Regulating Corporate Social Responsibility (CSR) for Economic and Social Development Through Trade Rules

Abstract

Multinationals affirm corporate social responsibility (CSR) is a way to go further than national and international law to build a social compact. While CSR can contribute to an effective global labor governance scheme, we argue that national and international laws must be engaged to regulate CSR private governance schemes. We will support this argument and, furthermore, we will argue that international trade agreements can provide, if effectively enforced, grounds for the articulation. It can be argued that hybrid governance schemes could ensure that result-oriented and pragmatic developmental processes are at the core of the CSR–development nexus. In this article, we argue for the need to socialize CSR to make it more efficient, and that trade agreements can be part of this process. CSR is not an autonomous regulatory trajectory, and it will probably become increasingly regulated through institutional means.

Keywords

Corporate responsibility trade negotiation diplomacy governance labor law transnational firms cooperation

Can corporate social responsibility (CSR) be a vector of social and economic development? Asymmetries are so important between developing countries and transnational enterprises that CSR may not be an effective developmental normative trajectory. The business world is not traditionally seen as a means to attain social objectives. In a famous article published in 1970, Milton Friedman (1970) affirmed: “There is one and only one responsibility of the business world: to use its resources and engage them in activities intended to increase his profit.” Yet, Hira and Benson-Rea argued recently: “The issue of responsibility is an unclear one, but clearly the multinationals bear some” (Hira & Benson-Rea, 2017, pp. 2–3). The contemporary question seems to be about the degree and range of responsibility of multinationals. A related question is how to ensure effective CSR.

Multinationals affirm CSR is a way to go further than national and international law to build a social compact. While CSR can theoretically contribute to an effective global labor governance scheme, the literature tends to converge on the argument that, for that to happen, national and international laws must be engaged to regulate CSR private governance schemes. We will support this argument and, furthermore, we will argue that international trade agreements can provide, if effectively enforced, grounds for the articulation of international law and private normative schemes. Hybrid governance schemes could ensure that result-oriented and pragmatic developmental processes are at the core of the CSR–development nexus. Some, like Kolben, have argued for the adoption of a supply chain approach to trade and labor provisions, while others, like Pike in this issue, emphasized the need to research empirically the complex dynamic of hybrid enforcement models facing very specific coordination and dialogue challenges.

In this article, we argue that we need to think of CSR as an object of regulation that engages not only civil society and the private sector but also public interventions and oversights at the national and international levels. Enforcement issues are important and cannot be left to self-regulation. CSR is not an autonomous regulatory trajectory, and it will probably become increasingly regulated through other institutional and regulatory means. Trade agreements can be part of this process of fostering better enforcement by engaging trade partners in a better linkage between trade and labor governance schemes, especially in developing countries.

International Cooperation and CSR

The European Commission defines CSR in the 2001 Green Paper as “the voluntary integration of companies’ social and ecological concerns into their business activities and their relations with their stakeholders” (European Commission, 2001, p. 8). The voluntary and non-binding CSR, largely initiated by multinationals in the North, has been widely criticized. The lack of credibility of self-regulation by large companies is emphasized. Haufler asks “How does the public have a voice?” (Haufler, 2001, p. 119) and points three major weaknesses of self-regulation: “Discrimination over the standards, lack of strict enforcement mechanisms, and no well-defined accountable to accountable companies” (Haufler, 2001, p. 72). Robert Reich also strongly criticizes reliance on self-regulating codes of conduct (Reich, 2008, p. 3).

The utopian nature of “self-regulation” has become recognized, and there are increasing numbers of advocates of state intervention based on the renewed importance given to the legal context and, more generally, to the institutional functioning of the market (Cangiani & Maucourant, 2008, p. 39). Others have argued that CSR is not a domain belonging only to private actors; many initiatives have attempted to involve civil society and public organizations in legally framing and regulating CSR.

