven Social Responsibility Programs

A. History and Development of the Accord

The Accord was designed in 2010 by workers’ rights advocates, led by my colleagues at the WRC, after yet another fatal fire, at That’s It Sportswear in Ashulia, outside Dhaka.31 Given the failure of corporate-driven programs to bring about appreciable improvements in safety, these advocates proposed a program under which global apparel brands and retailers would sign a legally binding agreement to ensure that their supplier factories in Bangladesh were made safe and to provide resources for these improvements as necessary. Advocates brought this program to a number of key brands, including Gap and PVH. For two years, brands and retailers rejected this proposal without exception. Then, in 2012, PVH Corp agreed to sign, prompted by the potential embarrassment of a planned ABC News story exposing the relationship between Tommy Hilfiger, a PVH brand, and That’s It Sportswear.32 PVH was followed by Tchibo, a German retailer, which signed in response to communications by the Clean Clothes Campaign (CCC).33 For the industry overall, however, neither the 2010 That’s It Sportswear fire nor a later fire at Tazreen Fashions in 2012, which killed 117 workers,34 were enough to prompt meaningful action. Moving a critical mass of firms to action required a disaster of unprecedented proportions: the Rana Plaza building collapse in 2013, which killed more than 1,100 people.35 In the weeks following the collapse, worker representatives and advocates redoubled their efforts to promote a real solution. Workers’ rights organizations like the WRC, CCC, United Students Against Sweatshops, the International Labor Rights Forum, and the Maquila Solidarity Network; labor unions; and multi-issue organizations like SumOfUs pressed firms to go beyond empty words and sign the Accord. A number of U.S. universities required that the licensees that produce their logo apparel join the Accord. This global campaigning, global attention to the disaster, and apparel firms’ fear of related potential reputational damage drove more than two hundred international brands and retailers to sign the Accord.36 There have been two phases of the Accord and two versions of the agreement. While the initial Accord was limited to a five-year term from 2013 to 2018, it was clear that additional work remained as the end of this term approached. New factories had come under the purview of the Accord, requiring new remediation plans and verification, and a significant number of factories had not yet completed their remediation. It was also clear

From Public Relations to Enforceable Agreements

163

that, in the words of the Accord Steering Committee, “there is not yet a fully resourced national regulatory body in place to take over this work.”37 Given this, and despite opposition from significant portions of the Bangladesh garment industry and the Bangladeshi government, the Accord was extended for an additional term.38 The 2018 Accord constituted a new agreement, with newly amended text negotiated by the parties. It did not automatically apply to the existing buyers; each had to affirmatively sign the new document. As of July 2018, more than 180 companies had signed the 2018 Accord.39 The 2018 text included some improvements, discussed further below. These included an expansion of protections for freedom of association, the workers’ right to severance in the case of factory relocation, and the elimination of the three-tier system for categorizing factories. In addition, it provided the option for signatory firms to also bring their home goods and fabric and knit accessories production under the Accord inspection regime. Subsequent to the signing of the 2018 Accord, the Bangladesh Garment Manufacturers and Exporters Association and the government of Bangladesh intensified their efforts to expel the Accord, including challenging its right to operate in the courts.40 These efforts resulted in the Transition Agreement,41 signed on January 14, 2020, stating that by May 31, 2020, the Accord would transition its inspection functions to a local entity known as the RSC. The NGO signatories have voiced serious concern about the structural differences between the Accord and the RSC.42 At this writing, the transition has not yet occurred; it is too soon to assess, first, whether the RSC will be able to effectively and objectively perform its functions, and second, whether the signatories will be able to negotiate a new international agreement that will backstop the RSC and fill the gaps left by the end of the Accord.

B. Key Elements of the Accord

The Accord breaks new ground for corporate accountability in the apparel sector in a number of ways. It also builds on a number of previous models used to address labor rights violations in the garment sector, including university codes of conduct, which are embedded in legally binding contracts between universities and apparel firms; jobbers’ agreements which were signed between U.S. unions and companies or designers that outsourced production within the United States and which maintained decent working

164

Worker-Driven Social Responsibility Programs

standards in the United States from the 1940s through the 1980s; and Global Framework agreements between lead firms and global unions.43 This section explores the key elements of the Accord, starting with the dayto-day monitoring and disclosure processes, followed by the underpinning structural elements, and finally discusses the worker education and complaint mechanism. 1. Rigorous Monitoring

The Accord has built a team of more than one hundred engineers trained in fire, electrical, and structural safety. The team conducts up to five hundred inspections per month to assess compliance with the Accord’s code.44 These engineers, led by the chief inspector, constitute an independent inspectorate, which is protected from any undue interference by the brands either individually or through their role in the governing body. The chief inspector has the right to reach final determinations on compliance without any secondguessing from the board or other entities and is protected from retaliation; the chief inspector can be removed only if there is proof of serious malfeasance. Currently, the engineers are conducting some inspections of new factories that have entered the Accord, but most inspections are follow-ups designed to verify whether the factories have fulfilled their remediation obligations and to identify any new violations that have arisen during the process. 2. Transparency

A list of Accord signatories, the identities of the factories, and all inspection reports and corrective action plans (CAPs) are made public on the Accord website. This information is also shared with worker representatives; each inspection report is shared with them within two weeks and with the public within six weeks. This differs from CSR approaches, in which audit reports are rarely made public or even provided to the workers at the factory. Unfortunately, while the Accord is provided with a supplier list for each buyer, this list is not made public. 3. Legally Binding Agreement Enforceable Through Arbitration

The Accord is a legally binding, enforceable agreement that places specific requirements on signatory brands and retailers. If the signatory unions determine that brands are not meeting their obligations to ensure that necessary improvements are made, including by ensuring that funds are available for these repairs, they can refer a dispute to the Steering Committee, made up

From Public Relations to Enforceable Agreements

165

of brand and labor representatives. After a case has been considered by the Steering Committee, either the committee or the union signatories can, if necessary, take the case to arbitration to compel full compliance. To date, two global union signatories have taken two global brands to arbitration and reached positive settlements with both.45 Both settlements, reached in December 2017 and January 2018 respectively, resulted in substantial funds ($2.3 million in the second case) being made available for remediation of safety violations in supplier factories.46 While there are evident challenges in the arbitration process (see below), the fact that unions have been able to use the mechanism to compel compliance by global brands is unprecedented in the apparel supply chain and stands in sharp contrast to the voluntary, unenforceable codes that are the norm. 4. Market Consequences for Factories (Suppliers)

Alongside arbitration to hold brands and retailers accountable, it was also necessary to establish a mechanism to ensure compliance on the part of the factories, which are not signatories to the agreement. The Accord provides that if a factory proves unwilling or unable, after multiple warnings, to make its factory safe for workers, or engages in fraud to attempt to falsely convince Accord inspectors that the factory is safe when it still poses serious risks, then the factory can be terminated from the program. If a manufacturing firm sees one of its factories terminated from the Accord, all of that firm’s factories are banned from doing business with any of the more than two hundred Accord signatories for a period of at least eighteen months. A factory will only be able to requalify for the Accord if it shows that safety violations have been remedied to Accord standards. At this writing, eighty-three suppliers have been terminated from the program.47 This differs from CSR programs, in which termination simply means that a firm loses the right to claim a certification or do business with a single buyer. While termination is a last resort and undesirable for any of the parties, it is a key element of the program and a powerful motivator for factory owners to make the necessary repairs. 5. Ensuring Adequate Resources for Repairs

The Accord makes it clear that the buyers—the brands and retailers—must ensure that sufficient funds are made available for all necessary repairs. This is critical to counter the downward price pressure that brands and retailers have placed on factories producing low profit margins that severely restrict funds available for improvements.48 Therefore, considerations of both feasibility

166

Worker-Driven Social Responsibility Programs

and fairness demand that buyers bear a share of the responsibility for financing repairs. While there has been increasing attention to the role of buyer purchasing practices in driving abusive and unsafe working conditions,49 buyers have strongly resisted taking responsibility for the cost of compliance, and the Accord is extremely unusual in placing an explicit obligation on buyers to ensure availability of funds. The question of costs is particularly important given that major building improvements are not cheap. When the Accord first inspected factories, it found that only 3 percent had a safe means of egress in case of fire. Installing new fire-safe stairwells and fire doors to ensure workers can exit safely requires significant investment, between $250,000 and $750,000, depending on whether the factory needs sprinkler systems. Articles 12, 21, and 22 of the original Accord text provided that the signatory firms have the responsibility to ensure both that required remediation is implemented and that factories have the necessary resources.50 The Accord did not, however, specify a particular mechanism for funding repairs. Article 22 notes a number of options for making these financial arrangements, including “negotiat[ing] commercial terms with their suppliers that ensure that it is financially feasible for the factories to maintain safe workplaces,” but also “joint investments, providing loans, accessing donor or government support, through offering business incentives or through paying for renovations directly.”51 6. Worker Education, Safety Committees, and Protection Against Retaliation

No endeavor designed to improve working conditions or worker safety can succeed without placing workers at the center and providing the education, resources, and protection from retaliation necessary to enable workers to share their expertise as the best monitors of their own worksites. Even where robust inspection regimes exist, only workers and managers are present every day in the factory, and only workers have a consistent incentive to report violations and press for improvements. Workers see cracks growing in cement, fire doors propped open (eliminating their functionality as a fire barrier), and supervisors scolding Safety Committee members who raise important safety issues; and workers are uniquely positioned to identify and speak out about day-to-day violations, all of which can be concealed from even the most skilled on-site inspector.

From Public Relations to Enforceable Agreements

167

The Accord addresses this fundamental need by providing education to workers on workplace safety issues and on their rights in the workplace. The Accord training team provides basic training to all workers in the covered factories, as well as more intensive training and support to members of workplace safety committees. A team of more than fifty trainers has now provided training to more than 1.7 million workers at more than one thousand factories.52 This work takes place in an extremely challenging environment, marked by government and employer hostility to freedom of association and limited resources among labor unions. 7. Right to Refuse Unsafe Work and Freedom of Association

The Accord protects the right of workers to refuse unsafe work without experiencing retaliation and educates workers about this right.53 The Rana Plaza collapse demonstrates why such explicit protection is imperative. Many workers, seeing the cracks in the factory, initially refused to enter. However, when supervisors threatened them with loss of a month’s wages, many entered, and they were killed when the building collapsed just a few hours later.54 Through its complaint mechanism, the Accord also protects the workers’ right to speak out about safety-related issues without fear of retaliation. While the original Accord did not make specific reference to freedom of association, the 2018 Accord notes that “signatories to this agreement recognize that safe workplaces cannot be assured in the long term without the active participation of the people who work in them. For this reason, signatories will continue to promote respect for the right of workers to freedom of association in accordance with relevant ILO Conventions.”55 The 2018 agreement also states that the Steering Committee will “develop a training and complaints protocol to ensure that workers’ rights to Freedom of Association are respected in relation to protecting their own safety under the scope of this agreement.”56 At least one factory has been terminated from the program because it retaliated against workers for speaking out about safety issues, and the Accord has successfully remedied such retaliation in another case. However, the limits of the Accord’s protections for associational rights are evident in a context where workers who exercise their associational rights face determined, sometimes violent, opposition from factory owners, and where the government has consistently stood on the side of the owners, rather than the workers seeking to form unions or press for higher wages and better working conditions. Despite these limitations, the Accord has offered one of the few avenues to justice and remedies available for health- and safety-related

168

Worker-Driven Social Responsibility Programs

associational violations in a context wherein workers had no other viable authority to which they could turn. 8. Safety Committees

Labor-management safety committees are required by law in Bangladeshi factories;57 however, they often exist only on paper and fail to fulfill the intended functions. The Accord has sought to support the creation and functioning of these committees by providing training to committee members and pressing management to support these committees.58 Additionally, Accord safety inspections provide opportunities to engage with the safety committee: the committee co-chairs accompany the inspectors around the factory, and the committee is provided the results of the inspection, which becomes a major topic for committee meetings.59 The Accord has learned from continued experimentation in this area. An initial pilot program succeeded in establishing committees, only to see them disintegrate after the initial support period ended. The Accord then launched a “reengagement initiative,” which is still underway, to support these committees’ ongoing functioning.60 Given the industry’s opposition to worker organizing, these safety committees are one of a few venues for meaningful labor-management dialogue, which may in the longer term bear fruit not only in improving safety at the factory level but also in offering space for workers, managers, and their union representatives to develop the skills and habits necessary to engage on other issues as well. 9. Complaint Mechanism

The Accord offers a robust complaint mechanism for workers to raise concerns about health and safety in their factories. While the Accord inspections are limited to fire, electrical, and structural safety, workers may raise confidential concerns through the complaint mechanism regarding other safety issues, from chemical exposure to retaliatory violence by managers and hired thugs. Workers can file complaints through multiple channels, including a hotline, which is answered by Accord complaint handlers. These complaint handlers do more than simply take messages; they develop familiarity with the Accord’s work and in some cases with particular factories, enabling them to quickly assess and respond to the complaints they receive. In cases that require immediate intervention, the complaint handlers are authorized to immediately dispatch Accord inspectors, who will be able to order the evacuation of the factory if necessary. In practice, the complaints

From Public Relations to Enforceable Agreements

169

have brought to light many issues that are outside the scope of the Accord, such as those related to wage and hour issues. The Accord’s Safety and Health Complaints Unit investigates these cases; reaches findings; and, where possible, engages the employers and, if necessary, relevant buyers to address any violations. Like inspection results, worker complaints can provide the basis for termination of factories from the program if the factories fail to remedy the violations.

III. Reflections on the Accord The Accord offers a novel overall package to constrain bad behavior and drive improvements in the international garment sector: it is a binding and enforceable agreement, driven by workers and worker organizations, with strong market consequences for noncompliance, which places the responsibility for change on the brands at the top of the supply chain. It brings together a number of important elements, each of which, individually, might not be enough to ensure that workers’ safety is protected. Robust inspections are meaningless without consequences for failure to correct violations; requirements placed by brands on their suppliers cannot be fully implemented without resources; and without workers’ being educated about their rights and allowed to exercise their right to organize, report violations, and refuse unsafe work, it would be impossible to know whether workplaces were safe day to day. As a package, these elements have brought huge change to individual factories and to the Bangladeshi garment sector. Together, these elements also seek to counter the structural challenges to compliance with labor rights in the garment industry. Fundamentally, the Accord limits the ability of lead firms to distance themselves from responsibility for outsourced, dispersed production and to squeeze suppliers on price by obliging them to not only require compliance but also make such compliance financially feasible. It also limits the opportunities for factories and buyers to treat lax compliance with workplace safety as an opportunity for dangerous cost cutting. Unfortunately, as is explored further below, the language on funding in the Accord still allows some space for firms to evade this responsibility. In addition, Mark Anner has shown that since Rana Plaza, downward price pressure has continued; current prices paid by buyers to Bangladeshi factories are lower than in 2013, raising concerns about what other corners factories are cutting to keep meeting buyers’ price demands.61

170

Worker-Driven Social Responsibility Programs

By bringing a critical mass of buyers together into a single program, the Accord also partially addresses the compliance challenges posed by fragmentation of workplaces and the fact that buyers tend to disperse their work among a high number of factories, which limits the pressure any one brand can place on any one factory. The Accord significantly shifts the owners’ incentives by ensuring that failure to comply with the Accord means losing the opportunity to do business with a significant number of firms. While a great deal of work remains, the Accord has brought significant safety improvements to the hundreds of factories it covers. The Accord has identified a total of more than 140,000 individual safety violations.62 The initial inspections revealed that basic safety measures were widely absent. Ninety-one percent of factories had “antiquated” fire detection and alarm systems, and nearly the same number lacked necessary fire separation to prevent spread of fires and protect exit routes. More than 70 percent of factories had electrical cables that were inadequately supported and protected, a common cause of fire. The same percentage either lacked, or were failing to implement, a management load plan that would avoid overloading the various areas of the building with excess weight that could result in collapse. As of January 2019, more than 85 percent of these safety hazards, or more than 120,000 separate issues, had been addressed.63 Some of these violations proved relatively easy to address, generally because they require limited financial investment and because the required materials are readily available, such as removing lockable gates on exit routes. More than 97 percent of identified cases of locking gates in thirteen hundred factories have now been remedied. Over twelve hundred factories have fixed lighting on the workers’ exit path; more than eleven hundred have stopped using escape routes for storage;64 and over one thousand have corrected inadequate electrical cable support and protection, significantly reducing the likelihood of an electrical fire.65 The electrical repairs alone, which were among the quickest and easiest to complete, significantly reduced the likelihood of deaths due to fires. Fifty factories with serious structural issues—each of which could have been the next Rana Plaza—were evacuated and either fixed or shut down.66 These repairs, combined with the Accord’s work to identify and evacuate buildings that posed an immediate risk to workers, have made the industry a much safer place to work. In 2016, for the first time in years, a full calendar year passed with no garment worker fatalities from fires or building collapses. Some 116 factories that refused to remedy violations have been terminated from the Accord, and workers have been made aware of the hazards.67

From Public Relations to Enforceable Agreements

171

Additional research is necessary to determine how many of the terminated factories continue to operate, and if so, to identify additional steps that can be taken to press them to make the necessary repairs or to ensure that these factories are put out of business and are no longer endangering workers’ lives. The Accord has also succeeded in sending a strong signal that retaliation against workers who speak out about safety risks in their factories will not be tolerated, especially through the 2016 termination of the factory Fresh Fashion Wear,68 after a member of the Safety Committee was fired for raising safety concerns. This is particularly important in Bangladesh, where garment workers have repeatedly met with violent retaliation when they have attempted to press for improved conditions.69 Finally, the Accord has created some level of security for workers to refuse unsafe work and speak out about violations. In April 2017, workers reported cracks in the foundation at Ananta Apparels, which employs three thousand workers at seven factories. In response to this complaint, the Accord successfully compelled the owner to evacuate the building. Several days later, the factory told workers to return to work. Unlike at Rana Plaza, where workers had entered a visibly cracked building under duress, these workers refused to enter and yet did not face repercussions. Two days later, when the Accord certified that the necessary repairs had been made, the workers resumed work, confident that they were working in a safe building.70 Additionally, in 2015 when the Dress & Dismatic factory forced nine workers to resign after workers reported unsafe loads to the Accord, the Accord successfully pressed the factory to reinstate them.71

IV. Challenges and Areas for Improvement The Accord faced significant external challenges, including the lack of capacity of the local union signatories, hostility from Bangladeshi factory owners and the Bangladeshi government,72 and logistical and timing challenges when an entire industry suddenly needed to import fire doors and other crucial equipment. Ultimately, this hostility by the industry and the government made it impossible for the Accord to continue its work in its original form, demonstrating the real difficulty of winning and maintaining this type of agreement in a very hostile industry environment. These external factors contributed significantly to the fact that the majority of factories have lagged behind the schedules set for their remediation. At the time of writing,

172

Worker-Driven Social Responsibility Programs

twelve hundred factories are behind schedule, although in many of these cases the majority of issues identified by the Accord have been remedied.73 This can be attributed to foot dragging by factories and brands, but also to legitimate logistical constraints. Many firms were simultaneously seeking to access the necessary parts and equipment to install technologies that had been rare in the sector, including fire doors, sophisticated alarm systems, and sprinkler systems. It took time as well to complete the extensive structural engineering assessments and proposals for fixes, all which needed to be reviewed by the Accord. Given these factors and the sheer scale of the project, the initial deadlines were perhaps overly ambitious. Still, these repairs constitute more improvement than the industry had seen previously. The Accord is the result of a negotiation between worker advocates and apparel firms, and the text of the agreement reflects a number of compromises. Therefore, as well as learning from the Accord’s successes, it is important to draw lessons from its shortcomings. The remainder of this section focuses on design elements of the Accord that could be improved in future agreements, rather than on the external challenges. A 2017 report by the Accord witness signatory NGOs identified areas for improvement and proposed enhancements for the 2018 Accord.74 The text of the 2018 Accord incorporates a number of improvements over the 2013 text, which grew out of the parties’ shared experience of attempting to implement the agreement. In some cases, the parties identified loopholes or gray areas that required clarification and rectification through stronger language. For example, the original Accord required compensation for workers whose employers suspended production because buildings were unsafe. However, the Accord’s architects did not foresee that many factory owners would relocate rather than undertaking repairs to existing structures, and that due to limitations of Bangladeshi law, if increased commute distances forced workers to resign, they would not be legally entitled to the full severance pay that is required in the case of a factory closure. Therefore, the 2018 Accord requires that workers receive the same severance if there are relocations or closures, since the impact on workers is fundamentally the same.75

A. Arbitration Process

The provisions in the Accord explicitly establishing binding arbitration as a mechanism to resolve disputes regarding implementation have been

From Public Relations to Enforceable Agreements

173

successful in enforcing the agreement. At the same time, it is clear that over the long term a more transparent, affordable, and efficient mechanism will be necessary. While a few previous agreements introduced the possibility of arbitration,76 the Accord marks the first time that international worker organizations have made use of that recourse. The global unions did not rush to arbitration, instead allowing time for the Accord to become established and working with the Accord staff and buyer signatories to overcome obstacles such as lack of capacity and technical expertise in Bangladesh. However, in 2016 the union signatories initiated arbitration against a number of brands. Two of these cases ultimately went to arbitration, and the others were satisfactorily resolved prior to arbitration. The experience of these arbitrations has been successful in two key respects. First, the unions’ decision to aggressively pursue these cases, first at the Steering Committee and then through arbitration, made it clear that they would not hesitate to use arbitration to enforce the agreement. The threat of arbitration has thus catalyzed improved behavior by other brands. The filing of the cases contributed to a marked increase in compliance: when enforcement actions were initiated in 2015, only 33 percent of hazards had been corrected; by the time the cases were decided, that figure had reached 80 percent. While this is partly due to the additional time, anecdotal reports suggest that buyers’ focus on ensuring repairs were carried out increased after the cases were filed. Second, these arbitrations and negotiations have resulted in settlements making significant sums available for repairs. However, this process has also illustrated how the form of commercial arbitration stipulated in the 2013 Accord presents significant hurdles to resolving labor disputes.77 While the signatory unions have been able to retain excellent pro bono counsel, the costs of arbitration are high, and the process is not the streamlined alternative to courts advocates had hoped for. Further, these processes do not guarantee adequate transparency. These experiences showed that a new mechanism, designed for international labor rights disputes, is required. The 2018 Accord text also introduces new procedures to increase the likelihood that disputes over implementation can be resolved without recourse to arbitration, such as a fact-finding role for the Accord staff in relation to disputes and a mediation process that can be used by disputing parties prior to arbitration. Another question that future agreements should consider is how such enforcement is funded. At present there is no obligation for signatory buyers to participate in funding enforcement actions, even though it is in their

174

Worker-Driven Social Responsibility Programs

interest to have effective enforcement against laggards, to preserve the integrity of the organization, and to prevent laggards from securing a financial advantage by failing to live up to their commitments. Therefore, future agreements could require that signatory firms pay into an enforcement pool, which could be used at the discretion of the secretariat or the labor signatories to cover the costs of enforcement.

B. Financing for Remediation

The architects of the Accord recognized that in order to make necessary resources available for significant building repairs, the brands, rather than factories, must be responsible for ensuring that resources were available. The Accord therefore specifies buyers’ obligations to ensure that funds are available for repairs and provides a range of options for doing so. It does not, however, contain any specific disclosure requirements regarding these arrangements. There is a general obligation for brands to state whether a finance plan is in place for a given factory and whether the factory is “selffinancing” or receiving buyer support. However, there is no requirement that parties disclose the specific nature of financial arrangements or the total amount that the brands are providing. There is a general consensus among Accord staff and the Steering Committee members that the amount of support provided by brands to factories is underreported.78 Brands are often reluctant to acknowledge they are providing funds, out of concern that it will set a precedent for future demands from workers and advocates and validate the ongoing criticism that downward price pressure is a significant obstacle to remediating workers’ rights violations. Factories, meanwhile, do not wish to antagonize the buyers—their key business partners—by exposing information the brands would rather conceal, or by demanding funds that their buyers are reluctant to give. To address this, the Accord implemented an internal dispute resolution practice between factories and brands, which involves a frank discussion of finances. In some cases, this has led to additional financial support from buyers for factories, partly addressing the issue. Nonetheless, the lack of transparency has hampered Accord staff ’s ability to determine whether delays in remediation are due to a lack of funds from brands or the result of inaction by factory owners for other reasons, which makes it difficult to hold each party accountable for its obligations under the Accord. Although this gap was identified in the April 2017 NGO

From Public Relations to Enforceable Agreements

175

report, the renewal negotiations did not yield new language on this subject for the 2018 Accord. Future agreements could therefore be strengthened by creating stronger, clearer, and more transparent requirements regarding financing of improvements, including pricing and purchasing practices.79 Buyers could be required to simply provide a preset amount of money in a general remediation fund, for example. Alternately, future agreements could use clear, concrete language defining buyers’ obligations in specific terms and require that the financing or purchasing practices be disclosed in detail to a secretariat, paired with reporting on overall brand performance by the secretariat to the public.

C. Worker Education and Empowerment

The Accord offers lessons on the importance and difficulties of designing a participatory process that allows workers to call for improvements free from retaliation. The reputational crisis caused by the 2013 Rana Plaza collapse created an opening for workers, and for a brief period they enjoyed increased ability to organize unions and speak out about workplace issues with a reduced threat of violence and intimidation. The following year, however, there were documented violent assaults commissioned by factory owners against workers active in unions.80 During 2015 and 2016, Human Rights Watch, the European Commission, and other international bodies documented severe, ongoing violations of the workers’ right to freedom of association in Bangladesh.81 The repression reached a high-water mark in December 2016, when approximately fifteen hundred workers were dismissed, and the government launched a broad crackdown in response to demands for higher wages, imprisoning thirty-eight workers and advocates on unsubstantiated charges.82 Given this context, any efforts to create a “retaliation-free” zone for workers faces significant challenges. For the Accord, these challenges were exacerbated by two internal challenges, both of which have now been addressed. First, the Accord was slow to implement its worker education and complaint mechanism. Second, the Accord complaint mechanism did not initially include broad protections for freedom of association, although it did provide protection for workers who experienced retaliation when they spoke out about health and safety issues. With the signing of the 2018 Accord, the Accord expanded the coverage of the complaint mechanism to more broadly protect freedom of association, although freedom of association complaints

176

Worker-Driven Social Responsibility Programs

filed under the mechanism still need to have a health and safety connection to be accepted. An additional external challenge to giving workers a central role is the fragmented and underresourced nature of the Bangladeshi labor movement. To take just one example, there are eight Bangladeshi apparel union signatories to the Accord. Notwithstanding the courage of union leaders, who brave imprisonment and assault to fight for their members’ rights, participating fully in the Accord often requires resources, including staff time, and expertise beyond the capacities of these unions, especially given their broader priorities to build and support their membership and address other workplace issues. The global unions, UNI and IndustriAll, have tried to step in to provide support to their affiliates, but they also must contend with competing demands for resources. Due to resource constraints as well as the diversity of opinions among Bangladeshi unions, these unions have not always been provided with, or taken up, the opportunity to participate and provide input to an extent that would allow them to truly own and drive the Accord processes.

D. Scope: Factories and Hazards

A constant challenge for interventions like the Accord is how to define the scope of their work in a way that is specific enough to succeed but does not unnecessarily exclude at-risk workers or fail to address key issues. There were two issues regarding scope of coverage in the initial Accord, which have been partially addressed in the 2018 Accord. The first relates to the scope of the factories that are covered by the Accord. Initially, each brand’s supplier factories were divided into three tiers, with brands having reduced obligations for second- and third-tier factories. This distinction was eliminated in the 2018 Accord. In addition, the Accord excluded factories that are not “cutand-sew” garment assembly factories, thus excluding signatory buyers’ suppliers such as textile factories, spinning mills, leather tanneries, household textile producers, and apparel-washing facilities. This is a serious omission, as this category comprises at least several hundred factory buildings, many of which are multistory buildings that are likely unsafe.83 This has been partially addressed by the 2018 Accord, which gives signatory companies the opportunity, although it does not oblige them, to include home textile suppliers and fabric and knit accessory suppliers in the Accord.

From Public Relations to Enforceable Agreements

177

Second, the scope of safety hazards encompassed by the Accord excluded certain risks that frequently cause death and injury in Bangladeshi garment factories, such as boilers, generators, gas lines, and freight elevators. In July 2017, after eighteen months without a fire- or building-safety-related death in any Bangladeshi cut-and-sew garment factory, a boiler explosion at the Multifabs, Ltd., factory killed at least ten workers.84 While the Accord requires boilers to be separated from the rest of the factory by fire-rated construction to prevent the spread of fires, this is not an adequate protection against boiler explosions. To protect against this risk, inspections of the boilers themselves, and enforced standards for boiler safety, are required. Following the Multifabs explosion, the Accord Steering Committee agreed to cover boilers. Expanding the scope to enable the Accord to encompass additional factories and hazards builds on the significant resources that have been deployed to develop the Accord’s structure and organizational infrastructure in order to create additional benefit for workers. Similarly, advocates have long pointed to the need for programs similar to the Accord in other South Asian countries, where the garment industry also uses dangerous multistory buildings. While this would require the creation of a new agreement with new country-specific parties, new in-country staff, and country-specific adjustments, drawing on the Accord experience would enable a much faster ramp-up. More generally, observers and advocates have suggested it would be preferable to implement programs like the Accord in a broader manner, encompassing all sourcing countries or all key workers’ rights issues, rather than focusing on a narrow range of issues in a single country. While this would be ideal, building the worker and consumer power necessary to win such a broad commitment from buyers is a long-term project. Hopefully the Accord can serve as a step toward winning such broader commitments, by providing a space for experimentation and a successful example of what is possible.

E. Transparency

Although the Accord achieves an unprecedented level of transparency in some respects, it does not require public disclosure of which signatory brands are sourcing from which factories. While this has not been a major obstacle to enforcement given that factory-brand relationships can often be identified through other means, it is an unnecessary weakness given the broader trend

178

Worker-Driven Social Responsibility Programs

toward transparency in the industry. As more and more apparel brands have chosen to voluntarily disclose their supplier factories, including participating in the Apparel and Footwear Supply Chain Transparency Pledge,85 there is no justification for the Accord, or other similar entities, to lag behind by not requiring this level of transparency.86

V. Moving Forward The success of the Accord has shown what is possible when lead firms are pressed by worker organizations, advocates, consumers, students, universities, and other actors to move beyond the empty promises of CSR and enter into this type of legally binding commitment to workers. The same transformative impact has been shown in the work of the Coalition of Immokalee Workers with its work in U.S. agriculture. The WSR model has the potential to bring huge improvements to workers’ lives if implemented in other sectors and geographies. Most immediately, workers could be made significantly safer if similar programs were created in other South Asian countries, where workers—as in Bangladesh but unlike most of the world’s garment-producing countries—labor every day in multistory buildings that are not equipped to carry the weight of machines and workers and lack safe staircases that would allow workers to escape if a fire broke out. In addition, during the period this book was under revision, a new set of WSR agreements was signed with the potential to eradicate gender-based violence and sexual harassment in a set of factories employing more than ten thousand workers.87 In such an unprecedented endeavor, it is inevitable that there will be stumbling blocks along the way. However, it is important to note that at every critical juncture during the Accord’s existence, each moment when buyers’ unwillingness to comply or unforeseen wrinkles in the process posed a real obstacle to making factories safe, the secretariat, unions, or NGO signatories acted decisively to ensure that the issue was addressed. Rather than allowing recalcitrance or other obstacles to start a downward spiral of noncompliance, the independence of the inspectorate and the presence of worker representatives and independent advocates on the Steering Committee ensured that the Accord was able to address the issues and move forward. Because these obstacles were resolved with a bias toward strengthening, rather than weakening, compliance, the Accord has succeeded in correcting more than 140,000 safety risks and, it is virtually certain, saving many lives in the process. In a typical

From Public Relations to Enforceable Agreements

179

CSR program, the opposite would likely have happened: the brands would have been the key decision makers and would likely have responded to the challenges of achieving compliance by adjusting obligations downward, rather than requiring the industry participants to live up to a higher standard. It is deeply concerning that as of this writing, the future of the Accord in Bangladesh is very uncertain. It is an unfortunate reminder of the steadfast opposition by many factory owners to genuine accountability and change and the level of capture of certain exporting-country governments by the garment industry. This setback raises new questions about how to best address this opposition in future agreements. Despite these obstacles, the WSR model could transform wages and working conditions in other international supply chains, from seafood to cell phones.88 In apparel, electronics, agriculture, and other sectors, we have seen the failure of voluntary MSIs and unilateral corporate promises. To achieve lasting change in the factories and fields, workers and advocates will have to continue to push companies to take steps that are uncomfortable: ones that require them to make commitments they cannot simply back away from once public pressure dies down.

CHAPTER 9

Transformation Through Transparency Human Rights and Corporate Responsibilities in the Global Food System Erika George

International trade in agricultural products1 and the participation of transnational corporations (TNCs)2 in the production, procurement, and distribution of food has created a food system that is more globally integrated than ever before.3 The concentration of private corporate power in the global food production system has given rise to concerns about the consequences of present modes of agricultural production for human rights, food security, public health, and environmental sustainability. Concerns over the adverse impacts of particular business practices used by TNCs engaged in agribusiness have resulted in calls for greater corporate responsibility and accountability. Demands for greater transparency in the processes of agricultural production have become part of the accountability advocacy of human rights activists.4 Agricultural supply chains span the globe and link conscious consumers with conditions of production they find unconscionable. Chiquita is alleged to have provided material support to a paramilitary organization in Colombia that tortured and killed trade unionists and banana plantation workers.5 Nestlé is alleged to have aided and abetted child slavery in the Ivory Coast.6 CocaCola is alleged to have been complicit in violent attacks against labor activists in Guatemala.7 Colombian trade union leaders have also implicated CocaCola in collaborating with paramilitary forces to murder union members.8 Transparency is a prerequisite for protecting human rights. Rights activists expose violations in supply chains in order to end abuses. Investors and

Transformation Through Transparency

181

consumers are calling on businesses to disclose more information about human rights risks. A well-crafted transparency regime that requires reporting about the human rights impacts of food production processes could serve to drive systemic changes by (1) empowering consumers to make informed choices consistent with their values and (2) enabling commercial producers to identify and address risks in their supply chains. This chapter first explains how information is an essential element of the human right to food as it is set forth in binding international human rights law. Next the chapter turns to an exploration of product certification to increase transparency as a strategy for improving rights protection in food production. The Fair Food Program and the Agricultural Justice Project are then presented as examples of how a “worker-driven,” “consumer-powered,” and “market-enforced” initiative has worked to protect the rights of farmworkers. Finally, this chapter calls for increased supply chain transparency and trackability to better align business practices and policies with respect for human rights.

I. The Right to Food: Cultural and Consumer Acceptability Regulatory reforms designed to ensure enhanced access to information concerning the conditions under which food is produced would be consistent with the contemporary international understanding of the substantive human right to food. Disclosure of the risks presented by particular business practices to human rights is an important constituent element of the corporate responsibility to respect human rights. Among its numerous rights guarantees, the Universal Declaration of Human Rights (UDHR) recognizes that “everyone has the right to a standard of living for himself and his family, including adequate food . . . and to the continuous improvement of living conditions.”9 Since the inception of the international human rights regime, the right to food has been central.10 The International Covenant on Economic, Social and Cultural Rights (ICESCR) codifies the right to food first articulated in the UDHR.11 The interrelated norms of access and freedom inform the right to food.12 The Committee on Economic, Social and Cultural Rights (CESCR), the institution that interprets and monitors state compliance with the ICESCR, has determined that the “core content” of the right to adequate food entails guaranteeing: “The availability of food in a quality and quantity sufficient

182

Worker-Driven Social Responsibility Programs

to satisfy the dietary needs of individuals, free from adverse substances and acceptable within a given culture; [and t]he accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.”13 For the CESCR, not only does the right to food require that a range of protective measures be put in place to ensure food safety and prevent adulteration and contamination; it also implies the need to account for “perceived non nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies.”14 Put another way, there is a social dimension beyond basic sustenance that should be taken into account when crafting a rights-based food system. Protecting the right to food extends to all aspects of the food system. Consistent with the responsibility to protect a secure resource base for food, state parties to the ICESCR should “take appropriate steps to ensure that the activities of the private business sector and civil society are in conformity with the right to food.”15 Promulgating laws and policies mandating disclosure of labor conditions in global food supply chains would be consistent with acceptability. The ICESCR Committee has stated that “all members of society . . . as well as the private business sector have responsibilities in the realization of the right to adequate food.”16 In 2011, the UN Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights implementing the United Nations “Protect, Respect and Remedy” Framework.17 The Guiding Principles articulate the importance of transparency to human rights protection. Governments can protect human rights through ensuring greater transparency and access to information relevant to human rights risks,18 and businesses can provide information about production processes.19 The Guiding Principles provide that “business enterprises should be prepared to communicate [human rights impacts] externally, particularly when concerns are raised by or on behalf of affected stakeholders.”20 A rights-based approach to food points to the necessity of providing consumers with information through certification systems and labels that reflect a TNC’s commitment to reducing adverse impacts on human rights and the environment. Access to information is an implicit element of the right to adequate food, as evidenced by the “acceptability” imperative the right contains. Without information, consumers cannot make educated determinations with respect to whether or not a particular food product is acceptable. For a growing segment of consumers, foods produced under abusive conditions or at

Transformation Through Transparency

183

the price of unmitigated environmental damage are not acceptable. The right to food finds expression in the right to know.21

A. Labor Rights

A collection of core International Labour Organization (ILO) conventions set forth a range of protections for workers situated at every conceivable link in various global agricultural supply chains. ILO Convention 87 on the Freedom of Association and Protection of the Right to Organize recognizes the rights of workers “to establish” and “to join organizations of their own choosing without previous authorization.”22 ILO Convention 98 on the Right to Organize and Collective Bargaining provides: “Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.”23 ILO Convention 29 on Forced Labor obligates parties “to suppress the use of forced or compulsory labor in all its forms within the shortest possible period.”24 ILO Convention 105 on the Abolition of Forced Labor requires parties “to take effective measures to secure the immediate and complete abolition of forced or compulsory labor.”25 ILO Convention 111 on Discrimination in Employment and Occupation calls on parties “to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination.”26 ILO Convention 100 on Equal Remuneration mandates that parties “ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.”27 ILO Convention 138 on Minimum Age urges parties “to pursue a national policy designed to ensure the effective abolition of child labor and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.”28 ILO Convention 182 on the Worst Forms of Child Labor obligates parties to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labor as a matter of urgency.”29 While ILO conventions are widely ratified, there are varying levels of will and ability to enforce labor laws, particularly in some of the emerging market economies from which TNCs source agricultural products. Such regulatory gaps leave room for rights abuses to occur.

184

Worker-Driven Social Responsibility Programs

In some ways, private commercial actors are filling labor regulation gaps through the use of private third-party audit systems. The private sector and private actors have become a source of other complementary policy innovations aimed at increasing information about the conditions of production and supply chain sustainability. Indeed, among the more effective policy innovations emanating from private commercial actors and rights activists have been certification systems combined with purchasing contracts conditioned on compliance with respect for human rights in factories and on farms.

B. Information Rights

International human rights law protects access to information. Article 19 of the International Covenant on Civil and Political Rights provides, in pertinent part: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”30 Freedom of expression encompasses not only the freedom to speak and share ideas but also the right to access information. The case of Nike v. Kasky, heard in the Supreme Court of California, is instructive on the importance of information concerning human rights conditions in the supply chains that provide products to some members of the consuming public. Following reported allegations that workers in foreign facilities supplying Nike were abused and mistreated, Kasky sued Nike for unfair and deceptive practices stemming from the corporation’s “false statements of fact about its labor practices and about working conditions in factories that make its products.”31 Kasky, a marathon runner and now former Nike product purchaser, explained: “Nike makes a very good product. . . . But we all need to be accountable for our words and actions. Nike has been representing itself as a model corporate citizen, and it was disappointing and discouraging when I began to suspect otherwise.”32 As a consumer concerned by information about Nike’s alleged abusive practices, Kasky took actions aimed at changing the company’s approach to labor rights issues. Investors are also taking an increasing interest in the conditions under which products are produced and supply chain sustainability. In addition to a firm’s financial outlook, investors are also seeking information about its social and environmental impacts. In 2013, a group of interested constituents

Transformation Through Transparency

185

representing investors and other stakeholders launched the Corporate Human Rights Benchmark.33 It aims to activate investors to use their influence to increase incentives for business enterprises to respect human rights. Investors are taking action to address abuses in agricultural sector supply chains. The benchmark provides information on the corporate human rights performance for investors to use to challenge company management to identify and address human rights risks. In 2018 the Interfaith Center on Corporate Responsibility, a coalition of shareholder organizations comprised of asset managers, unions, and faith communities, launched the Investor Alliance for Human Rights to provide a “collective action” platform to enable investors to seek stronger business and human rights policies through standard setting and advocacy.34 Human rights activists are encouraging investors to act. Investors are engaging corporate management and using votes on shareholder proposals at annual meetings to promote better business practices with respect to human rights in the food sector.35 For example, the shareholder advocacy organization As You Sow has proposed that the chicken-processing company Tyson conduct a human rights impact assessment and report the results to the public.36

II. Transformation Through Transparency Initiatives Transparency systems are increasingly becoming mainstream regulatory tools in a range of different sectors. Governments frequently require disclosure of factual information as a means to create behavioral incentives to advance specific economic or political policy objectives.37 Professor Archon Fung, cofounder of the Transparency Policy Project, offers this straightforward definition of transparency: “government mandates that require corporations or other organizations to provide the public with factual information about their products and practices.”38 With respect to human rights reporting, the situation is not as straightforward. Corporate reporting relevant to human rights remains in its infancy and is not required by most governments. Presently, corporations voluntarily generate sustainability reports or join certification schemes to demonstrate commitments to responsible business conduct. Greater transparency can and should play a central role in transforming a global food system characterized by complicated supply chains and competitive commercial pressures and inadequate human rights regulation.

186

Worker-Driven Social Responsibility Programs

Evidence of how other effective types of transparency initiatives have operated are instructive for the design of a human rights–focused system of certification for food and beverage products. Where relevant and actionable information is available to concerned consumers and investors that enables comparative assessments to be drawn between different choices, market pressures may influence the policies and practices of producers with the power to improve the conditions of production.

A. Testing Types of Transparency

Professor Archon Fung and his colleagues at Harvard’s Kennedy School of Government analyzed the efficacy of different mandatory disclosure regimes and found that transparency schemes work best where information is available at the time and place of a purchasing decision, where the information provided fits easily into existing customer routines, and when alternatives are available. Los Angeles County’s restaurant hygiene grading system is offered as an example of an effective information intervention, as the choices of informed consumers appear to have improved the hygiene practices of restaurants by generating economic incentives to compete for better assessments. Adopted in 1997, the system requires restaurants to display governmentgiven grades of A, B, or C. Grades reflect the scores on a 100-point checklist that deducts points for hygiene infractions. Policy makers posited that customers would eat at establishments with better grades, which would in turn create market incentives for those with worse grades to improve conditions and practices related to hygiene in order to compete. Evaluations of the grading scheme determined that restaurants with higher grades enjoyed significant revenue increases, while revenues decreased for restaurants with lower grades. Evaluations also found there was better restaurant hygiene in the regulated area and fewer hospitalizations due to foodborne illness.39 The efficacy of information disclosure exists on a continuum. Transparency systems may have effects without being effective or may result in unintended effects. Consumers may change choices but may not change in the direction of achieving the policy aims that motivated the demand for information. For example, nutrition labeling encouraged food companies to create additional healthy options but also led dieters to buy “low fat” but high calorie products.40

Transformation Through Transparency

187

Transparency does not work to create changes consistent with policy aims where information remains difficult to decipher or choices are limited. For example, Fung and his colleagues found that state-mandated disclosure systems sharing information on medical errors and disciplinary actions against doctors to improve patient safety have not worked well.41 Patients either do not have a broad range of options or do not pay attention to disclosures, deciding instead to rely on advice about hospitals that they receive from family, friends, or their personal physicians. Trust and reputation are important to decision-making, as is legitimacy. Government transparency systems often are accorded a greater measure of legitimacy and accountability. According to Fung, government mandates play an important role in protection because (1) only government has the power to compel disclosure; (2) only government can require comparable metrics, prescribing the format and mode of information to be disclosed as well as the time, manner, and place of disclosure; and (3) government systems come with the legitimacy of emerging from deliberative democratic processes. However, even if a disclosure regime enjoys a public mandate, “no matter how accurate or relevant new information is, it cannot provide a foundation for a successful transparency system unless it is made available at a time, place, and in a form that fits in with the way consumers, investors, employees and home buyers make choices as information users and the way corporations, government agencies and other organizations make decisions as information disclosures.”42 The transparency systems emerging around human rights risks in global food supply chains are not, for the most part, mandated by governments even though legitimacy and accountability are more often associated with government systems. Rather, disclosure regimes relevant to the human rights impacts of food production are often the result of corporate sustainability strategies or private multi-stakeholder initiatives (MSIs). Moreover, it is unclear whether information about the human rights impacts of a food product is being provided to interested consumers in a manner and at a time when it would most matter: at the point of purchase or decision-making. Gathering information to disclose concerning human rights risks and impacts can be costly for a business, but the cost of failing to do so could be increasing. The cost-benefit analysis concerning whether or not to respond to growing calls from consumers and investors for greater transparency increasingly must take into account an emerging set of global norms to govern corporate conduct with respect to human rights.

188

Worker-Driven Social Responsibility Programs

B. Information to Influence Choices: Certification Systems and Sustainability Reporting

Because consumers increasingly care about the social impacts of food sourcing, TNCs are under greater pressure to clean up supply chains and provide more information to the public. As a result of these pressures, in the absence of a mandatory reporting regime, a range of voluntary initiatives including codes of conduct, certification schemes, and sustainability reporting—all emphasizing the importance of fair and ethical trade—are in ascendance. The Global Reporting Initiative (GRI), a Dutch nonprofit foundation, has emerged as a leading proponent of systematic sustainability reporting and provides the most widely used, comprehensive sustainability reporting standard in the world. Sustainability reporting, also often referred to as corporate social responsibility (CSR); environmental, social, and governance (ESG); or nonfinancial reporting, provides information about the social and environmental impacts of a company. GRI lists the benefits to businesses of producing sustainability reports as including “increasing understanding of risks and opportunities . . . influencing long term management strategy and policy, benchmarking and assessing sustainability performance with respect to laws, norms, codes, performance standards and voluntary initiatives, avoiding being implicated in publicized environmental, social and governance failures . . . and improving reputation and brand loyalty” among others.43 The most recent update to the GRI standard, the G4, now incorporates by reference the UN Framework on Business and Human Rights and the Guiding Principles.44 In addition to the corporate sustainability reporting produced by the major food and beverage brands, there are now a number of voluntary initiatives concerned with fair trade and ethical sourcing in agricultural production. Many of these initiatives operate through the implementation of codes of conduct in the supply chains of large food corporations and retailers or through certification schemes.45 There are initiatives at the level of individual corporations, as well as those that operate across specific industries and sectors.46 There is a growing audience for sustainability information and certified products.47 According to GRI, from 2006 to 2011 the yearly increase in organizations adopting GRI’s reporting guidelines ranged from 22 to 58 percent.48 Results of recent studies conducted on coffee suggest that consumers are receptive to fair trade products and willing to pay higher premiums for products that are part of certain certification schemes.49

Transformation Through Transparency

189

The proliferation of private voluntary codes of conduct is a response to an integrated global economic order with regulatory gaps due to the reduced capacity of states to regulate the global production of goods. To prevent a race to bottom, where taking advantage of low-wage or slave labor becomes a permanent competitive advantage, greater responsibility for social and economic welfare will come to rest with the private sector. Public-sector investment in labor rights enforcement has declined in the past decade in the United States, and labor organizing is not as robust as it once was.50 Transparency is an essential, if a supplemental, enforcement mechanism that can use the marketplace to punish and reward commercial actors. More must be learned about the performance and potential of the growing number of voluntary standards of sustainability being adopted to address stakeholder concerns about how products are produced and to improve conditions for those engaged in production.

C. The Role of Transparency in Protecting Rights: Exposure or Disclosure

There are different types of transparency with varying levels of efficacy depending on context. While mature transparency schemes backed by public mandates have received academic scrutiny, the dynamics of the development of private systems of transparency also deserve attention. My analysis of agricultural supply chain CSR initiatives develops the idea of a risk and response transparency typology: an “exposure-display-disclosure cycle.” This cycle, in turn, serves to promote engagement and change. Voluntary reports or commitments to certification schemes related to human rights impacts by TNCs frequently follow public exposure of a corporation’s business practices that place human rights at risk. Exposure creates an incentive for TNCs to conduct due diligence with regard to human rights in order to be in a position to “know and show” the source of their products and the impacts of their actions. However, without a government mandate requiring disclosure of information relevant to human rights impacts, businesses routinely report only what they want to report: the good, not the bad or the embarrassing. Government-mandated disclosures, where they are crafted to be congruent with the policy aim that business enterprises must respect human rights, could be more likely to lead to greater accountability and accelerate efforts to bring corporate conduct into alignment with respect for human rights.

190

Worker-Driven Social Responsibility Programs

The case of the cocoa supply chain transparency efforts is instructive for considering the exposure-display-disclosure cycle. Reports of slavery and child labor occurring on cocoa plantations in West Africa captured the attention of the U.S. Congress and prompted legislative activity. An initial proposal by Representative Eliot Engel (D-NY) to develop a “slave free” labeling requirement for cocoa products was abandoned in favor of a voluntary accord after the industry agreed to adopt certain portions of the proposed bill as standard industry protocol.51 The resulting 2001 Harkin-Engel Protocol was nonbinding but contained time-bound phases for eradicating the worst forms of child labor and forced labor from all cocoa farms worldwide.52 The International Cocoa Initiative, a voluntary MSI and product of the Harkin-Engel Protocol, has been operating since 2002 to eliminate the worst forms of child labor and forced labor in the growing and processing of cocoa beans and their derivative products.53 Yet critics complain that years later a consumer still cannot know whether or not the chocolate he or she purchases was procured from a plantation engaging in the worst forms of child labor.54 In 2010, the Framework of Action to Support Implementation of the Harkin-Engel Protocol set 2020 as a new target.55 Only recently have activists secured commitments from major brands to use only fair trade certified cocoa by 2020.56 We are left to wonder whether a mandatory labeling requirement would have had a more immediate effect on the market than a voluntary certification scheme. It is perhaps no coincidence that words like “watch” and “witness” appear in the names of many international human rights campaign groups: Human Rights Watch, Global Witness, OECD Watch. An important element of human rights practice methodology is identifying, exposing, and monitoring abuses. Corporate concentration in the food system has provided rights activists with opportunities to leverage the information they are able to obtain about abuses to press for change. Indeed, “[d]irect sourcing, with suppliers packing products in supermarket branded packaging at source make it easier for civil society organizations to identify and expose adverse employment practices in the supply chains of named supermarkets.”57 Nongovernmental organizations (NGOs) developed the strategies and constituencies that today are advancing arguments to support improved transparency and traceability of food and other consumer products. Campaigns like Oxfam’s Beyond the Brands help to create political opportunities to promote changes to production methods. The fact that fair trade certifications and sustainability reporting now feature more prominently in public

Transformation Through Transparency

191

discussion is testament to the growing strength and efficacy of consumer advocacy movements. TNCs appear to be adopting voluntary standards and developing a riskmitigation-oriented response to the human rights issues that activists have raised. For example, Nestlé is using transparency as a tool to learn about its supply chain vulnerabilities through conducting human rights impact assessments and adopting GRI’s G4 Standard for sustainability reporting. Along with other brands in Oxfam’s “Big 10,” including Mars, the company has committed to sourcing only certified cocoa by 2020. At the center of ethical sourcing for consumers is a desire to make choices. The acceptability element of the right to food recognizes that information supports choice and consumer autonomy. To be sure, not everyone has the privilege to choose a certified product that comes at a premium price. Indeed, even privileged consumers may have less autonomy than we appreciate. We are swayed by sales tactics. Tim Lang, coauthor of The Unmanageable Consumer, explains: “In truth, few of us choose as much as we think we do. We select rather than choose. Our much-vaunted choices are framed by context, class, culture, family, history and the panoply of social determinants, not least the vast marketing expenditure pitched at building brand loyalty. Yet we all learn, whatever our circumstances or cultures[,] to distinguish between freedoms and constraints. Some have more, others far less. It is this aspiration that the current debate about ethical sourcing taps into.”58 In sum, transparency can serve to align our aspirations by enabling us to make selections that are consistent with our ethical commitments when we are provided with actionable information. Greater transparency could address the information asymmetries that compromise the choices of conscious consumers. Greater supply chain transparency could contribute to creating incentives aligned with the global policy goal of having TNCs fulfill the responsibility to respect human rights by knowing the impacts of their business operations. To be sure, there are risks associated with transparency. Incentives may not align with policy aims, resulting in unintended consequences, or conflicting information may overwhelm consumers. However, in the absence of stronger global governance to regulate rights protections in the food system, transparency provides a path toward greater corporate accountability. Certifications and labels can serve to advance the aims of greater transparency for consumers concerned about the human rights implications of their choices.

