Can Voluntary Business and Human Rights Norms be Effective? Exploring a Multidimensional Perspective of Norm Effectiveness in Africa

Abstract

1. Introduction

In the context of global governance, there is a general recognition that states cannot address the plethora of problems they face alone, hence the need to work with multiple actors. This thinking is consistent with ‘new’ collaborative governance approaches, which represent a shift from the ‘old’ hierarchical governance model (Abbott and Snidal 2009; Ruggie 2014). The ‘governance gaps’ produced by globalization have contributed to this notable trend by creating opportunities for partnerships between states, corporations, international organizations, non-governmental organizations (NGOs) and civil society. Gaps or deficits in global business regulation, for example, allow Transnational Corporations (TNCs) to exploit their workforce, the environment or host communities with devastating consequences (see Olawuyi and Abe 2022; Voegtlin and Pless 2014). Simons and Macklin (2013) note that a governance gap exists with respect to the prevention of, and accountability for, direct or indirect corporate human rights abuses in host states, as well as the provision of redress to victims of such abuses. They emphasize the persistence of this gap in areas of weak governance, which seems consistent with Ruggie’s (2007) notion that the worst cases of human rights violations occur in countries with weak rule of law, low incomes, and high corruption, among other characteristics.

It is for the reasons noted above that the business and human rights (BHR) agenda has gained prominence in recent years, despite its existence since the 1970s, as marked by the United Nations’ (UN) creation of a Centre on Transnational Corporations in 1977 (Ramasastry 2015). However, general calls for corporate responsibility and accountability have a much longer history throughout the evolution of the corporation that dates back to centuries ago (see Addo 2024). But in an effort to move towards a binding instrument on BHR, the UN Sub-Commission on the Promotion and Protection of Human Rights developed the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (‘Draft Norms’) in 2003.¹ The Draft Norms, controversial in its nature, ‘referred to a large and daunting list of treaties by which companies were meant to assess their conduct’ (Ramasastry 2015: 244). The Draft Norms encountered resistance from business actors, states and civil society groups for several different reasons. For one, firms were not clear on their spheres of influence and civil society groups expressed concerns about the absence of adequate remedial and grievance mechanisms (InterAction Council 2008). Against this backdrop, then UN Secretary General, Kofi Annan, appointed Professor John Ruggie to serve as the UN Special Representative on the Issue of Human Rights and Transnational Corporations and other Business Enterprises in 2005.

Professor Ruggie’s work came to fruition on 16 June 2011 through the United Nations Human Rights Council’s unanimous endorsement of the UN Guiding Principles for Business and Human Rights (UNGPs) as an authoritative global governance framework. Despite the existence of the Voluntary Principles on Security and Human Rights (VPs) since the early 2000s, the UNGPs is considered the most authoritative internationally recognized framework for BHR due to its endorsement by a variety of state and non-state global actors, including its prestigious position within the UN system. The UNGPs—like the VPs and other global corporate social responsibility (CSR) norms—reflect a growing trend in ‘multi-stakeholder’, ‘collaborative’ or ‘hybrid’ governance (see Addo 2024; Dashwood 2012; Emerson and Nabatchi 2015; Risse 2004; Vallejo and Hauselmann 2004). These new governing arrangements are expected to give actors the opportunity to engage in constructive dialogue and decision-making, in turn dismantling the traditional silos within which such dialogues have occurred in the past.

Given that the broader diffusion of UNGPs and other BHR norms is not in doubt (see Buhmann 2021; Abe 2022; Addo 2024; Buhmann et al. 2024), this article is about examining a certain disjuncture that informs the process of diffusion in specific sites of implementation. In line with existing research that point to the dual quality of norms and the paradoxes involved in their global diffusion (see Coleman and Tieku 2018; Andrews 2019a), this article asks the following question: in what ways can we better understand the ‘effective’ diffusion of global norms? In particular, we propose that a nuanced understanding of norm diffusion requires us to explore effectiveness within a multidimensional perspective entailing outputs, outcomes and impact. The need to distinguish three levels of effectiveness builds on the work of Rieth et al. (2007), which focused on the UN Global Compact. The first aspect, output effectiveness, entails the recognition of (partial) responsibility for human rights complicity or violations. The second, outcome effectiveness, captures the changes in the way corporations communicate, report and respond to allegations. The third aspect, impact effectiveness, focuses on the way in which concrete issues are addressed and remediated in the case where a violation has occurred. We show in subsequent sections that there is some evidence to support the first two aspects of effectiveness with respect to the BHR agenda; what remains ambiguous and unaccounted for is impact effectiveness. The rest of the article examines some conceptual underpinnings of norm diffusion and effectiveness, followed by a brief discussion of methods. The remaining sections focus on the specific cases of Ghana and South Africa to contextualize the UNGPs’ effectiveness as output, outcome and impact. The conclusion summarizes the findings and briefly reflects on areas for future research on this topic.