According to Rioux and St-Denis, it is important to define CSR in such a way to embed it into the socio-political space where it operates, as well as to link it to its global and transnational nature (Rioux & St-Denis, 2014). In the context of globalization and transnationalization of firms, the “…major problem is the fact that there are no territorial coincidences between the globalized space and the juridico-political frameworks elaborated at national and international levels” (Rioux & St-Denis, 2014, p. 8). This situation is responsible for a certain loss of control of the globalization process which, juxtaposed with the pressures of enterprises and the rise of neoliberalism, shattered the state-centered vision of the world and international relations, as well as the mechanisms of economic regulation (Rioux, 2009). Faced with the daunting challenges inherent to this mismatch, many initiatives have emerged from various parties, including international organizations, civil society, governments, and businesses. Indeed, we have witnessed a proliferation of institutional trajectories.

The UN has created the Global Compact, the OECD has developed Guiding Principles, and the International Labour Organization (ILO) remains a key player. The central role of the ILO is key to organizing an interception between CSR and other instruments such as obligations through the trading system. Several international organizations have played an important role in defining and promoting CSR. The ILO’s eight core Conventions have played an important role in the development of the guidelines to be followed at the level of labor standards. The strength of the ILO is its ability to collaborate with various stakeholders, including local governments. “Partnering with national governments bodies who have the power to enact good laws that offer protection and rights in the countries where we work will only achieve sustainable impact”. According to Brugvin, the ILO is the only global institution in the field of work and labor (Brugvin, 2000).

The ILO has set up the Better Work Program in collaboration with the International Finance Corporation (IFC). This is a comprehensive program bringing together all levels of the garment industry aimed at improving working conditions and the respect for labor rights while boosting competitiveness, which had some results.¹ This incursion of the ILO in the domain of CSR and trade policies is a new phenomenon that must be analyzed as a potential way forward towards a network system of rules, institutions, and actors in a complementary approach linking trade disciplines and CSR initiatives.

The ILO has recently recognized the role that trade agreements could play in order to reinforce the willingness and efficiency of developing countries to respect international labor standards and developed programs to link market access the improvements of working conditions. In recent years, trade agreements have proliferated, and the most recent ones include social clauses,² such as the United States–Mexico–Canada Agreement (USMCA), the Comprehensive Economic and Trade Agreement (CETA), and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The following section will analyze whether these labor chapters could be considered as levers to make CSR more binding. These trade agreements include technical assistance and collaboration with governments in developing countries to implement a CSR strategy.

Trade Agreement and Labor Rights in the CPTPP

The current Canadian Government seeks to improve working conditions in Canada and elsewhere, consistent with its progressive trade agenda. This approach now includes cooperation and action plans such as the Action Plan under the Canada–Colombia Labor Cooperation Agreement. As a result of concerns about workers’ rights in Colombia, such as the “misuse of outsourcing, systematic anti-union practices and the prevailing climate of violence in Colombia” (Government of Canada, 2018), Canada has developed the “Action Plan under the Canada-Colombia Labor Cooperation Agreement - 2018-2021.” Four recommendations have been submitted to the Colombian government (Employment and Social Development Canada, 2018):

In order to protect workers’ fundamental rights to freedom of association and collective bargaining, remove legal vehicles used to undermine these rights (in other words collective pacts, union contracts, illegal intermediation and subcontracting);

Strengthen compliance and enforcement of labour laws through labour inspection that focuses on preventive measures, provides effective advice, and efficiently collects fines imposed;

Strengthen efforts to fight impunity and violence in the country by bringing those responsible to justice; and

Evaluate and report on efforts to promote freedom of association and free collective bargaining.

It is too early to assess the impacts of this Plan of Action, but Colombia has stated its commitment to engage. It remains to be seen how Canada can actually help improve the situation in countries where the record has been very poor in terms of respecting labor rights, like in Colombia. The fact that the United States has lost its case against Guatemala based on a technicality is nothing reassuring either, except for the fact that it enabled to acknowledge the fact that some of the legal language needed to be changed.