192

Worker-Driven Social Responsibility Programs

III. Certification Systems and Social Justice Labels Present certification systems and social justice labels in the agricultural sector build upon strategies that emerged in early fair trade movements. Most of the labels on basic consumer goods serve to inform a buyer about the intrinsic characteristics of a given product. Food labels inform potential buyers what the product is, what the product is made of, when the product was made, and in many instances, where the product was made. In the United States, the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) are the main government regulatory agencies with authority to control content and meaning of labels and whether a product may bear a particular label. However, private parties can also play a role in creating label content alongside government regulation. Increasingly, trade associations and MSIs are creating their own labels and standards certifying product qualities independent of regulatory requirements. Certification systems and labels have gone beyond basic product content information in order to allow interested buyers to draw distinctions based on the conditions under which products are produced. These newer, nonmandatory labeling practices are driven by perceived market demand for products that do not inflict adverse impacts on society, health, and safety or the environment. For example, in 2013 the food retailer Whole Foods announced that it would voluntarily commit to full transparency with respect to genetically modified organisms (GMOs), such that all products in its U.S. and Canadian stores would be labeled to indicate whether the contents contained GMOs. Explaining the reason for the voluntary implementation of a transparency measure making use of labels, Walter Robb, former co-CEO of Whole Foods Market, said: “The prevalence of GMOs in the US paired with nonexistent mandatory labeling makes it very difficult for retailers to source non-GMO options and for consumers to choose non-GMO products. Accordingly, we are stepping up our support of certified organic agriculture, where GMOs are not allowed, and we are working together with our supplier partners to grow our non-GMO supply chain to ensure we can continue to provide these choices in the future.”59 The early fair trade movement and campaigns against modern slavery efforts introduced moral concerns into the marketplace and helped to develop demand for ethically produced goods. These movements served to create awareness and demand for products and shaped a conscious consumer convinced that making different consumption choices could make a difference in the lives of others.

Transformation Through Transparency

193

A. The Emergence of Fair Trade Certification for Agricultural Commodities

The fair trade movement has played an important role in the prominence of certification as a strategy to shape corporate responsibility and secure social justice.60 The fair trade movement seeks to promote equity in international economic relations between the developed economies of the global North and the developing economies of the global South.61 The movement works to empower producers in the global South by educating consumers in the global North about the adverse impacts of conventional trade.62 In addition to generating more equitable exchange between northern consumers and southern producers, the movement works to challenge and change global trade policy and the practices of global business enterprises. Early in the movement, the main impetus of fair trade was aid. A desire on the part of religious communities to do something to assist people displaced by World War II and the disadvantaged gave rise to what would ultimately become a global fair trade movement emphasizing poverty alleviation. Women played an early and central role in the creation of the fair trade movement, both as creators and consumers of products. There was an emphasis on solidarity with the struggles of the distant poor and needy despite being far removed from such struggles. In 1946 Edna Ruth Byler, an American housewife and mother, became an “unexpected entrepreneur” after meeting women artisans during her travels abroad with her husband. Byler met women in developing countries who were without an available local market for their work.63 She began bringing items back to the United States and started selling them to her friends and neighbors. She also shared the stories of the women who made the items. She explained how the women would be able to use income earned to improve the chances of their children. Eventually Byler secured the support of the aid and relief agency of her Mennonite faith community to advance sustainable economic opportunities in more countries. She launched Ten Thousand Villages, a nonprofit social enterprise retailer that partners to bring the work of independent small-scale artisans to markets.64 Since its founding in 1946, Ten Thousand Villages has created an estimated $140 million in sustainable income for artisans who would otherwise have been underemployed.65 Faith-based organizations gave birth to “alternative trade organizations” as extensions of missionary work and humanitarian outreach programs.

194

Worker-Driven Social Responsibility Programs

Early on, they were small-scale and low-growth initiatives emphasizing solidarity with impoverished peoples around the world.66 They were viewed by participants as a way to build connections and create change. The early efforts of faith-based alternative trade organizations evolved as participants came to appreciate the importance of scale, volume, and sustained exchange. Ultimately, they matured into fair trade organizations. The postwar period marked a conceptual shift from charity-based initiatives to placing a priority on more commercially viable initiatives. In 1968, the United Nations Conference on Trade and Development ushered in a new paradigm that “Trade is Better than Aid.” As the decolonization movements gained ground and newly independent nations sought greater economic independence, trade participation and market participation were advanced as preferred strategies to promote economic development. As fair trade priorities shifted from charity to commercial viability, certification became central to fair trade. For the fair trade movement, certification signaled to consumers that certain products conformed to fair trade standards. By purchasing a fair trade product, consumers could participate in advancing fair trade principles.

B. Early Fair Trade Certification and Agriculture

Fair trade certification for agricultural commodities can be traced back to the organizing efforts of agricultural workers and to the emergence of progressive solidarity social movements.67 In the 1970s, food cooperatives were formed to provide an alternative to mass market modes of agricultural production.68 Seeking to counter an “agricultural Fordism” characterized by technologically modified and heavily subsidized mass market production, the cooperative movement called for a more just mode of production to protect farmers and to ensure food safety.69 The role of certification is changing. Increasingly, large farms are included, where the movement started with notions of justice centered around small-scale production.

C. Certification to Curb Abuses in Agriculture

There are now several certification regimes in the agriculture sector addressing different aspects of the environmental, social, and food safety challenges

Transformation Through Transparency

195

associated with commercial food production.70 For example, FairTrade USA is the U.S.-based labeling initiative of Fairtrade International. The “Fair Trade Certified” label is affixed to agricultural commodities and food products from around the world. The Equitable Food Initiative sets standards for the “Responsibly Grown, Farmworker Assured” label. The label focuses on social justice and food safety criteria. The Sustainable Agriculture Network sets standards for the Rainforest Alliance label. The standards contain environmental, economic, and social criteria. Fair for Life applies fair trade and environmental responsibility criteria to a range of agricultural products. Certain smaller certification schemes are starting to stand out for the structured incentives they have created through binding contractual agreements with influential large commercial buyers—the Coalition of Immokalee Workers and the Agricultural Justice Project (AJP) chief among them. While all of these leading certification schemes are voluntary, in that farms opt to comply with the criteria stated in the certification’s standards, failure to comply is an increasingly less attractive option when economic incentives are aligned with attaining and maintaining a certified status. By avoiding abuses in the first instance and immediately addressing abuses that occur, business enterprises and employees in the agriculture sector can access better, consistent, high-volume buyers. Agriculture is an especially challenging arena in which to protect labor rights; workers are often seasonal migrants, and high consolidation in the sector leads to downward wage pressure. The decreasing influence of organized labor and the vulnerable and transient status of migrant labor in many countries places workers at greater risk of exposure to exploitation and rights violations on farms and in factories.71 Farm work can be very difficult; working conditions can be dangerous and wages are low. In the United States, farmworkers are excluded from many federal labor laws that protect people working in other sectors of the economy. For example, farmworkers are not granted the right to organize unions and engage in collective bargaining. Often seasonal migrant workers are not entitled to workers’ compensation should they become injured at work, and pay for overtime work is rare. Rights advocates have documented instances of acute pesticide poisoning after unprotected exposure during farm work. Farmworkers routinely labor without breaks or access to shade. Female farmworkers face the additional burden of sexual abuse and harassment while at work. Wages remain low because the piece rate pay used in agriculture rarely amounts to the minimum

196

Worker-Driven Social Responsibility Programs

wage, let alone a fair or living wage.72 A piece rate pay system provides that compensation is calculated per unit picked rather than the amount of time spent picking. The systemic human rights abuses suffered by people working in agriculture to supply our food can also place the security and sustainability of the food system at risk. For example, in countries with restrictive labor migration policies or aggressive migration enforcement, growers have encountered difficulty attracting and retaining labor to harvest crops. The vulnerability of the workforce can cost growers lost revenue. The food system can be complex. Starting from the farm, even basic products pass through myriad processors and distributors before making it to the supermarket shelf. Human rights abuses may occur at any link along the food supply chain. Certification schemes seek to change the conditions in the food supply system that give rise to abuses and put food sustainability and security at risk. Commonly, it is through different combinations of standard setting, monitoring and auditing compliance with standards, and addressing complaints concerning violations of standards with corrective action that certification schemes can serve to improve conditions and avoid the risks associated with rights violations. A report comparing and evaluating the efficacy of select certifications in advancing justice for farmworkers by the Fair World Project found that programs work best when, in addition to auditing, there are strong enforcement processes that include workers as central players in policy making and governance.73 According to the Fair World Project, in order to make a meaningful claim in the market about what a certification is actually indicative of, it is imperative that strong standards be supported by economic leverage to promote a “proactive compliance.”74 Certification initiatives identified as possessing features demonstrated to make a difference in the lives of farmworkers are discussed below. 1. The Fair Food Program

The Fair Food Program (FFP), launched by the Coalition of Immokalee Workers in Florida, is a groundbreaking model for Worker-Driven Social Responsibility (WSR) based on a unique partnership among farmworkers; Florida tomato growers; and participating retail buyers, including Subway, Whole Foods, and Walmart.75 Its implementation is overseen by the Fair Food Standards Council, a third-party monitor created to ensure compliance with the FFP and its human rights–based Code of Conduct, applicable

Transformation Through Transparency

197

throughout the Florida tomato industry.76 Within the FFP, wage increases are funded by premiums paid by corporate buyers participating in the program. The human rights standards are enforced by workers, so oversight does not rely on periodic third-party audits alone. Given the leverage and market power of corporate buyers where the program is in place, workers have been able to reverse downward wage pressure and increase demand from buyers that growers protect worker rights. The FFP is “worker driven,” “consumer powered,” and “market enforced.” The following program elements ensure worker participation and protection. The FFP uses worker-to-worker education. The curriculum is developed by workers. Trained workers educate new workers on their rights and responsibilities to identify abuses early and have abuses addressed. Accordingly, each farmworker is empowered to act as an auditor. The complaint mechanism contained in the code is triggered by worker complaints. There are health and safety committees of workers with a say in working conditions that have led to specific and concrete changes in harvest operations. Significantly, monitoring by the workforce gives meaning to the commitments made by growers. Worker monitoring of grower compliance, along with the pledge from buyers to only purchase from participating growers that are in good standing, has given rise to reform across the industry sector where the program is in place. A few key features make the FFP distinctive among labor rights initiatives, allowing it to successfully function to improve working conditions in supply chains. Unlike conventional audits, in which outside auditors do occasional checks on farms, the FFP features consistent oversight by farmworkers. Where other MSIs are now being reassessed to include worker voice, the FFP is the worker’s voice. Worker voices are amplified by the economic incentive structure of the FFP. While the relevant information about worker conditions that FFP oversees is not readily available to consumers in the produce section or at point of sale, the large buyers do have access to such information, and buying decisions are driven by grower compliance with rights protections for workers. 2. The Agricultural Justice Project

Due to disappointment with the shortcomings of organic program standards in the United States, which regulated only produce and overlooked the working conditions of the people picking organic produce, a number of interested organizations were driven in 1999 to develop a process for the creation of a more holistic standard. In an effort to address the conditions of agricultural workers, a group of civil society organizations led a consultative stakeholder

198

Worker-Driven Social Responsibility Programs

process to create standards “for the fair and just treatment of people involved in organic and sustainable agriculture.”77 The Rural Advancement Foundation International, Comité de Apoyo a los Trabajadores Agrícolas, the Florida Organic Growers, and the Northeast Organic Farming Association were founding participants of the stakeholder process to develop standards for a “Food Justice Certification” program. The consultative process started by the founding stakeholders expanded to include representatives from a range of sustainable agriculture NGOs, farmworker organizations, and producer groups based in the United States. The early phase of the process culminated in a draft—“Toward Social Justice and Economic Equity in the Food System: A Call for Social Stewardship Standards in Sustainable and Organic Agriculture”—that would later become the foundation for a new standard. Several of the stakeholders who participated in the consultative processes to develop draft standards came together to create the AJP. The AJP is “a collaboration of non-profits working to create equity and fairness in [the] food system.” According to the AJP, it works “to transform the existing agricultural system. We seek empowerment, justice and fairness for all who labor from farm to retail. Central to our mission are the principles that all humans deserve respect, the freedom to live with dignity and nurture community, and share responsibility for preserving the earth’s resources for future generations.”78 The AJP advances its work through raising awareness about the “disparities and injustice in the food system and the types of approaches needed to realize real change for those marginalized by the current system.”79 AJP’s new “Food Justice Certified Label” is being used to advance the work of raising awareness about models that work for the marginalized. The AJP’s Social Stewardship Standards draft was shared with organic farming associations, certification bodies, eco-labeling professionals, labor unions, and farmworker organizations in order to allow a range of constituencies to comment and contribute to the substantive content of the standards. After several years of circulating successive drafts in English and Spanish to different constituencies, the AJP consulted with the International Federation of Organic Agriculture Movements (IFOAM) and committed to design and implement pilot projects to test the new standards in the U.S. market. The AJP aims to support farmworkers and farmers. It is committed to “just working and living conditions” for farmworkers across a wide range of agricultural products, from the food we eat to the fibers we wear.80 On behalf of farmers, the AJP calls for “just financial returns, equity and fair pricing

Transformation Through Transparency

199

and contracts.”81 To that end, the central principle underlying AJP’s new Food Justice Certification scheme is: “All workers have the right to safe working conditions, just treatment, and fair compensation and all farmers have the right to fair, equitable, transparent agreements and pricing.”82 The AJP’s “Food Justice Certified” label signifies that from farm to table a product has met the program’s high social justice standards at every level in the food and fiber agricultural supply chain. The Food Justice Certification program concentrates on the following issues: •

• • • • •

Rigorous environmental requirements for biodiversity, soil health, and animal welfare . . . [consistent] with Organic Certification Standards; Third-Party certification; Highest standards for fair and ethical labor and fair trade practices; IFOAM and ILO principles of social justice; Truth in labeling and transparent policies; Governance by food system stakeholders.83

A number of features of the AJP have contributed to the success and credibility of the program. Among other things, the AJP certification program guarantees that farmworkers will have a “clear multi-step conflict resolution process without retaliation,” and “transparent contract specifications,” including the terms of employment and disciplinary action, freedom of association and collective bargaining, health and safety protections, nondiscrimination in pay, and a preference for direct hiring. AJP-participating farmers are guaranteed the opportunity to negotiate for fair and transparent pricing with minimum price fairness protection, timely payments from participating buyers, freedom of association and collective bargaining, long-term relationships with farmers, and the prohibition against contract termination without just cause. The AJP seeks to be distinguishable from earlier fair trade efforts by creating a label from a “system without loopholes” that have plagued prior efforts. Among the distinguishing features of the food justice approach is the tiered reach of its assessment process: it uses “three-tiered labeling” to maintain truth in labeling and to communicate to consumers how many links in the chain of a given product were certified. Assessing for issues on multiple tiers of manufacture and production brings more of the supply chain under scrutiny.

200

Worker-Driven Social Responsibility Programs

Beyond the tiered approach to assessment of products, there is an evaluation of the certification process through public participation. There is 360-degree review. The community can communicate with certifiers. Stakeholder development is inclusive. Standards are developed by stakeholders. Workers are represented on the organization’s advisory council. To be sure, at present both the FFP and AJP are relatively small in scale. Despite its small size, the FFP has managed to leverage market power to meet the needs identified by workers in a relatively short period of time. The success of the FFP signals the importance of information. Information direct from affected workers about human rights conditions has informed supply chain practices and resulted in improvements.

D. Advancing Agricultural Justice: “Multilayered” Market Approaches

Most certification schemes are voluntary, in that certified firms and farms can opt in and out of compliance standards without legal consequences, as commitments are not binding and are largely not enforceable. Moreover, there may be relatively minimal market consequences for firms and farms that fail to comply with certification standards and lose certification status. The FFP is a notable exception among social justice certification regimes, because it incorporates an enforcement model that uses market-based mechanisms and contractual terms to support compliance. Indeed, the FFP’s certification label was developed after the success of the program to signal that participating firms and farms are committed to standards promoting wage increases and protecting the health and safety of farmworkers. While the FFP has focused on large buyers and has benefited from the social pressure that can be brought to bear on brands, the AJP captures the level of policy commitment to fair practices in a label that is consumer facing. While there is growing evidence that consumers are seeking to make ethical choices, and the market for fair trade goods continues to grow, it is not clear that average retail consumers can mount a sustained and durable demand for justice. However, consumer demand can be mobilized to move businesses to make commitments that worker-centered, that multi-stakeholder structures such as the FFP and the AJP can build upon. The governance structures of both the FFP and the AJP are well crafted to ensure a credible certification. The extent to which different standards

Transformation Through Transparency

201

support change, better conditions, and conduct consistent with respect for human rights will depend on whether governance structures place a priority on the participation of those stakeholders whose rights are likely to be at risk and promote transparency.

IV. Conclusion Whether civil society advocacy to advance fair trade can affect the commercial practices of large corporate food producers and retailers remains to be seen, but I believe there is some cause for optimism. We are entering an era of radical transparency characterized by diffuse sources of information that are easily disseminated widely. TNCs would do well to choose disclosure of information about rights impacts to the interested public and to opt for engagement with concerned stakeholders. Increasingly, the alternative is exposure, reputational harm, and legal liability. Where there is a growing demand for socially and environmentally conscious products, systems of production driven by commercial competitive pressures could come to incorporate respect for human rights in business operations. Transparency currently plays a critical role in the monitoring and enforcement of voluntary codes of conduct in supply chains. Transparency is perhaps the best way to transform business practices that cause or contribute to risks that can result in adverse human rights impacts in global supply chains. With knowledge, TNCs are better positioned to be a part of the solution. Supply chain sustainability reporting and certification schemes that assess human rights impacts should be seen as an important opportunity by TNCs that are sensitive to market pressures to incorporate respect for human rights at every level in their operations. Incorporating respect for human rights may yield rewards in terms of a larger share of the growing market of conscious consumers, while failure to incorporate rights may result in liability and place a brand’s reputation at risk. Increasingly, consumers and investors are watching.

CHAPTER 10

Reflections on Labor Standards in Global Supply Chains Innovation and Scalability James J. Brudney

Improving labor standards in global supply chains has become the focus of sustained attention from a range of public and private law actors. The International Labour Organization (ILO), national governments, transnational corporations (TNCs), labor unions, employer organizations, nongovernmental organizations (NGOs), the World Bank and other international financial institutions, and legal and social science scholars are grappling with the challenge. There has been some progress resulting from ILO conventions and accompanying national government enforcement machinery, but it has been uneven across countries. Neither the public law model of international norms and national laws nor the private law model anchored in corporate codes of social responsibility has adequately addressed the often-grim conditions in labor-intensive industries like garments, footwear, electronics, and agriculture. Scholars and activists have contributed chapters as part of the current volume that address innovative approaches in the private law setting. This chapter offers reflections related to three of those contributions: Justine Nolan’s analysis of regulation through business-centered multi-stakeholder initiatives (MSIs); Sean Sellers’s presentation on Worker-Driven Social Responsibility (WSR), building on the experience of the Coalition of Immokalee Workers; and Jessica Champagne’s description of the Bangladesh Accord on Building and Fire Safety as a model for supply chain accountability. Each

206

Critical Reflections

author describes certain challenges to establishing and implementing private law regulatory approaches that can achieve decent working conditions in supply chains. After discussing the three approaches, I present some thoughts on how the identified challenges might be addressed on a larger scale. Four issues warrant concentrated attention if the innovative private law efforts described by these authors are to become workable in broader terms. The first issue is to assure sufficient worker participation on the ground in recognizing and confronting the problems within the existing labor and human rights framework. The second involves creating a transparent and effective monitoring structure that includes a substantial role for workers. The third issue is to develop a contract-based enforcement approach, including binding arbitration as needed. Finally, there should be a funding mechanism that can help support the first three efforts on a sustainable basis. Admittedly, it is difficult to generate effective worker participation when freedom of association and collective bargaining rights are discounted or suppressed under national law and practice, as they have been in many countries where supply chains operate. And it is arduous to develop broad-based monitoring and enforcement mechanisms without serious government commitments to enact and then implement appropriate legislation. While the magnitude of these burdens related to insufficient public law regulation can hardly be overstated, there are possibilities for innovation stemming from the role that lead enterprises ordinarily play in transnational supply chains.1 Empirical studies indicate that private governance mechanisms are most effective when firms at the top of supply chains exert considerable power over sourcing decisions, and as part of that control they permit or encourage opportunities for worker participation concerning workplace conditions and practices.2 In this respect, one might view the successes of the Coalition of Immokalee Workers and its Fair Food Program, as well as the Bangladesh Accord, as exemplifying the close linkage between worker participation and corporate social responsibility—with lead firms and worker organizations acting in concert to exert pressure on their supply chains.3 When this linkage results in collaborative private regulation, workplace inspectors tend to act less like auditors going through the motions to identify or label code of conduct violations and more like joint problem solvers and sharers of best practices among workers, TNCs, and their suppliers.4 If private governance initiatives are to become effective on a larger scale, however, state regulatory mechanisms must also play a meaningful role.5

Reflections on Labor Standards in Global Supply Chains

207

Governments have overarching rule of law responsibilities regarding national and international labor standards; they also have monitoring and enforcement bureaucracies charged with implementing those standards in practice. At the same time, if private initiatives like the ones discussed by Nolan, Sellers, and Champagne can be scaled up to address the issues described above,6 they may enhance public regulatory efforts in at least two respects. One is to liberate public resources that might otherwise have been devoted to monitoring and enforcing labor rights and standards at factories or farms now operating under these innovative approaches. The other is to generate greater knowledge and cooperation between private and public regulators, in the process encouraging governments to renew and elevate their commitments in the labor protection area. I extend my analysis to encompass a role for public law when contemplating an appropriately scalable approach.

I. Innovative Private Regulatory Approaches A. The Growth and Limitations of Multi-stakeholder Initiatives

In “Closing Gaps in the Chain,”7 Justine Nolan credits the growth and persistence of corporate social responsibility efforts by TNCs over the past several decades. When global lead firms such as Nike, Walmart, and Apple promulgate and update supplier codes of conduct, it signals their recognition of a nexus between lead firm operations and the working conditions of their contractors and subcontractors. Yet because these codes of conduct are voluntary, acknowledging the nexus is not equivalent to assuming legal responsibility for labor standard violations by suppliers. Corporate codes of conduct are to some extent self-serving, in that TNCs regard them as a useful reputational asset to sway consumers and investors.8 But as Nolan observes, the codes also reflect genuine efforts to address a governance gap in many countries where national governments are unable or unwilling to regulate business conduct that violates basic labor and human rights.9 Since 2000, the United Nations has launched a series of soft-law initiatives seeking to build on TNCs’ willingness to address the workplace-related conduct of their suppliers. The most ambitious is the UN’s Guiding Principles on Business and Human Rights, which extends TNCs’ responsibility to respect human rights to adverse impacts created by their directly linked suppliers, “even if [the TNCs] have not contributed to those impacts.”10 Again, though,

208

Critical Reflections

Nolan reminds us that the Guiding Principles do not “directly attribute legal liability to the lead company for the activities of its supplier.”11 MSIs in the area of social responsibility and labor standards involve TNCs, generally in combination with industry associations and investors; they may also include NGOs, academics, government agencies, or international organizations, and occasionally they include labor unions.12 MSIs typically seek to provide basic protections for supply chain workers by expanding the unilateral corporate-code approach to create linkages between lead firms and some of the other stakeholders. Labor conventions promulgated by the ILO, along with related worker protection norms, set the principal substantive standards to be invoked. These conventions and norms have been embraced in corporate and multi-stakeholder codes of conduct as well as ratified by national governments. Code inclusions and government ratifications are especially widespread for the ILO fundamental conventions dealing with forced labor, child labor, freedom of association and collective bargaining, and nondiscrimination. More recently, private codes have paid increasing attention to safety and health protections, decent wages, and limitations on working hours. Commitment in principle, however, is not sufficient. Effective implementation of worker-protection norms through MSIs requires a system that provides for adequately transparent disclosure of supply chain worksites, suitably reliable verification that compliance has been achieved at these sites, and sanctioning and correcting for noncompliance once it is detected.13 This is where multi-stakeholder approaches have come up short. Nolan highlights some of the well-known limitations. One is the lack of participation by workers or trade unions in MSI governance structure and implementation design. Another is that corporate participation in the initiatives is voluntary. Indeed, these are key differences between the Bangladesh Accord—where TNCs, negotiating with global and local labor organizations, have made binding contractual commitments on monitoring, remediation, and enforcement—and other settings where TNCs form a voluntary business association with no involvement from labor and no attendant legal commitments.14 Nolan explains how MSIs generally rely on social auditing, focused on first-tier suppliers, that is ineffective at monitoring compliance with labor standards and at conveying meaningful information to the public about aspects of noncompliance.15 Her conclusions about these failures comport with those of other scholars, reflecting the underlying tensions between TNCs’ public demand for suppliers to adhere to labor standards and their

Reflections on Labor Standards in Global Supply Chains

209

private pressure on these same suppliers to meet production and timing deadlines that undermine adherence.16 Given that voluntary business-led efforts are widely viewed as inadequate, what are the alternatives for private regulation? There are two distinct options. The first option, which Nolan addresses briefly, is assuring that workers participate actively and meaningfully in the structure and operation of MSIs. In this regard, a recent study of transnational standard-setting MSIs found that less than 15 percent report including any members of populations affected by the MSI companies as part of their primary decision-making body.17 The proportion of these MSIs that include workers or labor unions is presumably even less. And while worker participation may be accompanied by full endorsement of the MSI, it is more likely to reflect critical engagement without acceptance of all dimensions.18 The chapters by Sellers and Champagne address this option in greater depth, but it is worth noting here that worker participation can take a variety of forms. Workers may participate through trade unions that have the legal authority to engage in collective bargaining, or through other types of labor organizations that can negotiate on their behalf even if lacking statutory recognition.19 In addition, unions or labor organizations may speak for workers’ interests in a localized factory-specific setting, on a national level, or through international agreements.20 The second option, which Nolan discusses at greater length, is co-regulation with national legislation.21 She suggests that if national governments were to mandate due diligence or specific reporting requirements with respect to human rights compliance, this could help “harden the societal expectations foisted on some companies and more readily assumed by others.”22 Nolan illustrates her point by reference to Australian legislation monitoring homeworkers in the garment sector. She indicates that laws mandating disclosure throughout the supply chain, with liability for violations imposed on lead companies, have gained traction in Australia with respect to these homeworkers.23 Notwithstanding this example, laws mandating disclosure up and down a reticulated supply chain are unlikely to generate serious pressure to improve working standards. Most of the disclosure laws that have been promulgated thus far do not require companies to undertake due diligence.24 Even if due diligence processes were mandated, information on such efforts likely will not be precise or nuanced enough to identify the number or nature of violations a TNC has condoned.25 Relatedly, consumers and investors who might generate pressure for improved practices will not read or adequately

210

Critical Reflections

understand the content of the disclosures.26 Moreover, the risk of such violations occurring on a large or persistent basis will vary considerably, based on the industry (agriculture, garments, footwear, electronics), the country in which a company operates, the company’s size, and the number of tiers in its supply chain. Still, while Nolan’s emphasis on mandatory disclosure is not entirely persuasive, her insistence on a degree of co-regulation sounds a valuable note. Nolan properly emphasizes the relevance of a robust public law presence as a complement to private regulatory efforts. In turning to two successful model programs, it is important to consider whether such programs can lead to large-scale change only if large-scale public actors engage with them.

B. Worker-Driven Social Responsibility Programs

In “Assessing Feasibility for Worker-Driven Social Responsibility Programs,”27 Sean Sellers sets forth the basic elements of WSR initiatives, derived from the remarkable success of the Fair Food Program launched in 2011 by the Coalition of Immokalee Workers (CIW).28 Importantly, Sellers also introduces certain “feasibility conditions” that should be considered when assessing whether WSR efforts can be successfully implemented in particular transnational settings. I want to focus on certain overarching characteristics of WSR programs identified by Sellers. First, the programs are by definition worker driven. Workers experience the abuses, they are best situated to monitor the occurrence of such abuses, and worker organizations must therefore be centrally involved in the creation and implementation of programs aimed at redressing those abuses.29 Emphasis on proactive governance participation by workers has been notably absent from the structure and operation of virtually all multi-stakeholder efforts. Further, the programs must be enforcement focused. This requires that TNCs and supplier participation be mandatory, not voluntary, and that supplier violations of workers’ human rights be met with “meaningful, swift, and certain economic consequences” imposed by TNCs.30 Again, there is a stark contrast with the prevailing voluntary approach of MSIs. Finally, WSR requires that TNCs at the top of supply chains assume economic responsibility to mitigate the adverse workplace consequences caused by the downward price pressure they impose on suppliers. Sellers puts

Reflections on Labor Standards in Global Supply Chains

211

forward several options that TNCs can adopt to counteract these price pressures and incentivize respect for labor and human rights. They include negotiating higher prices with suppliers so as to free up resources for improving labor conditions and “other financial inducements that enable suppliers to afford the additional cost of compliance.”31 These other inducements presumably include direct payments to support worker-centered monitoring mechanisms, subsidize facility improvements, and help compensate workers who are retaliated against for asserting rights under the program. Sellers identifies other important mechanisms that should be included in WSR programs, such as an independent and knowledgeable cadre of inspectors, a protected worker-complaint process, and effective worker education.32 For present purposes, though, I want to examine Sellers’s effort to identify conditions for assessing the feasibility of exporting the WSR model to new settings.33 Three of these conditions strike me as especially relevant when considering how the WSR approach might be applied to transnational supply chains. One condition operates as a kind of gateway, asking whether workers and their organizations have “the capacity to campaign for and implement WSR.”34 This capacity may depend in turn on whether workers are reasonably secure and free from danger when exercising rights of assembly and expression.35 Freedom of association implicates fundamental legal and political realities. In the early 2000s, tomato workers in Florida, who have no statutory right to unionize, risked their jobs when joining with the CIW to pressure brands and growers for basic labor protections. Yet even though they fall outside the scope of the National Labor Relations Act, these workers do enjoy basic constitutional protection for freedom of association.36 That protection may be lacking in law or practice in many Asian countries; garment, footwear, and electronics supply chain workers often face arrest or physical violence when seeking to organize around workplace concerns. Related to constraints on the ability to form worker organizations is whether such organizations have the ability to engage the relevant worker community in a participatory and sustainable manner. A positive response to this question likely requires the presence of a worker organization that is viewed by the relevant worker community as “accessible, trustworthy, and credible.”37 This group might well be a labor union, but it could also be constituted as a community organization like the CIW. While a labor union’s leverage and collaborative strengths may be enhanced if it is part of a national or international labor confederation, strategies for worker engagement require an active local base.

212

Critical Reflections

A second feasibility condition worth dwelling on involves supply chain structure. Sellers points to the need to understand and penetrate the layers of often-complex supply chains.38 In the Florida agricultural setting, CIW was able to simplify the supply chain structure because its Fair Food Code of Conduct bans subcontracting of employment: all farmworkers are hired by the growers as their employers.39 This successful penetration may be harder to replicate for garment supply chains, which typically consist of multiple links, often extended across national borders and ranging from thousands of employees in large factories to individual home-based workers. That said, the jobbers agreements that flourished in the U.S. apparel industry in the mid-twentieth century may offer some lessons.40 These enforceable agreements were negotiated by the key players in the U.S. apparel supply chain: jobbers (analogous to modern TNC retail brands in that they contracted out for production that they then marketed); contractors that received orders from the jobbers and employed the garment workers; and the International Ladies’ Garment Workers’ Union, representing the garment workers. Jobbers agreements created stability and transparency in supply chains by requiring that jobbers designate and register their intended contractors at the start of their typically three-year agreements, register only the number of contractors actually required to produce their garments, and prohibit use of new contractors during the agreement unless new capacity was needed.41 Although these negotiated provisions to designate and limit contractors will not serve as exact templates for twenty-first-century garment supply chain production, they may well be useful models for what can be accomplished through thoughtful negotiation involving TNCs, suppliers, and workers. The third and last feasibility condition I want to highlight involves sustainable funding. Sellers emphasizes the need to explore whether (and how) a worker organization can obtain adequate resources to support the WSR program.42 Sustaining the rights-protection capacity of such a program is likely to require substantial financial investment. Private foundations and aid from governments (including foreign governments) may be especially valuable at initial or pilot stages, but continuing support will require additional contributions from TNCs. I return to this issue in the next part, examining the successes of the Bangladesh Accord. Like Nolan, Sellers anticipates the importance of a role for state actors. While Nolan emphasizes co-regulation as a governance mechanism, Sellers envisions the state in more instrumental terms: as provider of foundational protections for freedom of association and as supplier of contract law norms

Reflections on Labor Standards in Global Supply Chains

213

that assure the enforceability of WSR-negotiated agreements.43 The potential for complementary public regulation is also relevant to the third approach reviewed in this context.

C. The Bangladesh Accord

In “From Public Relations to Enforceable Agreements,”44 Jessica Champagne devotes her attention to the Accord on Building and Fire Safety in Bangladesh. The Accord began as a binding five-year contract between global brands and retailers and trade unions, aimed at establishing safe conditions for workers in the country’s ready-made garment (RMG) industry. The agreement was signed in May 2013 in the aftermath of the Rana Plaza building collapse a month earlier that killed more than eleven hundred workers. Signatories included more than two hundred international clothing brands; most were from EU countries, although twenty were from the United States45 and eleven from Australia. Other signatories were two international unions (IndustriAll Global Union and UNI Global Union), eight Bangladeshi unions, and four NGO witnesses.46 The covered factories impacted the lives and safety of some 2.4 million workers. The initial 2013 Accord expired in 2018. A new agreement with the same key features was signed by over 190 brands and retailers along with global and local unions; it became effective for a more limited period in July 2018. Champagne highlights a number of the Accord’s key elements.47 The agreement provides for substantial worker involvement in shaping the program, including coequal representation of trade unions and brands on the Steering Committee; democratically elected safety and health committees at the factory level; and worker empowerment through a confidential complaints mechanism, an extensive training program, and the right to refuse unsafe work.48 There is also a serious commitment to monitoring and remediation, established through independent inspections accompanied by public disclosure of inspection reports and corrective action plans.49 As of April 2018, Accord inspectors had conducted fire, structural, and electrical safety inspections at 1,620 covered factories and carried out over seven thousand follow-up inspections to monitor remediation progress. The inspectors, approximately one hundred qualified safety engineers, oversaw more than eighty thousand renovations, repairs, and upgrades; 84 percent of violations identified in original Accord inspections were corrected.50 In addition, inspectors

214

Critical Reflections

identified thirty-two factory buildings with extreme structural flaws; all of these buildings were either closed or compelled to make swift renovations to ensure basic structural integrity.51 While it is not possible to prove a negative, the fact there were no building collapses or major fires in five years—during which time many high-risk factories were renovated or closed—strongly suggests there have been lifesaving results from the Accord.52 Another central feature identified by Champagne is the Accord’s legally binding nature as a self-contained system. Parties to the agreement must bring any disputes about its meaning or implementation to the Steering Committee; they may appeal a Steering Committee decision to final and binding arbitration. The arbitration process is governed by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, and awards are enforceable in the domestic courts of the relevant signatory’s home country.53 Champagne reports that two global union signatories to the Accord recently took two global brands to arbitration; positive settlements were reached in both cases, including one resulting in over $2 million being made available for remediation of violations in the supplier factories.54 Enforcement through binding international arbitration means the parties to the Accord are not dependent on the Bangladesh labor inspectorate to prosecute their complaints. A final element of the Accord that warrants mention is its funding mechanism. Signatory companies are responsible for funding the costs of the Steering Committee and of the leading personnel charged with inspection and training. Financial support is on a sliding scale up to a maximum of $500,000 per year.55 This produced annual outlays of roughly $12 million, or $60 million over five years to cover inspection, training, and administrative costs.56 These costs are separate from the substantial additional expense borne by brands or suppliers for most of the factory renovations. The magnitude of Accord accomplishments deserves emphasis. In terms of workers affected (over 2.4 million) and safety violations remedied (tens of thousands), it represents an enormous accomplishment in five years. At the same time, ample challenges remain to effective implementation. Many of the required renovations that have not occurred include expensive structural upgrades. In this regard, while 79 percent of violations were corrected during the initial five-year period, the great majority of factories still have some renovations to complete. A major reason for delays in the process appears to be inadequate financial assistance for remediation provided to factories by some brands and retailers.57

Reflections on Labor Standards in Global Supply Chains

215

Beyond internal challenges regarding safety and health compliance, there are sobering obstacles posed by the laws and practices of the Bangladesh government. Workers in the Bangladesh garment industry have long faced powerful resistance, from factory managers and at times their own government, when seeking to organize for the achievement of decent labor standards. The gains made through the Accord in worker participation on safety and health committees have thus far not translated into broader progress on freedom of association. Although the government ratified ILO Conventions 87 and 98 (covering freedom of association and collective bargaining) in 1972, national legislation does not provide adequate protection, and efforts at union formation and related organizing activities have often been met with violence.58 Amendments to national labor law in 2013 (following Rana Plaza) led initially to an increase in new unions registering within the RMG sector, but that increase has ended and other aspects of legislative implementation have been at best uneven.59 Following Rana Plaza, the United States and EU each applied trade policy in an effort to encourage improved labor laws and practices, but these policy efforts were discordant and ineffective.60 In short, the Accord’s progress on worker participation in securing safety and health protections at identified factories has not yet served as an effective bridge to broader forms of worker participation—and related labor standards improvements—in garment supply chain workplaces.61 The need for such an effective bridge is even more important today, as the Accord’s extension in 2018 is being replaced by a new private agreement combined with increased government assumption of responsibilities.62 While the Bangladesh garment employer association and the government present themselves as taking the place of the Accord in the areas of fire, electrical, and structural safety, it is far from clear that the organizational capabilities, financial and technical resources, and political will currently exist to deliver on this representation.63

II. Scaling Up Private Regulatory Innovation The two principal models just described—WSR and the Accord—have been notably successful in many respects. As private regulatory initiatives, encouraging workers and brands together to generate improved standards in supply chains, their essential features should encourage comparable innovation by others. At the same time, these and other innovative approaches, such as the

216

Critical Reflections

Better Work Program and the Freedom of Association Protocol,64 function on a relatively small scale in relation to global supply chain production. They tend to operate within a single country or to address a single kind of working condition.65 It is no small accomplishment to have delivered comprehensive improvements in labor conditions to thirty-five thousand farmworkers in Florida and to have provided new safety and health protections to over two million garment workers in Bangladesh. The challenge is how to expand these private regulatory efforts to reach nearly three million farmworkers toiling in the United States and another fourteen million in Central America,66 or the more than twenty million garment workers in eight textile- and clothing-producing countries across Asia.67 Moreover, as Nolan, Sellers, and Champagne all suggest, building toward a more comprehensive multinational effort likely will require a meaningful role for public regulation. Before discussing ways in which the public law role might be integrated, I address possible pathways to scaling up successful private law approaches, drawing on their distinctive strengths in four areas.

A. Worker Participation

As should be apparent by this point, the effectiveness of private compliance initiatives depends in crucial respects on meaningful worker participation— in program design, monitoring application, and remediation.68 What Sellers describes has been powerfully implemented by the CIW and the Fair Foods Standards Council (FFSC), a third-party monitor launched by the CIW in 2011. Key elements of the agreements negotiated between the CIW (on behalf of tomato workers in Florida) and each participating buyer at the top of the retail supply chain69 include a production-based premium that has generated over $29 million in improved wages,70 and a worker-driven code of conduct reinforced by effective complaint resolution.71 In addition to requiring compliance with applicable local, state, and national laws, the code sets forth certain prohibitions for which violations carry immediate consequences.72 Many features of the code are based on workers’ distinctive knowledge of problems in the fields, and the code has developed over time through ongoing dialogue among workers, growers, and buyers.73 Exporting CIW’s worker-driven participation approach to a transnational setting will depend in important respects on worker organizing and support

Reflections on Labor Standards in Global Supply Chains

217

from transnational groups—such as the two international unions and four NGOs that signed onto the 2013 Accord. In addition, though, the Fair Food Code, as well as the Accord provisions addressed to governance, training, and complaints, rely on the importance of local worker voice, secured and developed through organizing efforts at the farm or factory level. Workers seeking to organize and negotiate in transnational supply chains are likely to face daunting challenges on the ground, in the form of active hostility from local management and passive resistance or intolerance from the national government. The Accord model suggests that attacking safety and health problems could serve as an entry point for wider supply chain progress on worker participation. These safety and health issues carry high reputational stakes if things go badly, as with Rana Plaza. TNCs are justifiably concerned about market consequences from catastrophes such as building fires or collapses, or high numbers of worker suicides.74 Even for quasi-moral reasons, TNCs may be less likely to object vigorously to safety and health protections that carry life-or-death consequences than they are to fight against campaigns for collective bargaining or equal pay. In addition, factory-level safety and health committees can function as incubators to raise worker consciousness and confidence, serving to augment prospects for union organizing and collective bargaining. The record so far on this last point has been mixed. When Bangladesh workers observe their local union leaders actively participating in factory inspections, this can have a positive impact on longer-term capacity building and the legitimation of worker voice.75 On the other hand, it appears that neither the Accord’s safety and health committees nor the worker participation committees mandated under the 2013 Bangladesh Labor Act have resulted in increased union registrations, and worker participation committees have not been formed in many smaller and midsize factories that operate as lower links on the supply chain.76 Stepping back, government respect and protection for freedom of association and collective bargaining are relevant factors, not only in Bangladesh but also in other Asian countries. Historically, four of eight major garmentproducing countries in Asia have not ratified Conventions 87 and 98,77 and the four that have ratified both conventions often lack sufficient national laws or practices to provide meaningful protections.78 Relative to the rest of the region, Indonesia has a recent history of trade unions acting independently, and at times militantly, without the severe government constraints imposed in countries such as China and Vietnam.79 The absence of systemic government

218

Critical Reflections

hostility is one reason Indonesian trade unions and sportswear manufacturers, along with multinational sportswear brands and NGOs, were able to negotiate a Freedom of Association Protocol in 2011, establishing practical guidelines that allow factory workers to organize and collectively bargain in their workplaces.80 The modest success of the Protocol illustrates the relevance of national government postures and attitudes if private regulatory initiatives relying on worker participation are to continue to gather momentum.

B. Monitoring: Transparency for a Purpose

Once again, the WSR approach exemplified by the CIW and FFSC has been notably effective in the southeastern United States. Monitoring efforts are at once transparent and nuanced, using interview guidelines, document requests, and jointly formulated corrective action plans to develop an annual review process.81 Comprehensive auditing protocols rely importantly on the role played by workers as empowered defenders of their own rights, through code-based training and the protected complaint mechanism.82 The fact that some growers in this agricultural supply chain now ask FFSC to review their own audit and enforcement processes and invite FFSC staff on-site to train their supervisors83 indicates that the monitoring effort has achieved genuine acceptance as well as impact. The Accord, which covers nearly one hundred times as many workers as the CIW and FFSC, has a comparable monitoring approach that includes workers’ ability to lodge confidential complaints with inspectors, independent inspections with all reports made public, and brands’ commitment to terminate contracts with factories that fail to remediate serious safety and health problems at their factories.84 However, monitoring in this larger and more extended garment supply chain has given rise to additional challenges. One complication is that the Accord divided factories into three “tiers”; factories in the third tier were subject to lesser remediation and training requirements.85 Although Champagne reports that this tier structure was eliminated in the 2018 extension of the Accord, some factories are still excluded under the new arrangement.86 Another challenge is that while signatory brands are obligated to ensure that supplier factories have the financial capacity to comply with remediation requirements, the Accord does not require these brands to disclose the nature of their financial arrangements with each supplier factory.87 As a result, it has been difficult to know when factories have

Reflections on Labor Standards in Global Supply Chains

219

requested funding for remediation but been denied, or have failed to make requests from fear of offending the purchasing brands.88 A third challenge involves what happens when an inspection leads to a temporary or permanent factory closure and workers are without jobs. The Accord seeks to assure that brands punish recalcitrant suppliers but at the same time assure that supplier suspensions do not leave large numbers of workers without income.89 This is an important issue in international supply chain terms, given the relative ease of relocations across national borders. It is not clear how often these income maintenance or job security efforts have been successful. Global supply chains have become more extended in terms of production capacities as well as geography. Challenges like those confronting the Accord must be addressed in order to deliver on the promise of effective monitoring and remediation. One strategy worth considering builds from the experience with jobbers agreements in the U.S. apparel industry, discussed earlier. Negotiated provisions to designate and limit the number of suppliers could make the supply chain more transparent and suppliers more secure. This increased transparency and security also would likely enhance prospects for effective participatory monitoring by supply chain workers.

C. Contract-Based Enforcement Approach

Both the CIW and the Accord provide for enforceability through private contract norms rather than statutory or regulatory litigation. Further, the Accord’s reliance on binding international arbitration circumvents any prosecutorial role for the Bangladesh national inspectorate. Rather than create its own new procedural approach, the Accord adopts applicable procedures from the UNCITRAL Model Law on International Commercial Arbitration.90 The UNCITRAL model provides rules for the appointment of arbitrators and the conduct of proceedings, including those relating to the form, effect, and interpretation of arbitral awards.91 Provisions facilitating multiple-party arbitration are important for current purposes. While arbitration has been criticized at times in the global human rights context for being unduly focused on a binary, adversarial approach,92 there is scope under the UNCITRAL model to address disputes that implicate the interests of workers, suppliers, and brands. Provisions addressed to reasonableness of costs, allowing for flexibility in apportioning costs based on various factors,93 are also relevant in supply

220

Critical Reflections

chain settings as a potential counterweight to the asymmetry of resources between local labor organizations and the brands or their primary suppliers. More generally, major stakeholders in these settings—workers, brands, and suppliers—must have confidence that whatever disputes arise during the operational stage can be resolved in a fair, efficient, and predictable manner.94 The Model Law is recognized as successful in establishing uniform procedural standards, adhered to by states, regions, and territories around the world.95 The law’s uniformity of operation has occasionally been questioned on particular issues,96 and any substantial variation among states in willingness to defer to international arbitral jurisdiction could be troubling.97 That said, reliance on the Model Law approach could help to resolve disputes that are likely to arise with some frequency in transnational supply chain contexts. These may include allocating the capital and liability costs of compliance with particular labor standards or protections between brands and suppliers; creating sufficient opportunity for workers to meet and organize, for instance by being given access to meeting space in supplier factories or time away from work; and providing for suitable training on various labor standards for managers as well as workers.

D. Sustainable Funding of Private Law Efforts

Both the CIW and the Accord recognize the importance of creating longterm funding arrangements and the relevance of substantial contributions from lead firms. In the Fair Food Program, the wage premium paid by participating brands has totaled more than $29 million over a seven-year period.98 And the Accord’s budget for inspection, training, and administration has led to $60 million in proportionate contributions from the two hundred-plus signatory brands.99 In addition, the estimated costs borne by the Accord signatory brands or their suppliers for major factory renovations may come to at least that amount.100 Foundation awards and seed-type grants from the U.S. or EU governments are often vital at the initiation stages of innovative labor standards protection efforts. But these sources are not sufficient to sustain and expand such efforts over a longer-term period. Significant financial investment from the brands signals a commitment to regard compliance with labor standards by suppliers as a priority comparable to their commitment to the price point and delivery time demands they make of these same suppliers. The brands have different

Reflections on Labor Standards in Global Supply Chains

221

ways to assume substantial financial burdens that can help fund serious efforts at worker participation, aggressive monitoring, and contract-based enforcement. Sellers indicates that these may include negotiating higher prices with suppliers, subsidizing worker-centered monitoring mechanisms, and investing in facilities improvements. Of course, the financial commitment must be appreciably higher than $29 million or $60 million in order to have an impact on a transnational scale. It also is worth considering possible risks associated with depending too heavily on financial support from the brands. Reliance on TNC funding could compromise the independence of privately structured monitoring and enforcement over time. Brands may seek to use all or part of their support as leverage to gain more influence or control over compliance efforts, in order to minimize costs but also based on a genuine sense of what is optimally workable. Additionally, some scholars have argued that if private regulatory initiatives expand over the long term, this might cause national governments to cede power to such initiatives, thereby diminishing support for public regulation.101 While these risks should not be ignored, the benefits of sustainable funding for successful efforts like the Accord and the Fair Food Program seem obvious. Substantial investment by TNCs in an independent inspection and enforcement infrastructure with transparency and teeth has already led to important labor standards progress. Large-scale worker participation in effective monitoring can be enhanced within a country through these privately funded agreements. The focus need not be on safety and health, although inspections there are highly specialized and require personnel with advanced structural knowledge. One can envision a similar funding approach from TNCs for an agreement like the Freedom of Association Protocol in Indonesia. Moreover, contrary to the fears expressed by some scholars, expanded private regulatory initiatives may actually enhance the role of national institutions such as legislatures, labor inspectorates, and courts.

E. A Continuing Role for Governments

However successful they become in improving supply chain labor standards, private regulatory initiatives cannot replace the role played by public regulation through enactment and implementation of labor laws at the national and international levels. A major public law role remains essential, for several reasons. One is the sustainable presence of government legislators, inspectors,

222

Critical Reflections

and judges possessing legal powers including the power to punish violators under civil and criminal law.102 Another is the government’s ability to deploy those resources broadly (if not always effectively), targeting labor issues that are often left unaddressed by private regulatory efforts, such as difficult “process rights” like freedom of association and antidiscrimination. A third is the prospect of ongoing pressure from voters who have a broader base of authority, complementing the voice of workers in affected factories or farms.103 Given this reality, sufficiently large-scale private regulatory initiatives can create synergies with public regulation in several respects. These initiatives may free up government resources that would have been expended on a specific set of labor standards or in a particular export processing zone.104 If an initiative such as the Accord is able to address basic safety and health issues across enough garment factories in a country like Bangladesh, the government will be in a better position to prioritize other labor standard deficiencies with its finite resources—addressing excessive hours, or sexual discrimination, or threats to organizing and collective bargaining. In addition, worker-driven private regulation—as is present under the Accord or the Fair Food Program—can provide factory- or farm-specific audited data about compliance that are incisive, nuanced, and transparent. Borrowing from such comprehensive approaches to the compliance process, public regulators will be better able to deploy inspection and monitoring resources effectively going forward.105 A further potential synergy involves the impact that private regulatory initiatives can have in encouraging government officials to become more aggressive in protecting labor rights.106 This complementarity or reinforcement may stem from the mobilization of workers in private settings, educating them on more effective ways in which to target the state as well.107 Alternatively, the successful promotion of rights through private regulation may serve as a kind of gauntlet thrown down to national inspectorates and courts. State actors may be incentivized to pursue their comparative advantages at the public regulatory level.108 They also may feel pressured to “up their game” so that their lack of will or adequate training does not expose or shame them on the international stage, when compared with more efficient and effective private labor-protection initiatives. At the same time, suitably effective public regulation at the national level can legitimate private law regimes that rely on contract law and arbitration procedures for ultimate dispute resolution. Public regulatory efforts also can signal to recalcitrant suppliers that they may well face prosecution for

Reflections on Labor Standards in Global Supply Chains

223

noncompliance with privately negotiated codes. Relatedly, there is evidence that governments where supply chains are located have made some progress in recent decades toward providing for decent working conditions in their own countries.109 This progress has been stimulated at least in part by the internationalization of labor law sources—through ILO conventions as well as pressure from proliferating labor provisions in trade agreements.110

III. Conclusion The three chapters discussed herein focus on innovative private regulatory approaches aimed at promoting and protecting workers’ rights in supply chain settings. Key elements of success, common to the Fair Food Program and the Accord, include a prominent participatory role for workers and their organizations, an overarching commitment to monitoring and enforcement, and a substantial financial undertaking on the part of lead firms in the supply chain. More such innovative approaches continue to develop, and they too deserve close analysis. While these private regulatory efforts make a significant contribution in themselves, they also help us understand how such programs can be scaled up to create positive results across borders, as well as how this scaling up can complement or stimulate more effective public law regulation.