2. Conceptualizing global norm diffusion and effectiveness

This section focuses on four things, including providing a definition of what norms are, what they are meant to do, how they are expected to spread (and be implemented) across geographical and institutional jurisdictions as well as what a multidimensional understanding of norm effectiveness looks like. In principle, ‘norms are used to account for behavior governed by social rules and they are primarily held to entail a mode of interaction based on a “logic of appropriateness”’ (Towns 2012: 185). As a result, a central logic that underpins normative arrangements is a perceived agreement on what is the most appropriate action to take under certain circumstances, including some understanding of the consequences to be faced if action is deemed inappropriate, which manifests as the logic of appropriateness and the logic of consequences (Goldmann 2005).

With regard to how global norms evolve and spread, Towns (2012) discusses four characteristics including coercion, persuasion, learning and mimicry. Coercion entails the imposition of norm adoption and change while persuasion means inducing acceptance and change through tactics such as argumentation instead of outright coercion. The process of learning is more decentralized in that actors are made to appreciate the prospects of policy change by drawing lessons from changes in other places where the norm or policy in question has been implemented. Lastly, the process of mimicry entails copying or emulation, which represents an isomorphic adoption of a norm based on certain ‘cues from the external environment’ (Towns 2012: 185). The isomorphism that underlies the process of norm socialization and eventual internalization explains how the behaviour of international actors is ‘defined to a large extent by the company they keep’ (Greenhill 2010: 143).

In their discussion of the evolution and adoption of human rights as an international norm, Risse and Ropp (2013) explore how actors move from being committed to a norm to being fully in compliance with it. Their ‘spiral model’ of human rights change involves three processes of socialization, including instrumental adaptation, argumentation and habitualization. They also posit that the socialization process entails five phases or stages—including repression, denial, tactical concessions, prescriptive status and rule-consistent behaviour. In further conceptualizing how ‘soft’ mechanisms that involve non-state actors diffuse globally, what Finnemore and Sikkink (1998) captured over two decades ago as the ‘life cycle’ of a global norm is useful here. According to them, this cycle entails three stages, including norm emergence, norm cascade, and internalization. What is common with the contributions of Finnemore and Sikkink (1998), Towns (2012) and Risse and Ropp (2013) to the norm diffusion literature include their examination of persuasion, mimicry, learning, habitualization and rule-consistent behaviour as key factors that inform both the socialization and internationalization of a norm. Recent accounts of norm diffusion have included elements such as contestation and paradoxical local implementation (see Andrews 2019a; Coleman and Tieku 2018; Grant and Willhem 2022).

In essence, logics of appropriateness and notions of coercion, persuasion, mimicry, habitualization or rule-consistent behaviour present useful frameworks for understanding the emergence and uptake of BHR norms. Generally, global CSR norms are meant to hold corporations responsible for actions or inactions beyond what they are legally mandated to do such as the payment of taxes and royalties, among others (Dashwood 2012). It is within this framework that BHR norms have emerged to govern the activities of TNCs—as part of other normative endeavours to possibly prescribe and proscribe certain types of behaviour for businesses in the realm of human rights. To both conceptualize and operationalize the ‘rule-consistent behaviour’ that undergirds the BHR agenda, for instance, the ‘Protect, Respect and Remedy’ framework underpinning the UNGPs gives states and corporations clear human rights obligations with the expectation that these stakeholders know the explicit difference between what is appropriate and what is not (see Ruggie 2013; Wettstein 2015). According to the framework, ‘protect’ entails the state’s duty to protect its people against human rights abuses by third parties such as TNCs. This also involves clarifying expectations between businesses and states, including periodic assessments of existing laws to accommodate for the changing terrains of human rights.

The framework describes ‘respect’ as the responsibility of corporations to respect human rights in places where they operate and to treat human rights due diligence as the basis of their operations. This requirement should be in place regardless of states’ ability and/or willingness to fulfil their own human rights obligations to their citizens (Ruggie 2013). ‘Remedy’ also implies providing greater access to redress for victims of human rights violations and abuses. This entails having a solid judicial system that addresses such issues, including alternative (non-judicial) dispute mitigation mechanisms. The understanding here is that business could play a role in these mechanisms to remedy the plights of victims (Ruggie 2013). In sum, these three pillars highlight the differentiated roles that governments and corporations must play without conflating their respective roles with regard to human rights. This arrangement reflects an explicit state-business nexus based on the underlying ‘logic of appropriateness’ noted above.

Yet this so-called logic of appropriateness is not clear-cut when one explores norm diffusion and effectiveness from multiple dimensions. Ramasastry (2015) summarizes the current articulation of BHR in stating that the UNGPs provide a common language around which corporations can align their business operations (including value chains) with key human rights treaties that expect corporations to do the right thing by not causing harm. Even so, the UNGPs continue to be criticized as weak due to its non-binding nature. This critique stems in part from how effectiveness of the UNGPs is measured, leading us to examine the multiple dimensions of output, outcome and impact effectiveness (see Fig. 1), as originally proposed by Easton (1965) and further expanded upon in more recent scholarship (see Barkemeyer et al. 2015; Biermann and Bauer 2004; Rieth et al. 2007).

Figure 1.

