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

By University of Pennsylvania Press

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.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Jul 30, 2021
• ISBN: 9780812299694

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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

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

Key Acronyms

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

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

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

PART III. WORKER-DRIVEN SOCIAL RESPONSIBILITY PROGRAMS: ATTEMPTS 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

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

Chapter 13.  Private Regulatory Initiatives and Beyond: Lessons and Reflections

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

Notes

List of Contributors

Index

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 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.

KEY ACRONYMS

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 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.

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 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 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 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 conflict-free.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 industry-based 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 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 life span, 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

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 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.

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