CHAPTER 11

Situating Human Rights Approaches to Corporate Accountability in the Political Economy of Supply Chain Capitalism Dan Danielsen

Reading this volume, one cannot help but admire the vision, creativity, and tangible human impacts of the diverse private regulatory initiatives (PRIs) employed by advocates, including the authors presented here, to achieve better human rights outcomes in global supply chains. Frustrated with the inadequacies of voluntary corporate social responsibility (CSR) programs undertaken by firms and the inability or unwillingness of states and international institutions to hold firms to account, business and human rights advocates have sought new institutional forms and hybrid enforcement mechanisms to improve the accountability of firms and human rights outcomes for populations affected by firms’ activities in global supply chains.1 Leveraging the power of consumers, brands, lead firms, workers, and others, advocates have sought to engage a wide range of justice issues—from environmental sustainability and the protection, access, and control of historically indigenous land and resources, to wages, working conditions, and freedom of association—by asserting the applicability of justice norms drawn largely (but not exclusively) from the human rights lexicon to corporate actors and seeking institutional mechanisms in addition to state power to bring corporate behavior into compliance with the norms. While these mechanisms have varied, in one way or another, they have all sought to exploit what Justine Nolan describes as “the potential interplay between national and international law and state and nonstate actors . . . [to establish] both a legal and

Human Rights Approaches to Corporate Accountability

225

a quasi-legal basis and mechanisms for addressing human rights abuses in global supply chains.”2 Given the magnitude and complexity of the justice problems and the real human suffering PRIs described in this volume seek to redress, one might expect that their tangible achievements for vulnerable constituents would be cause for celebration, or at least a “we have come a long way and have a long way to go” kind of attitude. Yet the dominant affective tone of the authors describing the strengths, accomplishments, and limitations of the PRIs they analyze is disappointment. The sources of this disappointment are multiple. Despite new institutional strategies and sources of pressure for corporate accountability, states still often do not, will not, or cannot meet their human rights obligations.3 Firms participate in PRIs to advance their commercial interests, often without a serious commitment to protecting the human rights of their stakeholders.4 Underresourced nongovernmental organizations (NGOs) or labor unions are too often called upon to supply the know-how, organizational energy, and normative commitment driving PRIs.5 However, as is often the case in business and human rights literature, disappointment is not despair. The authors express frustration with both business firms and states for the inadequacy of their respective efforts to protect vulnerable stakeholders from the adverse effects of business activity. Yet they remain cautiously optimistic that if appropriate and sustainable institutional enforcement mechanisms could be brought to bear, increased respect for human rights and justice norms by business actors in their supply chains could be achieved.6 I share many of the justice goals of the authors, as well as their frustration at the inadequacy of current approaches to remedying the ever-widening distributional inequities among participants in global supply structures. My own work has sought to engage these problems by focusing on the legal regimes and business practices through which corporate actors exercise power over resource distribution and governance in the global economy. These regimes are, by and large, private law regimes such as contract law, corporate law, tort law, property law, tax law, intellectual property law, and commercial arbitration, as well as a vast array of private ordering regimes and business practices, including practices to create and exploit commercial advantage and industry association standards, corporate codes of conduct, and other business-led CSR mechanisms. Through this approach, I have sought to focus attention on the numerous background legal norms and practices that enable and reinforce current unjust allocations of resources, bargaining power, and well-being,

226

Critical Reflections

with a view to identifying legal strategies for achieving more equitable allocations through changes in the norms supporting current allocations. This volume amply demonstrates that efforts to reduce corporate malfeasance through PRIs have yielded important insights into the human rights impact of corporate activity in some sectors and tangible improvements in human rights outcomes for some stakeholders. Yet the volume’s authors are also circumspect about the challenges and limits of many PRIs. Though I am not a business and human rights scholar, my intuition is that contextualizing PRIs (including those described in this volume) in the political economy of corporate power that I and others term “supply chain capitalism” can take us some way toward explaining some of the challenges the PRIs have faced in achieving their justice objectives. Moreover, it may be that the focus of many PRIs on finding institutional and normative mechanisms for controlling the adverse effects of corporate activity may have obscured the challenging competitive pressures, power dynamics, and often “no-win” policy trade-offs that shape the behavior of firms and states under supply chain capitalism. That said, engagement by PRIs with the dynamic processes and differently capacitated groups and institutions that shape global supply chain governance may offer promising institutional configurations for challenging dominant firm power through the very global chain structures that currently amplify that power. One strategy might be to move beyond a conceptual framework of corporate violation, harm, and remediation to include identifying and challenging the wide array of legal regimes and business practices through which corporate power is aggregated and exercised under supply chain capitalism. In so doing, PRIs could continue to evolve as sites for radical experimentation in cross-border, cross-institutional, and cross-group alliances that could facilitate new global political movements to challenge the global distributional inequities of supply chain capitalism. My argument proceeds in three parts. First, I provide more context to the political economy of supply chain capitalism and suggest why it is significant for development policy, inequality, and human rights outcomes in global supply structures. Next, I argue that the power imbalances and competitive conditions that predominate in supply chain capitalism are a significant factor contributing to the limited impact of the PRIs described in the case studies. I conclude with some suggestions for ways in which PRIs might increase their impact by using their unique knowledge, organizational capacity, and relationships in particular supply chains to challenge more directly the

Human Rights Approaches to Corporate Accountability

227

concentrations of corporate power that are shaping the unjust distributional and human rights outcomes of supply chain capitalism.

I. Explicating the Political Economy of Supply Chain Capitalism: Why It’s Significant for Human Rights Advocates Supply chain capitalism is characterized by a significant transformation in the organization and processes of global production of goods and, increasingly, many service sectors. At the heart of this transformation is a shift from a transnational corporation model, in which supply, production, and distribution are vertically integrated through networks of subsidiaries serving geographically proximate markets, to the global supply chain model comprised of disaggregated, geographically dispersed, contractually coordinated, and largely nonproprietary chain structures that predominates today.7 The ubiquity of these global supply structures across numerous sectors is amply demonstrated in the diversity of case studies in this volume—from diamonds, palm oil, and garments, to foodstuffs sold in supermarkets. The proliferation of this structure of production has been well documented across both traditional “buyer-driven chains” (such as the ready-made garment sector, furniture, and toys) and “producer-driven chains” (such as electronics, pharmaceuticals, autos, computers, and smartphones).8 One important effect of the shift to global supply chain structures has been an increasing concentration of power over the coordination and governance of supply chains in large buyer firms, including, in many cases, significant control over product standards, commercial terms, conditions of supply and work, and distribution of rents across the chains. While this concentration of buyer power has been well documented, what may be less obvious is how this power over chain governance has diminished the regulatory and policy autonomy of developing states and the bargaining power of supplier firms and their workers.9 The distributed geographic scope of global supply chains, the interdependence of participants in chain structures, and the dependence of suppliers on chain structures for access to markets give large buyer firms extraordinary bargaining advantages over firms and states competing for their favor. As a consequence, the business practices of supplier firms and the regulatory policy of states will be attentive to, if not

228

Critical Reflections

substantially determined by, the demands of buyer firms across the supply chains with which they deal. The legal techniques and business practices through which buyer firms exercise governance power in their supply chains are myriad, including supply contracts, corporate codes of conduct, policies regarding subcontracting by suppliers or intermediaries, punitive commercial measures that punish noncompliant firms, multisourcing practices that leverage competitive pressure, and limitations on supplier sourcing of production inputs. In addition, buyer firms shape the policy autonomy and bargaining power of developing states, firms, and workers, using techniques such as complex ownership and licensing structures to maintain proprietary control over innovation, intellectual property, and brand assets; inventory control and production management systems that minimize technology transfer to suppliers; and complex corporate structuring to distribute business functions and the recognition of revenues and profits geographically for the purpose of minimizing global tax liability. As a result of these techniques, both local firms and national development policy makers find it more difficult to influence the terms on which they access supply chain structures and the returns they receive from participating in them. These constraining effects become even more significant for supplier firms selling in multiple chains and for developing countries trying to support local firms in multiple chains and business sectors. Firms in developing countries that are dependent upon global supply chains for access to export markets will model their business, production, and labor practices on gaining entry to and remaining in the global chains in which they can compete most effectively, always with an eye to suppliers from their own country and other countries that might undercut them. If the chains they supply are led by reputation-conscious global brands selling to socially minded consumers or in business sectors where production processes must be consistent globally to ensure product quality, this focus on chain requirements could lead to higher product, labor, or environmental standards than local host country law requires, as firms adapt to the higher standards in applicable supply agreements, codes of conduct, and human rights and other certification schemes. Alternatively, if supplier firms are selling in chains led by buyer firms that are extremely price sensitive, less concerned about consumer pressure or global reputation, or willing to switch sources of supply to take advantage of modest differences in regulatory oversight, then supplier firms will seek to protect their place in the chains by taking advantage of no regulation, low regulation, or weak enforcement.

Human Rights Approaches to Corporate Accountability

229

They may do so by opposing domestic regulatory efforts to increase wages or regulatory standards, subcontracting to sub-suppliers or informal workers less visible to local regulators, discouraging or punishing worker organizing activity, and otherwise evading domestic regulatory oversight through political or economic influence. In some cases, workers fearful for their jobs may not object to these practices by their employers, even if it means accepting low wages or unsafe working conditions. The governments of developing countries that are dependent on their firms’ access to global supply chains for foreign exchange, foreign investment, development aid, and tax revenues will similarly make their regulatory, enforcement, and development policy choices with a view to the expectations of the chains in which their firms participate, as well as the policy choices of the home states of potentially competing supplier firms. Fear of reducing the competitiveness of local firms by alienating buyer firms, the global business press, capital markets, or international financial institutions may make developing countries wary of increasing labor, environmental, or safety standards, or even of enforcing legal protections currently in place. Incentive-based strategies such as tax abatements, infrastructure investment, and low-regulation export-processing zones may seem more in line with the expectations of buyer firms, capital markets, and international development institutions and therefore a more prudent option to domestic policy makers. Gaining or retaining a toehold in the global economy through accommodating buyer firm expectations may seem like the only path to jobs and development, even at the expense (hopefully in the short term) of other human rights commitments. Moreover, for developing country policy makers with firms and workers participating in chains serving multiple export sectors or different types of end markets in the same business sector, calculating the development and human rights costs and benefits of almost any regulatory choice becomes extremely complex and uncertain. In such circumstances, a hands-off approach may seem safest, even if the cumulative effect of this approach may be to further empower buyer firms. For the purposes of this volume, attention to the power asymmetries and competitive conditions that characterize the political economy of supply chain capitalism can help explain why private regulatory efforts to improve human rights outcomes in global supply chains have proven to be so difficult. First, dependence on supply chains for access to global export markets significantly reduces the room for most developing countries to take regulatory, enforcement, or development policy positions or for their firms to undertake

230

Critical Reflections

commercial practices that deviate substantially from the positions taken by countries and firms competing for participation in the same global chains. Moreover, this room diminishes further the more a country’s suppliers, labor skills, or export products are substitutable. Absent unique bargaining power due to country size, technical capacity, or products or skills not easily sourced elsewhere, most developing countries and their firms will tailor their behavior to the real and perceived demands of buyer firms and the real or anticipated behavior of competing developing countries and firms in the chains in which they sell. The persistent threat of losing access to the chains—with the political, economic, and human rights consequences that could entail— makes even capable and well-intentioned governments and firms wary of pursuing human rights objectives through policy choices that might undermine their competitiveness. If we combine the governments and firms that are capable but reticent with the large number of governments and firms that either lack the administrative capacity for effective regulatory enforcement or intentionally exploit vulnerable populations for power, profit, or both, low levels of human rights enforcement in many global supply chains seems not only understandable but also likely, even among governments and firms that might prefer to do otherwise. Another element of supply chain capitalism that limits the policy autonomy of many developing countries and firms is that their competitive positions in the global chains are largely determined by rules and practices that are not in their control. As I have already suggested, legal and business tools through which buyer firms govern their global chains are not primarily the domestic rules of the host state in which production occurs. In fact, commercial incentives and competitive pressures drive developing countries and firms to adapt their policies and practices to chain norms, not the other way around. In these difficult circumstances, the most pragmatic regulatory policy for developing country policy makers might be either to set low standards or to set high standards and selectively enforce them. Choosing and enforcing high standards might help those local firms that supply chains led by reputation-conscious buyers selling to conscientious (and often wealthy) consumers. But high standards also might lead to lower margins or loss of business, with a consequent loss of jobs for local firms supplying chains serving low-income markets or markets less responsive to consumer pressure. If the state sets low standards or chooses selective enforcement of higher standards, the firms serving reputation-conscious chains will still likely raise standards

Human Rights Approaches to Corporate Accountability

231

to meet buyer-firm requirements, while allowing the firms and workers serving other markets to continue to do business. While I am not condoning this outcome, I am suggesting that both the level of standards and the extent to which standards are enforced involve complex and difficult policy trade-offs for individual developing countries and firms seeking to gain access to or remain competitive in global chains. With no easy “all winners” solution, the trade-offs might be better understood as choosing whose human rights to protect and what human rights cost. Finally, the reorientation of development policy from building forward and backward linkages between firms within a state to building linkages between developing country firms and global chains leads to fierce competition between firms and states vying for a place in the chains. These fierce, competitive conditions may make the alliances that PRIs seek to foster among supplier firms, workers, and developing states all the more difficult to create or sustain, even if such alliances hold the most promise for altering the power asymmetries in the chains.

II. Progressive Strategies to Improve Human Rights Outcomes in Global Supply Chains, and Their Limits As the case studies in this volume make clear, scholars and activists have engaged in a lot of creative innovation. While discussion continues regarding a possible UN treaty on business and human rights, progressive efforts to regulate the adverse justice impacts of corporate activity in supply chains have mainly taken two forms: (1) PRIs of the types described in this volume, which have sought to leverage consumer and worker power to pressure brands to bring business activity into conformity with human rights and justice norms; and (2) domestic legislation, which has sought to leverage home-state market power to impose limited due diligence and disclosure obligations on large firms regarding their supply chains operations10 Examples of this legislative approach include the United Kingdom’s Modern Slavery Act of 2015; the California Transparency in Supply Chains Act of 2010; Directive 2014/95/EU of the European Union, which came into force in 2017; the French Duty of Vigilance Law; and the Australian Modern Slavery Act of 2018, all of which impose public disclosure (and in certain cases due diligence) obligations on certain large firms regarding the human rights impacts of their supply chain operations.11

232

Critical Reflections

While both of these approaches attempt to make positive use of the complexity and distributed governance of modern supply chains, situating these approaches in the political economy of supply chain capitalism helps to explain why these strategies may not be meeting advocates’ or stakeholders’ expectations in terms of behavioral changes by institutions or human rights outcomes for vulnerable constituencies. While many PRIs have sought to leverage the power of diverse nonstate institutions and stakeholder constituencies—from consumers to brands to multi-stakeholder organizations to unions and worker organizations—to fill the gaps in state enforcement of corporate accountability norms, increasing state responsibility for controlling the adverse effects of corporate activity remains a significant goal of the initiatives. We have already seen that a combination of lead firm power, competitive pressure from other developing countries, and the policy challenges of meeting the demands of multiple chains makes it difficult for many administratively capable and positively disposed developing countries to increase regulatory oversight over their supplier firms, let alone over buyer firms. We might expect even less from developing state governments lacking the capacity or the will to regulate in the interest of vulnerable populations. If we cannot rely on developing countries’ supervision of their domestic supplier firms, we might place our hopes in regulation of buyer firms in their home jurisdictions, which are typically developed countries. Even the above-mentioned legislative initiatives in Europe, Australia, and the United States are primarily aimed at requiring buyer firms to disclose efforts to track compliance with certain justice norms in their supply chains, without imposing affirmative obligations to enforce these norms on buyer firms or their suppliers. It may be that supply chain capitalism offers some explanation for the reluctance of developed states to impose any serious requirements for supply chain accountability on their large buyer firms. Along with developing countries, developed countries have also experienced the disaggregation and denationalization of developed country firms and the diminishment of their regulatory and bargaining power under supply chain capitalism. While adverse global impacts of the business activity of developed country firms have increased, and capturing tax revenue from those firms has become more difficult, real or perceived competitive pressures have led many developed states to reduce rather than enhance oversight and tax burdens on their firms, both at home and abroad.12

Human Rights Approaches to Corporate Accountability

233

One example of this trend can be seen in the Trump administration’s corporate tax cuts in the United States in 2018. Justified as a means to increase U.S. firms’ competitiveness and stimulate domestic economic growth by freeing up resources for U.S. firms to increase domestic capital investment and wages, the economic effects of the cuts are much debated by economists. One recent study suggests that the cuts are unlikely to lead to significant increases in investment in physical capital or wages in the United States because most of the largest U.S. firms already generate a majority of their revenues, and shelter as much as 40 percent of their profits, offshore.13 A second study indicates that while the cuts may have fostered modest wage increases in some parts of the country, the vast bulk of the tax savings has been used by firms for share repurchases and dividend distributions to shareholders.14 Thus, it seems that capital shortages resulting from U.S. tax rates were not the reason U.S. firms were not making investments in physical capital or labor in the United States. A second example can be found in the Trump administration’s tariffs on steel and aluminum imports and the difficulty that U.S. policy makers have had in using tariffs—a traditional tool of national industrial policy—to support domestic steel and aluminum producers without also causing harm to numerous other domestic firms through the disruption of their supply chains. They also have found it challenging to control strategic behavior by domestic firms to adjust their supply chains to avoid the impact of the tariffs.15 If it is difficult for the United States to understand or effectively manage these complex global economic forces, one can expect it will be even more difficult for less administratively capacitated states with smaller economies. All this seems to suggest that under current global economic conditions, buyer firms and chains may often be in a better position to shape safety, wages, working conditions, and environmental and community impacts than many states— even well-capacitated ones. Yet as we have also seen, the pressures and motivations of both buyer and supplier firms are mixed, multiple, and differently constrained. As a consequence, a race to the bottom is not inevitable. As I have already suggested, some buyer firms will demand higher standards in their supply chains, and some will not. States will be required to make complex and differentiated policy assessments about the risks, rewards, and costs of their human rights enforcement practices in light of dynamic changes in their supplier needs, export sectors, bargaining power, and competitive circumstances. As a consequence, human rights enforcement will

234

Critical Reflections

likely be piecemeal, variable, and inconsistent within and across sectors, firms, and states. PRIs can and have improved some human rights outcomes for some people in some chains in some sectors. Given the magnitude of the obstacles and the forces in play, these achievements are significant normatively, materially, and politically. At the same time, it is not surprising that the achievements have not matched the hopes and expectations of human rights activists and the vulnerable stakeholders impacted by global supply chains that they serve. At a minimum, it would seem that efforts to achieve better human rights outcomes globally without challenging the broader legal and political infrastructures that enable the unjust economic conditions of supply chain capitalism are likely to fail in the long run and might do harm, at least for some, in the short run. Treating the symptoms of those adversely impacted by supply chain capitalism is important and necessary, but ultimately the treatment must confront the disease itself.

III. Building on the Past, Looking to the Future I do not even pretend that I know how to fix the complex confluence of global forces I have described. Nor do I presume to second-guess the strategies of human rights activists and scholars working on the front lines of PRIs from the detached safety of my study. In the remainder of this chapter, what I do is suggest some ways in which situating private regulatory efforts of the kind described in this volume in the political economy of supply chain capitalism can open new perspectives on tactics and strategy and focus attention on important issues for (re)consideration and engagement. One important aspect of supply chain capitalism that a political economy perspective helps bring into view is that the legal regimes and practices contributing to distributional and power inequities and adverse human rights outcomes in global supply chains are far more diverse and complex than the enforcement or nonenforcement of particular human rights norms. As we have seen, numerous legal regimes, private ordering mechanisms, and business practices are enabling, reinforcing, and sustaining the relative bargaining power and welfare of chain constituents. Many of these regimes and practices are not within the jurisdiction or control of individual developing countries or their supplier firms. Other regimes and practices may not be feasible for individual developing states or firms to challenge. As a consequence, without challenging the broader constellation of norms enabling the aggregation of

Human Rights Approaches to Corporate Accountability

235

buyer firm power, it seems likely that PRI efforts to bring corporate behavior into conformity with human rights and justice norms will continue to produce limited if not insignificant results. That said, with their concrete knowledge of the structure and governance of particular chains and their established relationships with diverse participants within those chains, PRIs are well situated to map the legal regimes and practices that are most significant to undergirding the inequitable allocations of rents and bargaining power in their chains and sectors. Such maps could make visible new geographies of power, new sites for organizational pressure, and new legal tools for gaining leverage. Stakeholder energy and pressure could be focused on the most problematic rules and practices. Changes in these rules and practices could not only improve current conditions but also improve bargaining power in future struggles. For example, it might be that fiduciary duty rules that shield corporate boards from liability suits for even grossly negligent business decisions in a buyer firm’s home jurisdiction contribute significantly to the firm’s willingness to take risks in its supply chains.16 Or foreign tort rules may leave factory workers without recourse against firms up the supply chain, which effectively establish the terms and conditions of their work, by treating independently incorporated businesses as separate entities for liability purposes, even when engaged in a highly interdependent common business enterprise.17 The terms of a buyer firm’s supply contract, such as a provision mandating regular rest breaks, paid sick leave, establishing a floor on regular and overtime pay rates, or prohibiting retaliation for worker organizing activity or unionization, may have more impact on human rights outcomes across the chain than local labor legislation in the home jurisdictions of each of the chain’s supplier firms.18 Attention to the political economy of supply chain capitalism can also help bring into view potential alignments of interests among chain constituents that can be otherwise difficult to see. Without denying the exploitative practices of many supplier firms, workers and their supplier employers may find some room for common cause in resisting their shared vulnerability to buyer firms and chain structures. The interests of local firms competing for a place in the chain might partially align if they joined forces in bargaining with buyer firms (or their intermediaries) over issues of common concern. On a transnational scale, workers and suppliers from competitor supplier countries might gain leverage for challenging common grievances by reducing the ability of buyers to pit them against each other as alternative sources

236

Critical Reflections

of supply.19 Developing countries competing in the same sector might resist incursions by buyer firms and chains on their regulatory autonomy if they could coordinate some basic aspects of their regulatory policies in the sector. Workers, by recognizing the complex competitive pressures facing their employers and national government, might gain traction with both and help regulators to make wiser and less harmful trade-offs by focusing regulatory attention on the issues that are highest priority for the workers themselves, and by focusing enforcement efforts on the most exploitative employers. None of these are particularly new insights, yet the power dynamics and distributional inequities of supply chain capitalism may give them a different valence or more plausibility in particular contexts. As power and surplus concentrate at one end of the chain and dissipate at the other, more traditionally assumed divisions between labor and capital, regulator and regulated, public and private, economic interests and human rights concerns, and national and foreign can blur as subjection becomes the common experience, differing mainly in matters of degree. Yet in the midst of what may feel to national policy makers, firms, and workers like an existential, zero-sum competitive struggle for even a tiny share of chain surplus, it may be hard to imagine potential alliances based on partially overlapping interests among constituents engaged in the struggle. It is here that situating what may seem like quite local supply chain issues in the global political economy of supply chain capitalism can help link those issues to broader patterns, tensions, and dynamics as well as reveal potential provisional alignments of interests that might be put to use to improve bargaining leverage and distributional outcomes. PRIs could be excellent vehicles both for helping to educate diverse constituents about the connections between local struggles and broader global trends and drawing attention to potential alignments of interests that could form a basis for provisional solidarity and collective action. Moreover, as I have already suggested, by developing better maps of the key legal drivers of power asymmetries and distributional inequities in particular global chains, PRIs could be well positioned to help channel the collective focus of these provisional alliances into reform projects with significant redistributive potential. Of course, as several of the authors in this volume have suggested, the potential for any particular PRI to engage effectively in fostering human rights enforcement, let alone the other types of intentionally redistributive law reform projects just described, will depend on the scope of its mission, the range of stakeholders that comprise it, and the structure of its governance.

Human Rights Approaches to Corporate Accountability

237

Some PRIs may be narrowly conceived primarily as a means for aggregating and coordinating the power and advocacy of large firms in areas of shared concern.20 Others may have broader social or economic justice mandates but may be dominated by the interests of certain stakeholders or exclude the participation of some vulnerable stakeholder constituencies.21 Still others may have both justice and stakeholder inclusion as their aims but lack sufficient commitment from important stakeholders or sufficient institutional resources to accomplish those aims.22 Perhaps PRIs, by their nature, are limited, imperfect, tenuous institutions. Interestingly, all these different types of PRIs seem to arise improbably out of a combination of the relative (even if radically unequal) coercive pressure of the participants on one another and the recognition of some tangible (even if provisional or partial) overlap of interests. Much like the improbable yet potentially beneficial alliances described earlier, participation by each stakeholder group in a PRI would seem to signal a recognition (even if not fully conscious) of both some measure of coercive power vis-à-vis other participant groups (even if relatively limited) and some measure of vulnerability to the coercive power of the other participants (again, even if only marginal). It seems unsurprising (if frustrating) that the relative distribution of coercive power and vulnerability in most PRIs more or less reflects the perceived distribution of coercive power and vulnerability among the participants in the world outside of them. Yet even when PRIs replicate external power inequalities, they have the potential to make concrete and legible the shared and divergent interests and the relative coercive powers and vulnerabilities of their constituents (and those excluded from participation) by bringing what might otherwise be seen as diffuse, independent, and disconnected global forces and actors into an institutional relationship of specific stakeholders. In this sense, PRIs can inform global discourse and potentially empower social movements through both their tangible achievements for vulnerable populations and critical reflection on their failures, challenges, and shortcomings. Moreover, current distributions of power and vulnerability, while often seeming intractable, are not fixed but dynamic. Thus, actions that change the bargaining power of particular groups outside of a PRI should shape perceptions of coercive power and vulnerability inside and vice versa. Two recent examples suggest some of the dynamic processes I have in mind. The first involves a series of worker-led actions by tech workers at Google, Microsoft, and Amazon aimed at altering certain business practices of their

238

Critical Reflections

employers.23 In one action, Google employees used Google’s own collaboration tools to stage a worldwide walkout by twenty thousand workers to challenge the company’s long-standing practice of protecting executives from sexual abuse complaints and the company’s decision to make a $90 million exit payment to a departing executive accused of sexual misconduct. In another series of actions, Google employees pressured the company to abandon a plan it had to work with the U.S. Department of Defense to develop software for targeting drone strikes. Similar worker-led actions at Microsoft and Amazon sought to stop each company’s collaboration with and sale of technology to law enforcement and the U.S. Immigration and Customs Service.24 The second example involves an action by independent booksellers against the global platform website and Amazon subsidiary AbeBooks, in protest against the company’s decision, without explanation, to ban booksellers in five countries—the Czech Republic, Hungary, Poland, Russia, and South Korea—from the global secondhand- and rare-book-selling platform.25 The action, designated “Banned Booksellers Week,” involved six hundred booksellers in twenty-seven countries removing about four million books from the AbeBooks platform. According to the organizers, the action was motivated by a combination of outrage at the collective vulnerability of all suppliers, provoked by the company’s apparently arbitrary decision, and a sense of solidarity among the tight-knit community of secondhand and rare booksellers, whose international association’s official motto is amor liborum nos unit (the love of books unites us all). Within two days, AbeBooks rescinded the ban and reportedly apologized for the harm caused. While the actions in these examples were not coordinated by PRIs, they share some important elements with the kinds of initiatives PRIs undertake and the context in which they operate. The actions in both examples targeted specific sectors with highly particular supply structures. They sought to attain social justice objectives that were broader than the immediate interests of the organizers. They leveraged the coercive power of collective action by what had been understood in the circumstances to be “weak” players: in the first example, individual tech workers without a union or protection from retaliation by a collective bargaining agreement, and in the second, small, geographically dispersed secondhand and rare booksellers dependent on the AbeBooks platform to reach global markets and without protection from exclusion. They used collective action to exploit the large firms’ reliance on continued access to suppliers: in one case skilled and highly mobile tech

Human Rights Approaches to Corporate Accountability

239

workers and in the other the small, independent suppliers on which the AbeBooks business model relies. Perhaps most importantly, they demonstrated that they could and would organize workers and suppliers that might normally be competitors into concerted action based on partially overlapping interests to challenge objectionable business practices by globally powerful firms. In doing so, they altered, if only provisionally, the distribution of bargaining power and vulnerability, not only within their particular companies and chains but across their global sectors as a whole. While the disaggregation, geographic dispersion, and attenuation of global supply chains has significantly enhanced the power of buyer firms, it is also a source of their vulnerability. The radical potential of PRIs, whether as formal institutions or tactical, temporary alliances, is in their ability to make visible and exploit this vulnerability through acts of distributed governance in particular chains and sectors targeted at the norms and practices that sustain buyer firm power to the detriment of more vulnerable stakeholders. Two additional points bear mentioning, if only briefly. Each of these points emerges out of the discouraging long-term trade and development trends of declining terms of trade and prices along with chronic underemployment, joblessness, and lack of access to the wage economy in most developing countries since the ascendance of supply chain capitalism. And each is significant for the organization and substantive priorities of PRIs aimed at improving human rights outcomes in the developing world in the future. The first is a caution with regard to treating Worker-Driven Social Responsibility (WSR) models as a general solution to the shortcomings of more topdown and less inclusive multi-stakeholder initiative (MSI) models of the type described in this volume. As Sean Sellers so eloquently demonstrates, WSR initiatives including the Fair Food Program, the Accord on Fire and Building Safety in Bangladesh, and the Worker-Driven Social Responsibility Network are important and powerful advances in the design, governance, strategy, and efficacy of the MSI as an approach to improving human rights outcomes in supply chains.26 By putting workers at the center of the institutional and organizational structure of these initiatives, worker inclusion, participation, and empowerment become both the objectives of WSR and the means for achieving them. Yet this significant strength of WSR also has the risk of making it a vehicle for the further marginalization and immiseration of the large populations in developing countries excluded from or not engaged in wage work. Since the industrial revolution and Marx’s critical analysis of it, theorists and policy makers on the right and the left have generally seen wage labor as the

240

Critical Reflections

main means for economic development, social inclusion, and political transformation. Without denying the potential for unions and workers to improve wages and working conditions for others in the society, WSR initiatives will need to attend consciously and proactively to the large and potentially growing numbers of people who labor but whose contributions are not seen or compensated as wage work. Coming to grips with the challenges of supply chain capitalism and the limited prospects for growth it fosters for much of the world may help advance what anthropologist James Ferguson calls “a new politics of distribution”; one that begins to generate new conceptions of value, belonging, participation, and support outside or alongside the paradigm of wage work.27 Imagining, fostering, and promoting a politics of distributive inclusion beyond the formal employment relationship and wage work should be a central objective of WSR, even as these initiatives seek to protect the interests of workers in supply chains. A second and related caution is that PRIs, even as they focus needed attention on human rights outcomes within global supply chains, should not lose sight of the fact that supply chain capitalism has failed to deliver sustainable economic growth for most of the developing world. Moreover, the increasing concentration of power over supply chain governance and rents in buyer firms and of competitive productive capacity in a small number of developing countries suggests that achieving sustainable growth through competitive participation in global supply chains will likely become increasingly difficult for most developing countries and their local firms. These trends suggest two important implications for PRIs working in global supply chains. First, in addition to working to improve conditions in the chains, PRIs should focus their energy on identifying and challenging the legal regimes and business practices that most significantly contribute to the distributional and power asymmetries in their chains. They should aim to change the important “rules of the game” wherever they are made and whatever form they take in ways that enhance the bargaining leverage of vulnerable chain stakeholders. Doing so should improve human rights outcomes while altering conditions of bargaining in future struggles. Cumulatively, these actions aimed at challenging the enabling legal conditions of power asymmetries in supply chain capitalism may begin to alter this form of global economic organization and its distributional effects more broadly. Second, if competitive participation in global markets is not a promising (or even viable) pathway to development for many countries, PRIs should help to foster new conceptions of development, forms of political organization, and

Human Rights Approaches to Corporate Accountability

241

means for social provision aimed at more successfully providing for collective welfare of stakeholders across borders, institutions, and groups. Supply chain PRIs, with their global reach, sector-specific expertise and stakeholder base, may be well positioned to explore new institutional strategies for crossgroup solidarity and targeted global resistance to those inequities. With these cautions and the dynamic political economy of supply chain capitalism in view, PRIs could become the experimental institutional vanguard for challenging the legal infrastructure and distributional inequities of supply chain capitalism. At the same time, they could transcend some of the ways in which supply chain capitalism has limited their impact to date.

CHAPTER 12

Taking Consumers Seriously Public Regulatory Tools of Accountability Lauren Fielder

The chapters in this book draw attention to human rights and environmental abuses in global supply chains. A multitude of both public and private regulatory measures have been created to alleviate this problem, but without a treaty creating binding norms—given the lack of coordination between the various regulatory mechanisms in place—an unregulated space in governance exists. A coordinated approach is needed to bridge this gap with increasing connections between the public and the private spheres. Creative litigation strategies can be an important part of this synergistic governance. Using consumer protection laws to amplify both existing laws and the role that consumers play in bringing attention to abuses in the global supply chain is a possibility that I explore in this chapter. While reliance on consumers is problematic,1 the chapters in this collection prove that consumer involvement remains an important component of a multifaceted solution to global supply chain–related human rights abuses. This chapter therefore provides a discussion of the ways in which consumer protection laws could be used to increase supply chain accountability.

I. Consumers and the Global Supply Chain As businesses increasingly look for ways to increase profits, they utilize global supply chains to manufacture products with lower production costs.2 As corporations seek profits and seek to please consumers who demand low prices,

Taking Consumers Seriously

243

they pressure their suppliers to manufacture products for less, thereby creating downward price pressure from the top. Because of the control that lead corporations can exert over other players in supply chains, it is appropriate that they should bear responsibility for the resulting human rights violations. There is growing consensus that multinational corporations are responsible for the effects of their sourcing practices overseas, but there is little binding law to this effect.3 The result is sparse regulation of multinational corporate behavior that causes human rights abuses in global supply chains. This gap in regulation can be explained by the lack of binding international law, which results in an overreliance on nonbinding soft law, weak domestic laws at the sites in which abuses are occurring, sparse regulation of corporations in the domestic law of their home states, and overemphasis on corporate social responsibility (CSR) schemes.4 With such a gap in regulation, it is necessary for creative approaches to be taken whereby existing laws may be adapted to fill a partial role in policing corporate human rights abuses throughout global supply chains. Consumer protection law, as I discuss below, is one supplemental solution. The idea that corporations are responsible for the behavior of their suppliers gathered momentum beginning in the 1970s, leading to unsuccessful efforts to create a binding treaty.5 Nolan points out that the push for a treaty has not abated; the most recent efforts have been the 2014 Human Rights Committee Mandate and the 2016 International Labour Organization Resolution.6 There have also been ongoing negotiations about a treaty for business and human rights.7 However, attempts to create treaties have thus far been unsuccessful, as resistance has come from both the private sector and governments.8 The United Nations (UN) acted to fill a vacuum left by the lack of a treaty with nonbinding initiatives. These soft-law regulatory frameworks are built around an increasing willingness by transnational corporations to cooperate in efforts to improve the situation in global supply chains, motivated in large part by consumers. The Global Compact and the 2011 Guiding Principles on Business and Human Rights are two prominent examples of UN-sponsored soft-law programs described by authors in this volume. Another crucial component of the weak regulatory framework is the fact that domestic regulation is often ineffective in states where global supply chain abuses are occurring, as state governments are unable and/or unwilling to regulate working conditions.9 This is troubling because it is traditionally domestic law that is responsible for regulating corporations and ensuring remedies where there are human rights violations.10 However, in many countries where goods are produced, domestic law is ineffective due to weak laws,

244

Critical Reflections

abysmal enforcement, and corruption.11 Even where states have the political will to regulate supply chain violations, they may lack the resources to do so.12 Furthermore, corporations use weak domestic laws as cover for their suppliers’ rights-violating actions. Companies can use permissive or poorly enforced local laws as cover even when they are engaging with certification regimes that signal to consumers the product is “clean.” Sometimes the government itself actively perpetuates these abuses. The chapters in this book have shown how weak domestic laws in states where production is taking place enable horrible human rights abuses and environmental problems to occur in all of the ways described above. Due to the lack of effective regulation of corporate abuses in the states where violations occur, domestic law in the home states of multinational corporations is increasingly being used to regulate the activity of multinational corporations that operate in foreign jurisdictions.13 Several of the authors emphasize these regulatory approaches in their chapters. Growing awareness of supply chain abuses contributes to increasing interest in home state regulation of corporations, though countries thus far do not seem inclined to make changes that would create real accountability. This makes it pressing to consider what law already exists, such as consumer protection law, that can be adapted to serve this regulatory function. With lack of governance, corporations have largely been left to police themselves. As advocacy groups and consumers have become more aware of abuses in the supply chain, some consumers have begun making purchasing decisions using information about the ethical impact of the products on the people growing or making them. Consumers and advocacy groups have organized prominent boycotts of companies caught violating human rights and harming the environment. One of the primary responses of corporations has been to develop voluntary CSR commitments, which help them maintain the lack of effective regulation. Corporations are market driven, so CSR programs are limited. The strictly voluntary nature of CSR makes it unaccountable and ineffective.14

II. Disclosure Laws As consumers become increasingly curious about the situation in global supply chains and express outrage over human rights abuses and environmental degradation that result from the supply chains, states are responding with disclosure laws. A growing number of disclosure laws are emerging in the

Taking Consumers Seriously

245

United States and around the world. Disclosure requires that “reporting companies disclose how their operations and relationships with others affect various sustainability issues, of which supply chain risk reporting is an integral part. In particular, companies identify, assess, and report how due diligence is exercised in their screening of suppliers and what actions are taken to prevent and address any actual or potential negative impacts in the supply chain.”15 This regulatory technique is minimally intrusive compared to laws mandating corporations to set standards in relation to their supply chains16 and can be described as “new governance.”17 The rationale behind requiring disclosure is that disclosure puts pressure on corporations to improve their human rights records18 by giving investors and consumers more knowledge about conditions in global supply chains that they can use to pressure corporations to comply with human rights standards.19 The laws are recent, so there is not yet enough data about whether laws mandating companies to report are effective,20 and not much guidance about what disclosures should entail.21 Several deficiencies exist, one of which is that the laws tend to apply only to large companies, so many smaller companies have no duty to disclose. Furthermore, it is hard for consumers to make sense of the disclosures and connect what they learn from them to what they are actually trying to purchase. Studies have shown that most consumers do not read online disclosures, and if they do, they may only skim them.22 If consumers do read the disclosures, they may not fully understand them and therefore fail to incorporate the disclosures into their decision-making.23 The real value in the disclosure laws, therefore, seems to be in changing company behavior,24 when corporations worry about reputational damage from highly visible exposures of abuses in their supply chains or litigation arising from false or misleading disclosures. The sections below describe some of the most important disclosure laws around the world that supplement certification and worker social responsibility schemes.

A. The Dodd-Frank Wall Street Reform and Consumer Protection Act (2010)

The first of the supply chain disclosure laws in the United States was the Dodd-Frank Wall Street Reform and Consumer Protection Act.25 Section 1502 of Dodd-Frank requires publicly traded companies that manufacture or contract to manufacture goods that use conflict minerals originating in the

246

Critical Reflections

Democratic Republic of the Congo (DRC) or its bordering states to report to the U.S. Securities and Exchange Commission (SEC).26 The law was created to curb the exploitation of minerals used by rebel groups to fund conflicts in the eastern DRC, thereby reducing large-scale atrocities.27 To comply with the act, companies that use conflict minerals as defined by the act must report to the SEC using Form SD for special disclosures as well as report on due diligence measures taken to “determine whether those conflict minerals directly or indirectly financed or benefited armed groups in the covered countries.”28 Companies that do not report or comply in good faith are subject to penalties.29 Companies must also post public disclosures on their websites so that consumers, NGOs, and investors are aware of the presence of conflict minerals in their products.30 There are mixed reviews on the effectiveness of DoddFrank section 1502, with the heaviest criticism coming from the DRC itself.31

B. California State Law: California Transparency in Supply Chains Act of 2010

The Transparency in Supply Chains Act32 is a California state law that took effect in 2012, with the purpose of targeting the use of human trafficking in global supply chains. The act seeks to serve this purpose by helping consumers make informed decisions about the purchase of products that use slavery or human trafficking in their production. Under the act, large retailers and manufacturers that meet certain thresholds33 must disclose their efforts to keep their supply chains free of slavery and human trafficking, specifically through verification, audits, certification, internal accountability, and training.34 The report must be disclosed on the company website with a “conspicuous and easily understood link.”35 Nolan points out that companies are not required to exercise due diligence; rather, they are only required to disclose whether or not they have exercised due diligence.36 The attorney general of California is responsible for bringing injunctive actions against companies that fail to comply.37 There is no private right of action under the act.

C. United Kingdom: Modern Slavery Act of 2015

The Modern Slavery Act38 applies to all companies that supply goods and services to any part of the country and have turnover of at least £36 million,39

Taking Consumers Seriously

247

regardless of whether the company is U.K. based or even has its primary place of business in the United Kingdom. The scope of coverage is what makes the Modern Slavery Act novel, as a tremendous number of companies are obligated to disclose. Like the California Transparency in Supply Chains Act upon which it was modeled, the Modern Slavery Act does not require due diligence, only a disclosure of whether or not a company has exercised due diligence;40 companies must report “on efforts they have taken to ensure that slavery and human trafficking are not taking place in their supply chains.”41 This act, like the California Act, is consumer centric in that it requires companies to post their mandatory disclosures on their websites, and therefore its efficacy depends on whether consumers are using the disclosures.42

D. France: Duty of Vigilance Law (2017)

Passed in February 2017, France’s Duty of Vigilance Law43 is more aggressive in terms of what it requires than California’s Transparency in Supply Chains Act and the United Kingdom’s Modern Slavery Act. The Duty of Vigilance Law requires companies to both perform due diligence and report their due diligence actions taken.44 Companies must “publish, establish, and implement” vigilance plans, “describing the measures used to identify and prevent risks of serious infringements of human rights that result directly or indirectly from the company’s actions.”45 These requirements make this the most extensive law yet in terms of what must be disclosed. Despite these strong requirements, the Duty of Vigilance Law does not reach many companies because it applies to a narrow group: those that are French headquartered with five thousand employees or a French corporation wherever it is headquartered with at least ten thousand employees.46 It is estimated that the number of companies actually affected is very small in comparison with other disclosure laws, especially the U.K. act. Private parties and victims are granted a private right of action against corporations that do not comply with the law, and the courts may impose hefty fines for noncompliance.47

E. European Union’s Nonfinancial Directive

The European Union issued a directive48 effective January 2017 that requires companies with more than five hundred employees to report on how they

248

Critical Reflections

manage any human rights impacts. They must report “their relevant policies, including due diligence processes, the outcomes of those policies, principal human rights risks, how they are managed, and key performance indicators.”49 More than 800,000 European companies are potentially affected.50 The scope of the law is much broader than Dodd-Frank because it applies to minerals obtained in all conflict-affected areas or areas at high risk for conflict, not just the DRC, is not limited to mining companies, and is not limited to modern slavery.51 It applies to both manufacturers and downstream companies that purchase from a smelter or refiner.52 Importers that comply with the act may use a “European responsible importer” label,53 demonstrating that a goal of the act is to facilitate consumer choice in buying conflict-free products. Proposed disclosure laws modeled after the ones described above are increasingly common around the world. At the time of this writing, new disclosure laws pertaining to various subjects are being seriously contemplated in Australia, Canada, Hong Kong, The Netherlands, Switzerland, and the United States.

III. Consumer Protection Litigation Taken as a whole, this volume has made clear that the only workable solution to the human rights abuses occurring in global supply chains is a multifaceted approach with both public and private elements. In the following section, I  suggest that consumer protection litigation is an overlooked but important part of this multi-solution approach. Litigation as a tool to bridge the public/private gap is not a novel concept. For example, the Alien Tort Statute (ATS) has been used, albeit with mixed success, to litigate human rights abuses in supply chains. One example of this is the Kiobel v. Royal Dutch Petroleum case, in which Nigerian plaintiffs brought a lawsuit against corporations for violently suppressing nonviolent resistance to Shell Royal Dutch Petroleum’s human rights abuses and environmental degradation in the production of oil in the Niger delta.54 Another example is Doe vs. Nestle, a case in which plaintiffs from the Ivory Coast claimed that Nestle aided and abetted child slave labor in the production of chocolate.55 The U.S. Supreme Court has recently severely limited the use of the ATS to litigate global supply chain abuses. In Kiobel, the Supreme Court held that the ATS could not be applied extraterritorially,56 and the recent Jesner v. Arab Bank decision dealt a fatal blow to the prospect of using the ATS to litigate

Taking Consumers Seriously

249

supply chain abuses. In Jesner, the Court held that foreign corporations could not be sued under the ATS.57 However, consumer protection litigation may come to occupy an increasingly relevant place in bridging this public/private gap by providing an alternative basis for litigation. Maguwu’s chapter on the Kimberley process makes it clear how easy it is to manipulate consumer buying decisions in ways that continue to entrench human rights abuses in the global supply chain.58 Consumers buying diamonds certified by the Kimberley Process believe that they are avoiding the perpetuation of human rights abuses through their purchases, but they likely do not understand that the Kimberley Process has been used by governments like Zimbabwe to commit atrocities. An effective way to discourage manipulation by corporations through making misleading disclosures about their supply chains is the use of litigation brought under domestic or regional consumer protection laws.

A. Nike v. Kasky

The Nike v. Kasky case59 is an early and important example of consumer protection laws being used in the fight against human rights abuses in global supply chains.60 In 1998, Marc Kasky filed suit against Nike in California under state consumer protection statutes.61 Kasky claimed that Nike’s public statements about working conditions in Nike’s global supply chains contained false statements and omitted important material facts to maintain and/or increase product sales.62 The factual background of the case was that Nike had been faced with a multitude of allegations that it was mistreating and underpaying its workers.63 The company responded by “sending out press releases, writing letters to the editors of various newspapers around the country, and mailing letters to university presidents and athletic directors” misstating or omitting important facts about the working conditions in its product manufacturing process.64 Nike also commissioned a report that “commented favorably” on the working conditions of those making its products.65 Nike claimed that its speech was protected by the First Amendment of the U.S. Constitution.66 The trial court dismissed Kasky’s case, and the California Court of Appeal affirmed on First Amendment grounds.67 The California Supreme Court reversed, however, and remanded the case for further proceedings “because the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about

250

Critical Reflections

the speaker’s own business operations for the purpose of promoting sales of its products, . . . [the] messages are commercial speech.”68 Nike appealed to the U.S. Supreme Court, which granted certiorari to decide two issues: (1) whether a corporation participating in a public debate may “be subjected to liability for factual inaccuracies on the theory that its statements are ‘commercial speech’ because they might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing decisions”; and (2) even assuming the California Supreme Court properly characterized such statements as commercial speech, whether the “First Amendment, as applied to the states through the Fourteenth Amendment, permit[s] subjecting speakers to the legal regime approved by that court in the decision below.”69 The Supreme Court dismissed the writ of certiorari as improvidently granted for two reasons. First, the California Supreme Court never entered a final judgment on the freedom of speech issue, which was the federal issue.70 Furthermore, neither party had standing to obtain federal court jurisdiction.71 The Supreme Court explained that Kasky had not asserted a federal claim and did not assert an injury to himself that was sufficient for Article III standing.72 The parties then settled the case, leaving open the important issue of the level of protection for factual statements made by manufacturers to consumers.73 The result of the litigation was a growing awareness that businesses that make false statements about their human rights records put themselves at risk of litigation.74

B. Recent U.S. Consumer Protection Litigation

The Kasky model, groundbreaking but little used, seems to be experiencing a revival. A series of recent consumer activist cases in California, while all ultimately unsuccessful for the consumer, have shown that momentum is building behind the idea of using consumer litigation to combat human rights abuses that take place within global supply chains. The first of these cases, Sud v. Costco,75 was a consumer class action filed in August 2015, with the plaintiff alleging that Costco knowingly sold prawns that were obtained from a Thai supplier who fed the prawns fish meal obtained from fishing boats that

Taking Consumers Seriously

251

used slave labor, in violation of several California consumer protection laws.76 The plaintiffs in Sud argued that the website disclosure required by California’s Transparency in Supply Chain Act of 2010 created a duty for Costco to disclose its failure to meet the standards outlined in its disclosures. The court held that Costco was under no duty to label products, and moreover, that the plaintiffs had not proven that they had relied on the disclosures.77 Seven more similar cases have been filed in the wake of Sud.78 All eight cases have been dismissed. Some were appealed, and the appeals courts have upheld the dismissals.79 One published appellate decision illustrates the deficiencies in the litigation and how they might be overcome in future cases. In Hodsdon v. Mars,80 a consumer class action against the chocolate manufacturer Mars, the plaintiffs claimed that California consumer protection statutes required food producers to disclose on product labels that there might be child or slave labor in the supply chain.81 The appellate court disagreed and found that there is no duty under California laws for a company to label its products with information about child or slave labor it may have used in its manufacturing process.82 The court held that the duty to label only extended to products that were physically defective.83 The holding does provide a valuable insight into how a future case might be successful: “In the absence of any affirmative misrepresentations by the manufacturer, we hold that the manufacturers do not have a duty to disclose the labor practices in question.”84 Therefore, if the company had made a false or misleading disclosure on its website, the case may have turned out differently. Despite the dismissal of the California cases, there continues to be momentum around using consumer litigation strategies as a response to human rights abuses in global supply chains. Cases similar to the California cases described above have recently been filed in federal court in Massachusetts. In a pair of cases against Hershey and Nestle, plaintiffs alleged that the chocolate manufacturers misled consumers by failing to disclose on product labels that their chocolate comes from West African farms known for using child and slave labor, in violation of Chapter 93A of Massachusetts’ consumer protection statute, which prohibits companies from engaging in unfair or deceptive practices. For example, Hershey claims that it has “zero tolerance for child labor.” The chocolate manufacturers claim that they have publicly disclosed information about their chocolate sourcing, and that making disclosures on packaging would be impractical. At the time of this writing, at least one of these Massachusetts cases seems to be on course to go beyond the dismissal stage.

252

Critical Reflections

A recent case filed under the District of Columbia’s (D.C.) consumer protection statute provides more guidance on how to bring a successful consumer protection case against a company that has human rights abuses in its supply chain: Walmart.85 In this case, the plaintiffs argued that the retailers violated promises made in public disclosures on their websites in which they described codes of conduct applicable to their suppliers. They claimed the codes prohibited child labor and required compliance with workplace safety requirements, and described their auditing procedures. The plaintiffs alleged that these disclosures were false and misleading, in violation of D.C.’s consumer protection code,86 citing the Rana Plaza factory collapse in Bangladesh, where the retailers allegedly sourced their clothing. As Champagne discusses in her chapter, the factory collapse killed 1,134 people and injured nearly 2,500 more.87 The victims were predominantly female garment workers. In the D.C. consumer litigation, retailers filed a motion to dismiss that was granted in part and denied in part. Where statements by companies in their disclosures used aspirational language like “expect,” “goal,” and “ask,” the court found that these were expectations, not promises or guarantees, and therefore not actionable.88 The claims that the statements concerning the audits were misleading survived the motion to dismiss because factual descriptions of auditing efforts are capable of being verified and are therefore actionable if they are false or misleading.89 At the time of writing, the case has been settled. It is not a stretch to imagine that a consumer case built around false information in a disclosure could succeed, or at least change corporate behavior. Consumer protection litigation targeting false or misleading disclosures under one of the disclosure statutes could be modeled after consumer protection litigation over false or misleading disclosures about data security.90 A recent case by the Federal Trade Commission (FTC) against Snapchat over its marketing provides an interesting example. The case centered on representations and disclosures made by Snapchat to consumers about the “functionality and security of its app,” namely that pictures taken by senders (referred to as “snaps”) would expire in the receiver’s box, leaving no permanent record.91 Snapchat also claimed to use “best security practices” to protect users’ data.92 Both of these claims were misleading. According to the FTC complaints, “several methods exist by which a recipient can use tools outside of the application to save both photo and video messaging.”93 Additionally, the FTC alleged that “Snapchat did not employ reasonable security measures to protect personal information from misuse or unauthorized disclosure.”94 The case resulted in a settlement between the FTC and Snapchat.95

Taking Consumers Seriously

253

An important issue raised by the case against Snapchat is what tactics amount to marketing. Therefore, the focus of consumer protection litigation should be on misleading disclosures clearly targeted at consumer purchasing decisions. The key to winning a consumer protection case or having a good settlement seems to be finding actual misrepresentation rather than relying on a theory of omission. To be successful, consumers should maintain that the disclosures are commercial speech with the intention of persuading consumers to buy products. This is easier when advertisers use certification to entice consumers to purchase products, such as the Kimberley Process, or when the certification or claim is on a product label. For consumers to use misleading disclosures on company websites as the basis of their litigation, plaintiffs must prove causation: that they bought the product because they relied on disclosures to prevent them from purchasing a product manufactured in a way that was unethical. To build a stronger case, it might be necessary to have a digital record of a plaintiff ’s search history. As Kasky showed, consumer protection litigation filed in U.S. federal courts has Article III standing issues that consumers must consider. These issues center on the fact that in federal courts, there must be a showing of actual or imminent harm to have standing to bring a case. The Supreme Court in Warth v. Seldin specified that the harm must be “distinct and palpable.”96 This means that plaintiffs must prove that they themselves were actually harmed. As explained above, Kasky was filed in California state courts, thus avoiding the federal standing issue, although it came up in the context of the appeal to the Supreme Court, which dismissed the writ of certiorari as improvidently granted because the federal question around free speech was interlocutory in nature, thus not finally decided by the California Supreme Court; Kasky did not have any other claim that raised an actual case or controversy that rose to the level necessary for Article III standing, since he failed to allege that he had a personal stake in the case. Article III standing issues also might arise when a plaintiff requests injunctive relief under consumer protection statutes against a company for false or misleading advertising when the consumer is already aware that the product is not what the company claims it to be. Successful claims would probably have to allege that the plaintiff will suffer future harm because he or she would like to purchase the product in question but will not because he or she cannot rely on the company’s advertising or labeling of the product in the future. Alternatively, the claim would have to allege that the plaintiff risks future harm because he or she might purchase the product at some later time, “despite the fact it was once marred by false advertising or

254

Critical Reflections

labeling, as she may reasonably, but not incorrectly, assume the product was corrected.”97 An important question to consider in the context of using consumer protection litigation as part of the fight against human rights abuses in global supply chains is how to measure success. Settlements are common in consumer cases and can be a powerful force for change, even though they put an end to litigation proceedings and hence decrease the visibility of the claim. This is important in the context of strategic litigation, which relies on court proceedings as an awareness-raising tool and often runs in parallel with public campaigns. Settlements often contain a promise by the company to stop its rights-violating behavior and refrain from those actions in the future. They may also contain a commitment to provide restitution in some form to an impacted community. A recent consumer class action case against Dole is an example.98 The plaintiffs claimed that Dole “misrepresented its commitment to the environment” when it sold bananas from a Guatemalan plantation that did not use adequate methods of environmental protection.99 The parties reached a settlement, part of which required Dole to work with a nonprofit organization on a water filter project that will help local communities.100 Even cases that are dismissed or lost can still yield positive results. Defending against a large consumer class action is extraordinarily costly and time consuming for corporations, and the threat of having to defend one has a deterrent effect. Even more important, consumer litigation can be highly visible. That means that many more consumers learn about the human rights–violating behavior of the companies manufacturing and selling the products they are considering buying. The litigation then magnifies the reach of company disclosure. Consumers who have never visited a company’s website disclosures may decide not to buy products when they hear through the media about the litigation over abuses in the manufacturer’s supply chain.