Multidimensional dynamics of BHR norm diffusion and effectiveness

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This multidimensional explanation of effectiveness, and the particular focus on TNCs, is more suited to understanding the complexities surrounding the uptake and implementation of BHR norms. The norm diffusion literature has varying taxonomies and models around how human rights norms are adopted. But the move from commitment to compliance, however, does not always capture a nuanced picture of what a norm’s effectiveness actually means both in principle and practice—a point that challenges the implicit (and sometimes explicit) logics meant to prescribe and proscribe certain types of behaviour. A more nuanced understanding of norm diffusion and effectiveness is possible once we move past simplistic formulations of logics—whether based on consequentiality, appropriateness or something else. Along the lines of the known gap between policy and practice with regard to the implementation of voluntary global CSR codes of conduct (see Bondy et al. 2012; Fasterling and Demuijnck 2013; Hemingway and Maclagan 2004; Howard et al. 2000; Kemp and Vanclay 2013; Sethi and Williams 2000), the effectiveness of BHR norms in the particular context of Africa also remains poorly understood despite recent contributions to the topic (see Abe 2022; Ogunranti 2023; Olawuyi and Abe 2022).

What this brief conceptual exposé points to is the fact that impact should be understood as a meaningful demonstration of the norm’s ability to solve specific problems in contexts where it is implemented. Corporations may embrace normative ideas (output effectiveness) and make actual behavioural changes and efforts towards their implementation by engaging with a diverse range of stakeholders (outcome effectiveness), but these efforts may not necessarily have a direct and positive bearing on the lives of people who may be regarded as ‘end-users’ or the beneficiaries of the norm (impact effectiveness). The disjuncture between the output, outcome and impact dimensions of effectiveness has enormous implications for our understanding of global BHR norms, particularly their scope and ultimate relevance. This complexity also means that straightforward conclusions cannot be made by simply examining only one or two dimensions of norm effectiveness.

3. Background and methods

Before proceeding into the analysis, a few methodological points must be noted at this juncture. To gain an understanding of norm diffusion and effectiveness, publicly available documents and reports retrieved from both state and corporate websites were analysed, in addition to a plethora of secondary third-party reports and scholarly publications focused on business and human rights in Africa. These sources of data are further augmented by primary insights from fieldwork in Ghana and South Africa that took place in 2017. These different sets of data help to reveal the multiple dimensions of effectiveness. The discussion also refers to leading corporate advocates (such as Gold Fields, AngloGold Ashanti, Newmont, Anglo American, De Beers, and Tullow oil) that have embraced the UNGPs in their extractive activities. The extractive sector was chosen because the issue of human rights as it relates to livelihoods and human security has a long history in Africa’s extractive industry, as opposed to the other sectors that TNCs are engaged in (see Enns et al. 2020). The topical relevance also applies to the two case studies selected because Ghana and South Africa are among the top ten gold producing companies in the world based on production levels in 2015 around which time we began exploring our choice of case studies.²

Fieldwork in Ghana and South Africa was conducted during the period of March to August 2017 based on research protocols approved by the Queen’s University Research Ethics Board. Data collection involved semi-structured interviews, participant observation and analyses of secondary sources of data (for example government documents, corporate memos and press releases). A total of 60 interviews were conducted across the two locations involving senior and mid-level government officials, members of the bureaucracy, civil society organizations and mining industry executives (that is, corporate officials and executives of the Chamber of Mines). The interviewees were recruited through a variety of techniques, including snowball sampling (or ‘chain referral sampling’), email, telephone, and in-person contacts. The majority of the interviews were conducted on a one-on-one basis while a few were held as group interviews. Interviews were tape-recorded upon the attainment of participants’ informed consent and subsequently transcribed for interpretation and analysis. Field research also included attending and participating in various seminars, conferences and talks held by civil society groups, academics and the mining industry (for example the 2017 Junior Mining Indaba in Johannesburg and the 2017 West African Institute of Mining, Metallurgy and Petroleum conference in Accra), a method that is described as event ethnography (see Suiseeya and Zanotti 2019).

The semi-structured interview questions focused on the influence of voluntary global norms (that is UNGPs and VPs), and the factors that hinder or support the institutionalization of these norms. To gain insight into the three different aspects of effectiveness discussed above, one question was intended to tease out how the UNGPs are implemented and the impacts companies have identified in sites of implementation. Another question focused on whether the companies have a specific policy on human rights and the extent to which such policy aligns with existing norms. Furthermore, respondents were asked about existing grievance mechanisms in place between communities and respective companies and the specifics regarding how such mechanisms work. Finally, respondents were asked: ‘what processes are in place to help spread learning and the development of the VPs and UNGPs among diverse stakeholders? In your view, are these processes working or not?’ This last question was meant to explore the socialization processes that lead to the habitualization and institutionalization of these voluntary norms. Overall, the questions and the responses they solicited facilitated a thematic focus on global norm diffusion and the effectiveness of these norms in local settings where they are implemented. Although the questions centred on both the UNGPs and VPs, the focus of this article is on the former.