The example of the CPTPP is interesting because it is presented as a comprehensive and progressive agreement. Chapter 19 has an ambitious mandate to improve working conditions through obligations. It “contains enforceable labour rights and obligations, and reaffirms the commitments of the 11 parties to respect internationally recognized labour rights and principles and to effectively enforce their domestic labour laws” (Gouvernement du Canada [Government of Canada], 2019a). All parties are members of the ILO and pledge to uphold these labor Conventions and also recognize the importance of cooperation and dialogue to promote conflict resolution among CPTPP members. A consultation can also be requested in case of conflicts, and as a last resort, if consulting parties fail to solve the problem within 60 days of the request for consultations, trade sanctions can be applied if non-compliance is confirmed by a panel established under the agreement’s dispute settlement procedures.

The CPTPP has had a huge impact already in Vietnam. The agreement entered into force in Vietnam in January 2019, which is very recent. It is interesting to note that Vietnam’s interest in joining this 11-member (Canada, Australia, Japan, Mexico, New Zealand, Singapore, Malaysia, Brunei, Chile, Peru, and Vietnam) agreement with a strong chapter on labor was greater market access to North America, especially to the US market. Indeed, the primary attraction was access to the US markets, as the United States were originally part of this deal before the Trump administration pulled out. Yet, progress was made in Vietnam towards a revision of the Labor Code to allow, among other things, greater freedom of association and trade union pluralism, to meet the obligations of the CPTPP. Of course, it is expected to take up to 5 years for Vietnam to amend the law (Socialist Republic of Vietnam, 2018), but the fact that it is now acceptable to talk about independent labor organizations is in itself a significant change and a step in the right direction.This is something the ILO is acknowledging as the trade agreement triggered reform on national law and changes in industrial organization.

The agreement does not regulate CSR, but it can help in promoting some of the voluntary codes of conduct of multinationals and their suppliers. The CPTPP can cause real improvements in the social responsibility of companies active in the territory involved because it has the potential to put pressure on countries that need instruments and surveillance for their trade partners in order to meet objectives related to the improvement of labor standards and working conditions. As noted by Eric Boulanger at the International Symposium on “Socially Responsible Trade Policy—in Canada and Around the World,” one of the positive repercussions of the ratification by Asian countries is a possible percolation effect on workers’ rights in Asia, creating a domino effect on other economies (Colloque International, 2019). If the constraint is external, it could give legitimacy to the Vietnamese government to impose higher labor standards within its own country and impose them on the transnational corporations (TNCs). However, for a real improvement of labor standards in Vietnam, such pressure must cover not only the factories of the multinationals but also the entire local economy, as well as all sectors, even though there are huge wage and skills gaps across the board.

These agreements certainly could potentially help in creating a dynamic of change while triggering surveillance and consultation in a process that could involve trade sanctions in case of non-compliance. But what about the countries that have not signed trade agreements with social clause? This is where the schemes of the Generalized System of Preferences (GSP) enter into play.

Generalized System of Preferences and Social Conditionality

The GSP could also be a lever for promoting CSR and changing labor laws in developing countries. As we know, “(…) since 1968, developed countries can implement a GSP, which allows for the granting of trade preferences to developing countries and thereby derogating from the most-favored-nation principle”³ (CEIM & GGT, 2017b). Since 1984, the United States has included conditionality to access their GSP. Recipients must respect the rights of internationally recognized workers. The European Union also introduced in 1998 the GSP+, which also imposes this conditionality to respect the fundamental rights of the ILO.

There are arguments for and against this (CEIM & GGT, 2017b).

Arguments for:

Can be a mechanism to encourage civil society to monitor practices or file requests for review that will allow NGOs and unions to advocate their cases;

Can be a tool that can support both the economic and social development of developing countries.

Arguments against:

The introduction of a unilateral procedure leads to an arbitration mechanism encouraging protectionism by a developed country; a poor country could see its situation deteriorate.

The GSP no longer covers countries likely to constitute strategic levers for the overall improvement of labor standards, namely emerging countries.

As an example, we can look at the case of Bangladesh, which lost its GSP from the United States in 2013 following the collapse of the Rana Plaza textile factory. The United States demanded an improvement in the conditions of workers that were very precarious before they could again join the GSP. Since 2013, improvements have been made, including, for example, an increase in union registrations.