C. Consumer Protection Outside the United States

Over the last fifty years, consumer law has grown and strengthened.101 A proliferation of consumer protection statutes around the world raise the possibility of consumer litigation similar to that in the United States. Germany’s 2010 consumer protection case against the supermarket chain Lidl is an interesting example of consumer protection litigation over misleading representations about the company’s supply chain. The case centered on false

Taking Consumers Seriously

255

advertising, with the complaint alleging that Lidl deceived consumers by issuing an advertisement stating: “We trade fairly! Every product has a story. It is important to us who writes this story. Lidl advocates fair working conditions on a global scale. Therefore, at Lidl, we contract our non-food orders exclusively to selected suppliers and producers that are willing to comply with and can demonstrate their social responsibility.”102 Lidl’s claims were not true, and it was proven that Lidl’s suppliers in Bangladesh were subjecting seamstresses to a host of abuses, including gender discrimination, interference with trade union activity, excessive work hours, no overtime or overtime rules that were hard to understand, and wage docking as punishment. These actions violated not only international standards but also a voluntary obligation by Lidl.103 The case was settled, and Lidl retracted the advertisement.104 This case shows great promise for consumer protection cases to be used to help in the fight against global supply chain abuses, but it also shows weakness in that Lidl merely retracted the ad but did not necessarily have to stop selling products obtained from unethical suppliers.105 Some states, such as Estonia and Italy, give elevated status to consumer rights. In those countries, consumer rights are taken to be fundamental rights.106 Other states elevate consumer protection past the level of ordinary legislation and give consumer rights the status of constitutional rights. Spain, Portugal, Poland, Lithuania, Brazil, Switzerland, the Philippines, and Japan are examples.107 The basis for consumer rights to be included in constitutions is that states have a fundamental responsibility to protect consumers.108 The goal is to ensure that consumers are treated fairly in commercial transactions.109 In the majority of constitutions that include consumer protection as a protected right, consumer rights are placed with other economic rights.110 If there is a trend toward consumer protection litigation being used to deal with human rights abuses in supply chains, then in those states with constitutionallevel consumer rights, consumer protection litigation is especially powerful since it has the status of constitutional litigation.

IV. Limitations of a Consumer Protection Litigation Approach While consumer protection litigation is a useful strategy to assist in addressing human rights abuses, there are shortcomings to its use. The most striking limitation is the focus of the litigation on the consumer rather than the actual

256

Critical Reflections

victims: the workers in the supply chain who have suffered human rights violations. The harm is focused completely on the consumer being misled instead of on the abuse the worker has suffered. In addition, the addressable harm requirement for standing, discussed at length in the previous section, makes it difficult to find a viable plaintiff. Most states adopt similar limitations to the standing requirements of Article III, meaning the same limitations can be presumed to apply in state court. If standing requirements are met, the next big limitation of using consumer protection litigation for fighting human rights abuses in global supply chains is the way that remedies give relief to the consumer instead of the actual victims, unless the consumer bargains for relief to oppressed workers as part of the settlement agreement. The only damages provided for in consumer protection statutes are for the consumer, not the workers. Settlements are particularly problematic. The corporation’s incentive is to have the case dropped as soon as possible, and it is presumably cheaper and easier to pay a lump sum directly to the consumer rather than set up some sort of project or relief fund for the workers who are the primary victims. Furthermore, settlements are often confidential, shielding the corporation from the public relations cost of the lawsuit. Unless the lawsuit is kept public as part of the settlement, the corporation can sweep the abuses under the rug until another consumer brings a lawsuit. Another problematic feature of relying on consumer protection litigation to reduce human rights abuses in global supply chains is the risk that corporations will stop disclosing their records on human rights. For example, both the Dole and the Kasky cases resulted from affirmative misstatements made by the corporations. Affirmative misstatements to consumers are what create liability under consumer protection statutes, not the human rights abuses themselves. Many corporate initiatives against human rights abuses are the result of voluntary CSR pledges. As the risk of litigation from making these pledges increases, corporations may make a value judgment against joining CSR initiatives. Consequently, affirmative statements about supply chain ethics will decrease, and absent government-mandated reporting, obtaining standing in these cases could become an even greater challenge. Despite these challenges, there has been success in using consumer protection litigation to benefit abused workers. For example, the Dole settlement mentioned above resulted in a working water treatment plant in Guatemala and greatly improved the lives of those in the affected community.111 Additionally, the threat of having to settle with a consumer, even if the corporation is not forced to assist the workers, may deter unethical labor practices.

Taking Consumers Seriously

257

Corporations may feel the economic and public relations threat from these lawsuits even if they are able to resolve the suits relatively quickly through settlements. Even if a corporation is able to contain the lawsuit, the uncertainty created is undesirable for any corporation operating in today’s competitive business environment. Consumer protection lawsuits are not meant to be a one-stop solution for human rights abuses, but they may be one pressure point in the fight against human rights abuses in global supply chains.

V. Conclusion: The Need for an Integrated Approach This book demonstrates a wide variety of tools that make up a regulatory framework for combating abuses in global supply chains. As Nolan points out, no single mechanism—whether an international or national legally binding instrument or voluntary initiatives—can act as a stand-alone device to hold corporations accountable. Therefore, a synergistic blend of public and private regulation is required to tackle inherent problems in supply chains.112 There is a need for an integrated and interlocking approach, using these various tools together to complement and reinforce one another. Consumer pressure has been central to the creation and functioning of many of the certification regimes described in this book. While it may be tempting to dismiss the consumer as a key stakeholder in driving change because of the failures of consumer-only initiatives and CSR schemes, a closer look at strategic litigation reveals that the role of the consumer may be pivotal in ending supply chain abuses. Voluntary approaches to stopping supply chain abuses should be coupled with state action.113 Legislation mandating disclosure, partially enforced with consumer protection litigation, is an important part of this state action. Existing laws can be used in novel ways that support other regulatory methods. As more tools become available, including certification schemes and disclosure laws, legal advocates can stack various tools to build cases using consumer protection laws. As Nolan points out in her chapter, such laws are only as effective as their enforcement capacity.114 But harnessing the power of consumer protection litigation can multiply the enforcement capacity of laws mandating transparency.

CHAPTER 13

Private Regulatory Initiatives and Beyond Lessons and Reflections Daniel Brinks, Julia Dehm, Karen Engle, and Kate Taylor

This volume has presented a series of case studies by practitioners at the forefront of the establishment, reform, and critique of private regulatory initiatives (PRIs) that seek to create, monitor, and enforce human rights, labor, and environmental standards. It has done so alongside scholarly reflections on those studies from a variety of legal fields, including human rights, labor, corporate, and consumer law. Together, the chapters contest the unjust distribution of profits, power, benefits, and harms under supply chain capitalism and offer a multifaceted comparative and critical look at the possibilities and pitfalls of using private governance schemes to promote corporate accountability for human rights. In this concluding chapter, we highlight some of the key lessons that we, as editors, have gleaned from the discussion. Those lessons center around two imperatives. First, those who need to participate actively in and be empowered by PRIs are those directly and primarily affected by the regulated conduct, rather than faraway consumers or even well-meaning nongovernmental organizations (NGOs). Second, to disrupt and dismantle the inequitable dynamics of supply chain capitalism, any engagement with PRIs must be attuned to the political economy driving the unequal allocation of power and value across supply chains, as well as to the wide range of legal rules (public and private, domestic and international) that might restrict or facilitate the transformative potential of the regulatory initiatives themselves.

Private Regulatory Initiatives and Beyond

259

We begin by reviewing critiques of the PRI models of which we and the authors are most wary: the conventional multi-stakeholder initiative (MSI) approaches that principally rely on product certification, labeling, and consumer purchasing decisions for monitoring and enforcement. We then turn to consideration of the Worker-Driven Social Responsibility (WSR) models that a number of the authors promote, considering some of their limitations but also exploring the extent to which they might be made applicable to a broader range of contexts. We end with a plea to refuse to study any of these PRIs in a vacuum, but rather to understand them within the context of the broader legal regimes and power relations of supply chain capitalism in which they operate.

I. MSIs and the Maldistribution of Power In the introductory chapter of the book, we posited that the disparities of power and wealth that are key characteristics of supply chain capitalism also mark the origins and operation of PRIs—a claim that has proven especially true in the case of the certification-based MSIs discussed in the volume. As many of the chapters demonstrate, these inequalities and disparities have produced MSIs that not only remain limited in their ability to bring about meaningful human rights change but are unable to achieve more equitable distributions of value and power. In some instances, they might even do more harm than good. Regulatory initiatives that seek to, as Geisselle Sánchez Monge puts it, “transform [an] industry’s irresponsible practices from the starting point of market relations”1 are condemned to deliver market pathologies. Authors raise a variety of specific concerns about the form and operation of MSIs they study, specifically the Forest Stewardship Council (FSC), the Roundtable on Sustainable Palm Oil (RSPO), and the Kimberley Process (KP). As we previewed in detail in the introductory chapter, these concerns largely revolve around participation and power in the processes of norm production, monitoring, and enforcement. First, although all three of these MSIs make claim to the “multi-stakeholder” label, significant asymmetries in power and representation characterize their approach to stakeholder definition and voice. Marcus Colchester, Geisselle Sánchez, and Charles Hale and José Aylwin all criticize the FSC and RSPO for not facilitating the meaningful participation and engagement of affected

260

Critical Reflections

communities—primarily indigenous communities and workers—in their norm production. When they do aim to include the perspectives of those affected, they too often accept NGOs as their proxy. Farai Maguwu shows that the KP is marked by a similarly troublesome failure to incorporate the voices and concerns of locally affected people, permitting only marginal representation through (typically underresourced) NGOs. Second, social auditing and complaint procedures do not respond to the needs of affected communities. Colchester and Sánchez both show that, even when MSIs provide grievance mechanisms and make them available to those who are most directly affected, the mechanisms are difficult to access. Further, some contend that auditing procedures prioritize technocratic verification systems, showing marked bias against local knowledge and ontologies. As Hale and Aylwin identify, there is a risk that “grassroots political fervor” will be displaced by “juridically informed ‘expert’ knowledge” when the process of making claims requires marginalized peoples to appeal to external authority, especially in colonial contexts.2 Third, all three of the MSIs rely (though to varying degrees) on consumer power to create demand for certified products. Lacking binding enforcement mechanisms, the FSC and RSPO, in particular, depend on consumer markets to incentivize compliance. Noncompliant suppliers are, at worst, forced out of the program and (theoretically) foreclosed from accessing markets for sustainable products, although even this outcome is not guaranteed. Beyond these specific concerns, the volume demonstrates that MSIs not only fail to challenge the political economy of supply chain capitalism but sometimes even function to obscure its pernicious unequal distribution. In particular, by framing violations of human rights, labor, and environmental standards as discrete rather than systemic, the MSIs tend to be blind to the histories of colonialism and other structural causes of the activities they seek to regulate. Hale and Aylwin forcefully make this point by arguing that the enactment and enforcement of indigenous rights under the FSC requires submission to a state authority that serves as a guarantor of the rule of law, thus at least partially undermining the very claims of self-determination that indigenous peoples make. If that state authority “forms part of a colonial project, predicated on the racial subordination of the claimants,” they contend, “prospects for using legal and political rights claims are inevitably conditioned by the reality that the claimants must work within a system that disrespects, disciplines, and oppresses them.”3

Private Regulatory Initiatives and Beyond

261

To the extent that they give directly affected communities a voice at all, the MSIs generally only provide communities the opportunity to attempt to ameliorate some of the harshest effects of the corporate activity being regulated, very rarely permitting them to challenge the activity itself. That is, they allow for what Samantha Balaton-Chrimes and Fiona Haines, in the context of development finance, label “immanent complaints,” as opposed to “contestational grievances.”4 While the former primarily relate to the social and environmental impacts of an activity, the latter seek to reject the activity entirely, or at the very least demand respect for the communities’ right to participate in the decision about whether the activity should go ahead at all. Colchester’s chapter shows how the FSC forecloses contestational grievances because, although it recognizes the right to free, prior, and informed consent of indigenous communities, it does not require FPIC prior to the grant of concessions on indigenous lands. It therefore weakens indigenous communities’ power to negotiate with companies that seek access to their lands.5 Despite these concerns about the limitations of engaging with MSIs, several chapters also suggest that even when an MSI fails to drive compliance with human rights standards, it may become a site for the formation of transnational advocacy networks, opening up discursive spaces for political resistance outside the confines of the mechanism itself. MSIs have provided local communities with opportunities to connect and strategize with local, national, and international NGOs. We have seen these connections borne out in the advocacy strategies highlighted by practitioners in this book, from Maguwu’s work with the Zimbabwe Centre for Research and Development, helping to document and elevate the human rights claims of artisanal miners in the Marange diamond fields, to Colchester’s work with the Forest Peoples Programme to help indigenous communities translate their complaints against certified forestry and palm oil operations in Indonesia. As Laura Silva-Castañeda and Nathalie Trussart have argued elsewhere, this form of transnational activism can facilitate the drawing of new lines of power by “using, putting to the test, correcting and constructing formalized knowledge.”6 These new lines of power could potentially also be put to more subversive, counterhegemonic ends. Hale and Aylwin, for example, explore the idea of integrating a local unit of Mapuche territorial identity, the lof mapu, into FSC procedures as “revolutionary” maps, which could guide the Mapuche’s efforts to challenge the oppressive power relations in the region and advance community autonomy.7 Importantly, they emphasize that one should only

262

Critical Reflections

work within the FSC structure in ways that support, rather than displace or subtly delegitimize, the Mapuche people’s expansive territorial claim. As long as MSIs such as the RSPO and FSC continue to exist, activists and directly affected individuals and communities may very well continue to strategize about the best ways to use them, even while remaining cognizant of the risks and pitfalls of engagement. Most of the authors in this volume, however, seek broader political and economic transformation than these MSIs provide.

II. WSR Programs: Attempts to Redistribute Power In general, this volume presents WSR as having significantly more transformational power than MSIs. In our introductory chapter, we demonstrate that WSR programs have been more intentional and successful at putting workers at the center of norm production, monitoring, and enforcement. They have done so to significant effect. James Brudney celebrates the Bangladesh Accord for its “enormous accomplishments,” covering over 2.4 million workers and remediating tens of thousands of safety violations.8 Likewise, he commends the Fair Food Program’s (FFP) production-based premium, which has generated over $29 million in improved wages, in addition to its robust worker-driven code of conduct, reinforced by an effective complaint resolution mechanism.9 For Sean Sellers, “WSR has proven its ability to eliminate long-standing abuses and change workers’ lives for the better every day.”10 Part of the success of WSR programs can be attributed to the ways in which they leverage the structural dynamics of supply chains to the benefit of workers. Specifically, both the FFP and the Bangladesh Accord harness the lead firm’s procurement decision-making power in order to create market incentives for suppliers to guarantee decent wages and dignified working conditions. They also establish legally enforceable obligations for actors along the entire chain. For suppliers, they offer both a carrot—long-term sourcing commitments for those who comply—and a stick—lack of access to lead brands’ orders for those who do not comply.11 This approach contrasts with certification-based MSIs, in which lead firms are not contractually bound to source exclusively from compliant suppliers, making market consequences for noncompliance dependent upon consumer knowledge and preference. Additionally, as Champagne explains in the context of the garment industry, lead firms often create downward price pressure, leading to “low profit margins that severely restrict funds available for improvements.”12 By moving

Private Regulatory Initiatives and Beyond

263

at least some of the cost of monitoring, as well as of improvements, to lead firms—whether by requiring that they pay a surplus for tomatoes or that they ensure that factories have financial capacity for remediation—the FFP and the Bangladesh Accord lessen this pressure. This approach differs from that of MSIs like the FSC and RSPO, in that individual forestry operations or oil palm concession holders bear the costs of certification and compliance, while retailers and brands benefit from access to “ethical” consumer products.13 Given the success of WSR programs to date, authors here and elsewhere have lauded the elements of WSR that engage with the structure and power dynamics of supply chains. For many, WSR represents the best available PRI model upon which future private initiatives should be based.14 For Jessica Champagne, WSR “could transform wages and working conditions in other international supply chains, from seafood to cell phones.”15 Questions remain, however, both about the replicability and scalability of current WSR efforts and about the extent to which WSR significantly challenges supply chain capitalism.

A. Replicability and Scalability

The chapters by Sellers and Brudney explicitly consider whether and how the FFP might be replicated and scaled up to address other sectors. Drawing on his experience with the Coalition of Immokalee Workers (CIW) and the Worker-Driven Social Responsibility Network, Sellers suggests that the replicability of the WSR models to date will depend upon the type of industry the WSR program seeks to regulate, the nature of the problem it hopes to address, and the capacity of the respective workers’ organization. Brudney contends that any new WSR programs should contain four basic elements. They should, first, assure significant worker participation; second, create a transparent and effective monitoring structure, which includes a substantial role for workers; third, develop a contract-based enforcement approach, including binding arbitration as needed; and fourth, include a funding mechanism to support the first three efforts on a sustainable basis. For Sellers, programs with a broad scope, regional or even global, might be most effective, by limiting opportunities for large brands to bypass their obligations through use of lower-cost suppliers outside the coverage of the program. Importantly, Sellers recognizes that even in this model lead firms must be brand sensitive if WSR programs are to be replicable and scalable. Corporate

264

Critical Reflections

accountability campaigns, he notes, “have repeatedly demonstrated that brands are sensitive to public revelations of worker abuse in their supply chains and have proven effective in compelling concrete changes.”16 Indeed, “the bigger the brand’s market and cultural footprint, the more susceptible the brand may be to external pressure.”17 If we concede, however, that WSRs can only operate in instances in which lead firms are brand sensitive, we leave an enormous amount of global production in the shadows. Workers embedded in supply chains that produce industrial goods, for example, have almost no leverage to demand that apex firms use their power to ensure that labor and human rights standards are respected throughout the chain. Workers who are not part of a supply chain with a few powerful brands at the top—home-care and domestic workers, for example— will also find it difficult to deploy this approach, as will those whose work is often not even recognized as work, such as those who do reproductive work. Bringing in the vast numbers of workers who fall into these categories may be the greatest challenge for any PRI, since they all rely, to one degree or another, on consumer engagement—either at the point of purchase, for more traditional certification schemes, or to pressure lead brands into joining, for WSRs. Another question is the extent to which WSRs can effectively protect marginalized and excluded groups. In the United States at least, the champions of WSR approaches have often been those who are least protected by formal labor laws: agricultural workers and immigrants, many of them undocumented, such as tomato pickers in Florida and dairy workers in Vermont. Indeed, this is precisely why they have turned to WSRs. At the same time, the experience of workers under the Bangladesh Accord makes it clear that without some degree of protection for workers’ rights to assemble or demand better conditions, it is difficult to establish, participate in, or maintain a WSR program. The lack of state protection creates a need for WSR, but some state protection for basic rights is necessary if workers are to participate effectively, without retaliation, in programs aimed at improving their working conditions. A further challenge for replicability of the WSR model is whether and how it can be borrowed from and adapted to address human rights violations in nonlabor contexts. As the chapters in this volume make clear, particularly those on MSIs, the reach of global supply chains directly affects numerous other people and communities who are vulnerable to exploitation, dispossession, and harm. A useful—and we believe critical—task moving forward is to imagine what a community-driven social responsibility model might look like.

Private Regulatory Initiatives and Beyond

265

B. Limitations: Working Within Supply Chain Capitalism

Even the WSR programs that most successfully shift power and value along supply chains nevertheless work within the severely unequal power dynamics of supply chain capitalism, rather than fundamentally contesting its structure. They may exploit its “chokeholds”18 and make strategic use of points of leverage, but unequal accumulation and immiseration carry on, largely unabated. Indeed, to a certain extent WSRs depend upon those inequalities and allow them to continue. It is precisely the power of brands over suppliers within the supply chain that allows lead firms to demand compliance from growers and other suppliers in the FFP and the Accord. WSR models often suggest an ameliorative, as opposed to transformative, approach in their limited focus on increased wages and workplace safety. While significant, these reforms do not radically alter the grossly unequal distribution of profits inherent in supply chain capitalism. For instance, although the FFP’s wage premium has provided significant wage increases for Florida farmworkers, the obligation on retailers to pay an additional one to four cents per pound for tomatoes is ultimately a very minor distributive shift in the supply chain, especially given that the price premium is passed on to consumers. Similarly, the Bangladesh Accord does nothing to change the fact that the bulk of the value produced by the chain is captured and retained by the lead firms through mechanisms such as intellectual property laws, tax avoidance, and limited technological transfers to supplier firms. At a more basic and somewhat surprising level, given the claim of WSR, neither the FFP nor the Bangladesh Accord guarantees workers the right to freely organize or assemble. These fundamental associational rights would give workers greater power in making distributional demands up and down the supply chain. Yet according to leaders of the CIW, the right to organize was a “nonstarter” for both growers and buyers, illustrating the critical limits of any PRI that depends upon the voluntary participation of firms.19

III. Moving Beyond Private Initiatives: Foregrounding Background Legal Rules Although this book centers around the governance arrangements of and dynamics among private stakeholders, many of the chapters call attention to the legal context in which these private initiatives exist. These legal contexts

266

Critical Reflections

are structured by domestic and international laws, regulations, and legal institutions—not only in relation to those legal regimes that seem directly applicable, such as labor, environmental, and human rights law, but also those that are often backgrounded when the focus is on public law and rights, such as contract, intellectual property, and antitrust law. In different ways, the chapters by Justine Nolan, Erika George, James Brudney, Dan Danielsen, and Lauren Fielder all reference or engage with the complex interaction between legal regulation and PRIs. They pay particular attention to the critical points at which the former is in play in the development and operation of the latter. Read together, these chapters reveal that in order to fully realize the transformative potential of PRIs, advocates must remain attentive to the suite of foreground and background legal rules that shape and constrain the PRIs themselves. In general, the chapters assume that international labor, environmental, and human rights law contain the appropriate standards for PRIs. They may express concern about domestic law or domestic interpretation of international law, but their principal issue is that, even when PRIs adopt international legal standards, they lack the power to enforce those standards. Some authors therefore call for a mix of public and private regulation. Nolan, for example, calls for what the International Labour Organization (ILO) terms “synergistic governance,” citing the ILO’s observation that “public, private and social governance strategies are not merely layers of regulation, but are mutually reinforcing for effective compliance.”20 Specifically, she argues that public regulation is necessary to cover those companies that have resisted private regulation. Public law might also include sanctions for noncompliance with PRIs that go beyond the reputational sanctions most commonly associated with private initiatives. Brudney rejects any idea that PRIs could or should displace national or international labor law, but suggests that “the successful promotion of rights through private regulation may serve as a kind of gauntlet thrown down to national inspectorates and courts.”21 These linkages and interactions between public and private regulation indicate that conceiving of PRIs as purely private could limit both the transformative potential of the initiatives and the terrain upon which struggles for economic and social justice are fought. Other authors suggest ways that PRIs do or might strengthen their mechanisms by using legal regimes that are often backgrounded by human rights advocates. The FFP and the Bangladesh Accord, for instance, rely upon contract law—enforceable through recourse to arbitration or court—to

Private Regulatory Initiatives and Beyond

267

bind individual brands to the programs’ obligations. Erika George promotes greater transparency laws to bring information to light about corporate practices both before a corporation enters into a voluntary agreement and while the agreement is in effect. Lauren Fielder proposes that advocates consider using consumer law against brands that make false representations about the “ethical” nature of their supply chains. Although this would still sidestep the directly affected communities, Fielder argues that consumer litigation provides a targeted and focused tool that can be deployed by a very small number of highly motivated consumers, making it more effective than episodic dependence upon consumer preferences to produce market demand for ethical products. In his contribution to this volume, Danielsen calls attention to law as part of the problem, rather than seeing its proper enforcement as the best solution. Specifically, he encourages labor and human rights advocates to attend to the background legal arrangements that already structure supply chain capitalism. These laws not only restrict the ability of PRIs to redistribute significantly but also have weakened the power of states to regulate behavior as well as to capture and allocate value along supply chains. Danielsen’s analysis of the Bangladesh Accord highlights how laws that advocates often overlook help produce and maintain the unequal bargaining power between lead firms and suppliers. Intellectual property law, for example, allows brands to capture the vast majority of rents from garment manufacturing. Changing that law at the national and international levels might create more equitable allocations of profit among lead firms, suppliers, and workers. Labor and human rights advocates might therefore consider strategic interventions around intellectual property, which would at the very least forge new connections with advocates with expertise in intellectual property, increasing the number of sites for counterhegemonic struggles. We explored in our introductory chapter other examples of legal rules that shape and limit both PRIs and the social mobilization that often produces and maintains them. Secondary boycott laws, for example, can constrain acts of worker solidarity. Antitrust law might prohibit multi-brand wage agreements. And criminal law can be used to suppress social movements that grow out of or contribute to PRIs. Again, recognition of the importance of these other, often backgrounded, legal regimes might demand contestation in new sites and produce new solidarities. As Tomaso Ferrando has argued, “deciphering the chains’ legal complexity” can lead to “the recognition of new spaces of

268

Critical Reflections

legal intervention against transnational exploitation.”22 To empower workers and other beneficiaries, PRIs must engage with the multiple and competing legalities in these global legal fields, identifying new sites of struggle and contestation where, according to Cesár Rodríguez-Garavito, “transnational hegemonic and counter-hegemonic coalitions [can] pragmatically exploit the tensions and contradictions of this kaleidoscopic legal landscape.”23

IV. Conclusion We have contended from the beginning of this volume that in order to contest the unequal distribution of power and resources along supply chains, the workers and local communities most directly affected by supply chain capitalism should be at the forefront of PRIs. It is not enough to rely on consumer power and NGOs as a proxy for affected people. Both the activist and academic contributions demonstrate that inequalities in power affect not only the initial shape of PRIs and their norms, but also their overall effectiveness, through their monitoring and enforcement. We are persuaded by our authors who claim that, if properly designed, PRIs produced through worker participation can effectively create more dignified working conditions. WSR programs also demonstrate a promising ability to build coalitions of directly affected people, activists, organized groups, consumers, and others to exert pressure on corporations to enter into new private regulatory frameworks. Concerted political campaigns and broadbased mobilization can give those at the “bottom” of the value chain voice and leverage. The question is how to institutionalize the power and energy of such mobilizations in ways that bring about sustained change. At the same time, the authors who focus on the ways in which our laws create the structural conditions that PRIs seek to ameliorate sound a note of caution, which we would also echo. They are more skeptical of the transformative potential of PRIs—even the WSRs that we find most positive— because they leave untouched the vast interlocking system of law that by its commands and by its silences makes workers and others vulnerable in the first place. It would be much better, perhaps, to focus on dismantling that system than to struggle to generate marginal improvements in the conditions the system produces. At the end of the day, it is for those most directly affected to choose whether to focus their activism on one strategy or the other. There are advantages to

Private Regulatory Initiatives and Beyond

269

each: WSR programs have the benefit of involving those affected more personally and immediately, while more structural approaches have the benefit of a broader, more comprehensive view of the political economy they inhabit. Perhaps the clearest lesson from this book is that whichever strategy we choose to pursue, or to study, our work should be informed by the insights underpinning both these approaches.

NOTES

Chapter 1 1. For an early articulation of supply chain capitalism, see Anna Tsing, “Supply Chains and the Human Condition,” Rethinking Marxism: A Journal of Economics, Culture and Society 21, no. 2 (2009): 148–76. 2. See, for example, Nolan, chapter 2. See also Radu Mares, “Corporate Transparency Laws: A Hollow Victory?,” Netherlands Quarterly of Human Rights 36, no. 3 (2018): 189–213; Shelley Marshall and Ingrid Landau, “Should Australia Be Embracing the Modern Slavery Model?,” Federal Law Review 46, no. 2 (2018): 313–39; and Essex Business and Human Rights Project, Improving Paths to Business Accountability for Human Rights Abuses in the Global Supply Chains, University of Essex, December 2017, accessed June 5, 2020, http://repository.essex.ac.uk/21636/1/Improving -Paths -to -Accountability -for-Human -Rights -Abuses -in -the -Global -Supply -Chains -A-Legal -Guide.pdf, 25. 3. The chapters in this volume emerged from two workshops convened by the Rapoport Center for Human Rights and Justice at the University of Texas at Austin, held in February 2016 and April 2017. 4. United Nations Conference on Trade and Development, Global Supply Chains: Trade and Economic Policies for Developing Countries (UNCTAD/ITCD/TAB/56, 2013), 1. 5. Ibid., 16. These globally networked processes have been described by scholars as global supply chains, global commodity chains, and global value chains. While these terms are often used interchangeably, Jennifer Bair finds that at least the last two have their own “theoretical and disciplinary affinities. . . substantive emphasis and empirical concerns, and arguably, . . . political valences.” See Jennifer Bair, “Global Commodity Chains: Genealogy and Review,” in Frontiers of Commodity Chain Research, ed. Jennifer Bair (Stanford, CA: Stanford University Press, 2009), 1–34. In this chapter we use the term “supply chains.” The authors in this volume tend to employ the same or similar terminology. 6. See Nolan, chapter 2, section I. 7. See Nolan, chapter 2, section I; and Nicola Jägers, “Will Transnational Private Regulation Close the Governance Gap?,” in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. Surya Deva and David Bilchitz (Cambridge, UK: Cambridge University Press, 2013), 295–328. 8. For one elaboration of this history, see Jennifer Bair, “Corporations at the United Nations: Echoes of the New International Economic Order?,” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 6, no. 1 (2015): 159–71. 9. On “polycentric” governance, see César Rodríguez-Garavito, “Business and Human Rights: Beyond the End of the Beginning,” in Business and Human Rights: Beyond the End

272

Notes to Pages 8–10

of the Beginning, ed. César Rodríguez-Garavito (Cambridge, UK: Cambridge University Press, 2017). 10. For a discussion of this dynamic in the aftermath of the Rana Plaza tragedy, see Jaakko Salminen, “The Accord on Fire and Building Safety in Bangladesh: A New Paradigm for Limiting Buyers’ Liability in Global Supply Chains,” American Journal of Comparative Law 66, no. 2 (2018): 411–51, especially the description of the two contrasting approaches on 414–21. 11. The scope of corporate codes of conduct varies. In some, corporations commit themselves to adhere to standards within their own companies, as well as within company groups. Others extend the standards to the company’s business partners, including contractors, subcontractors, and suppliers. 12. For an examination and comparison of the various types of organizations that conduct social audits, see Don Wells, “Too Weak for the Job: Corporate Codes of Conduct, NonGovernmental Organizations and the Regulation of International Labour Standards,” Global Social Policy 7, no. 1 (2007): 51–74. 13. United Nations Global Compact, “See Who’s Involved,” accessed May 20, 2019, https:// www.unglobalcompact.org/what-is-gc/participants. 14. Ibid. 15. See, for example, Eva Kocher, “Codes of Conduct and Framework Agreements on Social Minimum Standards—Private Regulation?,” in Responsible Business: Self-Governance and Law in Transnational Economic Transactions, ed. Olaf Dilling, Martin Herberg, and Gerd Winter (Bloomsbury: Hart, 2008), 67–86, 72; and Mark Anner, “Corporate Social Responsibility and Freedom of Association Rights: The Precarious Quest for Legitimacy and Control in Global Supply Chains,” Politics and Society 40, no. 4 (2012): 609–44. 16. See especially Champagne, chapter 8. 17. United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (A/HRC/ 17/31, 2011). 18. Ibid., paras. 4, 26. 19. Ibid., paras. 15–16. 20. Justine Nolan, “The Corporate Responsibility to Respect Human Rights: Soft Law or Not Law?,” in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. Surya Deva and David Bilchitz (Cambridge, UK: Cambridge University Press, 2013), 138–61. 21. See, Nolan, chapter 2, section II. John Ruggie identified MSIs as a “new form of soft law initiatives” in 2007; see Human Rights Council, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (A/HRC/4/35, February 19, 2007), paras. 52, 56, 62. 22. MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives (Berkeley: MSI Integrity, 2017), 6. 23. MSI Integrity and Duke Human Rights Center, New Regulators?, 2; and MSI Integrity, home page, accessed June 7, 2020, http://www.msi-integrity.org/. 24. MSI Integrity, “What Are MSIs?,” accessed June 7, 2020, http://www.msi-integrity.org /what-are-msis/. 25. MSI Integrity and Duke Human Rights Center, New Regulators?

Notes to Pages 11–13

273

26. Graeme Auld, Constructing Private Governance: The Rise and Evolution of Forest, Coffee, and Fisheries Certification (New Haven, CT: Yale University Press, 2014), 4. 27. Auld, Constructing Private Governance. 28. Genevieve Lebaron, The Global Business of Forced Labour (Sheffield: Sheffield Political Economy Research Institute, 2019), 37. 29. For example, in January 2015 the Ecolabel Index listed 458 ecolabels in twenty-five industry sectors, including palm oil, cocoa, coffee, and marine fisheries. Scott Poynton, Beyond Certification (Oxford: Dō Sustainability, 2015), 15. 30. Christine Overdevest, “Comparing Forest Certification Schemes: The Case of Ratcheting Standards in the Forest Sector,” Socio-Economic Review 8, no. 1 (2010): 47–76; and Alice M. M. Miller and Simon R. Bush, “Authority Without Credibility? Competition and Conflict Between Ecolabels in Tuna Fisheries,” Journal of Cleaner Production 107 (2015): 137–45. 31. Forest Stewardship Council, “Logo Use,” accessed May 9, 2019, https://us.fsc.org/en-us /market/logo-use. 32. RSPO, “RSPO’s Roadmap Towards Sustainability,” accessed May 23, 2019, https://rspo .org/impacts/theory-of-change. 33. RSPO, “RSPO Impacts Brochure: 2018,” accessed May 23, 2019, https://rspo.org/library /lib_files/preview/845. 34. Kimberley Process Certification Scheme, “What Is the Kimberley Process?,” accessed May 23, 2019, https://www.kimberleyprocess.com/en/what-kp. 35. MSI Integrity, “KPCS Working Report: November 2013” (manuscript on file with authors), 11. 36. World Diamond Council, “System of Warranties,” accessed May 10, 2019, https://www .worlddiamondcouncil.org/downloads/System%20of%20Warranties%20WDC%202014Center %20Logo%2011.2015.pdf. 37. Greg Asbed, “Worker-Driven Social Responsibility (WSR): A New Idea for a New Century,” Huffington Post Business, June 17, 2014, accessed May 10, 2019, http://www.huffingtonpost .com/greg-asbed/workerdriven-social-respo_b_5500104.html. 38. One could imagine, for example, a customary landholder-driven social responsibility program. 39. See Sellers, chapter 7, section II; see also Worker-Driven Social Responsibility Network, “Statement of Principles,” accessed May 10, 2019, https://wsr-network.org/what-is-wsr /statement-of-principles/. 40. It should be noted, however, that many individual Fair Food agreements were signed between CIW and retailers prior to the establishment of the FFP itself. The Campaign for Fair Food was launched by the CIW in 2001, and the first Fair Food agreement was signed between CIW and Taco Bell in 2005, after four years of concerted advocacy to push the company to sign. See Coalition of Immokalee Workers, “About CIW,” accessed June 6, 2020, http://ciw-online .org/about/. 41. Janice Fine and Tim Bartley, “Raising the Floor: New Directions in Public and Private Enforcement of Labor Standards in the United States,” Journal of Industrial Relations 61, no. 2 (2019): 252–76, 266. 42. Ibid. 43. Sellers, chapter 7, section I.A.

274

Notes to Pages 13–15

44. Noam Scheiber, “Why Wendy’s Is Facing Campus Protests (It’s About the Tomatoes),” New York Times, March 7, 2019, accessed May 1, 2019, https://www.nytimes.com/2019/03/07 /business/economy/wendys-farm-workers-tomatoes.html. 45. For a detailed history of the advocacy campaign leading up to the establishment of the Bangladesh Accord, see Jennifer Bair, Mark Anner, and Jeremy Blasi, “Sweatshops and the Search for Solutions, Yesterday and Today,” in Unmaking the Global Sweatshop, ed. Rebecca Prentice and Geert De Neve (Philadelphia: University of Pennsylvania Press, 2017), 29–56. 46. Manoj Dias-Abey, “Using Law to Support Social Movement-Led Collective Bargaining Structures in Supply Chains,” Australian Journal of Labor Law 32, no. 2 (2019): 123–45, 132. 47. Elena Arengo, The Future of Fashion: Worker-Led Strategies for Corporate Accountability in the Global Apparel Industry (Washington, DC: International Labor Rights Fund, 2019), 35. 48. Bair, Anner, and Blasi, “Sweatshops and the Search for Solutions,” 50. 49. See, for example, the Better Builder certification program, developed in 2012 in Austin, Texas, with the goal of improving wages and setting and enforcing safety standards at construction sites in Austin, Houston, and Dallas. Better Builder Certification, “City of Austin Standards,” accessed June 8, 2020, https://www.austintexas.gov/sites/default/files/files/Development _Services/Expedited/Better_Builder_Austin_Standards.pdf. More recently, in the wake of the Me Too movement, the advocacy organization Model Alliance launched the RESPECT Program. See Worker-Driven Social Responsibility Network, “A Comparative Analysis of the Model Alliance’s RESPECT Program,” June 2018, accessed May 1, 2019, https://wsr-network.org/model -alliance-respect-program/; and Program for Respect, “Our Industry,” 2018, accessed May 1, 2019, http://programforrespect.org/ourindustry. 50. Worker-Driven Social Responsibility Network, “Milk with Dignity,” March 1, 2019, accessed May 1, 2019, https://wsr-network.org/success-stories/milk-with-dignity/. The Milk with Dignity program is currently expanding to other major U.S. dairy brands and has established an independent third-party monitor, the Milk with Dignity Standards Council. 51. For a general discussion of worker centers, see Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream (Ithaca, NY: Cornell University Press, 2006); and Manoj Dias-Abey, “Justice on Our Fields: Can ‘Alt-Labor’ Organizations Improve Migrant Farm Workers’ Conditions?,” Harvard Civil Rights and Civil Liberties Law Review 53, no. 1 (2008): 167–211. 52. Sellers, chapter 7, section II. 53. Sellers, chapter 7, section II. Worker-Driven Social Responsibility Network, “Organizational Endorsers of the WSR Statement of Principles,” accessed May 10, 2019, https://wsr -network.org/organizational-endorsers/; and Worker-Driven Social Responsibility Network, “Individual Endorsers of the WSR Statement of Principles,” accessed May 10, 2019, https://wsr -network.org/individual-endorsers/. 54. For a notable exception, see Genevieve LeBaron, Neil Howard, Cameron Thibos, and Penelope Kyritsis, Confronting Root Causes: Forced Labour in Global Supply Chains (openDemocracy and Sheffield Political Economy Research Institute, University of Sheffield, 2018). 55. Anna Tsing, “Supply Chains and the Human Condition.” 56. For a discussion on “human supply chains” in the global economy, see Jennifer Gordon, “Regulating the Human Supply Chain,” Iowa Law Review 102 (2017): 445–504. 57. See, for example, Robert Falkner, “Private Environmental Governance and International Relations: Exploring the Links,” Global Environmental Politics 3, no. 2 (2003): 72–87, 79. Falkner does temper this optimism by raising important questions about the nature of the relationship between private actors and activist groups within PRIs (80–81).

Notes to Pages 15–21

275

58. Alessandra Mezzadri, “Indian Garment Clusters and CSR Norms: Incompatible Agendas at the Bottom of the Garment Commodity Chain,” Oxford Development Studies 42, no. 2 (2014): 238–58, 244. 59. Danielsen, chapter 11, introduction. 60. IGLP Law and Global Production Working Group, “The Role of Law in Global Value Chains: A Research Manifesto,” London Review of International Law 4, no. 1 (2016): 57–79, 60. We are indebted to this document for much of our analysis. 61. Ibid., 58. 62. Penelope Simons, “International Law’s Invisible Hand and the Future of Corporate Accountability for Human Rights,” Journal of Human Rights and the Environment 3, no.1 (2012): 5–43, 11. 63. International Labour Organization, Decent Work in Global Supply Chains: Report IV for International Labour Conference, 105th Session (ILC.105/IV, 2016), para. 95. 64. Simons, “International Law’s Invisible Hand,” 11–12. 65. Tim Bartley, “Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions,” American Journal of Sociology 113, no. 2 (2007): 297–351, 318. 66. Ibid., 319. 67. Ibid. 68. See, for example, Juan F. Perea, “The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act,” Ohio State Law Journal 72, no. 1 (2011): 95–138; and Llezlie Green Coleman, “Rendered Invisible: African American Low-Wage Workers and the Workplace Exploitation Paradigm,” Howard Law Journal 60, no. 1 (2016): 61–104. 69. Gordon, “Regulating the Human Supply Chain,” 464. 70. Tim Bartley, “Transnational Governance as the Layering of Rules: Intersections of Public and Private Standards,” Theoretical Inquiries in Law 12, no 2 (2011): 517–42, 518. 71. The FSC was created in 1993, with the NGO World Wildlife Fund seen as the “incubator and surrogate mother” of the program. Tim Bartley, Rules Without Rights: Land, Labor, and Private Authority in the Global Economy (Oxford: Oxford University Press, 2018), 18. 72. Graeme Auld and Lars H. Gulbrandsen, “Learning Through Disclosure: The Evolving Importance of Transparency in the Practice of Nonstate Certification,” in Transparency in Global Environmental Governance: Critical Perspectives, ed. Aarti Gupta and Michael Mason (Cambridge, MA: MIT Press: 2014), 271–96, 276. 73. See Forest Stewardship Council, FSC International Standard: Principles and Criteria for Forest Stewardship (version 5-2), accessed June 1, 2020, https://fsc.org/en/document-centre /documents /retrieve /f475da19 -2fcf -4e55 -80da -6e59ff39c81e ?mode = view #viewer.action = download. 74. Bartley, Rules Without Rights, 17. 75. Forest Stewardship Council, “FSC International Standard,” standard 3.4; and Roundtable on Sustainable Palm Oil, Principles and Criteria for the Production of Sustainable Palm Oil (2018), standard 4.4. In 2015, the RSPO also released a guide to FPIC and RSPO for its members. 76. Auld and Gulbrandsen, “Learning Through Disclosure,” 276. 77. See, for example, Stephen Bass, Kirsti Thornber, Matthew Markopoulos, Sarah Roberts, and Maryanne Grieg-Gran, Certification’s Impact on Forests, Stakeholders and Supply Chains (London: International Institute for Environment and Development, 2011) vi.

276

Notes to Pages 22–24

78. Ibid., ii. 79. Bartley, Rules Without Rights, 17. 80. See Colchester, chapter 4. 81. See Hale and Aylwin, chapter 5, section II. 82. See Hale and Aylwin, chapter 5, section II. 83. See Hale and Aylwin, chapter 5, section IV. 84. See Hale and Aylwin, chapter 5, section IV. 85. RSPO, “Impact Update 2017,” accessed May 18, 2019, https://rspo.org/toc/RSPO -Impact-Update-Report-2017_221117.pdf, 3. 86. See Bartley, Rules Without Rights, 73. 87. International Labor Rights Forum, Rainforest Action Network, and OPPUK, The Human Cost of Conflict Palm Oil Revisited (Washington, DC: ILRF, 2017), 30; see also Eric Gottwald, “Certifying Exploitation: Why ‘Sustainable’ Palm Oil Production Is Failing Workers,” New Labor Forum 27, no. 2 (2008): 1–8. 88. See, for example, Adrienne Johnson, “Green Governance or Green Grab? The Roundtable on Sustainable Palm Oil (RSPO) and Its Governing Processes in Ecuador” (presentation at the International Conference on Global Land Grabbing II, Cornell University, October 17–19, 2012); and Christine Moser, Robert Bailis, and Tina Hildebrandt, “International Sustainability Standards and Certification,” in Sustainable Development of Biofuels in Latin America and the Caribbean, ed. Barry D. Solomon and Robert Bailis (New York: Springer, 2014), 27–69. Also note more recent advances in the RSPO P&Cs to prohibit its member companies from clearing any type of forest for palm plantations. 89. Sánchez, chapter 6, introduction. 90. Sánchez, chapter 6, section II. 91. Sánchez, chapter 6, chapter III. 92. See, for example, Human Rights Council, Report of the Special Representative of the Secretary-General, paras. 57, 61. 93. Maguwu, chapter 3. 94. This number encompasses eighty-one countries, with the EU and its member states counting as a single participant. 95. The World Diamond Council was established in July 2000 to represent the interests of the diamond industry. It is composed of representatives of national and international industry organizations, major jewelry manufacturers and retailers, mining companies, gem labs, and bank representatives. 96. Global Witness, “Global Witness Leaves Kimberley Process, Calls for Diamond Trade to Be Held Accountable,” December 2, 2011, accessed May 26, 2020, https://www.globalwitness .org /en /archive /global -witness -leaves -kimberley -process -calls -diamond -trade -be -held -accountable/. 97. Kimberley Process Certification Scheme, “2013 KPCS Core Document Amended,” 2017, accessed April 6, 2020, https://www.kimberleyprocess.com/en/kpcs-core-document -version-2016-0, section I, Definitions. 98. Maguwu, chapter 3, introduction. 99. Dias-Abey, “Using Law to Support Social Movement-Led Collective Bargaining Structures,” 131. 100. Sellers provides a history of the CIW’s organizing campaigns in chapter 7. See also, Dias-Abey, “Using Law to Support Social Movement-Led Collective Bargaining Structures”; and

Notes to Pages 24–26

277

Susan L. Marquis, I Am Not a Tractor! How Florida Farmworkers Took on the Fast Food Giants and Won (Ithaca, NY: Cornell University Press, 2017). 101. Dias-Abey, “Justice on Our Fields,” 199. 102. Ibid., 201. 103. That said, the Fair Food Code of Conduct does not include the sorts of classificationspecific pay rates or benefits that are typical of collective bargaining agreements. Fair Food Standards Council, “Fair Food Code of Conduct,” accessed April 20, 2019, http://www.fairfood standards.org/resources/fair-food-code-of-conduct/. 104. Dias-Abey, “Justice on Our Fields,” 201. 105. Sarah Lazare, “#MeToo in the Fields: Farmworkers Show Us How to Organize Against Sexual Violence,” In These Times, December 21, 2017, accessed April 20, 2019, http:// inthesetimes .com /working /entry /20787 /me -too -sexual -violence -farmworkers -coalition -of -immokalee-workers-wendys. 106. See Salminen, “Accord on Fire and Building Safety in Bangladesh,” 414–21. 107. Champagne, chapter 8, section II.A, detailing that the Accord was signed by workers’ rights advocates, led by the Worker Rights Consortium. 108. Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” Bangladesh Accord, May 13, 2013, accessed June 6, 2020, https:// bangladesh.wpengine.com/wp-content/uploads/2018/08/2013-Accord.pdf; and Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” Bangladesh Accord, June 21, 2017, accessed June 6, 2020, https://bangladesh.wpengine.com/wp -content/uploads/2018/08/2018-Accord.pdf. 109. Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” paras. 17 and 19. 110. As Champagne points out in chapter 8, the 2018 Accord responds to this criticism at some level by noting in the (nonbinding) preamble “that safe workplaces cannot be assured in the long term without the active participation of the people who work in them. For this reason, signatories will continue to promote respect for the right of workers to freedom of association in accordance with relevant ILO conventions.” It also provides that training provided to workers in factories “shall cover the importance of Freedom of Association and the role of industrial relations in ensuring the functionality and empowerment of effective Health and Safety Committees and protecting workers’ health and safety” (para. 12b). Finally, it provides that the Safety Committee “shall further develop a training and complaint protocol to ensure that workers’ rights to Freedom of Association are respected in relation to protecting their own safety under the scope of this agreement” (para. 13). 111. See Champagne, chapter 8, sections IV.E and IV.B. 112. See Phil Paiement, “Jurisgenerative Role of Auditors in Transnational Labor Governance,” Regulation & Governance 13, no. 2 (2019): 280–98, 280. 113. Assurance Services International “accredits” that certifying bodies are impartial, technically competent, and in practice, appropriately applying the required principles, criteria, and indicators. ASI itself is a private company. See Assurance Services International, home page, accessed June 1, 2020, https://www.asi-assurance.org/s/. 114. See, for example, Bartley, Rules Without Rights; and International Labor Rights Forum, OPPUK, and Rainforest Action Network, The Human Cost of Palm Oil Revisited: How PepsiCo, Banks and the Roundtable on Sustainable Palm Oil Perpetuate Indofood’s Worker Exploitation (Washington, DC: ILRF, 2017), 5.