4. Contextualizing UNGPs’ effectiveness as output, outcome and impact

In analysing the BHR agenda within the context of Africa, we focus primarily on the UNGPs because of the weight the initiative carries. Apart from the tremendous support received by the initiative from several prominent diplomatic stalwarts, the principles also resonate with the Organisation for Economic Co-operation (OECD) Guidelines for Multinational Enterprises, the International Organization for Standardization (ISO) 26000’s 2010 Guidance on Social Responsibility, and the European Commission’s renewed European Union (EU) strategy for CSR (2011–2014), among other international instruments (see Addo 2024; Buhmann 2021). These references point to the global reach of the principles and underlying framework as a guide for international action on the specific issue of BHR, reflecting a sense of alignment with the CSR movement (Scheper 2015). Ruggie himself insisted that the future of BHR is to be found in the Guiding Principles he spearheaded and the individuals and organizations helping to operationalize them, and ‘not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists’ (Ruggie 2014, 9). While the discussion of the three aspects of effectiveness should be seen as intertwined, we will demonstrate below that the first and second (that is output and outcome) are easier to decipher than the third (impact effectiveness).

4.1 Output effectiveness of UNGPs

As noted in Figure 1, a BHR norm’s output effectiveness involves a recognition of (partial) responsibility for human rights complicity and/or violations. In the norm diffusion literature, this element may be captured by language such as ‘instrumental adaptation’ (Risse and Ropp 2013), and can be placed in the middle of stages one and two of the norm life cycle—which entails norm emergence and is followed by norm cascade (Finnemore and Sikkink 1998). The goal in this stage of norm diffusion is to accumulate a critical mass of organizational as well as individual norm entrepreneurs who would then be able to persuade others to come onboard. Persuasion means inducing acceptance and change through tactics such as argumentation. Diffusion at this level also entails a process of learning (sometimes subtle forms of coercion) where actors are made to appreciate the prospects of policy change through demonstrations of positive change in other places where the norm in question has been implemented (Towns 2012).

Output effectiveness of the UNGPs, therefore, can help us understand the motives, mechanisms and even the historical context underlying norm emergence and acceptance by a variety of actors. Specifically, it highlights the convergence of these actors around the general principles and guidelines encapsulated by the norm. Here, Hönke et al. (2008) provide a compelling account of South Africa’s CSR strategies while referring to the historical context and its relevance. Like other accounts of South Africa’s socio-economic history, they posit that the current discourse on corporate responsibility and the interaction of various actors in the South African context is closely related to the role of business during the apartheid era: ‘Dominated by white Afrikaner business, the South African corporate sector during apartheid was based on an exploitative as well as highly segregated system of forced labour, which initially was supported by foreign investment and later subject to trade sanctions in the wake of South African isolationism’ (Hönke et al. 2008: 10). Recent research has shown that class action litigations that are meant to address some of this historical misconduct under the apartheid regime have been useful in facilitating legal remedies against corporate harm (Abrahams 2021).

Even though South Africa has grappled with several instances of violence in its mineral sector (including the infamous case of Marikana in 2012),³ the Government ‘has been quiet on matters involving soft law, especially in the context of business and human rights’ (Centre for Human Rights 2016: 2). However, at the same time, it is reported that the South African Human Rights Commission (SAHRC) ‘has led several capacity building initiatives that include a focus on the UNGPs … several multinational companies in South Africa have expressed interest and support for the UNGPs and are building internal capacity around them’ (Centre for Human Rights 2016: 2). Despite the reluctance of the South African Government towards voluntary governance initiatives, there are positive signs of norm acceptance, especially from firms and civil society actors in the country. For example, a senior executive from AngloGold Ashanti (South Africa) commented on his company’s commitment to these voluntary initiatives:

The good news is that you’ve got companies that embrace these initiatives because it is the right thing to do. It supports their value systems and they, like us [AngloGold] are really committed to implementing them and embedding them in business processes. Of course, there are detractors who say these voluntary initiatives don’t work, and it’s a PR [Public Relations] campaign. I think they are wrong. We derive a lot of benefits … these initiatives give you the platform for sharing and learning and benchmarking to see what others are doing, and very importantly, networking with peers in the same industry. You have discussions because we all face common challenges … All of a sudden, you are interacting with people you have a common language with. If they have something good, you can learn something from them. That to me is about continuous improvement.⁴

The statement above reflects some of the instrumental reasons why companies adopt voluntary norms, one of which is to ‘support their value systems’, as noted by the AngloGold Ashanti executive. It also underscores the processes of persuasion, learning and sharing which are quintessential aspects of output effectiveness. Furthermore, the statement highlights the process of mimicry, which represents an isomorphic adoption of the norm without debate or reflection based on certain ‘cues from the external environment’ (Towns 2012: 185). This element is captured by claims that such initiatives serve as benchmarks to ‘see what others are doing’, in addition to providing networking opportunities ‘with peers in the same industry’.

