Power, Participation, and Private Regulatory Initiatives

Human Rights Under Supply Chain Capitalism

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

• Publisher: University of Pennsylvania Press
• Year: 2021
• ISBN:
  9780812299694
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

From unsafe working conditions in garment manufacturing to the failure to consult indigenous communities with regard to extractive industries that affect them, human rights violations remain a pervasive aspect of the global economy. Advocates have long called upon states, as the primary duty bearers and enforcers of human rights, to hold corporations directly accountable for violations committed throughout the supply chain. More recently, many business and human rights advocates have considered the development and enforcement of private regulatory initiatives (PRIs) to certify that actors along the supply chain conform to certain codes of conduct. Many advocates see these PRIs 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.This volume brings together academics and practitioners from a number of regions throughout the world to engage in theoretical analysis, case study exploration, and reflection on a variety of PRIs. Theorizing outward from the work of practitioners and activists on the ground, the book brings essential but often overlooked questions to the scholarly debates on business, human rights, and global governance.Ultimately, the contributions coalesce around one basic claim: that the inequalities and disparities of power and wealth that are a key characteristic of the contemporary global economy can also mark the origins and operation of PRIs, and do so to varying degrees. The collection highlights the need for discussions about labor, environmental, and other human rights accountability 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 the conversation concerns about distributive justice and political economy.

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

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.

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.

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 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 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 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 Int...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Key Acronyms
• Part I. Framing the Discussion: Private Regulatory Initiatives, Human Rights, and Supply Chain Capitalism
• Part II. Multi-Stakeholder Initiatives and the Maldistribution of Power
• Part III. Worker-Driven Social Responsibility Programs: Attempts to Redistribute Power
• Part IV. Critical Reflections
• Notes
• List of Contributors
• Index