278

Notes to Pages 27–31

115. Colchester, chapter 4, section VI. 116. Colchester, chapter 4, section III.C. See also Laura Silva-Castañeda, “A Forest of Evidence: Third-Party Certification and Multiple Forms of Proof—A Case Study of Oil Palm Plantations in Indonesia,” Agriculture and Human Values 29, no. 3 (2012): 361–70 117. Sánchez, chapter 6, section IV. 118. Hale and Aylwin, chapter 5, introduction. 119. Silva-Castañeda, “A Forest of Evidence,” 362. 120. See Colchester, chapter 4, and Sanchez, chapter 6. 121. Mary Footer, “Shining Brightly? Human Rights and the Responsible Sourcing of Diamond and Gold Jewellery from High Risk and Conflict-Affected Areas,” Human Rights and International Legal Discourse 6, no. 1 (2012): 159–91, 172. 122. Tamo Atabongawung, “Multi-Stakeholder Initiatives and the Evolution of the Business and Human Rights Discourse: Lessons from the Kimberley Process and Conflict Diamonds,” in The Business and Human Rights Landscape: Moving Forward, Looking Back, ed. Jena Martin and Karen E. Bravo (Cambridge, UK: Cambridge University Press, 2015), 75–105, 89. 123. There have been recent moves to ensure independent funding for NGOs that participate in the KP, though to the authors’ knowledge, nothing has come of this yet. Mining [dot] Com, “KP Chair Flags Independent Funding of NGOs in the KP by Year End,” October 25, 2016, accessed April 1, 2019, http://www.mining.com/web/kp-chair-flags-independent-funding -of-ngos-in-the-kpcs-by-year-end/. 124. Kimberley Process, “The KP Civil Society Coalition Standards and Guidelines,” accessed April 1, 2019, https://www.kimberleyprocess.com/en/system/files/documents/kp_csc _guidelines_.pdf. 125. The Diamond Loupe, “Kimberley Process Plenary Kicks Off in Absence of Civil Society,” November 14, 2016, accessed June 5, 2020, https://www.thediamondloupe.com/articles /2016-11-14/kimberley-process-plenary-kicks-absence-civil-society. 126. Jeremy Blasi and Jennifer Bair, An Analysis of Multiparty Bargaining Models for Global Supply Chains, Conditions of Work and Employment Series No. 105 (Geneva: International Labour Office, 2019), 16. 127. Ibid., 18. 128. For a description of the FFSC monitoring process, see Fine and Bartley, “Raising the Floor,” 260. 129. Dias-Abey, “Justice on Our Fields,” 201. 130. Fine and Bartley, “Raising the Floor,” 259. 131. Ibid., 260. 132. Blasi and Bair, Analysis of Multiparty Bargaining Models, 17. 133. See Champagne, chapter 8, section II.B.6. 134. See Champagne, chapter 8, section II.B.6. 135. See Champagne, chapter 8, section II.B.9. 136. See Champagne, chapter 8, section II.B.9. 137. Forest Stewardship Council, “FSC’s Market Share 2016,” June 27, 2017, accessed May  20, 2019, https://ic.fsc.org/en/news-updates/id/1884. See also Bass et al., Certification’s Impact on Forests, v. 138. See Pearly Neo, “PepsiCo Responds with ‘Disappointment’ at Indofood’s Withdrawal from RSPO over Disputed Audit Decision,” FoodNavigator-Asia, January 30, 2019, accessed

Notes to Pages 32–35

279

April 20, 2019, https://www.foodnavigator-asia.com/Article/2019/01/30/PepsiCo-responds-with -disappointment-at-Indofood-s-withdrawal-from-RSPO-over-disputed-audit-decision. 139. Indeed, many growers who opted out of the program in one season subsequently reengaged, as they found themselves unable to sell significant amounts of their crops. Fine and Bartley, “Raising the Floor,” 261–62. 140. Dias-Abey, “Using Law to Support Social Movement-Led Collective Bargaining Structures,” 131. While growers can appeal these decisions through arbitration, as of the end of 2018, only one had done so. Fair Food Standards Council, “Fair Food 2018 Update,” Fair Food Program, October 2019, accessed June 3, 2020, https://www.fairfoodprogram.org/wp-content /uploads/2019/10/Fair-Food-Program-2018-SOTP-Update-Final.pdf. In 2015, Del Monte sued CIW in Florida state court for its suspension from the program, though the parties settled the case, which was then dismissed. Del Monte Fresh Production, Inc. v. Coalition of Immokalee Workers, Inc., 2016 Fla. Cir. LEXIS 26326 (Fla. Cir. Ct. 2016). Although Del Monte was listed as a participating grower in 2017, as of 2020, it is no longer listed on the FFP website as being in the program. Fair Food Program, “Partners,” accessed June 7, 2020, https://www.fairfoodprogram .org/partners/. 141. Blasi and Bair, Analysis of Multiparty Bargaining Models, 16. See also Matthew Amengual, Greg Distelhorst, and Danny Tobin, “Global Purchasing as Labor Regulation: The Missing Middle,” ILR Review 73, no. 4 (August 2020): 817–40. 142. See Champagne, chapter 8, section II.B.4. 143. A number of U.S. brands, led by Gap and Walmart, refused to join the 2013 Bangladesh Accord, citing concerns about its dispute resolution and enforcement mechanisms, fearing that the ability of union signatories to challenge alleged brand failures via binding arbitration could expose them to unbounded legal liability. Dias-Abey, “Using Law to Support Social Movement-Led Collective Bargaining Structures,” 141. 144. Bair, Anner, and Blasi, “Sweatshops and the Search for Solutions,” 50. 145. Global Union, “Bangladesh Accord Arbitration Cases—Resulting in Millions-of -Dollars in Settlements—Officially Closed,” Uni Global Union, July 18, 2018, accessed June 6, 2020, https://www.uniglobalunion.org/news/bangladesh-accord-arbitration-cases-resulting -millions-dollars-settlements-officially-closed. 146. Kimberley Process Certification Scheme, “2013 KPCS Core Document Amended,” section III(c). 147. See, for example, Haley Blaire Goldman, “Between a ROC and a Hard Place: The Republic of Congo’s Illicit Trade in Diamonds and Efforts to Break the Cycle of Corruption,” University of Pennsylvania Journal of International Law 30, no. 1 (2008): 359–97. 148. See Maguwu, chapter 3, section II.C. For discussion of the complaints, see Partnership Africa Canada, Diamonds and Clubs: The Militarized Control of Diamonds and Power in Zimbabwe (Ottawa: Partnership Africa Canada, June 2010); and Audrie Howard, “Blood Diamonds: The Successes and Failures of the Kimberley Process Certification Scheme in Angola, Sierra Leone and Zimbabwe,” Washington University Global Studies Law Review 15, no. 1 (2016): 137–59.

Chapter 2 1. World Bank Group, A Measured Approach to Ending Poverty and Boosting Shared Prosperity: Concepts, Data, and the Twin Goals (Washington, DC: Policy Research Report, 2015). 2. Frederick Mayer and Gary Gereffi, “Regulation and Economic Globalization: Prospects and Limits of Private Governance,” Business and Politics 12, no. 3 (2010): 1–25, 3–4: “By 2000, half of all

280

Notes to Pages 35–39

manufacturing production was in the developing world, and 60 percent of exports from developing countries to the industrialized world were no longer raw materials but manufactured goods.” 3. Richard M. Locke, The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy (New York: Cambridge University Press, 2013). 4. Mayer and Gereffi, “Regulation and Economic Globalization,” 11; and International Labour Organization, “Resolution Concerning Decent Work in Global Supply Chains” (International Labor Conference, 105th Session, Geneva, 2016), para. 3. 5. Tom Levitt, “Our Love of Cheap Seafood Is Tainted by Slavery: How Can It Be Fixed?,” Guardian, October 16, 2016, accessed March 29, 2020, https://www.theguardian.com /sustainable -business /2016 /oct /07 /cheap -seafood -fish -slavery -solutions -thailand -human -rights-abuse; and Greenpeace, Dodgy Prawns: The Hidden Environmental and Social Cost of Prawns in Australia, December 2015, accessed March 29, 2020, https://www.greenpeace.org.au /wp/wp-content/uploads/2015/12/15-094-OCN-PRA-Report_LR4_F_Update.pdf. 6. Amnesty International, The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2020 World Cup Site, March 30, 2015, accessed March 29, 2020, https://www .amnesty.org/download/Documents/MDE2235482016ENGLISH.PDF. 7. International Labour Office, Workplace Compliance in Global Supply Chains, Geneva, 2016, accessed March 29, 2020, https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue /---sector/documents/publication/wcms_540914.pdf, 24. 8. “Home states” refers to the home or place of incorporation of the multinational company, and “host state” refers to the country in which it is operating (such as sourcing or manufacturing its products). 9. United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework; Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (A/HRC/17/31, 2011). 10. Jem Blendell, “Barricades and Boardrooms: A Contemporary History of the Corporate Accountability Movement” (Paper No. 13, Programme on Technology, Business and Society, United Nations Research Institute for Social Development, June 2004), accessed March 29, 2020, http://www.unrisd.org/unrisd/website/document.nsf/0/504AF359BB33967 FC1256EA9003CE20A?OpenDocument. 11. Bob Herbert, “Children of the Dark Ages,” New York Times, July 21, 1995, A25; Aaron Bernstein, “A Floor Under Foreign Factories?,” Business Week, November, 9 1998, 126; Timothy Egan, “The Swoon of the Swoosh,” New York Times, September 13, 1998, 66; and Aaron Bernstein, “A Potent Weapon in the War Against Sweatshops,” Business Week, December 1, 1997, 40. 12. Dorothee Baumann-Pauly, Justine Nolan, Auret van Heerde, and Michael Samway, “Industry-Specific Multi-stakeholder Initiatives That Govern Corporate Human Rights Standards—Legitimacy Assessments of the Fair Labor Association and the Global Network Initiative,” Journal of Business Ethics 143, no. 4 (2017): 771–87. 13. United Nations, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 2003). 14. UNHRC, Guiding Principles, principle 13. 15. Ibid. 16. Organization for Economic Co-operation and Development (OECD), OECD Guidelines for Multinational Enterprises (Revised 2011), accessed March 29, 2020, http://www.oecd .org/daf/inv/mne/48004323.pdf.

Notes to Pages 39–40

281

17. Principle 11 describes leverage as the “ability to effect change in the wrongful practices of an entity that causes harm.” UNHRC, Guiding Principles. 18. For a reaction to the UN Norms see International Organization of Employers and International Chamber of Commerce, Joint Views of the IOE and ICC on the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Doc. E/CN.4/Sub.2/2003/NGO/44, 2003). For a 2017 response to a proposed business and human rights treaty, see “Response of the International Business Community to the ‘Elements’ for a Draft Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights,” October 20, 2017, accessed March 29, 2020, http://www.ioe-emp.org/fileadmin/ioe_documents/publications/Policy%20Areas/business_and _human_rights/EN/_20171020_C881_ANNEX_IOE-BIAC-FTA-ICC_response_to_elements _of_possible_UN_Treaty.PDF. 19. United Nations Human Rights Council, Elaboration of an Internationally Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (UN Doc. A/HRC/26/L.22/Rev.1, June 25, 2014), accessed March 29, 2020, https:// documents -dds -ny.un .org /doc /UNDOC /GEN /G14 /082 /52 /PDF /G1408252 .pdf ?OpenElement. 20. United Nations Human Rights Council, Fifth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, accessed March 29, 2020, https://www.ohchr.org/EN/HRBodies/HRC /WGTransCorp/Session5/Pages/Session5.aspx. 21. John G. Ruggie, “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” September 9, 2014, accessed March 29, 2020, http://www.ihrb.org/commentary /quo-vadis-unsolicited-advice-business.html. The votes were twenty in favor (Algeria, Benin, Burkina Faso, China, Congo, Côte d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russia, South Africa, Venezuela, Vietnam), fourteen against (Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, United Kingdom, United States), and thirteen abstentions (Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, UAE). 22. In June 2016, the ILO adopted a resolution that highlighted its potential interest in (perhaps) legally regulating decent work in global supply chains; see International Labour Organization, “Resolution Concerning Decent Work in Global Supply Chains” (International Labor Conference, 105th Session, Geneva, 2016). 23. Marcia Narine, “Disclosing Disclosure’s Defects: Addressing Corporate Responsibility for Human Rights Impacts,” Columbia Human Rights Law Review 47, no. 1 (2015): 84–150. 24. Alexandrea L. Nelson, “The Materiality of Morality: Conflict Minerals,” Utah Law Review 2014, no. 1 (2014): 218–41. 25. Galit Sarfaty, “Shining Light on Global Supply Chains,” Harvard International Law Journal 56, no. 2 (2015): 419–63. For further critiques see also B. Choudhury, “Social Disclosure,” Berkeley Business Law Journal 13, no. 1 (2016): 183–216; Radu Mares, “Corporate Transparency Laws: A Hollow Victory?,” Netherlands Quarterly of Human Rights 36, no. 3 (2018): 189–213; and Omri Ben-Shahar and Carl E. Schneider, “The Failure of Mandated Disclosure,” Univesity of Pennsylvania Law Reviw 159, no. 3 (2011): 647–749. 26. Louis D. Brandeis, Other People’s Money and How the Bankers Use It (New York: Frederick A. Stokes, 1914), quoted in Stephen Kim Park, “Targeted Social Transparency as Global

282

Notes to Pages 40–42

Corporate Strategy,” Northwestern Journal of International Law and Relations 35, no. 1 (2014): 87–137, 91. 27. Virginia Harper Ho, “Of Enterprise Principles and Corporate Groups: Does Corporate Law Reach Human Rights?,” Columbia Journal of Transnational Law 52, no. 1 (2013): 113–72. 28. Modern Slavery Act 2015 (c.30) (UK), s.54 and California Transparency in Supply Chains Act, Ca. Civ. Code § 1714.43. The Modern Slavery Act applies to companies that conduct business in the United Kingdom with turnover greater than £36 million, and the California Supply Chain Act applies to retailers and manufacturers doing business in California with annual worldwide gross receipts greater than $100 million. 29. The EU Directive also requires reporting on other matters, such as the environment, social and employee matters, anti-corruption, and bribery. It is estimated that the new directive will apply to approximately eight thousand EU companies. 30. Although the EU Directive does not specifically refer to supply chains, the definition of risk contemplates business relationships that are likely to cause adverse impacts on human rights. 31. Although the EU Directive does go somewhat further in that companies that do not undertake human rights due diligence must “provide a clear and reasoned explanation for not doing so.” 32. See European Coalition for Corporate Justice, “The French Corporate Duty of Vigilance Law—Frequently Asked Questions,” February 23, 2017, accessed January 20, 2018, http://corporatejustice.org/news/405-french-corporate-duty-of-vigilance-law-frequently-asked -questions. 33. Other examples of disclosure laws focused on human rights include section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which imposes a reporting requirement on publicly traded companies that manufacture products using certain conflict minerals, and section 307 of the U.S. Tariff Act of 1930, 19 U.S.C. § 1307, which prohibits the importation of merchandise mined, produced, or manufactured, wholly or in part, in any foreign country by forced or indentured child labor. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1502, 124 Stat. 1376, 2213 (2010) (codified at 15 U.S.C. § 78m(p)). 34. Baumann-Pauly et al., “Industry-Specific Multi-stakeholder Initiatives That Govern Corporate Human Rights Standards,” 772. 35. Barbara Shailor, “Workers’ Rights in the Business and Human Rights Movement,” in Business and Human Rights, ed. Dorothée Baumann-Pauly and Justine Nolan (Oxford: Routledge, 2016), 194–99. For criticism of MSIs from a labor perspective, see American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), Responsibility Outsourced: Social Audits, Workplace Certification and Twenty Years of Failure to Protect Worker Rights, April 2013, accessed March 29, 2020, http://www.aflcio.org/Learn-About-Unions/Global-Labor-Movement /Responsibility-Outsourced-Report. 36. Tom Zeller Jr., “Online Firms Facing Questions About Censoring Internet Searches in China,” New York Times, February 15, 2006, accessed April 17, 2020, https://www.nytimes.com /2006/02/15/technology/online-firms-facing-questions-about-censoring-internet-searches.html. 37. An additional motivation for business was the avoidance of legislation. The U.S. Congress convened several hearings on the subject and drafted (but did not enact) the Global Online Freedom Act of 2013 to regulate corporate conduct: Global Online Freedom Act of 2013, H.R. 491, 113th Cong. (2013–2014).

Notes to Pages 43–45

283

38. MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, The New Regulators? Assessing the Landscape of Multi-stakeholder Initiatives, August 2017, accessed March 29, 2020, http://www.msi-integrity.org/the-new-regulators-new-report-on-the-global -landscape-of-standard-setting-msis/. This directory currently comprises forty-five MSIs that the researchers identified as transnational and standard setting for corruption, human rights, or environmental challenges. 39. Ibid., 3. 40. Steven Bernstein and Benjamin Cashore, “Can Non-State Global Governance Be Legitimate? An Analytical Framework,” Government and Regulation 1, no. 4 (2007): 347–71. 41. Luc Fransen and Ans Kolk, “Global Rule-Setting for Business: A Critical Analysis of Multi-stakeholder Standards,” Organization 14, no. 5 (2007):667–84, 677; AFL-CIO, Responsibility Outsourced, 46; and Baumann-Pauly et al., “Industry-Specific Multi-stakeholder Initiatives That Govern Corporate Human Rights Standards,” 771. 42. MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, New Regulators?, 8–9. Of the MSIs studied, only 14 percent (6/44) include affected populations in their primary decision-making body. 43. MSI Integrity, Protecting the Cornerstone: Assessing the Governance of Extractive Industries Transparency Initiative Multi-Stakeholder Groups, February 2015, accessed March  29, 2020, http://www.msi-integrity.org/wp-content/uploads/2015/02/MSI-Integrity-Summary-Pro tecting-the-Cornerstone-EN.pdf. 44. AFL-CIO, Responsibility Outsourced, 46. 45. Jeron Merk and Ineke Zeldenrust, The Business Social Compliance Initiative (BCSI): A Critical Perspective, Clean Clothes Campaign, June 2005, accessed March 29, 2020, https:// archive.cleanclothes.org/resources/publications/05-050bsci-paper.pdf/view. 46. A social audit is a way of measuring, understanding, and reporting on an organization’s social and ethical performance. 47. Sébastien Mena and Guido Palazzo, “Input and Output Legitimacy of Multi-stakeholder Initiatives,” Business Ethics Quarterly 22, no. 3 (2012): 527–56, 542. 48. See, for example, Dara O’Rourke, “Multi-stakeholder Regulation: Privatizing or Socializing Global Labor Standards?,” World Development 34, no. 5 (2006): 899–918; Tim Bartley, “Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions,” American Journal of Sociology 113, no. 2 (2007): 297–351; and Genevieve LeBaron and Jane Lister, “Benchmarking Global Supply Chains: The Power of the ‘Ethical Audit’ Regime,” Review of International Studies 41, no. 5 (2017 ): 905–24. 49. Locke, Promise and Limits of Private Power, 35–37; and Genevieve LeBaron and Jane Lister, SPERI Global Political Economy Brief No. 1: Ethical Audits and the Supply Chains of Global Corporations, Sheffield Political Economy Research Institute, University of Sheffield, January 2016, accessed March 29, 2020, http://speri.dept.shef.ac.uk/wp-content/uploads/2016/01 /Global-Brief-1-Ethical-Audits-and-the-Supply-Chains-of-Global-Corporations.pdf. 50. Richard Locke, Matthew Amengual, and Akshay Mangla, “Virtue Out of Necessity? Compliance, Commitment, and the Improvement of Labor Conditions in Global Supply Chains,” Politics and Society 37, no. 3 (2009): 319–51, 332; Justine Nolan and Auret van Heerden, “Engaging Business in the Business of Human Rights,” in Principled Engagement: Negotiating Human Rights in Repressive States, ed. Morten Pedersen and David Kinley (n.p.: Ashgate Publishing, 2013).

284

Notes to Pages 45–49

51. Stephanie Barrientos and Sally Smith, “Do Workers Benefit from Ethical Trade? Assessing Codes of Labour Practice in Global Production Systems,” Third World Quarterly 28, no. 4 (2007): 713–29. 52. Chris Albin-Lackey, “Without Rules: A Failed Approach to Corporate Accountability,” in Human Rights Watch, World Report 2013 (n.p.: Human Rights Watch, 2013), 29. 53. Ibid. 54. Chikako Oka, “Accounting for the Gaps in Labour Standard Compliance: The Role of Reputation-Conscious Buyers in the Cambodian Garment Industry,” European Journal of Development Research 22, no. 1 (2010): 59–78. 55. Anne Posthuma, “Beyond ‘Regulatory Enclaves’: Challenges and Opportunities to Promote Decent Work in Global Production Networks,” in Labour in Global Production Networks in India, ed. A. Posthuma and D. Nathan (New Delhi: Oxford University Press, 2010), 57–80, quoted in International Labor Office, Workplace Compliance in Global Supply Chains, 11; and Locke, Promise and Limits of Private Power. 56. Sarah Labowitz and Dorothée Baumann-Pauly, Business as Usual Is Not an Option: Supply Chains and Sourcing after Rana Plaza, Center for Business and Human Rights, New York University, Stern School of Business, April 2014, accessed March 29, 2020, http://www.stern.nyu .edu/sites/default/files/assets/documents/con_047408.pdf. 57. Know the Chain, How Food and Beverage Companies Tackle Forced Labor Risks in Sugarcane Supply Chains, San Francisco, August 2017, accessed March 29, 2020, https://knowthechain .org/wp-content/uploads/KTC-SugarcaneReport-Final_August-2017.pdf. 58. Fair Labor Association, “The Cotton Project,” accessed March 29, 2020, http://www .fairlabor.org/our-work/special-projects/project/cotton-project. 59. Milton Friedman, “The Social Responsibility of Business Is to Increase Its Profits,” New York Times Magazine, September 13, 1970. 60. International Labor Office, Workplace Compliance in Global Supply Chains, 24. 61. Centre for Research on Multinational Corporations (SOMO), Conflict Due Diligence by European Companies, Amsterdam, November 2013, accessed March 29, 2020, https://www .somo.nl/wp-content/uploads/2013/10/Conflict-Due-Diligence-by-European-Companies.pdf. 62. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1502, 124 Stat. 1376, 2213 (2010) (codified at 15 U.S.C. § 78m(p)). Section 1502 requires the company to provide a description of the measures taken to exercise due diligence on the chain of custody of minerals sourced from the Democratic Republic of the Congo or an adjoining country. 63. The civil society–led FairWear campaign (http://fairwear.org.au/) was a significant force that led to the introduction of successive legislative amendments, including the Industrial Relations (Ethical Clothing Trade) Act 2001 (NSW) and s 175B Workers Compensation Act 1987 (NSW)’ Industrial Relations (Fair Work) Act 2005 (SA); Outworkers (Improved Protection) Act 2003 (Vic); and Industrial Relations and Other Acts Amendment Act 2005 (Qld). See also Igor Nossar, Richard Johnstone, and Michael Quinlan, “Regulating Supply Chains to Address the Occupational Health and Safety Problems Associated with Precarious Employment: The Case of Home-Based Clothing Workers in Australia,” Australian Journal of Labour Law 17, no. 2 (2004):137–64. 64. Ethical Clothing Australia, accessed March 29, 2020, http://www.ethicalclothingaustralia .org.au/. 65. For a more extensive discussion of the Dutch framework, see Jennifer Gordon, “Global Labor Recruitment in a Supply Chain Context” (International Labour Organization

Notes to Pages 49–59

285

Fundamentals Working Paper; Fordham Law Legal Studies Research Paper No. 2518519, 2015), 26–28. 66. Ibid., 27, citing Burgerlijk Wetboek (Civil Code) 2010, art. 7:692 (Neth.). 67. Ibid., 27–28. 68. Ibid., 28.

Chapter 3 1. Global Witness, A Rough Trade: The Role of Companies and Governments in the Angolan Conflict (London: Global Witness, 1998). 2. Ian Smillie, Lansana Gberie, and Ralph Hazleton, The Heart of the Matter: Sierra Leone, Diamonds & Human Security (Ottawa: Partnership Africa Canada, 2000), 2. 3. Robert R. Fowler, Report of the UN Panel of Experts on Violations of Security Council Sanctions Against Unita: The “Fowler Report”, Global Policy Forum, March 10, 2000, accessed April 36, 2020, https://www.globalpolicy.org/global-taxes/41606-final-report-of-the-un-panel -of-experts.html. 4. United Nations General Assembly, The Role of Diamonds in Fuelling Conflict: Breaking the Link Between the Illicit Transaction of Rough Diamonds and Armed Conflict as a Contribution to Prevention and Settlement of Conflicts (A/RES/55/56, 2000). 5. United Nations Security Council, Resolution 1459 (S/Res/1459, 2003). 6. Kimberley Process Certification Scheme, Interlaken Declaration of 5 November 2002 on the Kimberley Process Certification Scheme for Rough Diamonds (November 5, 2002), https:// www.diamonds.net/Docs/MoralClarity/KP-InterlakenDeclaration-KPCS-1102.pdf. 7. Resolution 1459, preamble. 8. Marie Mueller, “Comments of KP Civil Society Coalition” (presentation at the Kimberley Process Plenary, Washington, DC, November 27–30, 2012), accessed April 6, 2020, https:// www.bicc.de/fileadmin/Dateien/pdf/events/2012/KP_Civil_Society_Plenary_speech.pdf. 9. Kimberley Process Certification Scheme, “2013 KPCS Core Document Amended,” 2017, accessed April 6, 2020, https://www.kimberleyprocess.com/en/kpcs-core-document-version -2016-0 (hereafter cited as KPCS Core Document). 10. Ian Smillie, “Paddles for Kimberley: An Agenda for Reform,” Partnership Africa Canada, June 2010, accessed April 6, 2020, https://impacttransform.org/wp-content/uploads/2017 /09/2010-Jun-Paddles-for-Kimberley-An-Agenda-for-Reform.pdf. 11. KPCS Core Document. 12. The Kimberley Process, home page, accessed April 6, 2020, www.kimberleyprocess .com/. 13. Takunda Maodza, “ADPA Hails KPCS Decision,” Herald, April 6, 2011, accessed April 6, 2020, http://www.herald.co.zw/adpa-hails-kps-decision/. 14. Ad Hoc Working Group on the Review of the KPCS, The Kimberley Process Certification Scheme: Third Year Review, October 2006, accessed May 12, 2020, https://2001-2009.state .gov/documents/organization/77156.pdf. 15. Rough and Polished, “De Beers Records Vanish,” November 23, 2011, accessed April 6, 2020, http://www.rough-polished.com/en/expertise/57095.html. 16. Tawanda Kanhema, “Zimbabwe: Foreigners Join Marange Diamond Rush,” AllAfrica, December 2, 2006, accessed February 12, 2018, http://allafrica.com/stories/200612040617.html. 17. Elias Mambo and Obey Manayiti, “Marange Security Crackdown, Violent Death Amid Illicit Deals,” Zimbabwe Independent, January 13, 2017, accessed April 6, 2020, https://www

286

Notes to Pages 59–66

.theindependent.co.zw/2017/01/13 /marange -security-crackdown-violent -death-amid -illicit -deals/. 18. Joshua Hammer, “Zimbabwe’s Diamond Mines Lead to Rape, Murder, and Thievery,” Fast Company, December 1, 2009, accessed April 6, 2020, http://www.fastcompany.com /1460599/zimbabwes-diamond-mines-lead-rape-murder-and-thievery. 19. Obvious Katsaura, “Violence and the Political Economy of Informal Diamond Mining in Chiadzwa, Zimbabwe,” Journal of Sustainable Development in Africa 12, no. 6 (2010): 340–53. 20. Ibid. 21. Human Rights Watch, Diamonds in the Rough: Human Rights Abuses in the Marange Diamond Fields of Zimbabwe, June 26, 2009, accessed April 7, 2020, https://www.hrw.org/report /2009/06/26/diamonds-rough/human-rights-abuses-marange-diamond-fields-zimbabwe. 22. KPCS Core Document. 23. Katsaura, “Violence and the Political Economy.” 24. “Thriving Diamond Black Market in Moz,” Zimbabwean, June 9, 2009, accessed April 7, 2020, http://www.thezimbabwean.co/2009/09/thriving-diamond-black-market-in-moz/. 25. Sebastien Berger, “Zimbabwe Inflation Second Worst in History,” Telegraph, November 13, 2008, accessed February 7, 2018, http://www.telegraph.co.uk/news/worldnews/africa andindianocean/zimbabwe/3451873/Zimbabwe-inflation-second-worst-in-history.html. 26. Human Rights Watch, Diamonds in the Rough. 27. Ian Smillie, “Blood Diamonds and Non-State Actors,” Vanderbilt Journal of Transnational Law 46, no. 4 (2013): 1003–23, 1004, 1006. 28. Farai Maguwu, “BRICS Seen from a Weakening Zimbabwe,” Pambazuka News, April 10, 2014, accessed April 7, 2020, https://www.pambazuka.org/governance/brics-seen-weakening -zimbabwe. 29. George Charamba, “Reasserting Authority in the Wild, Wild East,” Herald, November 24, 2008. 30. Human Rights Watch, Diamonds in the Rough. 31. Centre for Research and Development, A Preliminary Report of the Atrocities Committed by the Police and Army in Mutare and Chiadzwa under “Operation Hakudzokwi” (You Will Not Return) in 2008 (Mutare: CRD, 2009). 32. Kimberley Process Certification Scheme, Review Mission to Zimbabwe, Final Report, June 30–July 4, 2009, accessed April 7, 2020, http://graphics8.nytimes.com/packages/pdf/world /ZimFinaldraft020909.pdf, 37. 33. Farai Maguwu, “Zimbabwe to Escape Censure over Abuses in Diamond Mines,” Zimbabwean, April 11, 2009, accessed April 7, 2020, http://www.thezimbabwean.co/2009/11 /zimbabwe-to-escape-censure-over-abuses-in-diamond-mines/. 34. Seventh Annual Plenary of the Kimberley Process Certification Scheme, “Zimbabwe Ministry of Mines and Mining Development Work Plan for Implementing the Kimberley Process Review Mission Recommendation: Administrative Decision,” November 5, 2009, accessed June 2, 2020, https://2009-2017.state.gov/documents/organization/133851.pdf. 35. Ibid. 36. Abbey Chikane, Kimberley Process Certification Scheme: Second Fact Finding Mission Report, May 24–28, 2018, accessed April 7, 2020, http://www.swradioafrica.com/Documents /KPMonitor090610.pdf. 37. “Release Maguwu or Else, Zim Told,” Newsday, June 20, 2010, accessed April 7, 2020, https://www.newsday.co.zw/2010/06/2010-06-20-release-maguwu-or-else-zim-told/.

Notes to Pages 66–72

287

38. Tacy Ltd. Diamond Industry Consultants, “WDC, WFDB Presidents Welcome the Release of Farai Maguwu,” Diamond Intelligence, July 13, 2010, accessed April 7, 2020, https:// diamondintelligence.com/magazine/magazine.aspx?id=8830. 39. Kimberley Process Certification Scheme, Report of the Follow-up Review Mission to Zimbabwe, August 9-14, 2010, accessed April 7, 2020, http://www.diamondintelligence.com /download /files /Final %20Report %20Zimbabwe %20review %20mission %20August %202010 %20(2).pdf. 40. Global Witness, “Global Witness Leaves Kimberley Process, Calls for Diamond Trade to Be Held Accountable,” December 2, 2011, accessed April 7, 2020, https://www.globalwitness .org /en /archive /global -witness -leaves -kimberley -process -calls -diamond -trade -be -held -accountable/. 41. Centre for Natural Resource Governance, “Military, Police Terrorise Villagers in Marange”, July 31, 2019, accessed October 21, 2020, https://www.cnrgzim.org/military-police -terrorise-villagers-in-marange/. 42. Business and Human Rights Resource Centre, “Zimbabwe: Govt. Is Complicit in Human Rights Abuses in Marange Says Civil Society,” January 28, 2020, accessed October 21, 2020, https://www.business-humanrights.org/en/latest-news/zimbabwe-govt-is-complicit-in-human -rights-abuses-in-marange-says-civil-society/. 43. KPCS Core Document, 1. 44. “Blood Diamonds Making a Comeback,” Zimbabwean, June 20, 2010, accessed April 7, 2020, http://www.thezimbabwean.co/2010/06/blood-diamonds-making-a-come-back/. 45. Global Witness, “Global Witness Leaves Kimberley Process.” 46. Global Witness, “Financing a Parallel Government?,” June 20, 2012, accessed April 7, 2020, https://www.globalwitness.org/en/archive/financing-parallel-government-Zimbabwe/. 47. “Anjin Yet to Remit Revenue to Treasury,” Newsday, May 24, 2012, accessed April 7, 2020, https://www.newsday.co.zw/2012/05/2012-05-23-anjin-yet-to-remit-revenue-treasury/. 48. NewsDay HStv Live, “$15bn Diamond Money: Of Mugabe’s Inconsistent Statements,” March 7, 2016, YouTube video, 3:05, www.youtube.com/watch?v=PNpWxuWS0Rw&t=103s. 49. Farineau, “Red Diamonds.” 50. Global Witness, “Financing a Parallel Government?” 51. Partnership Africa Canada, “The Failure of Good Intentions: Fraud, Theft, and Murder in the Brazilian Diamond Industry” (The Diamonds and Human Security Project Occasional Paper Series, no. 12, Partnership Africa Canada, 2005). 52. Franziska Bieri, From Blood Diamonds to the Kimberley Process. How NGOs Cleaned Up the Global Diamond Industry (New York: Routledge, Taylor and Francis Group, 2010), 136. 53. KPCS Core Document, 3 (emphasis added). 54. World Diamond Council, “Alluvial Diamond Mining Fact Sheet,” Diamondfacts.org, January 8, 2007, accessed May 12, 2020, http://www.diamondfacts.org/pdfs/media/media _resources/fact_sheets/Alluvial_Mining_Background.pdf. 55. Kimberley Process, home page. 56. Khadija Sharife, “Zimbabwe’s Disappearing Diamonds,” GeoIntelBlog4Italian/SMES, February 21, 2013, accessed April 7, 2020, https://geointelblog4italianpmi.com/2013/02/21 /zimbabwes-disappearing-diamonds. 57. Itai Mazire, “Millions Lost to Diamond Smuggling Syndicates,” Sunday Mail, September 14, 2014, accessed June 2, 2020, http://www.sundaymail.co.zw/millions-lost-to-diamond -smuggling-syndicates.

288

Notes to Pages 74–77

Chapter 4 1. Sophie Chao, Forest Peoples’ Numbers Across the World (Moreton-in-Marsh: Forest Peoples Programme, 2012). 2. Marcus Colchester, “Do Commodity Certification Systems Uphold Indigenous Peoples’ Rights? Lessons from the Roundtable on Sustainable Palm Oil and Forest Stewardship Council,” Policy Matters 21 (2016): 149–65. 3. Ibid. 4. Romain Pirard. Camille Rivoalen, Steven Lawry, Pablo Pacheco, and Mike Zrust, “A Policy Network Analysis of the Palm Oil Sector in Indonesia: What Sustainability to Expect?” (Working Paper 230, CIFOR, 2017). 5. United Nations Committee on Economic, Social, and Cultural Rights, General Comment No. 24 on State Obligations Under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities (E/C.12/GC/24, August 10, 2017). 6. United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the UN “Respect, Protect and Remedy” Framework (A/HRC/17/31, 2011), accessed May 4, 2018, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR _EN.pdf. 7. Fergus MacKay, “Indigenous Peoples, Protected Areas and the Right to Restitution—The Jurisprudence of the Inter-American Court of Human Rights,” Policy Matters 15 (2007): 209–22. 8. UNHRC, Guiding Principles, at para 31. See also Holly C. Jonas, A Review of the Complaints System of the Roundtable on Sustainable Palm Oil: Final Report, Sabah, Natural Justice, 2014, accessed May 4, 2020, http://www.rspo.org/news-and-events/announcements/a-review -of-complaints-system-of-the-rspo-final-report. 9. James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples (UN Doc. A/HRC/9/9, 2008). 10. Fergus MacKay, Indigenous Peoples and United Nations Human Rights Treaty Bodies: A Compilation of Treaty Body Jurisprudence, vols. I–VII (Moreton in Marsh: Forest Peoples Programme, 2005–2011). 11. Forest Peoples Programme, Constitutional Court Ruling Restores Indigenous Peoples’ Rights to Their Customary Forests in Indonesia, Moreton-in-Marsh, 2013, accessed May 4, 2020, https://www.forestpeoples.org/en/topics/rights-land-natural-resources/news/2013/05/constitu tional-court-ruling-restores-indigenous-pe. 12. United Nations General Assembly, United Nations Declaration on the Rights of Indigenous People (A/Res/61/295, October 2, 2007), para. 28(1). 13. International Working Group for Indigenous Affairs, The Indigenous World 2017 (Copenhagen: International Work Group for Indigenous Affairs, 2017). 14. Marcus Colchester, Forest Industries, Indigenous Peoples and Human Rights (Moretonin-Marsh: Forest Peoples Programme, 2001). 15. Noeleen Heyzer, Gender, Population and Environment in the Context of Deforestation: A Malaysian Case Study (Geneva: United Nations Research Institute for Social Development, 1996). 16. Marcus Colchester, Norman Jiwan, Andiko, Martua Sirait, Asep Yunan Firdaus, A. Surambo, and Herbert Pane, Promised Land: Palm Oil and Land Acquisition in Indonesia—Implications for Local Communities and Indigenous Peoples (Bogor: Forest Peoples Programme, Sawit Watch, HuMA and ICRAF, 2006); Marcus Colchester and Norman Jiwan, Ghosts on Our Own

Notes to Pages 77–79

289

Land: Oil Palm Smallholders in Indonesia and the Roundtable on Sustainable Palm Oil (Bogor: Forest Peoples Programme and SawitWatch, 2006); Marcus Colchester, Wee Aik Pang, Wong Meng Chuo, and Thomas Jalong, Land Is Life: Land Rights and Palm Oil Development in Sarawak (Bogor: Forest Peoples Programme and SawitWatch, 2007); Serge Marti, Losing Ground: The Human Rights Impacts of Oil Palm Plantation Expansion in Indonesia (London: SawitWatch, Life Mosaic and Friend of the Earth, 2008); Marcus Colchester and Sophie Chao, Oil Palm Expansion in South East Asia: Trends and Implications for Local Communities and Indigenous Peoples (Bogor: SawitWatch and Forest Peoples Programme, 2011); Marcus Colchester, Patrick Anderson, Asep Yunan Firdaus, Fatilda Hasibuan, and Sophie Chao, Human Rights Abuses and Land Conflicts in the PT Asiatic Persada Concession in Jambi: Report of an Independent Investigation into Land Disputes and Forced Evictions in a Palm Oil Estate (Bogor, Jakarta, and Moretonin-Marsh: Forest Peoples Programme, SawitWatch, and HuMa, 2011); and Marcus Colchester and Sophie Chao, Conflict or Consent? The Oil Palm Sector at a Crossroads (Moreton-in-Marsh: Forest Peoples Programme, 2013). 17. Marcus Colchester, Pirates, Squatters and Poachers: The Political Ecology of Dispossession of the Native Peoples of Sarawak (Petaling Jaya: INSAN and Survival International, 1989); Nancy Peluso, Rich Forests, Poor People: Resource Control and Resistance in Java (Berkeley: University of California Press, 1992); Raymond Bryant, The Political Ecology of Forestry in Burma 1824–1994 (Honolulu: University of Hawaii Press, 1996); Ricardo Carrere and Larry Lohmann, Pulping the South: Industrial Tree Plantations and the World Paper Economy (London: World Rainforest Movement and Zed Books, 1996); Colin Filer, The Political Economy of Forest Management in Papua New Guinea (London: International Institute for Environment and Development, 1997); and Peter Dauvergne, Shadows in the Forests: Japan and the Tropical Timber Trade in South East Asia (Cambridge, MA: MIT Press, 1997). 18. Nick Robins, The Corporation That Changed the World: How the East India Company Shaped the Modern Multinational (London: Pluto Press, 2012). 19. International Social and Environmental Accreditation and Labeling, Setting Social and Environmental Standards: ISEAL Code of Good Practice (London: ISEAL Alliance, 2010). 20. Forest Stewardship Council, FSC International Standard: FSC Principles and Criteria for Forest Stewardship (FSC-STD-01-001 EN) (Bonn: Forest Stewardship Council, 1994; revised 2012). 21. Marcus Colchester, Martua Sirait, and Boedhi Wijardjo, The Application of FSC Principles 2 & 3 in Indonesia: Obstacles and Possibilities (Jakarta: WALHI and AMAN, 2003). 22. Roundtable on Sustainable Palm Oil, Principles and Criteria for Sustainable Palm Oil (Kuala Lumpur: Roundtable on Sustainable Palm Oil, 2005; revised 2007; revised 2013). 23. Roundtable on Sustainable Palm Oil, “New Planting Procedure,” accessed May 31, 2018, https://rspo.org/certification/new-planting-procedures. 24. Simon Counsell and Kim Terje Lorass, Trading in Credibility: The Myth and Reality of the Forest Stewardship Council (London: Rainforest Foundation UK, 2002). 25. Ibid. 26. Jodi L. Short, Michael W. Toffel, and Andrea R. Hugill, “Monitoring Global Supply Chains” (Working Paper 14-032, Harvard Business School, 2015). 27. Esther Duflo, Michael Greensone, Rohini Pande, and Nicholas Ryan, “Truth-Telling by Third-Party Auditors and the Response of Polluting Firms: Experimental Evidence from India” (Working Paper 19259, Harvard National Bureau of Economic Research, 2013). 28. Duflo et al., “Truth-Telling by Third-Party Auditors.”

290

Notes to Pages 79–80

29. Vanessa Linforth, Leo van der Vlist, and Mathieu Auger-Schwartzenberg, “Safeguarding Rights in the Forest: Free, Prior and Informed Consent Requirements in the Forest Stewardship Council Forest Management Standard” (paper presented to the XIV World Forestry Congress, Durban, South Africa, September 7–11, 2015). 30. Linforth et al., “Safeguarding Rights in the Forest.” 31. Leo van der Vlist and Wolfgang Richert, Dispute Resolution and Settlement for Biomass Certification Schemes—A Mapping Exercise of Needs and Potentials (Lausanne: Ecole Polytechnique de Lausanne, 2014). 32. Marcus Colchester and Sophie Chao, eds., Conflict or Consent? The Oil Palm Sector at a Crossroads (Moreton-in-Marsh: Forest Peoples Programme, 2013). 33. Roundtable on Sustainable Palm Oil, Principles and Criteria for Sustainable Palm Oil (Kuala Lumpur: Roundtable on Sustainable Palm Oil, 2013). 34. Roundtable on Sustainable Palm Oil, Free Prior and Informed Consent Guide for RSPO Members (Kuala Lumpur: Roundtable on Sustainable Palm Oil, 2015). 35. Environmental Investigation Agency, Who Watches the Watchmen? Auditors and the Breakdown of Oversight in RSPO (London: Environmental Investigation Agency, 2015). 36. Roundtable on Sustainable Palm Oil, Resolution 6h, 2015. 37. Assurance Services International, “RSPO Compliance Assessments in 2015 and 2016: Summary and Conclusions, 2017.” 38. Jonas, Review of the Complaints System of the Roundtable on Sustainable Palm Oil. 39. Roundtable on Sustainable Palm Oil, Resolution 6e, 2016. 40. Marcus Colchester and Sophie Chao, eds., Oil Palm Expansion in South East Asia: Trends and Implications for Local Communities and Indigenous Peoples, Bogor, SawitWatch and Forest Peoples Programme, 2011, accessed May 28, 2018, https://www.forestpeoples.org/sites/fpp/files /publication/2011/11/oil-palm-expansion-southeast-asia-2011-low-res.pdf; Colchester and Chao, Conflict or Consent?; Forest Peoples Programme, Hollow Promises: An FPIC Assessment of Golden Veroleum and Golden Agri-Resource’s Palm Oil Project in South East Liberia, Moretonin-Marsh, 2015, accessed May 4, 2020, https://www.forestpeoples.org/en/topics/agribusiness /publication/2015/hollow-promises-fpic-assessment-golden-veroleum-and-golden-agri; Sustainable Development Institute, Respecting Rights? Assessing Oil Palm Companies Compliance with FPIC Obligations: A Case Study of EPO and KLK LIBINC Estate in Grand Bassa, Liberia, Moreton-in-Marsh, Sustainable Development Institute and Forest Peoples Programme, 2016, accessed May 4, 2020, https://www.forestpeoples.org/en/topics/agribusiness/publication/2016 /respecting-rights-assessing-oil-palm-companies-compliance-fpic; and Social Entrepreneurs for Sustainable Development, Respecting Rights? Assessing Oil Palm Companies Compliance with FPIC Obligations: A Case Study of Maryland Oil Palm Plantation in South-Eastern Liberia, Moreton-in-Marsh, Social Entrepreneurs for Sustainable Development and Forest Peoples Programme, 2016, accessed May 4, 2020, https://www.forestpeoples.org/en/topics/agribusiness /publication/2016/respecting-rights-assessing-oil-palm-companies-compliance-fpi-0. 41. M. B. Hooker, Adat Law in Modern Indonesia (Kuala Lumpur: Oxford University Press, 1978). 42. Robert Pringle, Understanding Islam in Indonesia: Politics and Diversity (Singapore: Editions Didier Millet, 2010). 43. Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Jakarta: PT Pradnya Paramita, 1999).

Notes to Pages 81–83

291

44. Anthony Reid, The Blood of the People: Revolution and the End of Traditional Rule in Northern Sumatra (Oxford: Oxford University Press, 1976); Karl Pelzer, Planter and Peasant: Colonial Policy and the Agrarian Struggle in East Sumatra 1863–1947 (‘s-Gravenhage: Martinus Nijhoff, 1978); Karl Pelzer, Planters and Peasants: The Agrarian Struggle in East Sumatra 1947–1958 (‘s-Gravenhage: Martinus Nijhoff, 1982); and Laura Ann Stoler, Capitalism and Confrontation in Sumatra’s Plantation Belt 1870–1979 (Ann Arbor: University of Michigan, 1985). 45. Peluso, Rich Forests, Poor People; and Gamma Galudra and Martua Sirait, “A Discourse on Dutch Colonial Forest Policy and Science in Indonesia at the Beginning of the 20th Century,” International Forestry Review 11, no. 4 (2009): 524–33. 46. Tania Murray Li, The Will to Improve: Governmentality, Development and the Practice of Politics (Durham, NC: Duke University Press, 2007); and Tania Murray Li, Land’s End: Capitalist Relations on an Indigenous Frontier (Durham, NC: Duke University Press, 2014). 47. Forest Peoples Programme, The Rights of Non-Indigenous “Forest Peoples” with a Focus on Land and Related Rights—Existing International Legal Mechanisms and Strategic Options, Moreton-in-Marsh,2013, accessed May 22, 2020, http://www.forestpeoples.org/topics/rights -land -natural -resources /publication /2013 /rights -non -indigenous -forest -peoples -focus -lan. Constitutional Court Decision No. 35 of 2012 was issued in 2013. 48. Marcus Colchester, Patrick Anderson, and Sophie Chao, Assault on the Commons: Deforestation and the Denial of Forest Peoples’ Rights in Indonesia (Moreton-in-Marsh: Forest Peoples Programme, 2014). 49. Carl Lumholtz, Through Central Borneo (Singapore: Oxford University Press, [1920] 1991). 50. Bernard Sellato, Innermost Borneo: Studies in Dayak Cultures (Singapore: Singapore University Press, 2002). 51. Marcus Colchester, “Unity and Diversity: Indonesian Policy Towards Tribal Peoples,” Ecologist 16, nos. 2–3 (1986): 61–70. 52. Rainforest Alliance, Audit of Sumalindo, 2006. 53. World Wide Fund for Nature, “What We Do,” 2017, accessed May 28, 2018, http://wwf .panda.org/what_we_do/where_we_work/borneo_forests/. 54. Marcus Colchester et al., Promised Land; Yoga Sofyar, Pius Nyompe, Faisal Kairupan, Sigit Wibowo, Didin Suryadin, and Carolus Tuah, “Can’t See the People for the Trees”: Assessment of the Free, Prior and Informed Consent Agreement Between Sumalindo and the Community of Long Bagun, District of Kutai Barat, East Kalimantan Province (Indonesia), Moreton-in-Marsh, Pokja Hutan Kalimantan Timur and Forest Peoples Programme, 2007, accessed May 28, 2018, http://www.forestpeoples.org/sites/fpp/files/publication/2010/08/fpicindonesiajun07eng.pdf. 55. Tropical Forest Foundation, “TFF Announces PT Roda Mas Certificate,” accessed May 28, 2018, http://www.tff-indonesia.org/index.php/138-english/tff-library/newsletter-ril -certification/october-2014/282-pt-roda-mas-timber-certification-success-in-the-very-heart -of-borneo. 56. Rainforest Alliance, Audit of Sumalindo, 2006. 57. Marcus Colchester, Martua Sirait, and Boedhi Wijardjo, The Application of FSC Principles 2 & 3 in Indonesia: Obstacles and Possibilities (Jakarta: WALHI and AMAN, 2003). 58. Rainforest Alliance, Audit of KBT, 2014. 59. Rainforest Alliance, Audit of KBT, 2016. 60. Forest Peoples Programme, Complaint to FSC on KBT, 2016.

292

Notes to Pages 84–88

61. Forest Peoples Programme to Forest Stewardship Council, 2017 (letter exposing Rainforest Alliance’s poor performance). 62. Rainforest Alliance, Audit of KBT, 2017. 63. Forest Peoples Programme, 2017 (complaint about Rainforest Alliance). 64. Assurance Services International, email message to Forest Peoples Programme, July 17, 2017, on file with FPP. 65. Accreditation Services International, email message to Forest Peoples Programme, July 17, 2017, on file with FPP (emphasis added). 66. Forest Stewardship Council, email message to Forest Peoples Program, 2017 (closing Kemakmuran Berkah Timbers complaint), on file with FPP. 67. Forest Peoples Programme, press release about RA KBT, 2017, accessed May 4, 2020, https://www.forestpeoples.org/en/private-sector-timber-pulpwood-and-fsc/press-release/2017 /bittersweet-victory-indigenous-community. 68. Angus MacInnes, “Logging the Heart Out of Borneo: The Distressing Case of Long Isun,” Forest Peoples Programme, November 14, 2017. 69. Forest Peoples Programme, “Press Release: Victory at Last for Long Isun,” February 12, 2018, accessed June 8, 2020, http://www.forestpeoples.org/en/rights-land-natural-resources -global-finance-trade-timber-pulpwood-and-fsc/press-release/2018/press. 70. Ibid. 71. Marcus Colchester, Norman Jiwan, and Emilola Kleden, Independent Review of the Social Impacts of Golden Agri Resources’ Forest Conservation Policy in Kapuas Hulu District, West Kalimantan, Moreton-in-Marsh: Forest Peoples Program, 2014, accessed May 4, 2020, http:// www.forestpeoples .org /sites /fpp /files/publication /2014/01 /pt-kpc-report -january-2014final .pdf; and FPP GAR complaint No. 5, August 2018, https://www.forestpeoples.org/en/node /50274 72. Golden Agri-Resources and SMART in collaboration with The Forest Trust and Greenpeace, High Carbon Stock Forest Study Report: Defining and Identifying High Carbon Stock Forest Areas for Possible Conservation, Singapore: Golden Agri-Resources, 2012, accessed May 4, 2020, http://highcarbonstock.org/wp-content/uploads/2014/12/GAR-HCSA-2012.pdf. 73. Colchester, Jiwan, and Kleden, Independent Review of the Social Impacts of Golden Agri Resources. 74. Forest Peoples Programme (Complainant) v. PT Kartika Prima Cipta (a Subsidiary of Golden Agri-Resources Ltd.) (RSPO Complaints System, PreCAP/2014/03/IR, 2014), accessed June 8, 2020, available at https://www.rspo.org/members/complaints/status-of-complaints /view/75. 75. Roundtable on Sustainable Palm Oil, Free Prior and Informed Consent Guide for RSPO Members (Kuala Lumpur: Roundtable on Sustainable Palm Oil, 2015); and RSPO, Resolution 6h, 2015. 76. Forest Peoples Programme, “SDI/SESDev/FPP Letter Expressing Dissatisfaction with the RSPO Complaints Panel Decision on Golden Veroleum Liberia,” 2016, accessed May 4, 2020, http://www.forestpeoples.org/topics/agribusiness/news/2016/03/sdisesdevfpp-letter-expressing -dissatisfaction-rspo-complaints-pane. 77. Forest Peoples Programme (Complainant). 78. Forest Peoples Programme to RSPO Complaints Panel, July 30, 2017, accessed June 8, 2020, https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PXfy/qH9esajVACCJLTjAFC .aZyeKyOUPyg7enYqbfErbfv0.

Notes to Pages 88–90

293

79. Forest Peoples Programme to GAR and RSPO Complaints Panel, October 30, 2016, accessed June 8, 2020, https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PXgc /Q8Cyli4pb60g_lbD.DSSuyLbKkBVYoBgONLHMLld5qY. 80. Forest Peoples Programme, “Five New Complaints Filed Against Indonesia’s Largest Palm Oil Company,” August 16, 2018, accessed May 22, 2020, https://www.forestpeoples.org/en /node/50274. 81. Lembaga Gemawan, Milieudefensie, and Kontak Rakyat Borneo, Policy, Practice, Pride and Prejudice: Review of Legal, Environmental and Social Practices of Oil Palm Plantation Companies of the Wilmar Group in Sambas District, West Kalimantan, Amsterdam and West Kalimantan, 2007, accessed May 4, 2020, https://www.foeeurope.org/sites/default/files/publications /foee_wilmar_palm_oil_environmental_social_impact_0707.pdf. 82. Forest Peoples Programme, Complaint to Compliance Advisor Ombudsman, 2007. 83. Compliance Advisor Ombudsman, “IFC Ombudsman Strongly Criticizes Palm Oil Giant Wilmar for Selling off PT Asiatic Persada in Mi-Mediation,” Forrest Peoples Programme, January 2, 2014, accessed April 18, 2018, https://www.forestpeoples.org/en/topics/palm-oil -rspo/news/2014/01/ifc-ombudsman-strongly-criticises-palm-oil-giant-wilmar-selling-pt. 84. Forest Peoples Programme, 2nd Complaint to Compliance Advisor Ombudsman, 2009. 85. The case led to the World Bank Group suspending oil palm financing for two years while it embarked on a major consultation process and developed a new “framework policy” for World Bank Group engagement in the sector, while the IFC adopted a new screening tool to ensure that basic conditions were in place to allow clients to conform to the Performance Standards. Forest Peoples Programme, “The World Bank’s Palm Oil Policy,” August 29, 2013, accessed October 22, 2020, https://www.forestpeoples.org/en/topics/palm-oil-rspo/news/2013 /04/world-bank-s-palm-oil-policy. 86. TUV-Rheinland, Verification Report of “Suku Anak Dalam” Community Settlement Demolition Within the Land Use Area (Hak Guna Usaha—HGU) of PT Asiatic Persada (Jakarta: TÜV Rheinland Indonesia, 2011). 87. Wilmar, letter of clarification to Dr. Marcus Colchester, Forest People’s Programme, 2011. 88. Forest Peoples Programme, 3rd Complaint to Compliance Advisor Ombudsman, 2011. 89. Forest Peoples Programme, 3rd Complaint. 90. Forest Peoples Programme, “Press Release: Palm Oil Giant Wilmar Resorts to Dirty Tricks,” July 7, 2015, accessed May 26, 2020, http://www.forestpeoples.org/en/topics/palm-oil -rspo/news/2015/07/press-release-palm-oil-giant-wilmar-resorts-dirty-tricks. 91. Forest Peoples Programme, “IFC Ombudsman Strongly Criticizes Palm Oil Giant Wilmar for Selling Off PT Asiatic Persada in Mid-mediation,” January 2, 2014, accessed April 18, 2018, https://www.forestpeoples.org/en/topics/palm-oil-rspo/news/2014/01/ifc-ombudsman -strongly-criticises-palm-oil-giant-wilmar-selling-pt. 92. Colchester et al., Promised Land; and Patrick Anderson, Fatilda Hasibuan, Asep Yunan Firdaus, Afrizal, Zulkifli, and Nurul Firmansyah, “PT Permata Hijau Pasaman I and the Kapa and Sasak Peoples of Pasaman Barat, West Sumatra,”in Conflict or Consent? The Oil Palm Sector at a Crossroads, ed. Marcus Colchester and Sophie Chao (Moreton-in-Marsh: Forest Peoples Programme, 2013), 101–24. 93. Mavis Rose, Indonesia Free: A Political Biography of Mohammad Hatta (Jakarta: Equinox Publishing, [1987] 2010). 94. Minutes of Meeting between FPP, RSPO CP and Wilmar, November 2015 ms.