In the context of Ghana, there are three main government departments responsible for business and human rights issues, namely the Ministry of Environment, Science, Technology and Innovation (MESTI), the Ministry of Lands and Natural Resources, and the Commission on Human Rights and Administrative Justice (CHRAJ). The Government of Ghana supported the CHRAJ in organizing three workshops on the UNGPs in July 2014. These workshops were jointly organized by CHRAJ, Shift (an independent non-profit centre for business and human rights practice, chaired by Ruggie) and SOMO (the Centre for Research on Multinational Corporations, a global non-governmental organization based in the Netherlands). Despite this effort, the government has not yet adopted a National Action Plan (NAP) on business and human rights, as encouraged by the UN Human Rights Council and UN Working Group on business and human rights. Instead, the Government of Ghana developed a Country Implementation Plan (CIP)⁵ Work Plan for VPs which covered a period of three years (2016–2018) focusing on establishing the baseline of human rights in relation to security in the extractive sector, evaluating the impact of activities and output (feedback), creating security and human rights awareness among government institutions, development partners, companies, security agencies and host communities among others (Government of Ghana 2016). The introductory section of the Work Plan referred to becoming an ‘engaged country’ in 2014 and pursuing Ghana’s commitment to ‘protect, respect and remedy human rights’, as outlined in the UNGPs and in accordance with the Constitution of the Republic of Ghana (Government of Ghana 2016). These statements reflect output effectiveness, which entails proactive endeavours towards the agreed-upon commitments that actors have endorsed (Rieth et al. 2007).

One of the dominant themes among government officials in Ghana is the notion that the VPs and the UNGPs are inextricably linked in that they assist the government to remain on track with its security and human rights commitments vis-à-vis good governance. In other words, our interviews revealed that a commitment towards the VPs is also regarded as a show of effort towards the implementation of the UNGPs. For instance, a senior government official stated that ‘when it comes to these initiatives, we know that they are important for good governance, and they support our legal and regulatory frameworks, which are critical for protecting human rights’.⁶ Moreover, a mid-level official of the Ghana Chamber of Mines, in explaining the leadership of the extractive sector in embracing voluntary governance norms stated:

The industry took the lead before the government responded … for example, when the VPs started, Newmont was part of our Memorandum of Understanding (MOU) with the Ghana Army. They [Newmont] had signed onto the VPs, so of course it was incumbent that we include those provisions as part of the MOU. Otherwise, then it could lead to the possible violation of the VPs that they [Newmont] had signed onto. So, of course, it was new to all of us and Newmont took the lead. Once it was included in the MOU, it became necessary for us to train the other member mining companies to let them know what the VPs were all about, including the military.⁷

The observation above clearly illustrates the important role the extractive industry plays in terms of making commitments to the business and human rights agenda. The Ghanaian government is also engaged in voluntary BHR frameworks as an enabler although it is expected that a stronger leadership would have implications for the output effectiveness of such norms. The statement also sheds further light on the ‘automatic emulation’ or institutional isomorphism that forms part of the norm diffusion process, considering that members of the Ghana Chamber of Mines in addition to the Ghanaian government, emulated Newmont’s leadership in endorsing the VPs.

The field of BHR, at least as promoted by the UNGPs, is a new arena. Due to lack of empirical data on implementation performance, particularly in the case of Africa, it does appear as if the human rights commitments of TNCs in Africa’s extractive industry are purely rhetorical. Yet, theorizing initial commitments and proclamations as output effectiveness facilitates a more sophisticated understanding of the current significance of the UNGPs. At the level of output effectiveness, there is reason to agree that Ghana and South Africa are not just recipients of BHR norms but are actively involved in ongoing dialogues on the topic. For instance, the business and human rights theme has remained central to the activities of SAHRC over the last decade beginning with its Business and Transparency Conference in 2013 and the adoption of BHR in its strategic plan for the 2015–2020 fiscal years.⁸ In Ghana, the Commission on Human Rights and Administrative Justice (CHRAJ) organized three workshops on the UNGPs in July 2014, which followed a visit by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises (Abe 2022). At the regional level, the African Commission on Human and Peoples’ Rights (ACHPR) has shown interest in the impact of the extractive industry on human rights by establishing the Working Group on the Extractive Industries, Environment and Human Rights in 2009, and the work of this Working Group continues alongside the implementation of the BHR aspect of African Union Agenda 2063 (Abe 2022). Beyond the examples of Ghana and South Africa, another notable regional development is the BHR Africa Project, which was launched in 2022 by the OHCHR with the goal of building impactful BHR engagement, strengthening local expertise and supporting the development and implementation of NAPs.⁹ This BHR Africa Project has led to specific initiatives in countries like Liberia, Mozambique and Uganda all of which are making more advancements in the area of NAPs that could have significant ramifications for outcome and impact effectiveness.

4.2 Outcome effectiveness of UNGPs

Figure 1 points to outcome effectiveness as primarily constituting behavioural changes in the way corporations communicate, report and respond to allegations. Thus, the notion of ‘rule-consistent behaviour’ (Risse and Ropp 2013) may best characterize the outcome effectiveness of a norm. Outcome effectiveness represents a stage in the diffusion process where cues from the environment propel actors to change their actions to reflect what can be regarded as acceptable or appropriate behaviour (Greenhill 2010; Towns 2012). This stage in the evolution of a norm is also accounted for as the third and last stage in Finnemore and Sikkink’s (1998) norm life cycle, as the point in the socialization process where a global norm becomes internalized or institutionalized.