However, it is difficult to distinguish whether this is the impact of the withdrawal of the GSP or the international pressure following the scandal of 2013. In reality, Bangladesh’s exports covered by the US GSP are quite small and do not cover the sector (textile), the largest export sector to the United States (Inside US Trade, 2014). Yet, we can also argue that “(…) that being suspended from the program hurts the country’s reputation in terms of its trade and investment environment” (Inside US Trade, 2014). The United States, along with the European Union and the ILO, is still pressuring Bangladesh into major labor law reforms.

A more recent example is that of Cambodia, which risks losing its GSP from the European Union. In February 2019, the EU initiated a procedure for the temporary suspension of trade preferences. In a press release, the European Commission said it had launched a procedure to temporarily withdraw the tariff preferences granted under the Everything But Arms (EBA)⁴ regime because of concerns over serious human rights violations. Preferences will not stop automatically, because in the first place, an increased effort of cooperation is promoted with a view to improving the rights of workers. The removal of preferences remains a last resort in case cooperation does not produce the expected results (European Commission, 2019). This threat of withdrawal could have real impacts and lead to concrete improvements as the European Union is Cambodia’s largest trading partner.

The effectiveness of the GSP conditionality, nonetheless, remains questionable. Several countries holding the US GSP perform very poorly at the level of labor standards, such as Congo, Liberia, Pakistan, etc. (Office of the United States Trade Representative, 2019). The revocation of a GSP is a complex and time-consuming process. The burden lies on the civil society to file a complaint which must be very well documented. As demonstrated in the case of Cambodia, a probation/collaboration phase is first put forward. Sanctions and the revocation of the GSP are very rarely the solution adopted.

These social requirements linked to trade agreements often imposed by developed countries such as the United States, Canada, or the European Union could make southern governments react and encourage them to promote CSR and labor standards. On the other hand, despite the fact that trade agreements or the GSP are perceived as a collaboration between governments, unlike the private CSR initiatives, we can still fear a certain protectionism of the developed countries, or even a certain kind of paternalism. Social demands for change could also restrict some southern countries’ access to the world market, perceiving them as discriminatory since they have little means to change their production methods in order to meet the requirements. These demands also lead to another debate that of the universalization of social values. The development of universal social norms provokes the debate between cultural relativism and universalism (Vaillancourt, 2011). Caney goes further in arguing that “the problem with universalism is that moral values are nothing more than a cover for power politics” (Caney, 2005, p. 52). Lamy also recalls that “developing countries have vigorously opposed the inclusion of social standards in trade negotiations, considering that developed countries wanted to use these standards to deny market access to poor countries” (Lamy, 2004, p. 60).

Several large transnational corporations accused of worker abuse such as Joe Fresh or J.C. Penney, involved in the Rana Plaza tragedy, come from developed countries. Despite the fact that the countries of the South must take charge of their own revision of the labor laws and involve their civil society in this progress, a responsibility is still incumbent on the countries of the North. A double discourse of large firms active in the South makes developing countries fear loss of investment and sometimes prevents them from acting in favor of its workers. “Governments feel that if they enforce labor rights, the work will move elsewhere. The fear is plausible” (Hira & Benson-Rea, 2017, p. 41). While multinationals pride themselves on promoting CSR through codes of conduct or the like, they put unbearable pressure on subcontractors in the South: “Subcontractors complained that multinationals place increasing and quite unreasonable demands upon them in terms of cutting time. and keeping prices low, thus de-incentivising improvements in labour conditions” (Hira & Benson-Rea, 2017, p. 41).

Innovation Regulation of Global Supply Chains in California, France, and the Netherlands

The awareness of the responsibility of the North and parent companies has led to the creation of some very promising new laws that include a principle of extraterritoriality. Until recently, this principle was rare because “enforcing workers’ rights in supply chains is a difficult task when production takes place outside the borders of a state” (Rioux & St-Denis, 2014, p. 16). Various CSR public policies from developed countries have emerged in recent years, such as the California Transparency in Supply Chains Acts in California, the Benefit Corporations Act in several US states, the German Corporate Governance Code, the adaptation of ISO 26000 in the French and Danish context, etc. (Rioux & St-Denis, 2014, pp. 39–40). In some cases, hard law is emerging to replace CSR. In 2016, the United States signed the Trade Facilitation and Trade Enforcement Act of 2015, which banned the importation of forced labor products into the country. The ban on forced labor products has also been introduced in the USMCA. On the US Customs and Border Protection (CBP) website, you will find all the banned products in the United States that come from forced labor around the world, for example all the cotton produced in Turkmenistan or all products containing cotton from that country (U.S. Custom and Border Protection, 2019). In this section, we review three of the leading examples.