294

Notes to Pages 91–96

95. Forest Peoples Programme to RSPO Complaints Panel, May 20, 2015, accessed June 8, 2020, https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PXeg/97ZFEfetImQB0KFzgmb Ve.E96GL2t55LjytnO5B6gQc 96. Gampo Alam (Complainant) v. PT Permata Hijau Pasaman (RSPO Complaints System, 2014), accessed June 8, 2020, https://askrspo.force.com/Complaint/s/case/50090000028 Erz4AAC/detail. 97. Tom Lomax, Asserting Community Land Rights Using RSPO Complaint Procedures in Indonesia and Liberia (London: International Institute for Environment and Development, 2014). 98. M. A. Smith and Pamela Perrault, Are All Forest Certification Systems Equal? An Opinion on Indigenous Engagement in the Forest Stewardship Council and the Sustainable Forestry Initiative, National Aboriginal Forestry Association, 2017, accessed May 28, 2018, http:// nafaforestry.org/pdf/2017/FSCSFIComparisonPaper_Final_26sep2017.pdf; and Angus MacInnes, A Comparison of Leading Palm Oil Certification Standards, Moreton-in-Marsh, Forest Peoples Programme, 2017, accessed May 4, 2020, http://www.forestpeoples.org/en/responsible -finance-palm-oil-rspo/report/2017/comparison-leading-palm-oil-certification-standards. 99. In the cases explored, the land restitutions that have been achieved to date have come from CAO and not RSPO or FSC complaint panel interventions. 100. Jonas, Review of the Complaints System of the Roundtable on Sustainable Palm Oil; and Colchester, “Lessons from the Roundtable on Sustainable Palm Oil and Forest Stewardship Council.” 101. Forest Stewardship Council, International Generic Indicator (FSC-STD-60-004 V1-0 EN) (Bonn: Forest Stewardship Council, 2016). 102. Philippine Taskforce for Indigenous Peoples’ Rights, Customary Laws and Free Prior & Informed Consent (Baguio: Philippines Task Force for Indigenous Peoples’ Rights, 2013). 103. Sango Mahanty and Constance McDermott, “How Does ‘Free, Prior and Informed Consent’ (FPIC) Impact Social Equity? Lessons from Mining and Forestry and Their Implications for REDD+,” Land Use Policy 35 (2013):406–16. 104. Dave McLaughlin, “IPOP’s Demise Undercuts Palm Oil Industry Progress,” Mongabay, August 8, 2016, accessed March 4, 2020, https://news.mongabay.com/2016/08/ipops -demise-undercuts-palm-oil-industry-progress-commentary/. 105. Tara MacIsaac, “Jurisdictional Certification Approach Aims to Strengthen Protections Against Deforestation,” Mongabay, April 4, 2017, accessed May 4, 2020, https://news.mongabay .com/2017/04/jurisdictional-certification-approach-aims-to-strengthen-protections-against -deforestation/. 106. Yohanes Izmi Ryan, Jurisdictional Approach: A Stakeholder Collaboration Within Landscape Towards Sustainable Producers (Kuala Lumpur: RSPO, 2017).

Chapter 5 This chapter was prepared for the workshop “Certifying Human Rights in Global Supply Chains,” sponsored by the Rapoport Center for Human Rights and Justice at the University of Texas at Austin (April 6–7, 2017). We are grateful for the comments received there, and especially for the cogent and extensive comments of Karen Engle, sent afterward. 1. “Autonomy” is the term Mapuche authorities most commonly use to encompass a range of claims, from control of territory and resources to the insistence that their own culturalpolitical practices prevail in these spaces. Some also use the term “self-determination,” for

Notes to Pages 96–104

295

example, José Marimán, Autodeterminación: Ideas políticas mapuche en el albor del siglo XXI (Santiago: Lom. Working Group on Mining and Human Rights in Latin America/Grupo de Trabajo sobre Minería y Derechos Humanos en América Latina, 2012). In choosing one term or the other, they may or may not assign relevance to the distinctions in international law between autonomy and self-determination or in the various legal interpretations of the latter term. See Karen Engle, “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,” European Journal of International Law 22, no. 1 (2011): 141– 63. In this chapter we use the term “autonomy” as a general reference to this bundle of claims, without any attempt to parse these distinctions. 2. Forest Stewardship Council, “FSC Certification,” accessed June 10, 2020, https://fsc.org /en/join-us/become-certified. 3. Forest Stewardship Council, FSC International Standard: Principles and Criteria for Forest Stewardship (version 4), accessed June 1, 2020, https://fsc.org/en/document-centre/documents /retrieve/ccf3fd9d-31a9-48ab-89e3-236d48a22f2a?mode=view#viewer.action=download, 5. 4. The research team turned in the final report in April 2017 and shortly thereafter received formal notice that our contractual obligations had been met. According to the terms of the contract, the report is the sole intellectual property of the FSC, but data from the research can be drawn on for independently formulated intellectual products. This chapter makes use of that distinction in both the data and analysis presented. While Hale and Aylwin are the sole authors of this chapter, the analysis we draw on is a collective product of the research team. 5. This literature has grown extensively; for a start see Marisol de la Cadena, “Indigenous Cosmopolitics in the Andes: Conceptual Reflections Beyond Politics,” Cultural Anthropology 25, no. 2 (2010): 334–70; Mario Blaser, “Ontological Conflicts and the Stories of Peoples in Spite of Europe: Toward a Conversation on Political Ontology,” Current Anthropology 54, no. 5 (2013): 547–68; and Arturo Escobar, “Territorios de diferencia: La ontología política de los ‘derechos al territorio,’” Desenvolvimento e Meio Ambiente 3 (2015): 89–100. For a recent, cogent critique, see David Graeber, “Radical Alterity Is Just Another Way of Saying ‘Reality’: A Reply to Eduardo Viveiros de Casto,” HAU: Journal of Ethnographic Theory 5, no. 2 (2015): 1–41. 6. Francisco González G., “DL 701: En 40 años 70% de aportes fueron a grandes forestales,” La Tercera, accessed June 10, 2018, https://www.latercera.com/noticia/dl-701-en-40-anos-70-de -aportes-fueron-a-grandes-forestales/. 7. Ministerio de Desarrollo Social, Casen “Estimaciones de la pobreza por ingreso y multidimensional en comunas con representatividad,” September 30, 2016, accessed January 1, 2019, http://observatorio.ministeriodesarrollosocial.gob.cl/casen-multidimensional/casen/docs /estimacion_pobreza_ingreso_multidimensional_comunal.pdf. 8. Law No 19.023 D.of. 05-10-1993 (1993), Chile. 9. Forest Stewardship Council, “Superficie y empresas certificadas en Chile,” accessed June 10, 2018, https://cl.fsc.org/es-cl/certificacin/superficie-y-empresas-cetificadas-en-chile. 10. Forest Stewardship Council, FSC International Standard (version 4). (The FSC international P&Cs are currently on version 5, as explained in greater detail later in this section.) 11. International Labour Organization, Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1650 U.N.T.S. 383, 1989). 12. Identidad Nagche, Identidad Wenteche, Identidad Lafkenche, and Identidad Williche (Pueblo Mapuche), “Presentación Mapuche ante directorio mundial de FSC sobre conflictos de empresas forestales chilenas y Pueblo Mapuche,” February 29, 2012 (unpublished, on file with authors).

296

Notes to Pages 104–109

13. Forest Stewardship Council, FSC International Standard: Principles and Criteria for Forest Stewardship (version 5-2), accessed June 1, 2020, https://fsc.org/en/document-centre /documents /retrieve /f475da19 -2fcf -4e55 -80da -6e59ff39c81e ?mode = view #viewer.action = download. 14. United Nations General Assembly, Declaration on the Rights of Indigenous Peoples (U.N.Doc A/61/295, 2017). 15. Forest Stewardship Council, FSC International Standard (version 5-2), 12. 16. Ibid., 23. 17. These pragmatic ends, of course, are at play constantly, whenever communities make claims to external authorities. In contrast, given the extent of dislocation, there are few contexts that elicit detailed articulation of the original lof mapu concept. Moreover, far from remaining static, that concept has evolved in response to the multiple pressures and constraints of colonial rule. Still, the juxtaposition between the pragmatic (boundary-full) and the original (boundaryless) versions of the lof mapu is crucial, to avoid normalization of colonial dispossession, both in the material and the ideological sense. Even if the drawing of boundaries is essential in many contexts of contemporary Mapuche struggle, we affirm that in the original lof mapu concept, Cartesian boundary lines were not only unnecessary but antithetical to the lived experience and understanding of local territorial use and occupation. 18. See Eduardo Kohn, How Forests Think: Toward an Anthropology beyond the Human (Berkeley: University of California Press, 2013) for an elaboration of this assertion in anthropology; more work is needed to determine the extent to which his arguments, and those of his ilk, actually approximate Mapuche realities. 19. For example, when CONADI grants land to a given community in order to mediate an especially intense conflict with a neighboring forest or agricultural holding, or when the state concedes land in the context of international court cases, as happened with the community of Temulemu, in La Araucanía region. The case Norin Catriman et al. v. Chile (Inter-American Court of Human Rights, 2014) was taken by Mapuche leaders to the Interamerican Human Rights System, to contest the application of anti-terrorist legislation to Mapuche leaders, including to the lonko, or chief, of Temulemu. 20. Presumably this is a general problem, which arises in many other national contexts. We suspect that the problem is especially acute in the Chilean case because of the gaping disparity between the state’s idiosyncratic interpretation of indigenous rights provisions and internationally accepted meanings. 21. Forestal Mininco, one of the two largest forest conglomerates in Chile, whose operations are certified by the FSC, admitted involvement in a major scandal. See El Mostrador Mercados, “Colusión del papel: Empresa del grupo Matte acepta histórico acuerdo y compensará con $7000 a cada chileno mayor de 18 años,” accessed June 10, 2018, http://www.elmostrador.cl /mercados/2017/01/27/colusion-del-papel-empresa-del-grupo-matte-acepta-historico-acuerdo -y-compensara-con-7000-a-cada-chileno-mayor-de-18-anos/?v=desktop. 22. See Forest Stewardship Council, “FSC Permanent Indigenous Peoples Committee Holds Inaugural Meeting,” November, 5, 2013, accessed June 13, 2018, https://ic.fsc.org/en/news -updates/id/548. However, detailed information on the PIPC’s activities since 2013 is not easily available. 23. See, for example, “Forest Stewardship Council (FSC) Launches Leading Initiative to Strengthen Aboriginal Peoples’ Rights in Canadian Forests,” Newswire, January 27, 2014, accessed January 19, 2019, https://www.newswire.ca/news-releases/forest-stewardship-council

Notes to Pages 109–118

297

-fsc-launches-leading-initiative-to-strengthen-aboriginal-peoples-rights-in-canadian-forests -513617531.html. 24. Despite the many challenges and conflicts still to be confronted in Canada, particularly with regard to mining and forest activities in Native lands, large areas of traditionally occupied lands have been turned over to Native peoples. The courts have affirmed the requirement of FPIC prior to any development initative on Native lands. Participation in the benefits of business operations has been a standard practice for at least two decades. For an analysis of the legal and political context of indigenous peoples in Canada when confronting development projects in traditionally occupied lands in contrast with the legal and political context concerning indigenous peoples in Latin America, see Jose Aylwin, “Mercados y derechos globales: Implicancias para los pueblos indígenas de América Latina y Canadá,” Revista de Derecho 26, no. 2 (2013): 67–91. 25. The case of Luis Astorga and the Agrupación de Ingenieros Forestales por el Bosque Nativo is the most striking example here. As a consequence of its frustration with the lack of transformation of FSC environmental and social practices, this nonprofit affiliation of forest engineers decided to leave FSC Chile after twenty years of active participation. Agrupación de Ingenieros Forestales por el Bosque Nativo, “FSC-Chile Seal: The Failures of the Forest Certification Process, ” 2018, accessed June 20, 2020, https://bosquenativo.cl/tag/fsc-chilehttps:// bosquenativo.cl/tag/fsc-chile/. 26. There are, of course, exceptions. The Norin Catriman case is one. 27. See de la Cadena, “Indigenous Cosmopolitics in the Andes.” 28. See James Anaya, “La Globalización, el derecho internacional y los pueblos indígenas: Evolución y perspectivas,” in Globaización, derechos humanos y pueblos indígenas, ed. José Aylwin and Álvaro Bello (Copenhagen: IWGIA, 2008), 37–47. 29. The promise of the “rights regime” at any one point in time is of course the result of political negotiation and struggle, and therefore neither static nor completely self-evident. The right to self-determination guaranteed in the UNDRIP, which Engle analyzes extensively, is an excellent case in point. Not only did most indigenous activists argue vehemently for an expansive interpretation of this right, and eventually lose, but subsequent analysts and actors were not completely in agreement about the extent and content of the right as established. Engle, “On Fragile Architecture.” 30. Mark Goodale, “Dark Matter: Toward a Political Economy of Indigenous Rights and Aspirational Politics,” Critique of Anthropology 36, no. 4 (2016): 439–57.

Chapter 6 1. See Roundtable on Sustainable Palm Oil, “Impact,” , accessed November 18, 2019, https://rspo.org/impact. 2. Central American Business Intelligence, Resultados de estudio: Impactos económicos del aceite de palma 2017 [Research Findings: Economic Impact of Palm Oil 2017] (Guatemala City: CABI, 2017), 4. 3. Ibid. 4. See Juan Castro, ActionAID, Coordinación de ONG y Cooperativas, and Pastoral de la Tierra de San Marcos—Guatemala, Situación de derechos humanos de los pueblos indígenas en el contexto de las actividades de agroindustria del palma aceitera en Guatemala [The Human Rights Status of Indigenous Communities in the Context of Guatemala’s Palm Oil Agro-industry] (Guatemala City: ANMG et al., 2015).

298

Notes to Pages 118–124

5. Ministerio de Ambiente y Recursos Naturales, “Comunicado de prensa” [Press Release], Gobierno de Guatemala, accessed April 10, 2017. http://www.marn.gob.gt/noticias/noticia /Comunicado_de_Prensa. 6. Enrique Paredes, “Liberan cauce de ríos Madre Vieja y Coyolate” [They Liberate the Madre Vieja and Coyolate Riverbeds], Prensa Libre, February 17, 2016, accessed April 10, 2017, https:// www.prensalibre.com/ciudades/escuintla/liberan-cauce-de-rios-madre-vieja-y-coyolate/. 7. Jeff Conant, “Three Years Since the Ecocide in the Río Pasión, Guatemala: Communities Still Struggle for Justice,” Medium, July 25, 2018, accessed October 9, 2020, https://medium .com/@foe_us/three-years-since-the-ecocide-in-the-r%C3%ADo-pasi%C3%B3n-guatemala -communities-still-struggle-for-justice-10c43393c510; and Jeff Conant, “Chronicle of a Palm Oil Ecocide,” Friends of the Earth International, November 27, 2017, accessed April 25, 2017, https://foe.org/chronicle-palm-oil-ecocide/. 8. Castro et al., Situación de derechos humanos. 9. Conant, “Chronicle of a Palm Oil Ecocide.” 10. Paredes, “Liberan cauce de ríos Madre Vieja y Coyolate”; Jorge Günberg, Liza Grandia, Bayron Milian, and Support Team, Tierra e igualdad: Desafíos para la administración de la Tierras en Petèn, Guatemala [Land and Inequality: Challenges for Land Administration in Petèn, Guatemala] (Guatemala: Departamento de Agricultura y Desarrollo Rural para América Latina del Banco Mundial, December 2012). 11. Laura Hurtado, Las plantaciones para agrocombustibles y la pérdida de tierras para la producción de alimentos en Guatemala [Agrofuel Plantations and the Loss of Territory for Food Production in Guatemala] (Guatemala City: ActionAid, August 2008). 12. Laura Hurtado and Geisselle Sánchez, ¿Qué tipo de empleo ofrecen las empresas palmeras en el municipio de Sayaxché, Petén? [What Types of Jobs do Palm Oil Firms Provide in the Municipality of Sayaxché, Petén?] (Guatemala City: ActionAid, May 2011). 13. Ibid. 14. According to an investigation carried out by the U.S. Environmental Protection Agency; Conant, “Chronicle of a Palm Oil Ecocide.” 15. Castro et al., “Situación de derechos humanos.” 16. Roundtable on Sustainable Palm Oil, Annual Communication of Progress: Sectoral Report Oil Palm Growers (Kuala Lumpur, Malaysia: RSPO, 2019). 17. Palm oil supply chains span production (plantations), processing (mills and refineries), and trade and consumption (including manufacturing end products and distribution). 18. Juan Carlos Espinosa Camacho, Guidelines for the Adoption of the RSPO Sustainability Standards in Colombia (Bogotá: Fedepalma et al., 2016). 19. Roundtable on Sustainable Palm Oil, accessed November 11, 2017, https://www.rspo.org/. 20. Francisco Naranjo, “RSPO como herramienta productiva” [RSPO as a Productive Tool] (presentation at the 2nd Annual Palm Conference, Guatemala City Guatemala, August 2016). 21. RSPO, “Supporting Bodies,” accessed July 21, 2018, https://www.rspo.org/about /supporting-bodies#working-group. 22. Agrocaribe was the first Guatemalan company to adopt the mechanism via local interpretation. 23. Agrocaribe, “General Manager of Agrocaribe Is Member of the Board of Governors of the RSPO,” Agrocaribe Newsletter, 2017 (corporate newsletter). 24. The consulting company Proforest was contracted to facilitate the national interpretation process. In Central America, its headquarters is located in Honduras.

Notes to Pages 124–140

299

25. The first version of the RSPO P&C was agreed upon in 2007. In 2012–2013, the first revision and extension of the standard were made. In 2017, the second revision and expansion of the standards were carried out. 26. Rodrigo Erales, “La estrategia como herramienta para incrementar la sostenibilidad del cultivo de la palma” [Strategy as a Tool to Increase Sustainability of Palm Cultivation] (presentation at the 2nd Annual Palm Conference, Guatemala City Guatemala, August 2016). 27. This information is based on a presentation made by the manager of quality management of the Las Palmas company. Manfredo Lopez, “Experiencia con la certificación RSPO— personal” [Experiences with RSPO Certification—personnel] (presentation at the 2nd Annual Palm Conference, Guatemala City Guatemala, August 24–26, 2016). 28. Government institutions in Guatemala are oriented to favor the business sector, even if this entails violations of the rights of the population. 29. In 1969, 2,000 hectares (approximately 4,942 acres) were declared as Sipacate-Naranjo National Park. It is one of the most important ecosystems for productivity and biodiversity and is a conservation area for the marine turtle. 30. Oscar Molina, “Experiencia con la certificación RSPO para la empresas las Palmas” [Experiences with RSPO Certification for Firms in Las Palmas] (presentation at the 2nd Annual Palm Conference, Guatemala City Guatemala, August 24-26, 2016). 31. Lopez, “Experiencia con la certificación RSPO—personal.” 32. Marcus Colchester (director of Forest Peoples Program), interview with author, August 8, 2017. 33. Lopez, “Experiencia con la certificación RSPO.” 34. Julián Salamanca, “Experiencia con la certificación RSPO—ambiental” [Experience with RSPO Certification—environmental] (talk presented at the 2nd Congreso Palmero [Palm Tree Grower Conference] in Guatemala [C//PAL], August 24–26, 2016).

Chapter 7 This chapter draws from materials and analysis produced by the Worker-Driven Social Responsibility Network. The author thanks Theresa Haas (WSR Network), Greg Asbed, Steven Hitov and Gerardo Reyes (CIW), Jessica Champagne and Scott Nova (WRC), Cathy Albisa (NESRI), Laura Safer Espinoza (FFSC), Merle Payne (CTUL), Abel Luna and Brendan O’Neill (Migrant Justice), Rachel Kahn-Troster (T’ruah), and Gregory Regaignon (formerly of BHRRC) for providing valuable feedback on portions of earlier drafts. The author dedicates this chapter in memory of Steven Hitov (1948–2020), who as CIW’s longtime General Counsel made immeasurable contributions to the development of the WSR model. 1. Brian Finnegan, Responsibility Outsourced: Social Audits, Workplace Certification, and Twenty Years of Failure to Protect Worker Rights, AFL-CIO, April 23, 2013, accessed April 2, 2020, aflcio.org/reports/responsibility-outsourced; Jennifer Gordon, “The Problem with Corporate Social Responsibility,” Worker-Driven Social Responsibility Network, July 11, 2017, accessed May 26, 2020, https://wsr-network.org/wp-content/uploads/2017/07/Gordon-CSR-vs -WSR-FINAL-July-2017.pdf; Richard Locke, The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy (Cambridge, UK: Cambridge University Press, 2013); and Richard Marosi, “In Mexico’s Fields, Children Toil to Harvest Crops That Make It to American Tables,” Los Angeles Times, December 14, 2014. 2. Greg Asbed and Jennifer Gordon, The Problem with Multi Stakeholder Initiatives, Open Society Foundation, June 11, 2014, accessed July 23, 2018, opensocietyfoundations.org.

300

Notes to Pages 140–155

3. Stephanie Clifford and Stephen Greenhouse, “Fast and Flawed Inspections of Factories Abroad,” New York Times, September 2, 2013; Steven Greenhouse and Declan Walsh, “Certified Safe, a Factory in Karachi Still Quickly Burned,” New York Times, December 7, 2012; and Ali Julfikar Manik and Jim Yardley, “Bangladesh Finds Gross Negligence in Factory Fire,” New York Times, December 12, 2002. 4. Susan Marquis, I Am Not a Tractor: How Florida Farmworkers Took on the Fast Food Giants and Won (Ithaca, NY: Cornell University Press, 2017), 17. 5. Ibid., 44. 6. Coalition of Immokalee Workers, “Taco Bell Agreement Analysis,” March 10, 2005, accessed July 23, 2018, ciw-online.org/blog/2005/03/agreement-analysis/. 7. Greg Asbed, “Measuring Achieves Little Without Market-Based Enforcement and Worker Participation,” Measuring Business and Human Rights, October 27, 2017; Fair Food Standards Council, Fair Food Program 2015 Annual Report: Comprehensive, Verifiable and Sustainable Change for Farmworkers and the US Agriculture Industry, February 4, 2016, accessed July 23, 2018, http://fairfoodstandards.org/15SOTP-Web.pdf; and Steven Greenhouse, “In Florida Tomato Fields, a Penny Buys Progress,” New York Times, April 24, 2014. 8. Richard Mertens, “Tomato Pickers Win Higher Pay: Can Other Workers Use Their Strategy?,” Christian Science Monitor, March 9, 2017. 9. Greg Asbed, “Worker-Driven Social Responsibility: A New Idea for a New Century,” Huffington Post, June 17, 2014, accessed May 26, 2020, https://www.huffpost.com/entry/worker driven-social-respo_b_5500104. 10. Bangladesh Accord, “Press Release New Accord 2018,” accessed July 23, 2018, bangladeshaccord.org/2017/06/press-release-new-accord-2018/. 11. Dale Benton, “Zimbabwe Government Assumes Control of Diamond Sector,” Mining Global, May 23, 2017, accessed May 26, 2020, https://www.miningglobal.com/investing /zimbabwe-government-assumes-control-diamond-sector.

Chapter 8 The author thanks Scott Nova and Laura Gutierrez of the Worker Rights Consortium; Theresa Haas of the Worker-Driven Social Responsibility Network; and the organizers and participants in the Certifying Human Rights in Global Supply Chains workshop, particularly Kate Taylor, Julia Dehm, Karen Engle, and James Brudney, for providing valuable feedback on earlier versions of this chapter. 1. Accord on Fire and Building Safety in Bangladesh, “Workplace Safety in Bangladesh Garment Industry Significantly Improved After 4 Years of Accord Agreement,” Bangladesh Accord, May 8, 2017, accessed September 12, 2018, http://bangladeshaccord.org/wp-content /uploads/Press-Release-4th-Anniversary-Accord.pdf. 2. Steven Greenhouse, “‘Some Kids Are Not Orphans Because of This’: How Unions Are Keeping Workers Safe,” Guardian, November 8, 2017, accessed September 12, 2018, https:// www.theguardian.com/us-news/2017/nov/08/unions-workers-safety-codes-of-conduct-florida -bangladesh. 3. Reuters, “Rana Plaza Collapse: 38 Charged with Murder over Garment Factory Disaster,” Guardian, July 18, 2016, accessed September 12, 2018, https://www.theguardian.com/world /2016/jul/18/rana-plaza-collapse-murder-charges-garment-factory. 4. Accord on Fire and Building Safety in Bangladesh, “Statement Issued by the Steering Committee of the Accord,” Bangladesh Accord, May 10, 2018, accessed September 12,

Notes to Pages 155–157

301

2018, https://bangladeshaccord.org/resources/press-and-media-bn/2018/05/10/statement -issued-by-the-steering-committee-of-the-accord; and The Asia Foundation, “Bangladesh’s Garment Workers,” accessed September 12, 2018, https://asiafoundation.org/slideshow /bangladeshs-garment-workers/ (noting that Bangladesh’s garment industry employs 3.6 million workers). 5. These four NGOs—the WRC, International Labor Rights Forum, Clean Clothes Campaign, and Maquila Solidarity Network—had all participated in the development and promotion of the Accord. A full list of signatories can be found at “Signatories,” Bangladesh Accord, accessed September 12, 2018, http://bangladeshaccord.org/signatories/. 6. See, for example, Business and Human Rights Resource Centre, “Bangladesh: Accord to Continue Operations for 281 Working Days as Transition Agreement Is Reached,” accessed April 21, 2020, https://www.business-humanrights.org/en/bangladesh-accord-to-continue -operations-for-281-working-days-as-transition-agreement-is-reached. 7. UNI Global Union, “Accord on Fire and Building Safety in Bangladesh and BGMEA Sign Agreement on Transition to RMG Sustainability Council,” January 15, 2020, accessed April 21, 2020, https://www.uniglobalunion.org/news/accord-fire-and-building-safety-bangladesh -and-bgmea-sign-agreement-transition-rmg. 8. See Sellers, chapter 7, and Brudney, chapter 10. 9. See Human Rights Watch, “Whoever Raises Their Head Suffers the Most,” April 22, 2015, accessed September 12, 2018, https://www.hrw.org/report/2015/04/22/whoever-raises -their-head-suffers-most/workers-rights-bangladeshs-garment; and Worker Rights Consortium, WRC: Our Impact (Washington DC: WRC, 2016). 10. A full list of the coalition behind the Transparency Pledge, as well as the text of the pledge and an April 2017 report on apparel firms’ responses, can be found at Human Rights Watch, “More Brands Should Reveal Where Their Clothes Are Made,” April 20, 2017, accessed September 12, 2018, https://www.hrw.org/news/2017/04/20/more-brands-should-reveal-where -their-clothes-are-made. 11. Scott Nova and Chris Wegemer, “Outsourcing Horror: Why Apparel Workers Are Still Dying, One Hundred Years After Triangle Shirtwaist,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: Cornell University Press, 2016), 17–31, 18. 12. Robert J. Ross, “The Twilight of CSR: Life and Death Illuminated by Fire,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: Cornell University Press, 2016), 70–94, 88. 13. Clean Clothes Campaign, Five Years Since the Rana Plaza Collapse: What Has Happened in the Field of Prevention and Remedy? (Amsterdam: Clean Clothes Campaign, April 2018). 14. Steven Greenhouse and Jim Yardley, “As Walmart Makes Safety Vows, It’s Seen as Obstacle to Change,” New York Times, December 28, 2012, accessed September 17, 2018, https:// www.nytimes.com/2012/12/29/world/asia/despite-vows-for-safety-walmart-seen-as-obstacle -to-change.html. 15. Ibid. 16. Ibid. 17. Ibid; and Steven Greenhouse, “Documents Indicate Walmart Blocked Safety Push in Bangladesh,” New York Times, December 5, 2012, accessed September 17, 2018, https:// www.nytimes.com/2012/12/06/world/asia/3-walmart-suppliers-made-goods-in-bangladeshi -factory-where-112-died-in-fire.html.

302

Notes to Pages 158–162

18. Mark Anner, “Corporate Social Responsibility and Freedom of Association Rights: The Precarious Quest for Legitimacy and Control in Global Supply Chains,” Politics & Society 40, no. 4 (2012): 609–644. 19. Stephanie Barrientos and Sally Smith, The ETI Code of Labour Practice: Do Workers Really Benefit? (Brighton: Institute of Development Studies, University of Sussex, 2006). 20. Jill Esbenshade, “Corporate Social Responsibility: Moving from Checklist Monitoring to Contractual Obligation?,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: Cornell University Press, 2016), 51–69; Anner, “Corporate Social Responsibility and Freedom of Association Rights”; Barrientos and Smith, ETI Code of Labour Practice; Clean Clothes Campaign, Looking for a Quick Fix: How Weak Social Auditing Is Keeping Workers in Sweatshops (Amsterdam: Clean Clothes Campaign, 2005), 15; and Richard Locke, Matthew Amengual, and Akshay Mangla, “Virtue out of Necessity? Compliance, Commitment and the Improvement of Labor Conditions in Global Supply Chains,” Politics & Society 37, no. 3 (2009): 319–51, 321–-22. 21. Nova and Wegemer, “Outsourcing Horror,” 19–20. 22. Locke, Amengual, and Mangla, “Virtue out of Necessity?,” 326. 23. James J. Brudney, “Envisioning Enforcement of Freedom of Association Standards in Corporate Codes: A Journey for Sinbad or Sisyphus?,” Comparative Labor Law & Policy Journal 33 (2012): 553–604, 565, 558. 24. James J. Brudney, “Decent Labour Standards in Corporate Supply Chains: The Immokalee Workers Model,” in Temporary Labour Migration in the Global Era: The Regulatory Challenges, ed. Joanna Howe and Rosemary Owens (Oxford: Hart Publishing, 2016), 341–76. 25. Accord on Fire and Building Safety in Bangladesh, “Bangladesh Accord: Guide for Potential Signatories,” Bangladesh Accord, February 2018, accessed September 17, 2018, http:// bangladeshaccord .org /wp -content /uploads /Bangladesh -Accord -Guide -for-Potential -Signatories.pdf. 26. Accord on Fire and Building Safety in Bangladesh, “Progress,” Bangladesh Accord, accessed September 24, 2018, http://bangladeshaccord.org/progress/. 27. IndustriALL, “Settlement Reached with Global Fashion Brand in Bangladesh Accord Arbitration,” December 15, 2017, accessed September 24, 2018, http://www.industriall-union .org/settlement-reached-with-global-fashion-brand-in-bangladesh-accord-arbitration. 28. Accord on Fire and Building Safety in Bangladesh, “Bangladesh Accord: Guide for Potential Signatories.” 29. Accord on Fire and Building Safety in Bangladesh, “The Accord on Fire and Building Safety in Bangladesh: Building Standard, V1.1,” Bangladesh Accord, August 12, 2014, accessed September 24, 2018, http://bangladeshaccord.org/wp-content/uploads/building-standard -august-12-2014.pdf. 30. Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” Bangladesh Accord, June 21, 2017, accessed June 6, 2020, https:// bangladesh.wpengine.com/wp-content/uploads/2018/08/2018-Accord.pdf, art. 10. 31. Saad Hammadi and Matthew Taylor, “Workers Jump to Their Deaths as Fire Engulfs Factory Making Clothes for Gap,” Guardian, December 14, 2010, accessed July 24, 2018, https://www .theguardian.com/world/2010/dec/14/bangladesh-clothes-factory-workers-jump-to-death. 32. Brian Ross, Matthew Mosk, and Cindy Galli, “Workers Die at Factories Used by Tommy Hilfiger,” ABC News, March 21, 2012, accessed September 24, 2018, https://abcnews.go .com/Blotter/workers-die-factories-tommy-hilfiger/story?id=15966305.

Notes to Pages 162–164

303

33. Nova and Wegemer, “Outsourcing Horror,” 29. 34. Farid Ahmed, “At Least 117 Killed in Fire at Bangladeshi Clothing Factory,” CNN, November 25, 2012, accessed September 24, 2018, https://www.cnn.com/2012/11/25/world/asia /bangladesh-factory-fire/index.html. 35. Reuters, “Rana Plaza Collapse.” 36. Richard Appelbaum and Nelson Lichtenstein, “An Accident in History,” New Labor Forum, April 2018, accessed September 24, 2018, http://newlaborforum.cuny.edu/2018/04/17 /an-accident-in-history/. 37. Accord on Fire and Building Safety in Bangladesh, “Statement Issued by the Steering Committee of the Accord. 38. Prior to the expiration of the 2013 Accord, a number of Accord signatory brands and unions, the local garment industry association, the ILO and the Bangladesh government determined that the key criteria for a handover of inspection responsibilities had not been met. The Accord reported that “these criteria include: demonstrated proficiency in inspection capacity, remediation of hazards, enforcement of the law against non-compliant factories, full transparency of governance and remediation progress, and investigation and fair resolution of workers’ safety complaints.” Ibid. 39. IndustriALL, “Signatories to the 2018 Accord,” September 10 2018, accessed September  24, 2018, http://www.industriall-union.org/signatories-to-the-2018-accord; Katie Grant, “Topshop and M&S Urged to Follow Tesco and Primark in Pledging to Protect Factory Workers,” inews.co.uk, February 16, 2018, accessed September 24, 2018, https://inews.co.uk/news /topshop-ms-urged-follow-tesco-primark-pledging-protect-workers/; and Beth Wright, “Who Has Signed the New Bangladesh ‘2018 Accord’—Update,” just-style, September 20, 2018, accessed 24 September 2018, https://www.just-style.com/analysis/who-has-signed-the-new -bangladesh-2018-accord-update_id132733.aspx. 40. See Clean Clothes Campaign et al., Bangladesh Government’s Safety Inspection Agencies Not Ready to Take Over Accord’s Work, April 1, 2019, accessed April 21, 2020, https://laborrights .org/sites/default/files/publications/RCC%20report%204-1_3.pdf, page 1. 41. “Transition Agreement Between Accord on Fire and Building Safety in Bangladesh and BGMEA/BKMEA,” January 14, 2020, accessed April 21, 2020, https://admin.bangladesh accord.org/wp-content/uploads/2020/01/Accord-BGMEA-Transition-Agreement-Final-14Jan 2020.pdf. 42. Some of these concerns are detailed in a memo from the witness signatory NGOs; Clean Clothes Campaign et al., “The Bangladesh Accord Continues to Operate but Its Independence May Be at Risk,” International Labor Rights Forum, June 13, 2019, accessed April 21, 2020, https://laborrights.org/releases/bangladesh-accord-continues-operate-its-independence -may-be-risk. 43. Mark Anner, Jennifer Bair, and Jeremy Blasi, “Toward Joint Liability in Global Supply Chains: Addressing the Root Causes of Labor Violations in International Subcontracting,” Comparative Labor Law and Policy Journal 35, no. 1 (2013): 1–43; and Jeff Hermanson, “Workers of the World Unite! The Strategy of the International Union League for Brand Responsibility,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: Cornell University Press, 2016), 259–74. 44. Bangladesh Accord Secretariat, Quarterly Aggregate Report on Remediation Progress at RMG Factories Covered by the Accord (Dhaka and Amsterdam: Bangladesh Accord Foundation, October 2017), 3.

304

Notes to Pages 165–168

45. Permanent Court of Arbitration, “Bangladesh Accord Arbitrations: Arbitrations Under the Accord on Fire and Building Safety in Bangladesh Between IndustriALL Global Union and UNI Global Union (as Claimants) and Two Global Fashion Brands (as Respondents),” October 16, 2017, accessed May 28, 2020, https://pcacases.com/web/sendAttach/2238. 46. IndustriALL, “Settlement Reached with Global Fashion Brand”; and Dominic Rushe, “Unions Reach $2.3m Settlement on Bangladesh Textile Factory Safety,” Guardian, January 22, 2018, accessed September 24, 2018, https://www.theguardian.com/business/2018/jan/22 /bandgladesh-textile-factory-safety-unions-settlement. 47. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report (Dhaka and Amsterdam: Bangladesh Accord Foundation, October 24, 2017), 3. 48. Ibid. 49. See, for example, Fair Wear Foundation, Brand Performance Check Guide (Amsterdam: Fair Wear Foundation, 2018), 6 (noting that “factory conditions cannot be separated from the purchasing practices of brands”). 50. Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” Bangladesh Accord, May 13, 2013, accessed June 6, 2020, https:// bangladesh.wpengine.com/wp-content/uploads/2018/08/2013-Accord.pdf. The text of the 2018 Accord is not substantively different on these points, but as a result of a shift in numbering, the relevant articles are 7, 16, and 17. See Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh.” 51. See Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” art. 22. 52. Accord on Fire and Building Safety in Bangladesh, Update Safety Training Program, January 25, 2019. 53. See Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” art. 10. 54. Jon Jacoby, “What’s Changed (and What Hasn’t) Since the Rana Plaza Nightmare,” Open Society Foundations, April 25, 2018, accessed October 8, 2018, https://www .opensocietyfoundations.org/voices/what-s-changed-and-what-hasn-t-rana-plaza-nightmare; and Tulia Connell, “‘They Have Forgotten the Lessons of Rana Plaza,’” Solidarity Center, April 15, 2018, accessed October 8, 2018, https://www.solidaritycenter.org/they-have-forgotten-the -lessons-of-rana-plaza/. 55. See Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” introduction. 56. See Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” art. 13. 57. Act No. 42, art. 90 (a) (Bangladesh 2006) (“In every factory where 50 [fifty] or more workers are employed, there shall be a safety committee to be formed.”). 58. In late 2015, the government of Bangladesh issued implementation rules to clarify the 2013 reforms to the Bangladesh Labor Act. These rules stated that safety committees would not be elected, but rather chosen either by the labor union in the factory or by a Worker Participation Committee, a factory-level body provided for under Bangladeshi law that often functions more as a tool of management than as a representative worker body. See SRO No. 291-Act (Bangladesh 2015). 59. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report, 16–17. 60. Ibid.

Notes to Pages 169–173

305

61. Mark Anner, Binding Power: The Sourcing Squeeze, Workers’ Rights, and Building Safety in Bangladesh Since Rana Plaza (Center for Global Workers’ Rights, Pennsylvania State University, March 22, 2018). 62. Accord on Fire and Building Safety in Bangladesh, Safety Remediation Progress, January 25, 2019. 63. Ibid. 64. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report on Remediation Progress at RMG Factories Covered by the Accord (Dhaka and Amsterdam: Bangladesh Accord Foundation, January 1, 2019), 13. 65. Ibid., 14. 66. Anner, Binding Power, 2. 67. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report, 5. 68. Accord on Fire and Building Safety in Bangladesh, “Termination of Accord Companies’ Business with Fresh Fashion Wear Limited,” Bangladesh Accord, August 16, 2016, accessed October 22, 2018, http://bangladeshaccord.org/wp-content/uploads/160818-Termination-of -Business-statement-Fresh-Fashion-Wear.pdf. 69. Steven Greenhouse and Hiroko Tabuchi, “Company in Bangladesh Agrees to Union Peace,” New York Times, February 18, 2015, accessed October 22, 2018, https://www.nytimes .com/2015/02/19/business/international/azim-bangladeshi-factory-agrees-to-union-peace-to -win-back-customers.html. 70. See “Health and Safety Complaints—2017,” Bangladesh Accord, accessed October 29, 2018, http://bangladeshaccord.org/safety-complaints-2017/; and Greenhouse, “Some Kids Are Not Orphans Because of This.” 71. See “Health and Safety Complaints—2015,” Bangladesh Accord, accessed October 29 2018, http://bangladeshaccord.org/safety-complaints-2015/; and Jimmy Donaghey and Juliane Reinecke, “When Industrial Democracy Meets Corporate Social Responsibility—A Comparison of the Bangladesh Accord and Alliance as Responses to the Rana Plaza Disaster,” British Journal of Industrial Relations 56, no. 1 (2018): 14–42, 33. 72. See Gillian B. White, “What’s Changed Since More Than 1,100 People Died in Bangladesh’s Factory Collapse?,” Atlantic, May 3, 2017, accessed October 29, 2018, https://www .theatlantic.com/business/archive/2017/05/rana-plaza-four-years-later/525252/. 73. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report, 10. 74. Clean Clothes Campaign, International Labor Rights Forum, Maquila Solidarity Network, and Worker Rights Consortium, Bangladesh Accord: Brief Progress Report and Proposals for Enhancement (Amsterdam: Clean Clothes Campaign, April 2017), 4, 9. 75. Accord on Fire and Building Safety in Bangladesh, “2018 Accord on Fire and Building Safety in Bangladesh,” para. 4. 76. The agreement between the CGT of Honduras and Russell Athletic in 2009 is a key example, per Sarah Adler-Milstein, Jessica Champagne, and Theresa Haas, “The Right to Organize, Living Wage, and Real Change for Garment Workers,” in Lessons for Change in the Global Economy: Voices from the Field, ed. Shae Garwood, Sky Croeser, and Christalla Yakinthou (Lanham, MD: Lexington Books, 2014), 29. 77. Accord arbitrations are governed by the United Nations Commission on International Trade Law (UNCITRAL), Model Law on International Commercial Arbitration (with amendments as adopted in 2006). Awards are enforceable in the home country of the relevant signatory.

306

Notes to Pages 174–180

UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (2006). 78. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report, 16. 79. Clean Clothes Campaign et al., Bangladesh Accord: Brief Progress Report. 80. Steven Greenhouse, “Union Leaders Attacked at Bangladesh Garment Factories, Investigations Show,” New York Times, December 22, 2014, accessed November 5, 2018, https://www .nytimes.com/2014/12/23/business/international/attacks-on-union-leaders-at-azim-factories -in-bangladesh-are-documented.html. 81. Human Rights Watch, “Bangladesh: Garment Workers’ Union Rights Bleak,” April 21, 2016, accessed November 5, 2018, https://www.hrw.org/news/2016/04/21/bangladesh-garment -workers-union-rights-bleak; Human Rights Watch, “‘Whoever Raises Their Head Suffers the Most’”; and European Commission, Bangladesh Sustainability Compact: Technical Status Report (Brussels: European Commission, April 2015). 82. Clean Clothes Campaign et al., “Update on the Labour Rights Crisis in Bangladesh,” April 21, 2017, accessed November 5, 2018, https://cleanclothes.org/resources/publications /update-bangladesh-foa-april-2017. 83. Clean Clothes Campaign et al., Brief Progress Report. 84. See Accord on Fire and Building Safety in Bangladesh, “Accord Statement on Boiler Explosion at Multifabs Ltd.,” Bangladesh Accord, July 5, 2017, accessed November 5, 2018, http://bangladeshaccord.org/2017/07/accord-statement-boiler-explosion-multifabs-ltd/. 85. Clean Clothes Campaign et al., “The Apparel and Footwear Supply Chain Transparency Pledge (‘The Transparency Pledge’),” accessed Nov. 5, 2018, https://cleanclothes.org /transparency/transparency-pledge. 86. Clean Clothes Campaign et al., Brief Progress Report. 87. Rola Abimourched, Libakiso Matlho, Thusoana Ntlama, and Robin Runge, “Lesotho Garment Workers Struck Landmark Deals to Tackle Gender-Based Violence: Here’s How It Happened,” Business and Human Rights Resource Centre, September 13, 2019, accessed April 21, 2020, https://www.business-humanrights.org/en/blog/lesotho-garment-workers-struck -landmark-deals-to-tackle-gender-based-violence-heres-how-it-happened/. 88. Further detail about the key principles of WSR can be found in at Worker-Driven Social Responsibility Network, “Statement of Principles for Worker-Driven Social Responsibility (WSR),” accessed December 27, 2017, https://wsr-network.org/about-us/endorsers/; see also Sellers, chapter 7.

Chapter 9 The author thanks Karen Engle, Steven Lee, Stephanie Tai, Smita Narula, Andrea Freeman, Ernesto Hernánez-López, Michael Roberts, and Julia Dehm for their helpful comments; Sheena Christman, Mariah Sky-Marie Mcafee, Erin Reid, Matt Grow, Talley Timms Ransil, and Hannah Taub for their research assistance; and Steven Hitov for providing information about the implementation efforts of the Coalition of Immokale Workers. Participants in the Certifying Human Rights in Global Supply Chains conference hosted by the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas at Austin also offered observations that served to improve this chapter. This research was made possible, in part, through generous support from the Albert and Elaine Borchard Fund for Faculty Excellence. 1. Jennifer Clapp and Doris Fuchs, eds., Corporate Power in Global Agrifood Governance (Cambridge: MIT Press, 2009), 4.

Notes to Pages 180–182

307

2. Transnational corporation (TNC) refers to business enterprises with commercial interests that cross national borders. 3. Clapp and Fuchs, Corporate Power in Global Agrifood Governance; see also Stephanie Barrientos and Catherine Dolan, “Transformation of Global Food: Opportunities and Challenges for Fair and Ethical Trade,” in Ethical Sourcing in the Global Food System, ed. Stephanie Barrientos and Catherine Dolan (New York: Earthscan, 2006), 1–2. 4. See Elizabeth Smythe, “In Whose Interests? Transparency and Accountability in the Global Governance of Food: Agribusiness, the Codex Alimentarius and the World Trade Organization,” in Corporate Power in Global Agrifood Governance, ed. Jennifer Clapp and Doris Fuchs (Cambridge: MIT Press, 2009), 93. 5. In re Chiquita Brands Int’l., Inc., 792 F. Supp. 2d 1301, 1305–06. (S.D. Fla. 2011). 6. Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1016 (9th Cir. 2014) (remanded for further proceeding consistent with the opinion), rev’g 748 F. Supp. 2d 1057 (C.D. Cal. 2010). 7. Palacios v. Coca-Cola Co., 757 F. Supp. 2d 347, 349 (S.D.N.Y. 2010) (dismissed on forum non conveniens grounds), aff ’d 499 Fed. Appx. 54 (2d Cir. 2012). 8. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012). 9. United Nations General Assembly, Universal Declaration of Human Rights, art. 25(1) (G.A. RES. 217A (III) 1948); see also United Nations General Assembly, Declaration on the Rights of the Child, principle 4 (A/RES/1386(XIV). 10. Smita Narula, “The Right to Food: Holding Global Actors Accountable Under International Law,” Columbia Journal of Transnational Law 44 (2006): 691–741, 705. 11. Ibid.; and United Nations General Assembly, International Covenant on Economic, Social and Cultural Rights, art. 11(1) (993 U.N.T.S. 3, 1966). 12. See Philips Alston, “International Law and the Human Right to Food,” in The Right to Food, ed. Philips Alston and Katarina Tomasevski (Leiden: Martinus Nijhoff, 1984), 32. 13. United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 12: The Right to Adequate Food, para. 8 (E/C12/1999/5, 1999). 14. Ibid., para. 11. 15. Ibid., para. 27. 16. Ibid., para. 20 (emphasis added). 17. UN News, “UN Human Rights Council Endorses Principles to Ensure Businesses Respect Human Rights,” June 16, 2011, accessed April 12, 2018, http://www.un.org/apps/news /story.asp?NewsID=38742#.U-nVi1bpzwI. 18. See generally Nicola Jägers, “Will Transnational Private Regulation Close the Governance Gap?,” in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. Surya Deva and David Bilchitz (Cambridge, UK: Cambridge University Press, 2013), 295–328 (discussing state duties related to access to information mandated by international law and by the UN Framework and Guiding Principles). 19. See Douglas A. Kysar, “Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice,” Harvard Law Review 118, no. 2 (2004): 525–642, 531–32 (offering accounts of consumer process preferences including consumer demand for process information to encourage or discourage particular production practices). 20. United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, principle 21 (A/HRC/17/31, 2011).

308

Notes to Pages 183–187

21. Peter H. Sand, “Labelling Genetically Modified Food: The Right to Know,” Review of European, Comparative and International Environmental Law 15, no. 2 (2006): 185–92, 185 (arguing that the controversy over GE foods appears to be shifting from risk communications toward a debate over democratic governance: “right-to-know” versus “need-to-know”). 22. International Labour Organization, Convention Concerning Freedom of Association and Protection of the Right to Organize (No. 87) (San Francisco, 1948). 23. International Labour Organization, Convention Concerning Right to Organize and Collective Bargaining (No. 98) (Geneva, 1949). 24. International Labour Organization, Convention Concerning Forced Labour (No. 29) (Geneva, 1930). 25. International Labour Organization, Convention Concerning Abolition of Forced Labour (No. 105) (Geneva, 1957). 26. International Labour Organization, Convention Concerning Discrimination in Employment and Occupation (No. 111) (Geneva, 1958). 27. International Labour Organization, Convention Concerning Equal Remuneration (No. 100) (Geneva, 1951). 28. International Labour Organization, Convention Concerning Minimum Age (No. 138) (Geneva, 1973). 29. International Labour Organization, Convention Concerning Worst Forms of Child Labor (No. 182) (Geneva, 1999). 30. United Nations General Assembly, International Covenant on Civil and Political Rights, art. 19 (999 U.N.T.S. 171, 1966). 31. Kasky v. Nike, Inc., 45 P.3d 243, 247 (California Supreme Court, 2002). 32. Steve Rubenstein, “S.F. Man Changes from Customer to Nike Adversary,” SF Gate, May  3, 2002, accessed April 12, 2018, http://www.sfgate.com/news/article/NEWSMAKER -PROFILE-Marc-Kasky-S-F-man-changes-2841885.phplast. 33. Corporate Human Rights Benchmark, “Who We Are,” accessed April 12, 2018, https:// www.corporatebenchmark.org/who-we-are. 34. Investor Alliance for Human Rights, “About the Investor Alliance for Human Rights,” accessed March 25, 2020, https://investorsforhumanrights.org/about. 35. Corporate Human Rights Benchmark, “Who We Are.” 36. As You Sow, “Current Resolutions,” accessed May 31, 2020, https://www.asyousow.org /resolutions-tracker. 37. Corporate Human Rights Benchmark, “Who We Are.” 38. Archon Fung, Mary Graham, David Weil, and Elena Fagotto, The Political Economy of Transparency: What Makes Disclosure Policies Effective? (Cambridge, MA: Ash Institute for Democratic Governance and Innovation, John F. Kennedy School of Government, 2004), 1 (analyzing a diverse range of mature transparency systems to assess whether systems effectively advance their regulatory objectives). 39. Ibid., 2; citing Ginger Zhe Jin and Phillip Leslise, “The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards,” Quarterly Journal of Economics 118, no. 2 (2003): 409–51. 40. Fung et al., Political Economy of Transparency, 4. 41. Ibid., 2. 42. Ibid., 4.