As seen in Table 1, various leading companies working in the mining, oil and gas sectors have developed human rights policies and publicly elaborated their support for the UNGPs. Most of these companies have a good record of responding positively to human rights allegations and cases levelled against them by host communities with the exception of Anadarko (one of the three main partners in Ghana’s jubilee field), Golden Star Resources and Galiano Gold Inc. (Asanko Gold).

According to the Business and Human Rights Resource Centre, a higher response rate is not a direct reflection of a company’s actual conduct. Rather, it is an indicator of a company’s openness to engaging with human rights concerns raised by civil society. The above-70 per cent response rates of extractive companies in Ghana perhaps suggests that they are showing interest in addressing some of the key issues that brought the UNGPs into being—hence the attainment of outcome effectiveness per our conceptualization. Newmont, for instance, mentioned in a recent CSR report that

effectively identifying and managing human rights risks also is good business—it helps build relationships based on trust with host communities and governments; protects and enhances our reputation; improves our ability to access capital; complies with local, national and international laws; and is essential in attracting and retaining talent (Newmont 2020).

This policy statement led to the development of an integrated approach to enforce the company’s human rights commitments. This is one example of specific efforts by a leading extractive company to advance the BHR agenda.

As a company, Anadarko (Oxy) has a Human Rights Policy that aligns a commitment to human rights with their core social responsibility and ethical business values.¹³ Furthermore, although Golden Star Resources and Galiano Gold (Asanko Gold) are considered mid-tier and junior firms respectively, they have made significant efforts to draw on several international standards. For instance, during the Prospectors and Developers Association of Canada (PDAC) conference held in early March 2018, Golden Star Resources received the 2018 Environmental and Social Responsibility Award, an award that ‘honours an individual or organization demonstrating outstanding initiative, leadership and accomplishment in protecting and preserving the natural environment and/or in establishing good community relations during an exploration program or operation of a mine’.¹⁴ Similarly, Galiano Gold (Asanko Gold) received the 2016 Ghana Mining Industry Award for Corporate Social Investment (Asanko Gold 2016). As illustrated in Table 1, Galiano Gold (Asanko Gold) is listed as a supporter of the UNGPs. Moreover, several company executives, including Asanko’s senior leaders, confirmed that the UNGPs and other international standards influence their commitments to human rights.¹⁵ For example, Galiano Gold (Asanko Gold) has made commitments to human rights initiatives, including the VPs, World Bank’s Environment, Health, and Safety Guidelines and International Labour Organization’s (ILO) Core Standards. These efforts represent outcome effectiveness and demonstrate how behavioural changes have occurred in response to the outputs of the BHR agenda—that is, the agreed-upon principles set out in the UNGPs. As a high-ranking policy official in the Minerals Commission of Ghana shared,

in the past, from 2005 thereabout, community people wore red and black to go to mining communities in large numbers to protest. Now there is awareness about the VPs, UNGPs, EITI [Extractive Industries Transparency Initiative] and others, so companies are very sensitive to these issues … When it comes to grievances, there is now dialogue and this helps to reduce tension. These initiatives keep extractive companies in check and if your operations do not fit [the norm], you are doomed [emphasized by interviewee]. People simply go to the media if you are doing something out of the norm, and you know the implications of that could be huge for the company’s image.¹⁶

A senior corporate official added,

from the beginning of a project, you need to be operationally ready and actively engage community people and stakeholders. You have to ensure that human rights are respected and obtain a social license to operate. Our case is unique because we reversed the normal orthodoxy; CSR preceded production … safety and respect for human rights are part and parcel of what we do.¹⁷

The fact is that respect for human rights is a direct result of the norm socialization process that seeks to ensure actors’ behaviour is consistent with generally agreed-upon principles of ‘good’ conduct (Risse and Ropp 2013). This explains why actors feel they will be ‘doomed’ if they are seen to act in ways that are not consistent with the norm, even though this perception of doom has more to do with the company’s public or global reputation than with any specific legal consequences.

South Africa remains an interesting case as government’s reluctance regarding soft law mechanisms has led to its push for hard law mechanisms at the international level (see Smit 2016). A key reason for this is the existence of the South African state’s BEE (Black Economic Empowerment) programme and corporate compliance requirements emanating from its Companies Act, 2008. South Africa was one of the countries that pioneered the UN Human Rights Council (HRC) Resolution 26/9 on 14 July 2014, which established an Open-Ended Intergovernmental Working Group (OEIWG) on Transnational Corporations and other business enterprises with regard to human rights and involving the mandate to develop a legally binding international instrument to regulate the activities of TNCs (Abe 2022). A third updated draft of this Treaty document dated July 2023 was discussed at the ninth session of the OEIWG¹⁸ and on 15 March 2024, during the 55th regular session of the HRC, the Chair-Rapporteur of the Working Group was tasked with conducting further consultation on the current draft.¹⁹

Similar to Ghana, there has been a shift in the BHR agenda when we examine the human rights commitments of leading extractive firms in South Africa. As indicated in Table 2, some of the leading resource extraction firms have made commitments toward human rights policies.