California is a pioneer. In 2012, it introduced the California Transparency in Supply Chains Act. Through this law, major California retailers and manufacturers must inform consumers on their website of efforts to eradicate slavery and human trafficking throughout their supply chain.⁵ Companies subject to the Act must post disclosures on their respective websites: audit, audits, certification, internal accountability, and training. This law is intended primarily to inform and educate consumers to make more responsible choices. On the other hand, this law does not mandate that businesses implement measures to ensure that their products are free from human trafficking and slavery as the law only requires disclores on what is done, or not done (Harris, 2015). The impacts of this law may still be significant because all California companies involved must comply with them and publish a comprehensive report, even those making no effort to eradicate this human trafficking. The reputation of a firm can be compromised. The implementation of the California Transparency in Supply Chains Act is the responsibility of the Attorney General, and failure to comply with it results in legal action by the Attorney General.⁶

France is a pioneer in creating a very avant-garde law for workers with a coercive character, “Law No. 2017-399 of 27 March 2017 on the duty of vigilance of parent companies and contractors.” This law “establishes in the commercial code a duty of vigilance, a legal obligation of prudent and diligent behavior, which are debtor mother companies of groups that employ at least 5,000 employees in France or 10,000 employees worldwide” (Cossart & Beau de Loménie, 2018, p. 9).

These parent companies are therefore obliged to establish, effectively implement, and publish “reasonable due diligence measures to identify risks and to prevent serious harm to human rights and fundamental freedoms, health and safety of persons and environment” (Cossart & Beau de Loménie, 2018, p. 9, our translation). In this era of globalized trade, it is essential that the entire supply chain be taken into account, which this law requires by including all parties involved in the business relationship, namely the subsidiaries, the subcontractors, and the suppliers—the suppliers because “(…) a supply chains consisting of a series of subcontractors is very difficult to monitor, by either government or buyers” (Siddiqui & Uddin, 2016, p. 688). Despite the fact that some large companies demonstrate a willingness to take responsibility, the omnipresent outsourcing only perpetuates social dramas such as that of Rana Plaza. This French law is also called the “Rana Plaza Law”, in tribute to the Bangladeshi workers killed in the collapse of a plant symbol of this wild outsourcing which relocates the weight of social and environmental damage to distant trading partners and reinforces already dependence logics (Cossart & Beau de Loménie, 2018, p. 33, our translation). This is why an internationalized legal framework is so important to develop and this French initiative can show the way as it is a pertinent trajectory in this regard.

Unlike initiatives that are limited to simple audits, this law requires going beyond simple monitoring and developing “tailored actions.” This is important because: “…audits diagnose but they do not cure” (Hira & Benson-Rea, 2017, p. 51). This particularity of the law is very important because it allows a long-term commitment between the company and the workers. In the event of violations of workers’ rights, some TNCs might have the reflex to leave in order to avoid tarnishing their reputation internationally. This excessive flexibility of movement of the TNCs brings job insecurity to workers in the South. In the case of this duty of care law, companies are obliged not only to foresee the risks but also to repair them. Concrete actions are expected, precisely developed for each risk. One can argue that “…the mechanism for monitoring implementation must make it possible to demonstrate the effectiveness of vigilance…the Plan does not have a simple declarative character but it corresponds internally to a concrete deployment, over time” (Cossart & Beau de Loménie, 2018, p. 72, our translation).

Moreover, unlike private CSR initiated by firms, these laws promote collaboration not only between private actors but also between states and involve civil society and labor organizations in the developing country, too. “It must imperatively include the elements relating to the involvement of the unions in the establishment of the mechanism and ideally, in the monitoring of alerts and reports” (Cossart & Beau de Loménie, 2018, p. 70). Although CSR initiatives is often criticized for their non-binding nature, the coercive nature of this law makes it a very important and innovative lever to produce real progress in the field of workers’ rights.