Notes to Pages 188–189

309

43. Global Reporting Initiative, “About Sustainability Reporting,” accessed April 12, 2018, https://www.globalreporting.org/information/sustainability-reporting/Pages/default.aspx. 44. Global Reporting Initiative, “G4 Sustainability Reporting Guidelines: Reporting Principles and Standard Disclosures,” 2013, accessed October 17, 2020, https://www.commdev.org /pdf/publications/Global-Reporting-Initiative-G4-Sustainability-Reporting-Guidelines.pdf, 70, 89. 45. Barrientos and Dolan, “Transformation of Global Food.” 46. Ibid. 47. See Tensie Whelan and Randi Kronthal-Sacco, “Research: Actually, Consumers Do Buy Sustainable Products,” Harvard Business Review, June 19, 2019, accessed October 20, 2020, https://hbr.org/2019/06/research-actually-consumers-do-buy-sustainable-products. (“Products that had a sustainability claim on-pack accounted for 16.6% of the market in 2018, up from 14.3% in 2013, and delivered nearly $114 billion in sales, up 29% from 2013. Most important, products marketed as sustainable grew 5.6 times faster than those that were not. In more than 90% of the CPG categories, sustainability-marketed products grew faster than their conventional counterparts.”); and Randi Kronthal-Sacco and Tensie Whelan, “Sustainable Share Index: Research on IRI Purchasing Data (2013–2018),” NYU Stern Center for Sustainable Business, March 11, 2019, accessed October 20, 2020, https://www.stern.nyu.edu/sites/default/files/assets /documents/NYU%20Stern%20CSB%20Sustainable%20Share%20Index%E2%84%A2%202019 .pdf. (“Despite the fact that Sustainability-Marketed Products are 16% of the market, they delivered more than half of the market growth.”). 48. Global Reporting Initiative, “About Sustainability Reporting;” GRI’s corporate supporters increased from 42 organizations in 2003 to 522 organizations in 2017. See, GRI, “Highlights: GRI at 20,” accessed October 17, 2020, https://web.archive.org/web/20180106185518/https://www .globalreporting.org/gri-20/Pages/Facts-and-figures.aspx. As of 2017, 74% of the largest 250 companies in the world use GRI’s sustainability reporting framework and around 450 organizations from 68 countries are active in the GRI Community. Ibid.; see also, Global Reporting Initiative, “Community Members,” accessed October 17, 2020, https://www.globalreporting.org/reporting -support/gri-community/community-members/. According to a 2017 report by KPMG, 63 percent of N100 and 75 percent of G250 companies use the GRI framework for CR reporting with “[o] ne in ten (N100) companies using GRI has reported in line with the new standards which incorporate respect for human rights. KPMG, The Road Ahead: The KPMG Survey of Corporate Responsibility Reporting, 2017, accessed October 20, 2020, https://assets.kpmg/content/dam/kpmg/xx/ pdf/2017/10/kpmg-survey-of-corporate-responsibility-reporting-2017.pdf, 28. 49. Jens Hainmueller, Michael J. Hiscox, and Sandra Sequeira, “Consumer Demand for the Fair Trade Label: Evidence from a Multistore Field Experiment,” Review of Economics and Statistics 97, no. 2 (2015): 242–56 (finding fair trade labels have “substantial positive effect on sales”); and Maria L. Loureiro and Justus Lotade, “Do Fair Trade and Eco-Labels in Coffee Wake Up the Consumer Conscience?,” Ecological Economics 53, no. 1 (2005): 129–38 (finding consumers more receptive to paying premium prices for fair trade coffee than for organic coffee). 50. Deborah Berkowitz, “Workplace Safety Enforcement Continues to Decline in Trump Administration,” National Employment Law Project, March 14, 2019, accessed June  1, 2020, https:// www.nelp.org /publication /workplace -safety -enforcement -continues -decline -trump -administration/#_edn7; Daniel Costa, “Huge Disparity in Funding for Immigration Enforcement vs. Labor Standards,” Economic Policy Institute: Working Economic Blog, January 23, 2013,

310

Notes to Pages 190–192

accessed June 1, 2020, https://www.epi.org/blog/funding-disparity-immigration-enforcement -labor-standards/ (“The Wage and Hour Division in particular has a herculean task: With only about 1,100 inspectors, they are responsible for protecting ‘over 135,000,000 workers in more than 7,300,000 establishments throughout the United States and its territories.’”). 51. International Labor Rights Fund, The Cocoa Protocol, Success or Failure? (Washington, DC: ILRF, 2008). 52. International Cocoa Initiative, “Harkin Engel Protocol,” October 4, 2001, accessed October 20, 2020, https://cocoainitiative.org/knowledge-centre-post/harkin-engel-protocol/. 53. International Cocoa Initiative, “About the International Cocoa Initiative,” accessed October 20, 2020, https://cocoainitiative.org/about-ici/about-us/. 54. Green America, “NGOs: Are Industry and Governments Watering Down New Cocoa Report Data to Downplay Persistent Child Labor and Farmer Poverty?,” October 13, 2020, accessed October 20, 2020, https://www.greenamerica.org/press-release/are-industry-and -governments-downplaying-child-labor-farmer-poverty. See, for example, Vivienne Walt, “Big Chocolate’s Child Labor Problem Is Still far from Fixed,” Fortune, October 19, 2020, accessed October 20, 2020, https://fortune.com/2020/10/19/chocolate-child-labor-west-africa-cocoa -farms/; Oliver Balch, “Chocolate Industry Slammed for Failure to Crack Down on Child Labour,” Guardian, October 20, 2020, accessed October 20, 2020, https://fortune.com/2020 /10/19/chocolate-child-labor-west-africa-cocoa-farms/; Peter Whoriskey and Rachel Siegel, “Cocoa’s Child Laborers,” Washington Post, June 5, 2019, accessed October 20, 2020 https:// www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor -west-africa/; and Payson Center for International Development and Technology Center, Fourth Annual Report: Oversight of Public and Private Initiatives to Eliminate the Worst Forms of Child Labor in the Cocoa Sector in Côte d’Ivoire and Ghana, Tulane University, September 30, 2010, accessed October 20, 2020, https://static1.squarespace.com/static/54e1536ae4b0ef0a3e3f3bc2/t /551756f0e4b05c72e7f4e63e/1427592944945/_tulane-fourthann-cocoa-rprt.pdf. 55. Bureau of International Labor Affairs, Framework of Action to Support Implementation of the Harkin-Engel Protocol, U.S. Department of Labor, September 11, 2010, accessed October 20, 2020, https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/CocoaFrameworkAction .pdf. 56. Trade for Development Centre, “Hershey to Source 100% Certified Cocoa by 2020,” accessed October 20, 2020, https://www.befair.be/en/content/hershey-source-100-certified -cocoa-2020; Green America, “Child Labor in Your Chocolate? Check Our Chocolate Scorecard,” accessed October 20, 2020, https://www.greenamerica.org/end-child-labor-cocoa /chocolate-scorecard; International Labor Rights Forum, “Raise the Bar, Hershey! Campaign Welcomes Hershey’s Announcement to Source 100% Certified Cocoa by 2020,” October 3, 2012, accessed October 20, 2020, https://laborrights.org/releases/raise-bar-hershey-campaign -welcomes-hersheys-announcement-source-100-certified-cocoa-2020; and Jess Halliday, “Mars Pledges Sustainable Cocoa Only by 2020,” Confectionary News, April 9, 2009, accessed October 20, 2020, https://www.confectionerynews.com/Article/2009/04/10/Mars-pledges-sustainable -cocoa-only-by-2020. 57. Barrientos and Dolan, “Transformation of Global Food,” 12. 58. Ibid., xv. See also Yiannis Gabriel and Tim Lang, The Unmanageable Consumer, 3rd ed. (London: Sage, 2015). 59. Whole Foods Market, “Whole Foods Market Commits to Full GMO Transparency,” March 8, 2013, accessed April 12, 2018 http://media.wholefoodsmarket.com/news/whole-foods

Notes to Pages 193–196

311

-market-commits-to-full-gmo-transparency. On May 18, 2018, Whole Foods paused its GMO food labeling requirements due to suppliers’ concerns about having to comply with two competing sets of rules: Whole Foods’ own GMO labeling requirements and rules newly proposed by the USDA. See Non-GMO Project, “Whole Foods Market GMO Labeling Policy Update,” May 24, 2018, accessed October 22, 2020, https://www.nongmoproject.org/blog/whole-foods -market-gmo-labeling-policy-update/; and H. Claire Brown and Joe Fassler, “Whole Foods Quietly Pauses Its GMO Labeling Requirements,” The Counter, May 21, 2018, accessed October 22, 2020 https://thecounter.org/whole-foods-gmo-labeling-requirements/. 60. See Laura T. Raynolds and Douglas T. Murray, “Fair Trade: Contemporary Challenges and Future Prospects,” in Fair Trade: The Challenges of Transforming Globalization, ed. Laura T. Raynolds, Douglas T. Murray, and John Wilkinson (New York: Routledge, 2007), 223–43. 61. Ibid. 62. Ibid. 63. Ten Thousand Villages, “History,” accessed April 12, 2018, http://www.tenthousand villages.com/about-history/. 64. Ibid. 65. Ibid. 66. Raynolds and Murray, “Fair Trade,” 223–43. 67. Debarati Sen and Sarasij Majumder, “Fair Trade and Fair Trade Certification of Food and Agricultural Commodities: Promises, Pitfalls, and Possibilities,” Environment and Society: Advances in Research 2, no. 1 (2011): 29–47, 31. 68. Ibid. 69. Ibid. 70. See, for example, Equitable Food Initiative, “About EFI,” accessed April 12, 2018, https://equitablefood.org/about-efi/; Sustainable Agriculture Network, “About Us,” accessed April 12, 2018, https://www.sustainableagriculture.eco/our-vision/; Fair for Life, “About For Life and Fair for Life,” accessed June 1, 2020, https://fairforlife.org/pmws/indexDOM.php?client_id =fairforlife&page_id=about&lang_iso639=en; and Fair Trade Certified, “Our Global Model,” accessed April 12, 2018, https://www.fairtradecertified.org/why-fair-trade/our-global-model. 71. Fair World Project, Justice in the Fields: A Report on the Role of the Farmworker Justice Certification and an Evaluation of the Effectiveness of Seven Labels (Portland: Fair World Project, 2016). 72. A minimum wage is the lowest wage a worker can legally be paid. In the United States there is a federal minimum wage set by law, but state and local governments have the authority to set higher minimum wages. A living wage is the amount workers require to meet the basic cost of living for themselves and their families without the aid of public welfare assistance. The legal minimum wage is a standard “one-size-fits-all” approach to income that does not take into account individual circumstances or the cost of living in different locations or the local economy. In contrast, a living wage looks to a broader set of circumstances, such as an individual’s family size and structure, location, and cost of living in a particular place. The Fair Wage Network defines a “fair wage” as a level of compensation for work as “wage levels . . . that provide a living wage floor for workers . . . , proper wage adjustments . . . balanced wage developments in the company (with regard to wage disparity, skills, individual and collective performance and adequate internal communication and collective bargaining on wage issues.)” See Fair Wage Network, “Definition of Fair Wages,” accessed April 8, 2018, http://www.fair-wage.com/en/fair -wage-approach-menu/definition-of-fair-wages.html. 73. See Fair World Project, Justice in the Fields, 5.

312

Notes to Pages 196–207

74. Ibid. 75. See Coalition of Immokalee Workers, “About CIW,” accessed January 18, 2019, http:// ciw-online.org/about/. See chapter 7. 76. Fair Food Standards Council, “About,” accessed January 18. 2019, http://www .fairfoodstandards.org/about/. 77. Food Justice Certification, “Agricultural Justice Project,” accessed April 12, 2018, https://www.agriculturaljusticeproject.org/en/about. 78. Ibid. 79. Ibid. 80. Ibid. 81. Ibid. 82. Ibid. 83. Food Justice Certification, “Food Justice Certification for Farmers,” Agricultural Justice Project, accessed April 12, 2018, https://www.agriculturaljusticeproject.org/media/uploads /2017/03/15/2015.1.15.AJP_Introduction_to_Farmer_Practices_for_printing.pdf.

Chapter 10 I thank the participants in the Certifying Human Rights in Global Supply Chains Workshop held in Austin, Texas, and especially Justine Nolan, Sean Sellers, and Jessica Champagne for their contributions. This chapter is current as of April 2020. 1. See generally Arianna Rossi, Amy Luinstra, and John Pickles, Towards Better Work: Understanding Labour in Apparel Global Value Chains (London: Palgrave Macmillan, 2014). 2. See, for example, Richard M. Locke, The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy (Cambridge, UK: Cambridge University Press, 2013); and Frederick Mayer and Gary Gereffi, “Regulation and Economic Globalization: Prospects and Limits of Private Governance,” Business and Politics 12, no. 3 (2010): 491–509. 3. See Jimmy Donaghey and Juliane Reinecke, “When Industrial Democracy Meets Corporate Social Responsibility—A Comparison of the Bangladesh Accord and Alliance as Responses to the Rana Plaza Disaster,” British Journal of Industrial Relations 56, no. 1 (2017): 14–42, 28–35. See generally Jeremy Blasi and Jennifer Bair, An Analysis of Multiparty Bargaining Models for Global Supply Chains (ILO, Conditions of Work and Employment Series No. 105, 2019). 4. See James J. Brudney, “Decent Labour Standards in Global Supply Chains: The Immokalee Workers Model,” in Temporary Labour Migration in the Global Era, ed. Joanna Howe and Rosemary Owens (Oxford: Hart Publishing, 2016), 351, 360. 5. See Matthew Amengual and Laura Chirot, “Reinforcing the State: Transnational and State Labor Regulation in Indonesia,” Industrial and Labor Relations Review 69, no. 5 (2016): 1056–80, 1056. 6. See Nolan, chapter 2, Sellers, chapter 7, and Champagne, chapter 8 (referring to active worker participation, effective monitoring, contract enforcement, and sustainable funding). 7. See generally Nolan, chapter 2. 8. See James J. Brudney, “Envisioning Enforcement of Freedom of Association Standards in Corporate Codes: A Journey for Sinbad or Sisyphus?,” Comparative Labor Law and Policy Journal 33, no. 4 (2012): 555–604, 555, 558. 9. See Nolan, chapter 2, section IV. 10. United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, principle 13(b) (A/HRC/17/31, 2011); and chapter 2, section I.A.

Notes to Pages 208–211

313

11. Chapter 2, section I.A. 12. See Nolan, chapter 2, section II; and Ben Collins, “The New Regulators? MSI Integrity and Duke Report on the Global Landscape of Standard-Setting MSIs,” MSI Integrity, August 1, 2017, accessed January 9, 2020, http://www.msi-integrity.org/the-new-regulators-new-report -on-the-global-landscape-of-standard-setting-msis/. 13. See Nolan, chapter 2, section II.A. 14. See generally Donaghey and Reinecke, “When Industrial Democracy Meets Corporate Social Responsibility,” 34–35 (summarizing differences between the Accord and the Alliance for Bangladesh Worker Safety). 15. See Nolan, chapter 2, section II.A. 16. See Richard Locke, Mathew Amengual, and Ashley Mangla, “Virtue out of Necessity? Compliance, Commitment and the Improvement of Labor Conditions in Global Supply Chains,” Politics and Society 37, no. 3 (2009): 319–51; and Brudney, “Envisioning Enforcement of Freedom of Association Standards in Corporate Codes,” 570–74 and sources cited therein. 17. See Collins, “New Regulators?” 18. The Ethical Trading Initiative is an example of an MSI featuring trade union participation accompanied by a degree of critical distance. See generally Tim Connor, Annie Delaney, and Sarah Rennie, The Ethical Trading Initiative: Negotiated Solutions to Human Rights Violations in Global Supply Chains? (Non-judicial Redress Mechanisms Report Series No. 18, October 2016). 19. Compare international and national trade unions participating as part of the Accord with the Coalition of Immokalee Workers, a worker-based human rights organization promoting the interests of Florida’s tomato workers but not constituted or functioning as a trade union. 20. See generally Felix Hadwiger, “Global Framework Agreements: Achieving Decent Work in Global Supply Chains?,” International Journal of Labour Research 7, nos. 1–2 (2015): 75–94 (examining GFAs from an empirical standpoint). 21. See Nolan, chapter 2, section III. 22. Nolan, chapter 2, section III. 23. See Nolan, chapter 2, section III. 24. See Nolan, chapter 2, section I.B (discussing laws enacted in the United Kingdom and the state of California mandating that TNCs disclose steps taken to eliminate slavery and human trafficking from their supply chains). 25. See Adam Chilton and Galit Sarfaty, “The Limitations of Supply Chain Disclosure Regimes,” Stanford Journal of International Law 53, no. 1 (2017): 1–54, 5, 45; and Nicola Phillips, “Lessons from California: Why Compliance Is Not Enough,” Guardian, September 19, 2013, accessed October 16, 2018, https://www.theguardian.com/global-development-professionals -network/2013/sep/19/why-compliance-isnt-enough. 26. See Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes”; and Phillips, “Lessons from California.” 27. See generally Sellers, chapter 7. 28. For more in-depth discussion of the CIW Fair Food Program, on which WSR principles are based, see Greg Asbed and Sean Sellers, “The Fair Food Program: Comprehensive, Verifiable, and Sustainable Change for Farm Workers,” University of Pennsylvania Journal of Law and Social Change 16, no. 1 (2013): 39–48; and Brudney, “Decent Labour Standards in Global Supply Chains.” 29. See Sellers, chapter 7, section II. 30. See Sellers, chapter 7, section II. 31. Seller, chapter 7, section II.

314

Notes to Pages 211–213

32. See Sellers, chapter 7, section II. For further analysis of these elements, see Asbed and Sellers, “Fair Food Program”; and Brudney, “Decent Labour Standards in Global Supply Chains.” 33. See Sellers, chapter 7, section III. 34. Sellers, chapter 7, section III.C (emphasis added). 35. See Sellers, chapter 7, section III.C. 36. See McLaughlin v. Tilendis, 398 F.2d 287, 289 (7th Cir. 1968); and Atkins v. City of Charlotte, 296 F. Supp. 1068, 1077 (W.D.N.C. 1969). 37. Sellers, chapter 7, section III.C. 38. See chapter 7, section III.B. 39. See Fair Food Standards Council, Fair Food Program 2017 Annual Report (April 2018), accessed July 23, 2018, https://www.fairfoodprogram.org/wp-content/uploads/2018/06/Fair -Food-Program-2017-Annual-Report-Web.pdf, 52; and Fair Food Standards Council, Fair Food Program 2015 Annual Report, February 4, 2016, accessed July 23, 2018, http://fairfoodstandards .org/15SOTP-Web.pdf, 64–65. 40. See Mark Anner, Jennifer Bair, and Jeremy Blasi, “Learning from the Past: The Relevance of Twentieth-Century New York Jobbers’ Agreements for Twenty-First-Century Global Supply Chains,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: ILR Press, 2016), 239; and Mark Anner, Jennifer Bair, and Jeremy Blasi, “Towards Joint Liability in Global Supply Chains: Addressing the Root Causes of Labor Violations in International Subcontracting Networks,” Comparative Labor Law and Policy Journal 35, no. 1 (2013): 1–43. 41. Anner, Bair, and Blasi, “Towards Joint Liability in Global Supply Chains,” 23. The agreements also required jobbers to distribute work evenly across designated contractors, prohibited discharge of contractors for reasons other than poor quality or late delivery, and restricted the supply of contractors to unionized shops. 42. See Sellers, chapter 7, section III.C. 43. See Sellers, chapter 7, section III.C. See generally Karin Astrid Siegmann, Jeroen Merk, and Peter Knorringa, “Civic Innovation in Value Chains: Towards Workers as Agents in Non-governmental Labour Regulation,” in Exploring Civic Innovation for Social and Economic Transformation, ed. Kees Biekart, Wendy Harcourt, and Peter Knorringa (New York: Routledge, 2016), 109, 123. 44. See generally Champagne, chapter 8. 45. U.S. companies include Abercrombie and Fitch, American Eagle Outfitters, Fruit of the Loom, and Knights Apparel. The majority of major U.S. brands did not sign on—these include Gap Inc., J.C. Penney, L.L. Bean, Macy’s, Target Corp., and Walmart Inc., all of whom joined the Alliance for Bangladesh Worker Safety, comprised of some twenty-eight global retailers concentrated in North America. Both the Accord and the Alliance conducted thousands of factory inspections. Unlike the Accord, the Alliance lacked worker participation in its governance and monitoring structure, and there was no legally binding mechanism forcing companies to uphold all parts of the agreement. The Accord was renewed in the spring of 2018, while the Alliance ceased to exist as of December 2018. 46. These four are Clean Clothes Campaign, International Labour Rights Forum, Maquila Solidarity Network, and Worker Rights Consortium. 47. See Champagne, chapter 8, section II.B. 48. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” Bangladesh Accord, May 13, 2013, accessed June 6, 2020, https:// bangladesh.wpengine.com/wp-content/uploads/2018/08/2013-Accord.pdf, art. 4 (Steering

Notes to Pages 213–215

315

Committee), art. 17 (safety and health committees), art. 18 (confidential complaints mechanism), art. 16 (training), and art. 15 (right to refuse unsafe work); and chapter 8, section II.B. 49. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” arts. 8–12; and chapter 8, section II.B. 50. See Clean Clothes Campaign, International Labor Rights Forum, Maquila Solidarity Network, and Worker Rights Consortium, Bangladesh Accord: Brief Progress Report and Proposals for Enhancement (Amsterdam: Clean Clothes Campaign, April 2017). Data in this paragraph also come from the Accord’s February 2017 update, available at http://bangladeshaccord.org /wp-content/uploads/Accord-Progress-Factsheet-February-2017.pdf, and the April 2018 Quarterly Aggregate Report, available at http://bangladeshaccord.org/wp-content/uploads/Accord _Quarterly_Aggregate_Report_April_2018.pdf. 51. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report (Dhaka and Amsterdam: Bangladesh Accord Foundation, October 24, 2017), 3. Champagne reports that as part of the corrective action process, eighty-three suppliers have been terminated. See chapter 8, section II.B.4. Pursuant to article 14 of the Accord, their workers were informed of the opportunity to seek assistance from Accord brands in finding new employment at safer factories. 52. Accord on Fire and Building Safety in Bangladesh, Quarterly Aggregate Report. (October 24, 2017) 53. Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” art. 5; and chapter 8, section II.B.3. 54. See Champagne, chapter 8, section II.B.3. 55. Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” art.24. 56. See Accord on Fire and Building Safety in Bangladesh, 2015 Accord Annual Report, 21 (showing Income from signatory fees at $12.3 million for 2015). 57. See Clean Clothes Campaign et al., Bangladesh Accord: Brief Progress Report, 4; and chapter 8, Section IV.B. See generally Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” arts. 12, 21, 22 (specifying that signatory companies are responsible to ensure that factories carry out all required remediation and that it is financially feasible for the factories to do so). 58. See, for example, International Labour Organization, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part IA, 51–53 (ILC.100/ III/1A, 2011) (discussing violence against trade unionists and arrests of trade union leaders, as well as lack of protection in both law and practice for organizing and collective bargaining); International Labour Organization, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A, 57–61 (ILC.103/III(1A), 2014) (making similar observations); International Labour Organization, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A, 48–54 ( ILC.106/ III(1A), 2017) (making similar observations); and International Labour Organization, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part A, 45–55 (ILC.107/III(A), 2018) (making similar observations). 59. See Report of the Committee of Experts on the Application of Conventions and Recommendations (2017); Samira Manzur, Drusilla K. Brown, Jette S. Knudsen, and Elizabeth Remick, “After Rana Plaza: From Building Safety to Social Dialogue,” 2017, accessed October 12, 2020, https://www.researchgate.net/publication/316740575, 21–26. 60. Manzur et al., “After Rana Plaza,” 19–20 (describing U.S. suspension of trade preferences in 2013 as largely symbolic, given that apparel is excluded from the trade agreement

316

Notes to Pages 215–216

with Bangladesh, and observing that while EU suspension would have had a far greater impact because Bangladesh apparel exports do have preferential EU trade status, the EU did not suspend trade preferences in 2013 but instead remained engaged with Bangladesh through a sustainability compact). 61. See Manzur et al., “After Rana Plaza,” 24–26. 62. Pursuant to a Memorandum of Understanding signed in May 2019 by the Accord Steering Committee and the Bangladesh Garment Manufacturers and Exporters Association (BGMEA), the parties met in September 2019 to discuss the establishment of the RMG Sustainability Council (RSC). The plan is for a transition of the Accord and its functions to the RSC by the end of May 2020. See Accord on Fire and Building Safety in Bangladesh, “Joint Statement BGMEA–Accord Discussions on the Establishment of the RMG Sustainability Council,” Bangladesh Accord, September 4, 2019, accessed January 15, 2020, https://bangladeshaccord.org /updates/2019/09/04/joint-statement-bgmea-accord-discussions-on-the-establishment-of-the -rmg-sustainability-council. 63. Regarding BGMEA, see Clean Clothes Campaign, International Labor Rights Forum, Maquila Solidarity Network, and Worker Rights Consortium, “The Bangladesh Accord Continues to Operate but Its Independence May Be at Risk,” International Labor Rights Forum, June 13, 2019, accessed January 15, 2020, https://laborrights.org/releases/bangladesh-accord-continues -operate-its-independence-may-be-risk. Regarding the government, see International Labour Organization, “Direct Request (CEACR)—Adopted 2018, Published 108th ILC Session (2019),” accessed January 20, 2020, https://www.ilo.org/dyn/normlex/en/f ?p=NORMLEXPUB:13100:0:: NO::P13100_COMMENT_ID:3960941. 64. The Better Work Program, operated and funded by the ILO and the International Finance Corporation, has helped improve working conditions for over one million garment industry workers in eight countries. See Apichoke Kotikula, Milad Pournik, and Raymond Robertson, “Interwoven: How the Better Work Program Improves Job and Life Quality in the Apparel Sector,” World Bank, September 29, 2015, accessed January 9, 2020, https:// openknowledge.worldbank.org/handle/10986/22699. The Freedom of Association Protocol, a 2011 agreement to protect freedom of association among Indonesian sports footwear and sports apparel workers, was signed by major brands, suppliers, and unions. See Tim Connor, Annie Delaney, and Sarah Rennie, “The Freedom of Association Protocol,” Corporate Accountability Research, October, 2016, accessed June 2, 2020, https://corporateaccountabilityresearch.net /njm-report-xvix-protocol. Because these models are not addressed in this volume, I do not dwell on their particulars. 65. The CIW Fair Food Program, the Accord, and the Protocol all operate within national borders; the Accord and the Protocol address a single kind of working condition. 66. See NationMaster, “Countries Compared by Agriculture: Farm Workers,” accessed January 9, 2020, http://www.nationmaster.com/country-info/stats/Agriculture/Farm-workers (compiling 2008 data for Mexico, Haiti, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica, and Panama). 67. See International Labour Organization, Wages and Working Hours in the Textiles, Clothing, Leather and Footwear Industries 9 (GDFTCLI/2014, 2014) (reporting total of 16.6 million individuals working in textiles and clothing in China, India, Vietnam, Indonesia, Thailand, and Pakistan, based on data from 2006–2010); Veronique Salze-Lozac’h, “United Efforts, Not Boycotts, Will Help Bangladesh’s Garment Workers,” Asia Foundation, May 15, 2013, accessed January 9, 2020, https://asiafoundation.org/2013/05/15/united-efforts-not-boycotts-will-help

Notes to Pages 216–218

317

-bangladeshs-garment-workers/ (over 3 million workers in apparel industry); and International Labour Organization, “Growth Continues for Cambodia’s Garment and Footwear Sector,” Cambodia Garment and Footwear Sector Bulletin, no. 1 (July 2015) (some 600,000 workers). 68. In addition to sources previously cited, see Sectoral Studies on Decent Work in Global Supply Chains (Geneva: International Labour Organization, 2016), 48. 69. Participating buyers, or brands, starting in 2007, encompass major fast-food chains (Taco Bell, McDonalds, Burger King, Subway, Chipotle), national supermarkets (Whole Foods, Trader Joe’s, Walmart, Fresh Market, Ahold), and institutional food service providers (Compass, Bon Appetit, Aramark, Sodexo). See Brudney, “Decent Labour Standards in Global Supply Chains,” 362. 70. See Fair Food Standards Council, “Fair Food 2018 Update,” Fair Food Program, October 2019, accessed June 3, 2020, https://www.fairfoodprogram.org/wp-content/uploads/2019 /10/Fair-Food-Program-2018-SOTP-Update-Final.pdf, 19-20 (describing operation of pennya-pound wage premium paid by participating brands), 71. See Fair Food Standards Council, Fair Food Program 2017 Annual Report, 30–31, 36–55; and Brudney, “Decent Labour Standards in Global Supply Chains,” 364–65. 72. These zero-tolerance items include forced labor, child labor, the use or threat of physical violence, and sexual harassment involving physical contact. See Fair Food Standards Council, Fair Food Program 2017 Annual Report. 73. See ibid., 14; and Brudney, “Decent Labour Standards in Global Supply Chains,” 364–65. 74. See, for example, Jamie Fullerton, “Suicide at Chinese iPhone Factory Reignites Concern over Working Conditions,” Telegraph, January 7, 2018, accessed January 9, 2020, https:// www.telegraph .co.uk /news /2018 /01 /07 /suicide -chinese -iphone -factory -reignites -concern -working-conditions/ (detailing at least twenty-four suicides by workers at Foxconn factories in China from 2010 to 2018). 75. See Donaghey and Reinecke, “When Industrial Democracy Meets Corporate Social Responsibility,” 15–16; Manzur et al., “After Rana Plaza,” 24 (quoting a European trade union representative in 2015). 76. See Manzur et al., “After Rana Plaza,” 23–26. See generally Report of the Committee of Experts on the Application of Conventions and Recommendations (2018), 45, 47–50 (identifying numerous deficiencies in Bangladesh law and practice that restrict workers’ freedom to organize and that interfere in various trade union activities). 77. These four are China, India, Thailand, and Vietnam, although Vietnam recently ratified Convention 98, which became effective for that country in July 2019. 78. These four are Bangladesh, Cambodia, Indonesia, and Pakistan. 79. See Karin Astrid Siegmann, Jeroen Merk, and Peter Knorringa, “Voluntary Initiatives in Global Supply Chains: Towards Labour-Led Social Upgrading?” (International Institute of Social Studies Working Paper Series, Civic Innovation Research Center, May 2014), 11–12. 80. Ibid., 14; and Tim Connor, Annie Delaney, and Sarah Rennie, The Freedom of Association Protocol (Melbourne: Corporate Accountability Research, 2016). 81. See Fair Food Standards Council, Fair Food Program 2017 Annual Report, 42; and Brudney, “Decent Labour Standards in Global Supply Chains,” 366–68. 82. Brudney, “Decent Labour Standards in Global Supply Chains,” 368. 83. Ibid., 370. 84. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” arts. 12, 13, 18, 19; and Scott Nova and Chris Wegemer, “Outsourcing

318

Notes to Pages 218–220

Horror: Why Apparel Workers Are Still Dying, One Hundred Years after Triangle Shirtwaist,” in Achieving Workers’ Rights in the Global Economy, ed. Richard P. Appelbaum and Nelson Lichtenstein (Ithaca, NY: ILR Press, 2016), 17, 28. 85. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” Scope, paras. 1–3; factories producing less than 35 percent of a signatory company’s overall production in Bangladesh were in tier 3. 86. See Champagne, chapter 8, section II.A (discussing elimination of the three-tier approach while describing a range of factories outside the “cut-and-sew” garment assembly prototype—such as home textile suppliers and fabric and knit accessory suppliers—that still are not required to be covered). 87. See Champagne, chapter 8, section IV.B. 88. See Clean Clothes Campaign et al., Bangladesh Accord: Brief Progress Report, 4; and chapter 8, section IV.B. 89. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,”art. 13 (specifying that brands must require supplier factories to provide workers with up to six months’ income replacement when temporarily closed to complete corrective actions) and art. 14 (specifying that brands must make reasonable efforts to ensure that workers are offered employment with safe suppliers if they have been terminated as a result of their former employer’s lost orders during renovation or closure). 90. See Accord on Fire and Building Safety in Bangladesh, “2013 Accord on Fire and Building Safety in Bangladesh,” art. 5. 91. See generally Gerold Herrmann, “Adoptions of the UNCITRAL Model Arbitration Law: A Continuing Success Story,” Journal of Arbitration Studies 7 (1997): 3; and Fernando MantillaSerrano and John Adam, “UNCITRAL Model Law: Missed Opportunities for Enhanced Uniformity,” University of New South Wales Law Journal 31, no. 1 (2010): 307–18, 308. 92. See Kishanthi Parella, “The Stewardship of Trust in the Global Value Chain,” Virginia Journal of International Law 56, no. 3 (2016): 585–646, 585, 637–40; and Carrie MenkelMeadow, “The Trouble with the Adversary System in a Postmodern, Multi-Cultural World,” Journal of the Institute for the Study of Legal Ethics 1 (1996): 49–77, 49, 59, 62. 93. See generally Wendy J. Miles, “Cost Allocation in Investor-State Arbitration,” Arbitration 80, no. 4 (2014): 413–31, 413, 426 (citing 2013 Commentary on UNCITRAL Arbitration Rules). 94. See Parella, “Stewardship of Trust in the Global Value Chain,” 631–32. 95. See Mantilla-Serrano and Adam, “UNCITRAL Model Law,” 308; and Herrmann, “Adoptions of the UNCITRAL Model Arbitration Law,” 4. 96. See Mantilla-Serrano and Adam, “UNCITRAL Model Law,” 310–12 (discussing vagueness of Model Law language on arbitrability with respect to state law provisions that preclude submission of particular disputes to arbitration); and Herrmann, “Adoptions of the UNCITRAL Model Arbitration Law,” 13–15 (discussing occasional deviations from the consensual Model Law approach). 97. See, for example, Mantilla-Serrano and Adam, “UNCITRAL Model Law,” 310–11 (reporting that art. 1(5) of the Model Law does not affect laws of the state that may deem certain subjects nonarbitrable and noting that Spanish arbitration law excludes employment arbitration from its scope). 98. See Fair Food Standards Council, “Fair Food 2018 Update,” 19–20.

Notes to Pages 220–225

319

99. See Accord on Fire and Building Safety in Bangladesh, 2015 Accord Annual Report, 21. 100. See notes on file with author of conversations with Scott Nova, executive director, Worker Rights Consortium and official observer on the Accord Steering Committee. For a recent example of $514,000 provided by the signatory brands–funded pool to cover renovation costs at supplier factories, see Accord on Fire and Building Safety, “Accord Remediation Fund Provides Financial Support to Five RMG Factories,” Bangladesh Accord, May 15, 2018, accessed January 9, 2020, https://admin.bangladeshaccord.org/wp-content/uploads/2018/08/Statement -Accord-Inactive-Factories-Remediation-Fund-.pdf. 101. See Jill Esbenshade, Monitoring Sweatshops: Workers, Consumers, and the Global Apparel Industry (Philadelphia: Temple University Press, 2004), 115–16; and Amengual and Chirot, “Reinforcing the State,” 1059 (citing concerns voiced by Esbenshade in 2004 and also Gay Seidman in 2007). 102. See Richard M. Locke and Salo V. Coslovsky, “Parallel Paths to Enforcement: Private Compliance, Public Regulation, and Labor Standards in the Brazilian Sugar Sector,” Politics and Society 41, no. 4 (2013): 497–526. 103. See Kevin Kolben, “Dialogic Regulation in the Global Supply Chain,” Michigan Journal of International Law 36, no. 3. (2015): 425–65, 437–39. 104. See Matthew Amengual, “Complementary Labor Regulation: The Uncoordinated Combination of State and Private Regulators in the Dominican Republic,” World Development 38, no. 3 (2009): 405–14, 406 (reporting that private regulation in the Dominican Republic apparel industry has relieved pressure on scarce state resources, enabling state regulators to devote more attention to economic sectors with even poorer labor conditions). 105. See Locke and Coslovsky, “Parallel Paths to Enforcement.” 106. See Amengual and Chirot, “Reinforcing the State,” 1058–60. 107. See Amengual, “Complementary Labor Regulation,” 411 (reporting that as private regulation has grown in the export processing zones of the Dominican Republic, workers have substantially increased the number of requests made for government inspectors on site). 108. Ibid., 412 (discussing why “the driver of complementary regulation is comparative advantage, not coordination”). 109. See generally Rossi, Luinstra, and Pickles, Towards Better Work (discussing positive and negative experiences under governance frameworks of different supply chain countries); Michael J. Piore and Andrew Schrank, Root Cause Regulation: Protecting Work and Workers in the Twenty-first Century (Cambridge, MA: Harvard University Press, 2018), 79–101 (discussing strengths and weaknesses of labor law protections on the ground in six Latin American countries); and Tim Connor, Annie Delaney, and Sarah Rennie, Non-judicial Mechanisms in Global Footwear and Apparel Supply Chains: Lessons from Workers in Indonesia (Melbourne: Corporate Accountability Research, 2016) (assessing strengths and weaknesses of state-based and private regulatory efforts in Indonesia). 110. See James J. Brudney, “The Internationalization of Sources of Labor Law,” University of Pennsylvania Journal of International Law 39, no. 2 (2017): 1–71, 15–43.

Chapter 11 1. For a comprehensive narration of this historical evolution, see chapter 2. 2. See Nolan, chapter 2, p. 47. 3. See, for example, Colchester, chapter 4, section V; and Nolan, chapter 2, section I.

320

Notes to Pages 225–235

4. See, for example, Champagne, chapter 8, section I; and Hale and Aylwin, chapter 5, section II (explaining how the Forest Stewardship Council model gives forest companies clout and limits indigenous participation). 5. See, for example, Colchester, chapter 4, section V (showing how the Forest Stewardship Council’s complaints process is onerous and inaccessible to communities without help from NGOs); and Sellers, chapter 7, section IV (explaining that challenges to creating WSR initiatives that “include limits to workers’ and allies’ organizational power and campaign capacity, as well as the timeframe required for necessary stages of organizational, campaign and program development for hundreds if not thousands of supply chains”). 6. See, for example, Nolan, chapter 2; Sellers, chapter 7; George, chapter 9; and Brudney, chapter 10. 7. For a clear and concise discussion of this transformation, see John Gerard Ruggie, “Multinationals as Global Institution: Power, Authority and Relative Autonomy,” Regulation and Governance 12, 3 (2018): 317–33, 318–21. See also International Labour Organization (ILO), Decent Work in Global Supply Chains (ILC.105/IV, 2016), 5–17. 8. See, for example, Raphael Kaplinsky, Globalization, Poverty and Inequality (Cambridge, UK: Polity Press, 2005), 122–59, 170–78; Gary Gereffi, “Global Value Chains in a Post-Washington Consensus World,” Review of International Political Economy 21, no. 1 (2014): 9–37; Robert C. Feenstra, “Integration of Trade and Disintegration of Production in the Global Economy,” Journal of Economic Perspectives 12, no. 4 (1998): 31–50, 35–34; and Mihir A. Desai, “Why Apple Is the Future of Capitalism,” New York Times, August 6, 2018 (describing the virtues of Apple’s financial model leveraging its disaggregated and geographically dispersed global supply chain). 9. For a more extensive treatment of these points, see Dan Danielsen, “Trade, Distribution and Development Under Supply Chain Capitalism” in Globalization Reimagined: Towards a Progressive Agenda for World Trade and Investment Law (A. Santos, C. Thomas and D. Trubek, eds.) (London, UK; New York, NY: Anthem Press, 2019). 10. For a more complete discussion of some of these legislative efforts, see Nolan, chapter 2, section I.B. 11. See Nolan, chapter 2, section I.B. 12. See, for example, Jesse Drucker and Simon Bowers, “After a Tax Crackdown, Apple Found a New Shelter for Its Profits,” International New York Times, November 6, 2017. 13. See Jim Tankersley, “Tax Havens Blunt Impact of Corporate Tax Cuts, Economists Say,” New York Times, June 10, 2018; and Thomas R. Torslov, Ludwig S. Wier, and Gabriel Zucman, “The Missing Profits of Nations” (NBER Working Paper 2470, National Bureau of Economic Research, Cambridge, MA, 2018). 14. See Jim Tankersley and Matt Phillips, “Trump’s Tax Cut Was Supposed to Change Corporate Behavior: Here’s What Happened,” International New York Times, November 14, 2018. 15. See Ana Swanson, “Trump to Impose Sweeping Steel and Aluminum Tariffs,” New York Times, March 1, 2018, accessed May 31, 2020, https://www.nytimes.com/2018/03/01/business /trump-tariffs.html; Natalie Kitroeff and Ana Swanson, “Trump’s Tariff Plan Leaves Blue-Collar Winners and Losers,” International New York Times, March 3, 2018; and Alan Rappeport, “Harley-Davidson, Blaming E.U. Tariffs, Will Move Some Production Out of the U.S.,” New York Times, June 25, 2018, accessed January 10, 2019, https://www.nytimes.com/2018/06/25/business /harley-davidson-us-eu-tariffs.html. 16. For a discussion of the transnational governance effects of fiduciary duty rules, see Dan Danielsen, “How Corporations Govern: Taking Corporate Power Seriously in Transnational

Notes to Pages 235–243

321

Regulation and Governance,” Harvard International Law Journal 46, no. 2 (2005): 411–25, 411–16. 17. For a discussion of a recent case exemplifying this point, see Holly Shaw, “Judge Rejects Joe Fresh Class Action Related to Bangladesh Factory Disaster,” Financial Post, July 17, 2017, accessed January 10, 2019, https://business.financialpost.com/news/retail-marketing/judge -rejects-joe-fresh-class-action-related-to-bangladesh-factory-disaster (in which a judge refused to impose vicarious tort liability on lead buyer firms for the acts of their suppliers). 18. The Accord on Fire and Building Safety in Bangladesh provides a good example of buyer firm agreements with international union federations and local unions that imposed rigorous standards for building safety and working conditions despite resistance from the Bangladeshi state. See generally Champagne, chapter 8. 19. For one example of this type of initiative, see the Asian Floor Wage campaign, accessed January 10, 2019, https://asia.floorwage.org/. 20. See, for example, Maguwu, chapter 3 (describing the Kimberley Process Certification Scheme for the rough diamond trade as an MSI organized to protect the interests of diamond firms and states with diamond mines without regard for the human rights of the communities affected by the trade). 21. See, for example, Colchester, chapter 4 (describing the mandates of the Forest Stewardship Council and the Roundtable on Sustainable Palm Oil as including both regulation of trade in the relevant commodities and protection of social and environmental values, but dominated by business interests and without adequate processes for consultation or protection of affected indigenous populations). 22. See, for example, Champagne, chapter 8, section IV (suggesting significant challenges for achieving the goals of the initial accord, including a lack of capacity of local labor union signatories, hostility from Bangladeshi factory owners, and resistance from the Bangladeshi state). 23. For a brief description of all of these actions with a focus on the Google walkout, see Farhad Manjoo, “When Tech Workers Raise Their Voices: The Google Walkout Shows How Leverage Can Be Maximized to Move an Industry,” New York Times, November 8, 2018. 24. For more information on the Amazon and Microsoft actions, see Jamie Condliffe, “Amazon Is Latest Tech Giant to Face Staff Backlash over Government Work,” New York Times, June 23, 2018. 25. For a discussion of this action, see David Streitfeld, “Antiquarian Booksellers Succeed in Strike Against Amazon Subsidiary,” New York Times, November 8, 2018. 26. See Sellers, chapter 7. 27. See James Ferguson, Give a Man a Fish (Durham, NC: Duke University Press, 2015).

Chapter 12 Professor Fielder would like to thank her research assistant, Thomas Kagerer, for his valuable contributions to this chapter. 1. See Sellers, chapter 8, section I. See also Jan Wouters and Leen Chanet, “Corporate Human Rights Responsibility: A European Perspective,” Northwestern Journal of International Human Rights 6, no. 2 (2008): 262–303, 268–69, 271. 2. See Nolan, chapter 2, introduction. 3. See Nolan, chapter 2. 4. See generally John Gerard Ruggie, “Global Governance and ‘New Governance Theory’: Lessons from Business and Human Rights,” Global Governance 20, no. 1 (2014): 5–17.

322

Notes to Pages 243–246

5. See Nolan, chapter 2. See also Jennifer Bair, “Corporations at the United Nations: Echoes of the New International Economic Order?,” Humanity 6, no. 1 (2015): 159–71. 6. See Nolan, chapter 2. 7. See Business & Human Rights Resource Centre, “Experts Reflect on the Zero Draft of the Legally Binding Treaty on Business and Human Rights,” August 10, 2018, accessed May 2, 2019, https://www.business-humanrights.org/en/experts-reflect-on-the-zero-draft-of-the -legally-binding-treaty-on-business-and-human-rights. 8. See Nolan, chapter 2. 9. See Nolan, chapter 2. 10. See Nolan, chapter 2, section I; and Colchester, chapter 4, section I. 11. See Nolan, chapter 2, section I. 12. See Sellers, chapter 7, introduction. 13. Adam S. Chilton and Galit Sarfaty, “The Limitations of Supply Chain Disclosure Regimes” (Coase-Sandor Working Paper Series in Law and Economics, Coase-Sandor Institute for Law and Economics, The University of Chicago School of Law, 2016), 13. 14. See Champagne, chapter 8, introduction. 15. Fatima Alali and Sophia I-Ling Wang, “Conflict Minerals Disclosure Requirements and Corporate Social Responsibility: Trends, Challenges, and Opportunities,” CPA Journal (July 2018), accessed May 2, 2019, https://www.cpajournal.com/2018/07/18/conflict-minerals -disclosure-requirements-and-corporate-social-responsibility. 16. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 14, discussing Orly Lobel, “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89 (2004): 262–390, 342; Martha Minow, “Public and Private Partnerships: Accounting for the New Religion,” Harvard Law Review 116 (2003): 1229–70; and Kenneth W. Abbott and Duncan Snidal, “Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit,” Vanderbilt Journal of Transnational Law 42, no. 2 (2009): 501–78, 541. 17. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 14. 18. See Nolan, chapter 2, section I.B.. 19. According to Nolan, there is little existing data on whether these reporting requirements actually work to reduce human rights violations. See chapter 2, section I.B. 20. See chapter 2. 21. See chapter 2. 22. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 25. 23. Ibid. 24. Ibid., 26. 25. Pub. L. 111-203, 124 Stat. 1376 (U.S. 2010). Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 14. 26. See Nolan, chapter 2, section III. 27. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 14. 28. Ibid. 29. Ibid., 15. 30. Ibid. 31. Lauren Wolfe, “How Dodd-Frank Is Failing Congo,” Foreign Policy, February 2, 2015, accessed May 2, 2019, https://foreignpolicy.com/2015/02/02/how-dodd-frank-is-failing-congo -mining-conflict-minerals/.

Notes to Pages 246–249

323

32. California Transparency in Supply Chains Act, Cal. Civ. Code § 1714.43(a)(1) (California 2012) (hereinafter CTSCA, S.B. 657). 33. CTSCA, S.B. 657, § 3 (“a retailer seller and manufacturer doing business in the state of California and having annual worldwide gross receipts that exceed one hundred million dollars”). 34. Cal. Civ. Code § 1714.43(c)(1–5) (California 2012). 35. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 17 (citing CTSCA S.B. 657). 36. See Nolan, chapter 2, section III.. 37. Cal. Civ. Code § 1714.43(d) (California 2012). 38. U.K. Modern Slavery Act of 2015 (United Kingdom 2015). 39. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 22. 40. See Nolan, chapter 2, section I.B. 41. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 22. 42. Ibid. 43. Law relating to the duty of care of parent companies and ordering companies (France 2017). 44. See Nolan, chapter 2, section I.B. 45. “Global Spotlight on Labor Trafficking in Corporate Supply Chains—Know Your Obligations,” Jones Day, August 2018, accessed May 2, 2019, https://www.jonesday.com /files/Publication/1e15e509-7ee1-4079-a9c1-f875d4c1d5ee/Preview/PublicationAttachment /fbbbb72c-d06b-4fd2-9dee-f87e52f72a9d/The_Global_Spotlight_r2.pdf, 2. 46. Andrew G. Barna, “The Early Eight and the Future of Consumer Legal Activism to Fight Modern-Day Slavery in Corporate Supply Chains,” William & Mary Law Review 59, no. 4 (2018): 1449–90, 1470. These numbers take into account subsidiaries. 47. Ibid., 1470. 48. Directive 2014/95/EU (European Union 2014). 49. Justine Nolan and Nana Frishling, “Human Rights Due Diligence and the (Over) Reliance on Social Auditing in Supply Chains,” in Research Handbook on Human Rights and Business, ed. Surya Deva and David Birchall (Cheltenham: Edward Elgar, 2020), 108–29, 112. 50. Chilton and Sarfaty, “Limitations of Supply Chain Disclosure Regimes,” 16. 51. Ibid. 52. Ibid. 53. Ibid. 54. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). 55. Doe v. Nestle, 738 F.3d 1048 (9th Cir. 2013). The case was dismissed by the 9th Circuit and denied certiorari by the United States Supreme Court. 56. Kiobel, 569 U.S. at 108. 57. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). 58. See Maguwu, chapter 3. 59. Nike, Inc., et al. v. Kasky, 539 U.S. 654 (2003). 60. See George, chapter 9. 61. Nike, 539 U.S. at 656. Kasky sued under California’s Unfair Competition Law, Cal. Bus. & Prof. Code Ann. § 17200 et seq. (California 1997), and False Advertising Law, § 17500 et seq. (California 2019). 62. Nike, 539 U.S. at 656.

324

Notes to Pages 249–252

63. Ibid. 64. Ibid. 65. Ibid. 66. Ibid. 67. Ibid., 656–57. 68. Ibid., 657 (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 946 (Cal. 2002)). 69. Nike, 539 U.S. at 657. 70. Ibid., 658. 71. Ibid., 661. 72. Ibid. 73. Erwin Chemerinsky and Catherine Fisk, “What Is Commercial Speech? The Issue Not Decided in Nike v. Kasky,” Case Western Reserve Law Review 54, no. 4 (2004): 1143–60, 1144. 74. John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law 101, no. 4 (2007): 819–40, 835. 75. Sud v. Costco Wholesale Corp., 229 F. Supp. 3d 1075 (N.D. Cal. 2017). 76. Barna, “Early Eight and the Future of Consumer Legal Activism,” 1471–72. The cases were filed under California’s Unfair Competition Law (UCL), Consumers Legal Remedies Act (CLRA), and False Advertising Law (FAL). 77. Sud, 229 F. Supp. 3d at 1075. 78. Barna, “Early Eight and the Future of Consumer Legal Activism,” 1472. 79. Glenn G. Lammi, “Demands for On-Label Disclosure of Possible Supply-Chain Abuses Fail in Ninth Circuit,” Forbes, July 24, 2018, accessed May 2, 2019. https://www.forbes.com /sites/wlf/2018/07/25/demands-for-on-label-disclosure-of-possible-supply-chain-abuses-fail -in-ninth-circuit/#5bd20b30ab82. 80. Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018). 81. Ibid., 859. 82. Ibid., 860. 83. Ibid., 859. 84. Ibid., 860. 85. Nat’l Consumers League v. Wal-Mart Stores, Inc., No. 2015-CA-007731, 2016 WL 4080541, at *1 (D.C. Super. Ct. July 22, 2016). 86. D.C. Code § 28-3901 et seq. (District of Columbia 2019). 87. See chapter 8, introduction. 88. Society for Corporate Governance and Gibson, Dunn & Crutcher LLP, “Legal Risks and ESG Disclosures: What Corporate Secretaries Should Know,” June 2018, accessed May  2, 2019, https://www.gibsondunn.com/wp-content/uploads/2018/06/Ising-Garbow -Meltzer -McPhee -White -Assaf -Legal -Risks -and -ESG -Disclosures -What -Corporate -Secretaries-Should-Know.pdf, 7–8. 89. Nat’l Consumers League, 2016 WL 4080541, at *7–8. 90. Allison Grande, “FTC’s Snapchat Attack Lends Weight to New Plaintiff Tactic,” Law360, May 9, 2014, accessed May 2, 2019, https://www.law360.com/articles/536514/ftc-s-snapchat -attack-lends-weight-to-new-plaintiff-tactic. 91. Ibid. 92. Complaint at para. 40, Snapchat, Inc., 132-3078 (FTC May 8, 2014). 93. Ibid., at para. 9. 94. Ibid., at para. 44.

Notes to Pages 252–261

325

95. Agreement Containing Consent Order, Snapchat, Inc. 96. Warth v. Seldin, 422 U.S. 490, 501 (1975). 97. Erik Swanholt and Kendall Waters, “Clarifying Standing in False Ad Cases at the 9th Circ.,” Law360, June 4, 2018, accessed May 2, 2019, https://www.law360.com/articles/1048242. 98. Complaint, Clayton Laderer v. Dole Food Company, Inc., 2:12-cv-09715 (C.D. Cal. Nov. 13, 2012). 99. “Class-Action Lawsuit Alleging Dole Misrepresented Environmental Record Resolved,” Hagens Berman, January 25, 2013, accessed May 2, 2019, https://www.hbsslaw.com/cases /dole-bananas/pressrelease/dole-bananas-class-action-lawsuit-alleging-dole-misrepresented -environmental-record-resolved. 100. Ibid. 101. Margus Kingisepp, “The Constitutional Approach to Basic Consumer Rights,” Juridica International 19 (2012): 49–58, 49. 102. Marta Andrecka and Katerina Peterkova Mitkidis, “Sustainability Requirements in EU Public and Private Procurement—A Right or an Obligation,” Nordic Journal of Commercial Law 55, no. 1 (2017): 57–89, 85 (citing “Complaint re Fair Working Conditions in Bangladesh: Lidl Forced to Back Down,” ECCHR, accessed May 2, 2019, https://www.ecchr.eu/en/case /complaint-re-fair-working-conditions-in-bangladesh-lidl-forced-to-back-down/). 103. “Complaint re Fair Working Conditions.” 104. Ibid. 105. Andrecka and Peterkova Mitkidis, “Sustainability Requirements in EU Public and Private Procurement,” 85. 106. Kingisepp, “Constitutional Approach to Basic Consumer Rights,” 55. 107. See generally Sinai Deutch, “Are Consumer Rights Human Rights?,” Osgoode Hall Law Journal 32, no. 3 (1994): 537–78, 537; and Kingisepp, “Constitutional Approach to Basic Consumer Rights,” 49. 108. Deutch, “Are Consumer Rights Human Rights?,” 574–75. 109. Kingisepp, “Constitutional Approach to Basic Consumer Rights,” 54. 110. Deutch, “Are Consumer Rights Human Rights?,” 575. 111. “Water and Sanitation Health (WASH): A Seattle Non-Profit Commends Dole for Assistance in Guatemala,” PR Newswire, accessed on May 4, 2020 https://www.prnewswire.com /news -releases /water-and -sanitation -health -wash -a -seattle -non -profit -commends -dole -for -assistance-in-guatemala-271823561.html. 112. See Nolan, chapter 2, section III. 113. See Nolan, chapter 2, section III. 114. See Nolan, chapter 2, section I.B.