As noted in the case of Ghana, Table 2 reflects outcome effectiveness in that it implies a general commitment to the norm and an apparent change in behaviour towards its implementation. The companies’ response rate to human rights allegations does not mean actual mechanisms are being put in place to specifically solve the problem. In terms of sustainability reports in the South African context, Hamann et al. (2009) note that extractive firms only began providing systematic and explicit accounts of human rights policies and practices in their sustainability reports as late as 2006. Rio Tinto has been actively promoting the BHR agenda through reports and engagements with other actors. For example, in June 2015, the company published The Way We Work, focusing on themes such as ‘respect’, ‘integrity’, ‘teamwork’ and ‘accountability’. A previous report in 2013 by Rio Tinto was titled Why Human Rights Matter: A Resource Guide for Integrating Human Rights into Communities and Social Performance Work at Rio Tinto. Central to this document was a focus on case studies demonstrating the importance of human rights due diligence. The company’s Human Rights Policy revised in January 2023 further points to its organizational approach to addressing the UNGPs.

Similar to Rio Tinto, AngloGold Ashanti has written annual reports showcasing the company’s commitment to put human rights principles into action. For instance, in their 2014 report, the first paragraph under the ‘commitment’ section states: ‘We seek alignment of our policies and practices with the United Nations Guiding Principles for Business and Human Rights (UN Guiding Principles), as adopted by the United Nations Human Rights Council in June 2011’ (AngloGold Ashanti 2014). Each annual report highlighted key implementation challenges and provided an overview of injuries and fatalities relating to their operations. The company’s 2022 Human Rights Report points to a framework that helps the company to advance their commitments to the UNGPs’ protect, respect and remedy principles.²¹ These mechanisms, even if only understood at the outcome effectiveness level, represent a fundamental shift from the period prior to the 2000s when there was little or nothing to be said about such commitments and internal policy changes.

Furthermore, Tables 1 and 2 underline the commitments of major extractive companies in Ghana and South Africa in relation to the ‘respect’ component of the UNGPs. For example, the 2020 edition of Newmont’s Human Rights Standard focuses on human rights risks at their sites of operation and in their supply chain, and it helps the company to track and report their human rights performance annually. These measures are helpful indicators of what we characterize as ‘outcome effectiveness’, given that the company’s activities in Ghana have been marked by allegations of human rights violations, other forms of disenfranchisements and hypocrisy (see Andrews 2019b; Essah and Andrews 2016; Mares 2012; Uche and Khalid 2023).

Like Newmont, Kinross (Chirano mines in Ghana) also uses the UNGPs to help identify priorities based upon the nature of their operations, the context of the host countries where they operate, and the list of human rights as defined by the Universal Declaration of Human Rights, the International Labour Organization Core Conventions, the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights (Kinross 2023). According to the recent Sustainability and ESG Report, one thing the company has consistently done since 2018 is to ensure that between 94–100 per cent of its security personnel have completed human rights and security training which is an important measure to safeguard communities from violations or harm caused by personnel employed by the company (Kinross 2023: 49). This has not always curtailed human rights violations (see Enns et al. 2020), but it serves as a crucial element of risk-based due diligence on the part of the company, which also implies some level of outcome effectiveness or behaviour that is consistent with the UNGPs.

In South Africa, the Marikana tragedy is posited as the classic example of why companies are motivated to do more to promote the business and human rights agenda; it also partly explains South Africa’s leadership role in the initial discussions of the proposal for a binding BHR treaty at the UN level. In an interview with a senior corporate official of AngloGold Ashanti, Marikana was used to illustrate ‘how bad things can go’.²² This official explained that though AngloGold Ashanti had subscribed to the VPs since 2007, when the UNGPs emerged, AngloGold and several industry colleagues ‘grappled’ with the meaning of the UNGPs for companies. A common question was ‘What does this really mean for companies? How do you implement these broad principles?’²³ The corporate official also mentioned that AngloGold’s value systems made it easier for them to directly link the VPs to the UNGPs. In seeking to align their policies and practices with the UNGPs, AngloGold developed its own Human Rights Due Diligence (HRDD) process, which considers human rights risks throughout the lifecycle of the operations. In the post-Marikana period, the UNGPs has enhanced the company’s interdisciplinary approach to addressing human rights, security and community issues—suggesting effectiveness at the outcome level.