Binding mechanisms are provided for companies that do not comply with the law. First, the firm can be put on notice to enforce its obligations. “If the company so arrested does not comply within a period of three months from the formal notice, the competent court may, at the request of any person with an interest in bringing an action, order it, where applicable. under penalty, to respect them” (CMS, 2019). A conviction for civil liability may also be possible, accompanied by two additional sanctions: “publication, dissemination or display of the decision or an extract thereof, the costs being borne by the convicted person; execution under penalty” (CMS, 2019). The first Plans published in 2018, particularly succinct, are of a lightness that contrasts with the importance of the issues of the Due Diligence Law. Would this phenomenon reveal concerns about companies on the conformity of their activities with human rights and environmental standards, or it is the sign of a lack of consideration of new obligations under the Law? (Cossart & Beau de Loménie, 2018, p. 10). It is not yet easy to evaluate and determine the impacts of the law and its future impacts.

Yet, this French law is for the moment the one that goes furthest at the coercive level, but other examples demonstrate this desire to include a principle of extraterritoriality, which is innovative and promising given the current context of globalization. From 2020, the Wet Zorgplicht Kinderarbeit law will oblige Dutch companies to have a duty of care that goes even further than the California law, and which is close to the French news of 2017. These companies will have to make sure that child labor is nonexistent throughout their entire production chain.⁷ In any case, “companies will need to ensure that there is a ‘reasonable presumption’ of child labor absence from their Tier 1 suppliers, but this requirement will also apply, where possible, to tier one suppliers. superior” (CFIE, 2017).

Like the French law on the duty of vigilance, if there is a presence of child labor, an action plan must be developed to correct the situation. A register should also be created shortly so that companies can file their returns. Anyone can file a complaint, but the burden of proof is on the complainant. If the public authorities believe that the complaint is justified, they can impose on the company a procedure accompanied by a time of execution. If the company does not run, it may be subject to an administrative fine. Finally, if the company is again in default within 5 years of the fine, prison sentences of not more than 6 months may be imposed (CFIE, 2017).

The Dutch and French cases are promising, but it will take a few more years to assess the real impacts. The binding and extraterritorial characters are innovative. On the other hand, it will be necessary that a strong collaboration be built between the FTN and the host governments and civil society so that solutions are well adapted to each context and that they are durable and legitimate.

We join Haslam (author in this special issue) in arguing that CSR can lead to mixed approaches to regulatory framework since policy options include co-production and regulation of CSR practices. Ultimately, all instruments should be used and linked nationally and internationally to improve global labor governance—and international trade agreements are one of the many, with the special characteristic of having dispute settlement mechanisms and possible economic sanctions and incentives.

Conclusion

For globalization, growth and productivity gains to translate into higher employment levels, better wages and working conditions, thereby enabling development, national and international CSR policy frameworks must be improved. It is our conclusion that the intervention of states is needed for CSR to be really effective and that trade agreements can provide for some incentives and sanctions that could be beneficial for multisectoral labor governance schemes. This is even more important in the case of developing countries because they often lack the capacity and the power to enforce national laws.

National CSR policy frameworks and international cooperation must find ways to improve the effectiveness of corporate responsibility initiatives worldwide. States and international organizations, as well as other actors, should ensure that CRS and other private and civil society initiatives create meaningful commitments and obligations for firms regarding labor standards though proactive national and international strategies.⁸ Trading partners can help in important ways, using trade agreements to foster change and improvements, and through assistance.

Introducing CSR commitments in trade agreements can bind states to ensure mechanisms leading towards higher accountability of firms in relation to labor standards. Trade agreements could eventually allow for direct obligations of firms to respect norms, principles, and guidelines in relation to labor standards, and firms that do not respect international and national laws could be denied access to markets. Trade laws can also be used to ban products that do not respect basic human rights and fundamental labor principles. As we have documented earlier, this is the case in the United States and some other countries, and Canada went the same way and ban imports integrating forced labor.⁹

Footnotes

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

Notes

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