Chapter 13 1. Sánchez, chapter 6, introduction. 2. Hale and Aylwin, chapter 5, introduction. 3. Hale and Aylwin, chapter 5, introduction. 4. Samantha Balaton-Chrimes and Fiona Haines, “The Depoliticisation of Accountability Processes for Land-Based Grievances, and the IFC CAO,” Global Policy 6, no. 4 (2015): 446–54. 5. Colchester, chapter 4, section III.A. 6. Laura Silva-Castañeda and Nathalie Trussart, “Sustainability Standards and Certification: Looking Through the Lens of Foucault’s Dispositif,” Global Networks 16, no. 4 (2016):

326

Notes to Pages 261–268

490–510, 490. See also Laura Silva-Castañeda, “A Forest of Evidence: Third-Party Certification and Multiple Forms of Proof—A Case Study of Oil Palm Plantations in Indonesia,” Agriculture and Human Values 29, no. 3 (2012): 361–70, 369. 7. Hale and Aylwin, chapter 5, section III. 8. Brudney, chapter 10, section I.C. 9. Brudney, chapter 10, section II.A. 10. Sellers, chapter 7, introduction. 11. Jeremy Blasi and Jennifer Bair, An Analysis of Multiparty Bargaining Models for Global Supply Chains (Geneva: International Labour Office Conditions of Work and Employment Series No. 105, 2019), 10. 12. Champagne, chapter 8, section II.B.5. See also Jennifer Bair, Mark Anner, and Jeremy Blasi, “Sweatshops and the Search for Solutions, Yesterday and Today,” in Unmaking the Global Sweatshop, ed. Rebecca Prentice and Geert De Neve (Philadelphia: University of Pennsylvania Press, 2017), 50. 13. Stephen Bass, Kirsti Thornber, Matthew Markopoulos, Sarah Roberts, and Maryanne Grieg-Gran, Certification’s Impact on Forests, Stakeholders and Supply Chains (London: International Institute for Environment and Development, 2011), v. 14. Sellers, chapter 7, section II. See also Worker-Driven Social Responsibility Network, “Statement of Principles,” accessed May 10, 2019, https://wsr-network.org/what-is-wsr /statement-of-principles/. 15. Champagne, Chapter 8, section V. 16. Sellers, chapter 7, section III.B. 17. Sellers, chapter 7, section III.B. 18. See Tomaso Ferrando, “Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and ‘Legal Chokeholds,’” Business and Human Rights Journal 2, no. 2 (2017): 275–95. 19. Janice Fine and Tim Bartley, “Raising the Floor: New Directions in Public and Private Enforcement of Labor Standards in the United States,” Journal of Industrial Relations 61, no. 2 (2019): 252–76, 267. 20. Nolan, chapter 2, introduction. Quoting International Labour Office, Workplace Compliance in Global Supply Chains (Geneva: International Labour Office, 2016), accessed June 7, 2020, https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents /publication/wcms_540914.pdf, 24. 21. Brudney, chapter 10, section II.E. 22. Ferrando, “Land Rights at the Time of Global Production,” 278. 23. César A. Rodríguez-Garavito, “Nike’s Law: The Anti-sweatshop Movement, Transnational Corporations, and the Struggle over International Labor Rights in the Americas,” in Law and Globalization from Below: Towards a Cosmopolitan Legality, ed. Boaventura de Sousa Santos and César A. Rodríguez-Garavito (Cambridge, UK: Cambridge University Press, 2005), 67.

CONTRIBUTORS

José Aylwin is a human rights lawyer. He researches and publishes in the fields of human rights, ethnic and cultural diversity, environmental rights, and business and human rights. He teaches the course Indigenous Peoples’ Rights at the School of Law of the Universidad Austral de Chile. He currently acts as coordinator of the Globalization and Human Rights Program of the Observatorio Ciudadano (Citizens’ Watch), an NGO aimed at documenting, promoting, and protecting human rights in Chile. He holds degrees in legal studies from the University of Chile in Santiago (1981) and a master’s of laws from the University of British Columbia (Canada, 1999). Daniel Brinks is professor of government and of law and chair of the Government Department at the University of Texas at Austin. For four years, while co-director of the Bernard and Audre Rapoport Center for Human Rights and Justice, he helped lead a project on the legal and political drivers of inequality, of which this book is a product. His research focuses on the role of the law and courts in supporting democracy and human rights, with a primary interest in Latin America. His most recent book, The DNA of Constitutional Justice in Latin America (with Abby Blass), was awarded the APSA’s C. Herman Pritchett Prize for Best Book on Law and Courts. Other books address the work of courts in response to police violence and to social and economic rights demands. He has a PhD in political science from the University of Notre Dame and a JD from the University of Michigan Law School. James J. Brudney is Joseph Crowley Chair in Labor and Employment Law at Fordham University School of Law. Before entering academia, he clerked for a federal district judge and a Supreme Court justice; practiced with a labor law firm in Washington, D.C.; and served as chief counsel and staff director of the US Senate Subcommittee on Labor. He is a member of the International

328

Contributors

Labour Organization Committee of Experts, but this chapter is presented solely in his individual capacity as a law professor. Jessica Champagne is deputy director for strategy and field operations at the Worker Rights Consortium (WRC), an independent labor rights monitoring organization. She was previously the director of research and advocacy at the WRC. She coordinates investigations into apparel factories around the world and engages with international apparel brands and retailers to correct violations. Advocacy by Champagne and her team has resulted in millions of dollars being paid to garment workers who were denied legally required compensation. Prior to joining WRC, she was a Fulbright research scholar in Indonesia and served as organizing coordinator for the Service Employees International Union. Marcus Colchester is senior policy advisor at Forest Peoples Programme, which he founded in 1990 in order to support indigenous peoples’ and other forest peoples’ struggles to defend their lands and livelihoods from imposed development and conservation. His scholarly and advocacy work focuses on indigenous rights, natural resource management, agroforestry, and sustainability. Colchester received a Pew Foundation Conservation Fellowship in 1994 and the Royal Anthropological Institute’s Lucy Mair Medal for Applied Anthropology in 2001. He received an MA in zoology and PhD in social anthropology from Oxford University. Dan Danielsen is professor of law and faculty director of the Program on the Corporation, Law and Global Society at Northeastern University School of Law. His research explores the complex role of the business firm in global governance. Prior to joining the Northeastern faculty, Professor Danielsen was executive vice president and general counsel of Europe Online Networks S.A. and a partner at Foley Hoag LLP. He received his JD from Harvard Law School. Julia Dehm is senior lecturer at the La Trobe Law School, La Trobe University, Australia. Prior to starting at La Trobe, she was a postdoctoral fellow at the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas in Austin and a resident fellow at the Harvard Law School’s Institute for Global Law and Policy. She is coeditor in chief of the Journal of Human Rights and the Environment. Her first monograph,

Contributors

329

Reconsidering REDD+: Law, Power and Authority in the Green Economy, is forthcoming with Cambridge University Press. She holds a BA, LLB (Hons), and PhD from the University of Melbourne. Karen Engle is Minerva House Drysdale Regents Chair in Law and founder and co-director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas at Austin. She writes on the interaction between social movements and international law, especially human rights law. For the past five years she has co-directed a project on the legal and political drivers of inequality, of which this book is a product. She is the author of numerous scholarly articles and of The Grip of Sexual Violence in Conflict: Feminist Interventions in International Law (Stanford University Press, 2020) as well as The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press, 2010), which received the Best Book Award from the American Political Science Association Section on Human Rights. Lauren Fielder is assistant dean for graduate and international programs, the director of the Institute for Transnational Law, and a senior lecturer at The University of Texas School of Law. She teaches courses on international and comparative law, including international human rights law, comparative constitutional law, and art law. She is the author of numerous articles, book chapters, and edited volumes on international and comparative law, including on the internationalization of constitutional law and transnational legal processes and human rights. Erika George is Samuel D. Thurman Professor of Law and director of the Obert C. and Grace A. Tanner Humanities Center at the University of Utah. She is also a fellow of the American Bar Foundation. A human rights scholar with a focus on business and human rights, much of her research explores efforts to hold corporations accountable for alleged rights violations. She has published numerous scholarly articles and is the author of Incorporating Rights, which is forthcoming from Oxford University Press. She is a member of the editorial board of the Business and Human Rights Journal. Charles R. Hale is SAGE Sara Miller McCune Dean of Social Sciences at the University of California Santa Barbara. He is an anthropologist whose work focuses on race and ethnicity, identity politics, and consciousness and resistance, primarily in Latin America. He is the author of numerous academic

330

Contributors

publications, including Más que un Indio: Racial Ambivalence and Neoliberal Multiculturalism in Guatemala (Santa Fe School of American Research, 2006) and Resistance and Contradiction: Miskitu Indians and the Nicaraguan State, 1894–1987 (Stanford University Press, 1994). He is a past president of the Latin American Studies Association. Prior to joining UC Santa Barbara, he was a professor at the University of Texas, where he directed LLILAS Benson Latin American Studies and Collections and served on the steering committee of the Bernard and Audre Rapoport Center for Human Rights and Justice. Farai Maguwu is the founding director of the Centre for Natural Resource Governance, an organization working to improve governance of natural resources in Zimbabwe. Much of his research focuses on human rights abuses and illicit trade of diamonds in Zimbabwe. In 2010 his passionate work in human rights led to his arrest, and he was charged and detained for forty days by the Zimbabwean government. Maguwu partnered with Human Rights Watch researchers to document injustices against local villagers in Marange at the hands of soldiers controlled by the Zimbabwe African National UnionPatriotic Front. He was awarded the Alison Des Forges Award for Extraordinary Activism by Human Rights Watch in 2011. He regularly speaks at conferences on conflict diamonds and alternatives to mining. Maguwu is a PhD candidate at the Wits School of Governance, University of Witswatersrand. He received a BA and MA in peace and governance from Africa University and an MA in peace and conflict studies from the European University Center for Peace Studies in Austria. Justine Nolan is professor at UNSW Law as well as a visiting professor at NYU Stern Center for Business and Human Rights. Her latest book, Addressing Modern Slavery (NewSouth Books, 2019; with Martijn Boersma), examines how consumers, business, and government are both part of the problem and the solution in curbing modern slavery in global supply chains. Justine has practiced as a private sector and international human rights lawyer. She is a member of the editorial board of the Business and Human Rights Journal. Geisselle Vanessa Sánchez Monge is a program manager and researcher for ActionAid Guatemala, where she works to defend the collective rights of indigenous peoples and other marginalized groups. She participates in UN discussions to develop a binding treaty on business and human rights. She has published in a number of journals in English and Spanish. Her most

Contributors

331

recent research focuses on issues of land governance in Guatemala’s Northern Lowlands and emphasizes action needed by the Guatemalan government to meet the norms provided by the UN Tenure Guidelines (the VGGTS). She received a degree in agricultural economics from the Universidad Nacional Autónoma de Nicaragua and a master’s degree in social sciences from the Latin American Social Sciences Institute. Sean Sellers is a former director of strategic partnerships and current senior adviser at the Worker-Driven Social Responsibility Network. Previously he was a founding staff member at the Fair Food Standards Council. He holds a BS and MA from the University of Texas at Austin. Kate Taylor is a human rights lawyer and was previously a postgraduate fellow at the Bernard and Audre Rapoport Center for Human Rights at the University of Texas at Austin. Her experience includes advocacy and academic research concerning human rights issues in supply chains in Australia and Southeast Asia.

INDE X

AbeBooks protests, 238 Accord on Fire and Building Safety (Bangladesh). See Bangladesh Accord accountability. See corporate accountability ActionAid Guatemala, 116 Ad Hoc Committee on Review and Reform (KP), 72–73 affirmative misstatements in marketing, 251, 256 Africa. See names of countries African Consolidated Resources, 59 African Diamond Producers Association, 58 agricultural industry, 24–25, 180–201; abuses in, 141, 185, 195–97; certification, 193–96; fair trade certification, 193–94; in Florida, 140–43, 212; human rights in, 180; lof mapu and, 106; North and Central America, 216; wages in, 13, 17–18, 24, 195, 265. See also AJP; CIW; FFP; food Agricultural Justice Project (AJP), 181, 195, 197–200 Albisa, Cathy, 154 Ali Enterprise fire (Pakistan), 140 Alien Tort Statute (U.S.), 248–50 “alternative trade organizations,” 193–94 Amazon, worker protests, 237–38 Ananta Apparels, 171 Anaya, James, 111 Angola, diamond trade in, 55, 61, 72 Angolan Civil War, 55 Anhui Foreign Economic Construction Group, 70 Anner, Mark, 169 Apparel and Footwear Supply Chain Transparency Pledge, 178 La Araucanía, 100–101, 296n19 Arauco, forest holdings, 100

arbitration: FFP, 266–67; Permanent Court of Arbitration, 33; UN Model Law on International Commercial Arbitration, 33, 214, 219, 305n77. See also Bangladesh Accord, arbitration; dispute resolution Article III standing (U.S. Constitution), 250, 253 As You Sow advocacy organization, 185 Asbed, Greg, 12 Ashulia factory fire, 162 Assurance Services International (ASI), 26–27, 79, 84, 93, 277n113 Assurance Task Force (RSPO), 79, 93 auditing for compliance, 26–29; of Bangladeshi garment factories, 156–57; Borneo logging disputes, 83–84; in certification schemes, 11, 93; in CSR, 159; failures in, 78–79, 158, 260; in FFP, 197, 218; in FSC, 26–27, 78–79, 103, 107–8; of Las Palmas, 128; of PT KBT, 83; in RSPO, 26–27, 78–79, 120–21, 132; social auditing, 44–45, 208, 260, 283n46; in WSR programs, 147 Auld, Graeme, 10–11 Australia: garment industry regulation, 48–49, 209; Modern Slavery Act 2018, 40, 231 autonomy claims by Indigenous peoples, 22, 96–98, 104, 109–10, 294n1 Aylwin, José, 22, 27, 113, 259, 260, 261–62 background legal rules and norms, 20, 265–68; PRIs shaped by, 17; shaping distribution of value in supply chain, 16, 225–26; supply chain capitalism and, 15–17

334

Index

Balaton-Chrimes, Samantha, 261 Bangladesh, 13, 25; Ashulia factory fire, 162; garment manufacturing in, 143–45, 154–55; Rana Plaza garment factory collapse, 13, 35, 144, 155, 162, 167, 175, 213, 252; Tazreen factory fire, 140, 157, 162; unions, 13, 25, 143, 176, 217; worker deaths in, 156. See also Bangladesh Accord Bangladesh Accord, 13, 154–56, 160–61, 213–15; achievements of, 144–45, 169–71, 178, 214, 262–63; analysis of, 213; arbitration, 32–33, 164–65, 172–74, 214, 219, 266–67, 279n143, 305n77; brought about by social movement, 24–26; Building Standard, 161; challenges and areas for improvement, 171–78, 215; complaint mechanism, 29–30, 168–69; corporate accountability in, 154–79; development of, 143–44, 162–63; elements of, 25–26, 163–69, 213–14; funding for, 165–66, 174–75, 220–21; grievance mechanisms, 29–30, 145, 161, 168–69; history of, 162–63; limitations of, 265; market consequences, 165; monitoring and enforcement, 20, 28–30, 32–33, 160–61, 164–65, 218–20; remediation process for garment factories, 25, 145, 161, 162, 174–75; health and safety problems and, 217; Safety Committees, 168; scope of coverage, 13, 176–77; signatories to, 31, 143–44; transparency, 164, 177–78; worker empowerment, 175–76 Bangladesh Garment Manufacturers and Exporters Association, 163 Bangladesh government, 145, 155, 163, 171, 175, 215 Bangladesh Labor Act 2013, 217, 304n58 Bartley, Tim, 17–18 Basic Agrarian Law 1960 (Indonesia), 81 Bere, Tinoziva, 65 Better Work Program, 216, 316n64 Beyond the Brands campaign (Oxfam), 190–91 Biti, Tendai, 69 Borneo, agriculture and forestry in, 81–88 Brazil, diamond trade in, 70 Brudney, James J., 262, 263, 266 building standards, in Bangladesh Accord, 161

“buyer-driven chains,” 227. See also consumer-based enforcement Byler, Edna Ruth, 193 California Transparency in Supply Chains Act of 2010, 40, 231, 246, 247, 251, 282n28 Canada: FSC reform in, 109; KP reform and, 73; Native lands, 297n24 capitalism. See supply chain capitalism Centre for Research and Development (CRD) (Zimbabwe): human rights abuses in Marange 54, 61–67; relations with KP, 66 certification schemes, 10–11; absence of independent evaluation, 132; in agricultural industry, 193–96; CERTFOR scheme, 102; commodity, 74, 77–78; compliance challenges, 78–79; effects of, 96–115; enforcement and, 30; Fair for Life certification, 195; food, 182; forestry, 96; Foundation for Employment Standards (Netherlands), 49; information in and transparency, 188–93; respecting Indigenous rights, 74–95; social justice labels and, 192; sustainability certification in Guatemala, 116–35; voluntary certification in agricultural industry, 188; voluntary commodity, 74. See also consumer-based enforcement; fair trade certification; FSC; KPCS; RSPO Champagne, Jessica, 6–7, 25–26, 29–30, 205, 213–14, 218, 252, 262–63, 277n110, 315n51 Charamba, George, 61 Chiadzwa, Newman, 63 Chiadzwa. See Marange diamond fields Chikane, Abbey, 63–65 child labor, 41, 183, 190, 208, 251–52. See also slavery Child Labour Due Diligence Act 2019 (Netherlands), 41 Chile: Constitution, 103; forest industry, 96–115; indigenous peoples’ rights, 22. See also Mapuche people; FSC Chilean government, 103 China, 42, 58, 73 Chiquita Brands International Inc., 180 CIW. See Coalition of Immokalee Workers Clean Clothes Campaign (CCC), 144, 162

Index Coalition of Immokalee Workers (CIW), 12–13, 155, 178, 212, 273n40; achievements of, 140–43, 206; Campaign for Fair Food, 31, 141, 273n40; contract-based enforcement and, 219; formation of, 140; role in forming FFP, 24, 196–97; structure of, 24; worker participation in, 216–17. See also Fair Food Code of Conduct; FFP; FFSC Coca-Cola, 180 cocoa supply chain, 190 codes of conduct, 5, 38, 188–89; aimed at consumers and investors, 159–60; case against Walmart and, 252; Code of Conduct of the Coalition of Immokalee Workers, 142; CSR and, 9, 156, 160, 272n11; enforcement mechanisms, 32; Fair Food Code of Conduct, 13, 25, 212, 277n103; FFP, 196–97; International Code of Conduct for Private Security Providers, 42–43; transnational corporations, 8, 38, 207–8; on university logo apparel, 143, 156, 163; voluntary, 9, 156, 159, 189, 201; worker-driven, 151, 216 Colchester, Marcus, 6, 11, 22, 27, 259–60, 261 collective bargaining, 17, 139, 199, 206, 217 commodity certification. See certification schemes competition, effects of, 227–31 complaints. See grievance mechanisms Compliance Advisor Ombudsman (IFC), 88–89 conflict diamonds, 11–12; curtailing trade in, 245–46; definition in KPCS, 24, 57–58, 71; KP and, 53–73; proportion of diamond supply chain, 53–54. See also jewelers, role in diamond trade; KP; KPCS conflict resolution. See dispute resolution consent. See free, prior, and informed consent consumer-based enforcement: Bangladesh Accord, 165–66; diamond industry, 56; limitations of, 260; MSIs vs. WSR programs, 19, 24, 30–31; taking seriously, 242–57; through consumer law, 267. See also certification schemes Consumer Protection Act 2010 (U.S.), 245–46 consumer protection law, 242, 248–49, 250–56

335

contestational grievances, 261 continuous improvement processes, 132–34 contract-based enforcement approaches, 219–20, 235, 266–67 co-regulation. See synergistic governance corporate accountability, 3; in Bangladesh Accord, 160–61, 163–69; campaigns, 141, 150, 263–64; consumer protection law and, 242, 244; in CSR, 159; does not cover intermediaries, 133–34; domestic legislation and, 40–41; human rights and, 7–14, 224–41; PRIs and, 14–15 Corporate Human Rights Benchmark, 185 corporate social responsibility (CSR): abuses treated as crises, 139; agricultural industry, 180; aims of, 160; binding enforceable obligations, 146–47; Chilean forest companies, 102; crisis-based approach, 139; failures of, 140, 158–60, 244; growth of, 9; “smokescreen” of, 156–60. See also codes of conduct Costco, action brought against, 250–51 Cotton Project (FLA), 46 Council of Protected Areas (Guatemala), 128–29 “coyote” land purchasing, 133–34 CSR. See corporate social responsibility “cutting and running” from certified suppliers, 149 Danau Sentarum National Park, 85 Danielsen, Dan, 16, 267 Dayak Bahau people, Borneo, 81–88 De Beers, Marange operations, 58–59 Decree Law 701 of 1974 (Chile), 100 Dehm, Julia, 328–29 Democratic Republic of the Congo, conflict minerals from, 245–46 Department of Agriculture (U.S.), food industry regulation, 192 Department of Defense (U.S.), Google plans collaboration with, 238 Designated Suppliers Program (WRC), 143 Dias-Abey, Manoj, 24 disclosure laws. See law, disclosure dispute resolution: in Bangladesh Accord, 172–73; Model Law approach to, 220; RSPO, 31, 131–32. See also arbitration District of Columbia, consumer protection laws, 252

336

Index

Dodd-Frank Wall Street Reform and Consumer Protection Act (U.S.), 48, 245–46, 282n33, 284n62 Doe vs. Nestlé, 248 Dole, action against, 254, 256 Doq, Marta, 84 “double jeopardy” effect, 114 Dress & Dismatic factory (Bangladesh), 171 due diligence mechanisms in human rights, 39, 40, 189, 231; under California Transparency in Supply Chains Act of 2010, 246; under Duty of Vigilance Law 2017 (France), 247; under European Union’s Nonfinancial Directive, 247–48; legislation mandating, 41, 48, 209; under Modern Slavery Act of 2015 (UK), 247 Duty of Vigilance Law 2017 (France), 41, 231, 247 empowerment of workers, 175–76 enforcement. See monitoring and enforcement Engel, Eliot, 190 Engle, Karen, 297n29 environmental impact assessments (EIAs), 103, 128, 135 Equitable Food Initiative, 195 Esau, Bernard, 62–63 Espinoza, Laura Safer, 29 Ethical Clothing Australia, 49 Ethical Trading Initiative, 42, 45, 313n18 European Union: companies with joint U.S. listing, 48; Directive 2014/95/EU, 41, 231; Nonfinancial Directive, 231, 247–48; participation in KP, 56–57 Extractives Industry Transparency Initiative, 43–44 Fair Food Code of Conduct, 13, 25, 212, 277n103 Fair Food Program (FFP), 12–13, 24–25; achievements, 200, 206, 262; agreements in, 141; brought about by social movement, 24–25; certification, 200; Code of Conduct, 32, 196; Fair Food agreements, 141; features of, 197; formation of, 141; grievance mechanisms, 29, 142, 197; history, 196–97; links to retailers, 16; monitoring and enforcement, 20, 28–29, 32; multilayered market approaches,

200–201; replicability of, 263–64; scalability of, 263–64; shift in focus, 12–13; wages, 24, 220, 262 Fair Food Standards Council: functions, 142–43, 196–97; monitoring, 218; structure, 29; worker participation, 216–17 Fair for Life certification, 195 Fair Labor Association: Cotton Project, 46; focus on garment and footwear industries, 42; norm production, 43 Fair Labor Standards Act (U.S.), 17–18 fair trade certification, 188, 190–91; agricultural industry, 193–95 Fair World Project, 196 FairWear: campaign, 284n63; Foundation, 43 false or misleading disclosures, 245, 251, 252, 253 farmworkers. See agricultural industry Federal Trade Commission (U.S.), case against Snapchat, 252–53 Ferguson, James, 240 Ferrando, Tomaso, 267 Fielder, Lauren, 7, 267 financing. See funding mechanisms Financing a Parallel Government, 69 “fingerprinting” diamonds, 72 Florida: agriculture in, 141–43, 196–97; farmworkers, 265; slavery case 2008, 140. See also Coalition of Immokalee Workers food: right to, 181–83; supply chains, 182, 187, 196. See also agricultural industry; FFP Food and Drug Administration (U.S.), 192 food cooperatives, 194 “Food Justice Certification” program, 198–99 “footprinting” diamond production, 72 forced labor, 183, 190. See also slavery Forest Ethics, 102 Forest Peoples Programme (FPP), 74–95, 261 forest industry: in Chile, 96–115; Indigenous rights violated by, 76–77. See also FPP; FSC Forest Stewardship Council (FSC): Assurance Services International (ASI), 26–27, 79, 84, 93, 277n113; auditing in, 26; certification by, 11, 96–99, 101–9; complaint process, 83, 85, 93; limitations of, 21–22,

Index 259–61; FPIC policies, 27, 92; FSC Chile, 102, 104, 109–10; FSC International, 102, 103–4, 109; grievance mechanisms, 27–28, 85, 93, 261; investigates Borneo logging, 83–85; limitations of certification regime, 99; monitoring and enforcement, 19, 26–27, 30–31; norm production, 20–23; Principles and Criteria, 21–22, 77–78, 102; prospects for, 74–75; reform efforts, 79–80, 109–10, 113 The Forest Trust, 86–87 Foundation for Employment Standards (Netherlands), 49 Fowler Report, adopted by UN, 55 FPIC. See free, prior, and informed consent FPP. See Forest Peoples Programme France, Duty of Vigilance Law 2017, 41, 231, 247 free, prior, and informed consent (FPIC) 27, 92–95; under the FSC, 79; Golden Agri Resources and, 88; by Indigenous peoples, 77–78, 82–83, 104; for legally disadvantaged peoples, 94; principles of, 27; PT KBT’s violation of FPIC requirements, 82–84; seen as minor requirement, 83–84, 92 freedom of association; AJP and, 199; Bangladesh Accord and, 175–76, 215; Freedom of Association Protocol, Indonesia, 216, 218; right to, 167–68 Fresh Fashion Wear factory, 171 Friedman, Milton, 47–48 FSC. See Forest Stewardship Council funding mechanisms: Bangladesh Accord, 214; for remediation of garment factories, 174–75; WSR programs, 220–21 Fung, Archon, 185–87 Gampo Alam Alman, 90–91 garment industry regulation: Australia, 48–49; co-regulation with governments, 209; financing for remediation, 174–75; prior to Bangladesh Accord, 155–58; scope of coverage, 176–77. See also Bangladesh Accord General Agreement on Tariffs and Trade (GATT), 17 genetically modified organisms (GMOs), 192 George, Erika, 7, 267

337

Germany, case against Lidl, 254–55 Global Compact (UN), 9, 38, 243 Global Framework agreements, 164 Global Network Initiative, 42–43 Global Reporting Initiative (GRI), 188 global supply chains, 7–8: consumers and, 242–44; innovation in, 184, 205–23; improving human rights outcomes, 231–34; labor standards in, 205–23; regulating human rights in, 35–50; structures, 227. See also supply chain capitalism Global Witness: Financing a Parallel Government, 69; A Rough Trade: The Role of Companies and Governments in the Angolan Conflict, 55; withdraws from KP, 23, 28, 54, 67, 69 Golden Agri Resources (GAR), 85–88 Gono, Gideon, 59 Good Intentions: Fraud, Theft and Murder in the Brazilian Diamond Industry, 70 Goodale, Mark, 114 Google, 42, 237–38 governance gaps, 8, 16–17, 47, 207 governments: co-regulation with, 209; “legitimate,” 71; reasons for policy choices, 229–30; role in creation of KPCS, 53–54, 56–58, 70–71, 73; role in regulation, 206–7, 221–23; transparency mandated by, 187. See also names of countries greenhouse gas emissions, 121, 124 Greenpeace, palm oil campaign, 85–86 grievance mechanisms: Bangladesh Accord, 29–30, 145, 161, 168–69; FFP, 29, 142, 197; FSC, 27–28, 85, 93, 261; garment industry, 158–59; linguistic barriers in, 134; palm oil disputes, 80, 87; reforms to, 92–94; RSPO, 93, 126–27 Guatemala, palm oil industry, 23, 116–35 Guatemalan government, 119 Guiding Principles on Business and Human Rights (UN), 9–10, 38–39, 182, 207–8; certification schemes fall short of, 92; endorsement of, 9, 38, 182; obligations under, 75 Haines, Fiona, 261 Hale, Charles R., 22, 27, 259–60 Harkin-Engel Protocol (U.S.), 190 “Heart of Borneo” project, 82

338

Index

The Heart of the Matter: Sierra Leone, Diamonds & Human Security, 55 Hershey, action brought against, 251 Hirsch, Boaz, 65–66 Hodsdon v. Mars, 251 human rights, 3–4; autonomy claims, 96–97; collective bargaining rights, 206; consumer protection litigation and, 255–57; corporate accountability and, 224–41; CSR and, 9, 139; domestic regulation of, 40–41; exposure of human rights violations, 189–91; for farmworkers, 195–96; freedom of association, 167–68, 175–76; impunity in international legal system, 17; in global supply chains, 35–37, 231–34; of indigenous peoples, 74–95, 107; information rights, 184–85; international regulation of, 37; international human rights law, 4, 75–76, 111, 181, 184, 266; KP and, 24, 69–70; MSIs and, 43–50; PRIs and, 3–34; protecting agricultural workers, 194–95; regulating respect for, 35–50; right to food, 181–83; right to refuse unsafe work, 167–68; “rights regimes,” 113; role of transparency in protecting, 180–81, 189–91; UN initiatives, 38–40; violations, 3, 8, 17–18, 54–57, 63, 67–69, 119, 139, 148–49, 195–97, 242–44, 248–49; worker-driven initiatives, 146; in WSR Network statement of principles, 146–47. See also Guiding Principles on Business and Human Rights; labor rights Human Rights Watch, 59, 61, 148, 175, 190, 301n10 “immanent complaints,” 261 India, 73, 78 indigenous peoples: FPIC processes, 27; FSC and, 22, 101–4; impact of land grabbing, 119; in international law, 76, 111; Mapuche people, 96–115; Q’eqchi’ Maya indigenous communities, 117–19; respecting rights of, 74; FSC processes, 21–22, 27; RSPO processes, 23. See also indigenous rights indigenous rights, 99; FSC certification, 96–97, 101–4, 107–12; FSC standards, 77–80; impact of logging and oil palm, 76–77; Indonesian land tenure systems and, 80–81; in international law, 76; lack of respect for, in certification schemes,

74–75; national legislation prioritized over, 22; RSPO and, 78–80; violations of, in certification schemes, 75. See also FPIC; human rights; indigenous peoples IndoFood, 31 Indonesia: Basic Agrarian Law 1960 (Indonesia), 81; Dutch colonial rule, 80; garment industry regulation, 217–18; Indigenous land rights, 80–88; Kapa community, 89–90; Kapuas Hulu region, 85–86; Lomako comuna, 106–7; Long Isun site, 81–85; Long Tuyoq community, 82–83; Minangkabau community, 89–90; Ministry of Environment and Forestry, 85, 94; National Human Rights Commission, 83; National Land Bureau, 87, 90; State Forest Areas, 81, 91 Indonesian government, 94 Indonesian Palm Oil Pledge (IPOP), 94–95 Industria Chiquibul S.A., 121 IndustriaALL Global Union, 33, 155, 176 information rights. See human rights Interfaith Center on Corporate Responsibility, 185 Interlaken Declaration, 56 International Cocoa Initiative, 190 International Code of Conduct for Private Security Providers, 42–43 international covenants, conventions, treaties, and declarations. See International Labour Organization; United Nations International Federation of Organic Agriculture Movements, 198 International Finance Corporation (IFC), World Bank, 88–89, 293n85 international human rights law. See human rights International Labour Organization (ILO): Bangladesh ratifies conventions, 215; chairs hearings under Bangladesh Accord, 32–33; conventions, 102, 167, 208, 277n110; Convention 29 on Forced Labor, 183; Convention 87 on the Freedom of Association and Protection of the Right to Organize, 183, 215; Convention 98 on the Right to Organize and Collective Bargaining, 183, 215; Convention 100 on Equal Remuneration, 183; Convention 105 on the Abolition of Forced Labor, 183; Convention 111 on Discrimination in Employment and Occupation, 183;

Index Convention 138 on Minimum Age, 183; Convention 169 on Indigenous and Tribal Peoples, 21, 77, 102–3, 104, 107, 113; Convention 182 on the Worst Forms of Child Labor, 183; on freedom of association, 167; on indigenous peoples’ rights, 103; patchy ratification of Conventions in Asia, 217–18; protections for agricultural workers, 183; on purchasing practices, 17; Resolutions, 243; on “synergistic governance,” 36–37, 48, 266 International Ladies’ Garment Workers’ Union, 212 Investor Alliance for Human Rights, 185 Izhakoff, Eli, 66 Jesner v. Arab Bank, 248–49 jewelers, role in diamond trade, 71–72 jobbers agreements, 163–64, 212, 314n41. See also outsourcing Joint Work Plan (Zimbabwe), 63, 66–68 justice norms, applying, 224–25, 232, 235 Kapa community (Indonesia), 89–90 Kapuas Hulu region (Indonesia), 85–86 Kasky, Marc, 184, 249–50, 253 Katsaura, Obvious, 59 Kencana group, 85 Kennedy School of Government (U.S.), 186 Kimberley Process (KP), 11–12; aims of, 53; boycott of, 28; conflict diamonds and, 53–73; enforcement, 33–34; failure to protect human rights, 54, 68–70; jewelers and, 71–72; limitations of, 259–61; monitoring, 27–28, 33–34; norm production, 23–24; reform cycle in, 72–73; Review Mission to Zimbabwe, 62–63; secures release of Maguwu, 65–66; used to commit atrocities, 249; Working Group on Monitoring, 27–28. See also conflict diamonds; KPCS; Marange diamond fields Kimberley Process Certification Scheme (KPCS); certificate, 12, 33; definition of conflict diamonds, 71; failure to adopt diamond identification procedures, 72; failure to protect human rights, 54, 68–70; obligations in, 24; origins of, 55–58; unfair labor practices and, 69–70. See also conflict diamonds; KP; Marange diamond fields Kiobel v. Royal Dutch Petroleum, 248

339

KP. See Kimberley Process KPCS. See Kimberley Process Certification Scheme labor. See labor rights; labor rights violations; labor unions labor rights, 183–84; in agriculture, 195–96; initiatives, 146; RSPO and, 23; WSR Network and, 146–47. See also labor rights violations; labor unions labor rights violations: in Florida tomato farms, 17–18; in palm oil industry, 119 labor unions, 139; garment industry, 141; in Bangladesh, 175, 176; Bangladesh Accord and, 13, 143, 163–65, 173; Indonesian, 217–18; relations with MSIs, 42, 208–9; RSPO and, 22–23. See also labor rights land disputes, 89, 106, 131 land grabbing, 54, 92; in Guatemala, 118–19, 133–34 Lang, Tim, 190–191 Las Palmas company, 27, 117, 127–30 law: Australian, 48–49; in Bangladesh Accord, 214; compliance with human rights standards and, 48; consumer protection, 242, 248–49, 250–56; customary, 59, 76, 80–81; diamond extraction and, 59; disclosure, 40–41, 182, 209, 244–48, 251, 257; domestic, role in regulating human rights impacts, 40–41, 47; Dutch, 49; forestry, 81, 91; funding reform efforts, 220–21; indigenous rights and, 22, 76, 80–81, 97, 113; intellectual property, 267; international human rights law, 75–76, 111, 181, 184, 266; international, role in regulating human rights impacts, 37–40, 47; labor, 159, 183, 195, 215, 264, 266; legally binding agreements, 31–32, 141, 143, 154–55, 160–61, 164–65, 195; need for reforms, 94, 265–66; power exercised through, 225–28; private law, 205–6, 220–21, 225; remedies for breach of, 76; role in supply chain capitalism, 14–18; soft-law initiatives, 207–8; supply chain legislation, 231–32; support for Indigenous claims, 113; weak domestic laws in supply chain, 37, 243–44; Western property law, 110–11. See also background legal rules and norms; names of cases; titles of legislation Levi Strauss, 9, 38

340

Index

Lidl, case against, 254–55 Linares, Flavio, 124 linguistic barriers, in filing RSPO complaints, 134 local focal points (LFPs) for KP in Zimbabwe, 66–67 lof mapu territorial unit (Chile), 97, 104–12, 261–62, 296n17 logging. See tropical forest logging Lomako comuna (Indonesia), 106–7 Long Isun site (Indonesia), 81–85 Long Tuyoq community (Indonesia), 82–83 Los Angeles, restaurant hygiene grading, 186 Maguwu, Farai, 11–12, 23–24, 28, 33–34, 249, 260 Manheru, Nathaniel. See Charamba, George Mapuche people, 96–115 Marange diamond fields (Zimbabwe), 58–63; artisanal mining, 59–61; human rights abuses, 34, 54, 58–70; illegal mining, 58; massacre of villagers and miners, 98; military presence in, 67–68; reporting on, 64–67; unfair labor practices, 69–70; villagers displaced, 68–69 Marine Stewardship Council, 42 marketing tactics, legality of, 252–53 Mars Inc., action brought against, 251 Massachusetts, consumer protection laws, 251 Matt Bronze Corporation, 70 McLaughlin, Dave, 94–95 Microsoft, 42, 237–38 Migrant Justice (U.S.), 14, 143, 145 Milk with Dignity program, 14, 143, 274n50 Minangkabau community (Indonesia), 89–90 Minerals Marketing Corporation of Zimbabwe, 60 Mines and Minerals Act (Zimbabwe), 58–59 Mininco, forest holdings, 100 Ministry of Environment and Forestry (Indonesia), 85, 94 Ministry of Environment and Natural Resources (Guatemala), 118, 128 Model Law on International Commercial Arbitration (UN), 33, 214, 219–20, 305n77 Modern Slavery Act 2015 (UK), 40, 231, 246–47, 282n28

Modern Slavery Act 2018 (Australia), 40, 231 monitoring and enforcement: Bangladesh Accord, 20, 28–30, 32–33, 160–61, 164– 65, 218–20; contract-based enforcement approaches, 219–20, 235, 266–67; FFP, 20, 28–29, 32; FSC, 19, 26–27, 30–31; KP, 19, 27–28, 33–34, 59–64; PRI principles, 18, 26–34; resource constraints, 44; RSPO, 19–20, 26–27, 30–31; transparency in, 218, 267; Working Group on Monitoring (KP), 27–28; WSR Network, 20 Montenegro, José Roberto, 124 Movement for Democratic Change (Zimbabwe), 60 Mozambique, 59, 60 Mpofu, Obert, 63 MSI Integrity, 10 MSIs. See multi-stakeholder initiatives Mtetwa, Beatrice, 65 Mugabe, Robert, 59, 60, 65, 69 Multifabs Ltd factory explosion, 177 multilayered market approaches, 200–201 multi-stakeholder initiatives (MSIs), 10–12, 140; criticisms of, 43–47; definition of, 36, 42; development of, 10–12; differences to WSR programs, 19, 24, 30–31; early MSIs, 42; failure to achieve sustainable change, 140; growth and limitations of, 207–10; lack of worker input, 43–44; legitimacy of, 43–44; limitations of, 15, 36; monitoring and enforcement, 19–20, 26, 30; power imbalances and, 259–62; role in regulating global supply chains, 35–50; social auditing, 44–45, 208, 260, 283n46. See also FSC; KP; RSPO Mutuagung Lestari, 87 Nacional Agro Industrial S.A., 119 Naranjo, Francisco, 127 National Corporation for Indigenous Development (Chile), 105 National Human Rights Commission (Indonesia), 83 National Labor Relations Act (U.S.), 17, 141, 211 National Land Bureau (Indonesia), 87, 90 National Union for the Total Independence of Angola, 61 The Nature Conservancy, 82, 83

Index Nestlé: action brought against, 251; and child slavery, 180, 248, 251; Doe vs. Nestlé, 248; Greenpeace campaign targeting, 85; human rights impact assessments, 191 Netherlands: Child Labour Due Diligence Act 2019, 41; colonial rule in Indonesia, 80–81; Dutch law, 49; migrant worker regulation, 49 New International Economic Order (NIEO), proposed code of conduct, 8 NGO observers, 27–28, 44 Nike v. Kasky, 184, 249–50 Nolan, Justine, 207–10, 212, 224–25, 243, 257, 266 norm production, 18–26, 234–35. See also individual schemes and programs Nyakunu, Major, 67 ontological grounds for indigenous claims, 99–100, 110–12, 114–15 Operation Hakudzokwi, 60–63 Organization for Economic Co-operation and Development (OECD), on multinational enterprises, 39 O’Rourke, Dara, 157 outsourcing, 3, 15, 163–64, 212; global, 3, 35 Oxfam, 23, 124, 190–91 Paiement, Phil, 26 Pakistan, Ali Enterprise fire, 140 palm oil sector, 74–95, 116–35; in Guatemala, 117–21. See also RSPO; Wilmar International; Golden Agri Resources Palmas del Ixcán, 119 Partnership Africa Canada (PAC), 55, 70 Perkumpulan Nurani Perempuan (PNP), 83–84 Permanent Indigenous Peoples Committee (PIPC) (FSC), 79, 108 Pinochet, Augusto, 100 police agents, crimes committed by, 101 political economy: norm production and, 234–35; of supply chain capitalism, 17, 20, 226–30, 234–36, 260 polycentric regulatory landscape, 8 power inequalities: in global supply chains, 14–16, 18, 151, 227–28, 234–35; MSIs and, 30, 44, 259–62; PRIs and, 237, 240; in RSPO, 122; in supply chain capitalism, 236; WSR programs and, 262–63

341

A Preliminary Report of the Atrocities Committed by the Police and Army in Mutare and Chiadzwa under “Operation Hakudzokwi,” 62 price mechanism: garment industry, 169–70; reforms to, 146–47 private regulatory initiatives (PRIs), 4–5, 15–18, 225–27; achievements of, 236–39; analysis of, 224–41, 258–69; background legal rules and norms and, 266–68; enforcement, 30–34; human rights and, 3–34; in supply chain capitalism, 15–16, 240–41; innovations in, 207–15; legal regulation and, 266; monitoring, 26–30; norm production, 18–26. See also MSIs; WSR programs “producer-driven chains,” 227 Proforest, 124 PT Asiatic Persada, 89 PT Kartika Prima Cipta (KPC), 85–87 PT Kemakmuran Berkah Timbers (KBT), 81–85 PT Permata Hijau Pasaman 1 (PHP 1), 89–90 PVH Corp, 162 Qatar, construction workers in, 36 Q’eqchi’ Maya indigenous communities, 117–19 Rainforest Alliance, 82–84, 195 Rana Plaza garment factory collapse, 13, 35, 144, 155, 162, 167, 175, 213, 252 Ready-Made Garment Sustainability Council (Bangladesh), 145, 155, 163 Reforestadora de Palmas S.A. (REPSA), 118–19 regulation. See governments; law; private regulatory initiatives Remediation Coordination Cell (Bangladesh), 13 replicability of FFP, 263–64 Republic of Congo, expelled from KP, 33 “Responsibly Grown, Farmworker Assured” label, 195 rights. See food, right to; human rights; indigenous rights; labor rights Río La Pasión, Guatemala, toxic spill in, 118–19 Robb, Walter, 192

342 Roda Mas Timbers, 82 Rodríguez-Garavito, Cesár, 268 A Rough Trade: The Role of Companies and Governments in the Angolan Conflict, 55 Roundtable on Sustainable Palm Oil (RSPO), 121–24; activities, 74–95; Assurance Task Force, 93; Board of Governors, 122–25; certification mechanism, 11, 124–30, 132; Complaints Panel, 87–88; compliance challenges, 78–79; contradictions within, 130; grievance mechanisms, 93, 126–27; limitations of, 259–60; foundation and structure, 121–24; FPIC policies, 92; grievance mechanisms, 93, 126–27; Guatemalan operations, 120–35; members, 120; monitoring and enforcement, 19–20, 26–27, 30–31; New Planting Procedure, 78, 87, 93; norm production, 20–21; objective of, 116; palm oil disputes submitted to, 87; Principles and Criteria, 77–78, 124–26, 299n25; reform efforts, 79–80, 94; Secretariat, 122; structure of, 22–23; sustainability vision of, 130–31; Wilmar cases, 89–91 RSPO. See Roundtable on Sustainable Palm Oil Ruggie, John, 9–10 Russia, 58, 73, 238 safety committees, under Bangladesh Accord, 29, 145, 166–68 Sambas District, 88–89 San Román protected area, 119 Sánchez Monge, Geisselle Vanessa, 259 Savimbi, Jonas, 61 scalability: in global supply chains, 205–23; of FFP, 263–64 Sellers, Sean, 210–12 Seruyan District, 95 Shell Royal Dutch Petroleum, 248 Sierra Leone, diamond trade in, 55 Silva-Castañeda, Laura, 27, 261 Simons, Penelope, 16–17 Sinar Mas, 85–8 slavery: child slave labor, Nestlé’s alleged involvement in, 180; in cocoa supply chain, 190; domestic legislation on, 40–41, 231, 246–48; in Florida agricultural industry, 140; in Marange diamond fields, 69

Index Snapchat, case against, 252–53 Social Accountability International, 42 social auditing, 44–45, 208, 260, 283n46 social justice labels, certification schemes and, 190–91 social responsibility. See WSR programs Social Stewardship Standards draft (AJP), 198 Solidaridad, 124 sovereignty: framing in international legal system, 111; significance in KP, 24, 57, 69, 70 State Forest Areas (Indonesia), 81, 91 Sud v. Costco, 250–51 supply chain capitalism, 3–4: accountability in, 154–79, 224–41; brand sensitivity, 263–64; concept of, 3; human rights and, 3–34; political economy of, 227–30, 258; PRIs and, 14–18, 34, 226–27, 240–41; role of law in, 14–18; working within, 265 Supreme Court (California), 184, 249–50, 253 Supreme Court (U.S.), 248–50 sustainability certification, 116–35, 188–91. See also certification schemes; RSPO sustainability reporting, 188–89 Sustainable Agriculture Network, 195 “symbolic-political” achievements, 114 synergistic governance, 36–7, 47–50, 266 Taco Bell, CIW boycott, 141–42 tariffs policy in U.S., 233 Tazreen factory fire, Bangladesh, 140, 157, 162 Technical Committee (RSPO Guatemala), 126 Ten Thousand Villages, 193 Thailand, fishing industry, 35–36 Tierras Bajas del Norte region, 119 Tirta Mahakam, 82 “Toward Social Justice and Economic Equity in the Food System,” 198 “Trade is Better than Aid” paradigm, 194 trade unions. See labor unions traditionally occupied lands: in Canada, 297n24; ILO Convention 169, 102; by Mapuche communities, 105, 108, 114. See also lof mapu territorial unit (Chile) Transformasi Untuk Keadilan-Indonesia, 86–87

Index Transition Agreement (Bangladesh), 163 transnational corporations (TNCs): funding from, 220–21; in food supply, 180; regulation of, 8, 37–40, 183, 243. See also CSR; global supply chains transparency: Bangladesh Accord, 164, 177–78; domestic law, 40–41; monitoring and enforcement, 218, 267; transformation through, 180, 185–87 Transparency in Supply Chains Act 2010 (California), 231, 246, 247, 251, 282n28 Transparency Policy Project, 185–86 treaties. See International Labour Organization; United Nations tropical forest logging, 76–77 Trump administration (U.S.), 233 Trussart, Nathalie, 261 Tsing, Anna, 15 TUV-Rheinland, 89 UNCITRAL Model Law. See United Nations UNI Global Union, 33, 155, 176, 213 unions. See labor unions United Kingdom, Modern Slavery Act 2015, 40, 231, 246–47, 282n28 United Nations: Committee on Economic, Social and Cultural Rights (CESCR), 181–82; Conference on Trade and Development, 194; Convention on Biological Diversity, 102, 107; Declaration on the Rights of Indigenous Peoples (UNDRIP), 21, 76, 104; definition of “conflict diamonds,” 71; Fowler Report, 55; Global Compact, 9, 38, 243; High Commissioner for Human Rights, 69, 76–77; Human Rights Committee Mandate, 243; Human Rights Council, 38–40, 182; interest in business and human rights, 37–40; International Covenant on Economic, Social and Cultural Rights, 181–82; International Covenant on Civil and Political Rights, 184; Model Law on International Commercial Arbitration, 33, 214, 219–20; Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises (draft), 38; “Protect, Respect and Remedy” Framework, 182; Resolution 55/56, 55; Security Council resolutions, 55–56, 71; soft-law initiatives, 38, 207–8, 243; Special Representative for

343

Business and Human Rights, 9, 37–38; Universal Declaration of Human Rights, 146, 181 United States: agricultural and domestic workers in, 17–18, 141, 211, 216; AJP, 197–99; consumer protection law, 250–54; consumer protection litigation, 248–50; Dodd-Frank Act, 48; farmworker slavery case, 140; farmworkers excluded from labor laws, 195–96; food industry regulation, 192; labor laws in, 264; outsourcing, 163–64, 212; Transparency in Supply Chains Act 2010 (California), 246; Trump administration, 233; WSR programs in, 14, 218 The Unmanageable Consumer, 191 voluntary certification. See certification schemes Voluntary Principles on Security and Human Rights, 42 Walmart, 31, 157, 196, 207, 252, 279n143 Warth v. Seldin, 253 water scarcity, 130 water use, palm oil production in Guatemala, 118, 129–30 whistleblower protection: in Bangladesh Accord, 166–67, 171; in RSPO, 80 Whole Foods, 192 Wilmar International, 88–91 worker education, 166–67, 175–76 worker participation schemes, 216–18 Worker Rights Consortium (WRC), 143–44, 154–55, 162 Worker-Driven Social Responsibility (WSR) Network: achievements of, 239; agreements on gender-based violence and sexual harassment, 178–79; formation of, 14; foundation and principles of, 145–48; monitoring and enforcement, 20. See also WSR programs worker-driven social responsibility (WSR) programs, 12–14: analysis of, 210–13; contract-based enforcement, 219–20; definition of, 5; differences to MSIs, 19, 24, 30–31; elements of, 210–11; enforcement, 30–34; feasibility of, 139–53; funding of, 220–21; industry-specific issues, 150; limitations of, 239–40, 265;

344

Index

worker-driven social responsibility (WSR) programs (continued) monitoring, 26, 28–30, 218–19; norm production, 24–26; origins of, 12–14, 140–41; redistribution of power, 262–63; principles of, 145–48; replicability of, 263; role of government alongside, 221–23; scalability of, 263–64; success of, 215–16, 262–63; worker organization capacity for, 151–53; worker participation, 216–18. See also FFP; Bangladesh Accord; WSR Network Working Group on Monitoring (KP), 27–28 World Bank Group, 89, 293n85 World Council of Diamond Bourses, observer status in KP, 57 World Diamond Council: annual meetings, 66; formation of, 275n95; observer status in KP, 23–24, 53, 57; regulation of diamond trade, 12; reviews by, 28 World Trade Organization (WTO): General Agreement on Tariffs and Trade (GATT), 17; policies breaching rules of, 17

World Wildlife Fund (WWF), 82, 121, 124, 128 WSR Network. See Worker-Driven Social Responsibility Network Zimbabwe: diamond production and trade, 34, 53–73; diamonds smuggled from, 59, 60, 67, 72; Joint Work Plan, 63, 66–68; Minerals Marketing Corporation of Zimbabwe, 60; Mines and Minerals Act, 58–59; Movement for Democratic Change, 60. See also Marange diamond fields Zimbabwe African National Union– Patriotic Front (ZANU PF), 59, 61, 69 Zimbabwe Centre for Research and Development, 261 Zimbabwe government, 59–61, 62, 65–66, 68, 69 Zimbabwe Mining Development Corporation, 70 Zimbabwe National Army, 61