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2. No Explicit Role for Rights Holders in Standard Setting

  • What this means 
  • Why investors should care
  • What to look for 
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Only rights holders know the full range of abuses that they are subject to and how they manifest in a particular setting or context. Several highly regarded studies documenting the shortcomings of certification schemes have recommended a more central role for rights holders—affected stakeholders who have an explicit claim on a more powerful actor or “duty bearer”—in their design and/or implementation.[1]  (See Further Reading.) Robust stakeholder engagement, as reflected in international human rights standards, requires that schemes establish a channel for adequate rights holder input into the scheme’s design and standards. Schemes that have direct links to rights holder organizations are better able to identify and respond to risks as they arise. 
 
ISEAL’s Credibility Principles include a dedicated one on “listening and learning” which emphasizes stakeholder engagement as follows:
A credible sustainability system is inclusive and non-discriminatory. It empowers stakeholders to participate in decisions and hold the system to account. It involves a balanced and diverse group of stakeholders in decisions that will affect them. It strives to understand the context and perspectives of stakeholders who have been under-engaged or under-represented, and it creates opportunities to ensure their participation in decision-making. It provides clear and transparent feedback on stakeholder input and concerns. It has fair, impartial and accessible mechanisms for resolving complaints and conflicts.[2]
We are beginning to see certification and other labeling schemes that provide an explicit role for rights holders to contribute meaningfully to the design of the scheme. Worker-led initiatives that have this feature, for example, can demonstrate measurable improvements in working conditions over time.[3] In such cases, the absence of a reference to international human rights standards (Red Flag 1) may not be a red flag.
[1] Genevieve LeBaron et al., Forced Labour Evidence Brief: Social Auditing and Ethical Certification, (Re:Structure Lab, July 2022), 79,
https://static1.squarespace.com/static/6055c0601c885456ba8c962a/t/62d746146f5dc5205a17621c/1658275349325/ReStructureLab_SocialAuditingandEthicalCertification_July2022.pdf.; Jessica L. Decker Sparks et al., “Worker-less social responsibility: How the proliferation of voluntary labour governance tools in seafood marginalise the workers they claim to protect,” Marine Policy 139 (May 2022): 1, https://doi.org/10.1016/j.marpol.2022.105044.
[2] ISEAL Alliance, ISEAL Credibility Principles - Version 2, June 2021,
https://www.isealalliance.org/sites/default/files/resource/2021-06/ISEAL-Credibility-Principles-V2-2021_EN_ISEAL_June-21.pdf.
[3] Fair Food Standards Council, Fair Food Program State of the Program Report, (2021), 9, https://fairfoodprogram.org/results/.
Certification schemes that have an explicit role for rights holders in the development and operationalization of the standards are better able to avoid undue influence of buyers or suppliers (see Red Flag 6 in Audits). Moreover, there is greater likelihood that the resulting standards will be able to address actual and potential human rights risks. Without the benefit of rights holder perspectives, schemes often have blind spots and, as a result, fall short in addressing abuses. For most of the examples of certifications that fell short in Red Flag 1, it is likely that the certification would have been more robust, and harm would have been avoided had rights holders participated in the development and implementation of the standard.
 
One specific example is an investigative report detailing that companies certified by the Marine Stewardship Council (MSC) that claimed environmental and labor stewardship were “tied to Chinese ships with crimes and risk indicators.”[1] In the report, a spokesperson for MSC is quoted as saying that its “programme is primarily to prevent environmental crimes and tracking where fish came from, not what labour concerns might exist on ships.” MSC had earlier admitted to limiting the scope of labor rights in its standard because it feared that if it adopted broader standards, existing members “could decide to drop out of the MSC program facing the additional cost and time burden of the new requirements.”[2] It may well be the opposite: a standard that incorporates the perspectives of rights holders has the ability to ensure sustainability and in that way ought to be able to meet the expectations of existing members and attract new members.
 
→ Demonstrates: Reputational risk
[1] Ian Urbina, “From bait to plate – tracking the Chinese fishing ships linked to rights and labour abuses at sea,” Daily Maverick, November 19, 2023, https://www.dailymaverick.co.za/article/2023-11-19-bait-to-plate-tracking-chinese-fishing-ships-linked-to-abuses/.
[2] MSI Integrity, Insight #3 Standards & scope: Many MSIs adopt narrow or weak standards that overlook the root causes of abuse or risk creating a misperception that they are being effectively addressed, (July 2020), 12, https://www.msi-integrity.org/wp-content/uploads/2020/07/MSI_INSIGHT_3_FINAL_FORWEBSITE.pdf.
Investors should look for evidence that rights holders (or their representatives) had meaningful input into the standards, or that the standards otherwise directly reflect rights holders’ priorities. While a rarity among certification schemes, it is commonplace to find this feature within worker-driven initiatives and legally enforceable brand agreements, which have sprung up in response to the shortcomings of certification schemes. For example,
➔    The Fair Food Program is an initiative of the Coalition of Immokalee Workers (CIW), Florida tomato pickers who for decades had endured some of the worst working conditions in the United States. Beatings, rape and sexual harassment were commonplace, as were unpredictable hours, low wages, and severe working conditions.  The Fair Food Program, led by workers, transformed the industry. The Program’s About page reads:
Unlike many traditional Corporate Social Responsibility models, and even many multi-stakeholder certification programs that rely on social auditing, the Fair Food Program is a human rights program that is designed, monitored, and enforced by the very workers whose rights it is intended to protect.[1]
In developing the Fair Food Program’s code of conduct, workers included a standard on what constitutes a full tomato bucket, the unit by which tomato pickers are paid. This standard specifically addressed the wage theft caused when workers, who are paid based on the number of buckets they harvest, were routinely required to overfill buckets. Since the Fair Food Program’s inception, workers have contributed to revisions to the code of conduct, including safety protocols for the use of field trucks in the presence of harvesting crews and provisions to protect workers from extreme heat. This is particularly important in light of the fact that currently there are no federal or state laws to protect outdoor workers from heat stress, and some states are seeking to ban local governments from enacting such protections.
 
➔    The Milk with Dignity Program (MD), which was inspired by the Fair Food Program, also has an explicit role for rights holders. The Milk with Dignity About Page states, “The MD Program is rooted in the Code of Conduct, which was created by the very workers it intends to protect.”[2]
 
➔    The 2021- 2022 Report on the Agreement to Eliminate Gender-Based Violence and Harassment in Lesotho explains that Lesotho-based trade unions and women’s rights organizations worked in tandem with US-based workers’ rights organizations to ensure that the program eliminated short-term employment contracts, except in limited cases of genuinely temporary work. This provision eliminated the precarity of employment women workers faced, which subjected them to coercion by managers and exposed them to risk of abuse and exploitation.
[1] “About – The Power of Prevention,” Fair Food Program, accessed February 29, 2024, https://fairfoodprogram.org/about/.
[2] “About,” Milk with Dignity Standards Council, accessed June 28, 2024, https://milkwithdignity.org/about.
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