4.3 Impact effectiveness of UNGPs

In attempting to explore the effectiveness of global codes of conduct, some scholars insist that the strategic (or rather myopic) vision of the corporation towards profit maximization undermines a proper alignment of CSR efforts with broader stakeholder or community concerns (see Andrews 2019b; Bondy et al. 2012; Buhmann et al. 2024; Osei-Kojo and Andrews 2020). Others argue that there are specific managerial imperatives that prevent codes of conduct from being effectively connected with the realities these codes are meant to address (see Andrews 2021; Hemingway and Maclagan 2004; Sethi and Williams 2000) and there is also the occurrence of a strategic co-optation of the BHR agenda via the instrumentalization of CSR to undermine ongoing trends towards binding BHR legislation (Wettstein 2021). These points accentuate the known policy-practice gap in literature. They also underscore critiques of ‘greenwashing’, ‘bluewashing’ and the like, including the inability to integrate areas such as human rights and social impact assessment in our evaluation of effectiveness (Kemp and Vanclay 2013). Since the dimensions of effectiveness ‘are closely connected, sometimes overlapping components of a causal chain’ (Rieth et al. 2007: 102), the extent to which output and outcome effectiveness is achieved will have significant bearing on impact effectiveness. To reiterate, we describe impact effectiveness as involving the manner in which concrete issues are addressed in local sites of implementation and remediated in the case where a violation has occurred.

Besides the fact that the behavioural change (outcome effectiveness) noted above may not be strong enough to propel meaningful change ‘from below’, impact effectiveness is also difficult to measure due to the lack of empirical evidence to suggest that human rights allegations, violations and abuses have been adequately resolved to the satisfaction of all involved stakeholders (the very issue that resulted in the promulgation of the UNGPs in the first place). Santoro (2015: 159–160) has argued that

while concerned global citizens and businesses headquartered in rich countries have an important role to play, it is local activists, indigenous people, and local NGOs that are on the front lines of the struggle. The future of BHR will be shaped in large measure by their experience, collective wisdom, and power.

It is precisely for this reason stated by Santoro, particularly the focus on those on the frontlines of local struggle, that we believe impact effectiveness needs to be duly accounted for if we were to imagine a BHR agenda that makes substantial difference ‘on the ground’. The remainder of this section specifically focuses on three interrelated factors that hinder the effective institutionalization or implementation of the Guiding Principles in local sites, including 1) the voluntary nature of the norm and absence of domestic compliance enforcement, 2) persistent disjuncture between corporate reports and community allegations, and 3) the divergent understandings of corporate human rights in domestic legislation and what constitutes justice or remedy.

First, let us begin with the voluntary nature of the BHR norm and its association with the lack of effective measures to ensure domestic compliance. The academics and civil society groups we interviewed pointed to these initiatives representing a positive step towards corporate accountability, with various actors embracing voluntary codes of conduct (output effectiveness). However, more work is needed to deliver impact effectiveness. For example, an academic and lawyer in South Africa noted that

human rights are not voluntary. They are fundamental, and you don’t choose … the Guiding Principles have helped several stakeholders to discuss and commit to these things. However, they have no teeth. They have no enforcement mechanism and obligations are minimum.²⁴

Similarly, a known activist with several years of experience in the South African mining industry stated that

I am aware of the Guiding Principles and the VPs, and I have done my own analyses over the years. These initiatives are good, but they are not enforceable. Most of these mining companies have engagement processes, but they do not have remedial processes in place. I have seen this over and over again.²⁵

The two observations above resonate with several of the comments made by other activists interviewed in Ghana around the question of the impact of the UNGPs. Here, impact means the specific changes experienced in sites of implementation. For a norm to have ‘impact effectiveness’, it must practically solve the problem that led to its promulgation in the first place. In other words, it must have the ‘teeth to bite’, regardless of whether different stakeholders are fully aware of the norm and understand what it is meant to accomplish. The observations also shed light on why a human rights policy or norm may exist and may even be adopted by several keen actors, but evidence of positive change in specific settings may be lacking.

The second point is the persistent disjuncture between corporate reports and community allegations. In practice, human rights concerns are often treated as ‘allegations’ until they are investigated and adjudged to be worthy or legitimate. In this context, the reason why the corporate response rate shown in Tables 1 and 2 are generally high is that response does not imply companies have admitted to any wrongdoing or will necessarily take action. This creates a disconnection between what affected communities allege and what companies present as evidence of non-culpability, often leading to a he-said-she-said conundrum—and it further results in sustained mistrust between these parties in terms of what is really happening on the ground and what is reported in corporate reports. In other words, expecting affected communities to use their resources to show evidence that is ‘beyond reasonable doubt’ does not create a good rapport that could have enhanced the manifestations of impact effectiveness. Ultimately, mistrust and poor rapport have direct implications on the meaningfulness of any stakeholder engagement processes undertaken by corporations (see Buhmann et al. 2024).

Part of the issue is the non-existence of NAPs that are grounded in the specific issues faced by host communities and the presence of precise mechanisms to follow through on these plans. This underpins what Olawuyi and Abe (2022) consider to be the challenges of promoting good-fit and home-grown implementation approaches that would move regional aspirations around BHR to local realization. To be sure, there have been some recent developments in both Ghana and South Africa around National Baseline Assessments (NBAs) which are meant to assess the countries’ compliance to BHR norms and their readiness for a validation process that would pave the way for the development of a NAP (Abe 2022). South Africa’s shadow NBA was launched in April 2016 (Centre for Human Rights 2016) and yet the country has not committed to developing a NAP. In Ghana, a National Validation Workshop occurred in July 2021 but the assessment revealed regulatory gaps in relation to labour, environment, anti-corruption and corporate criminal culpability (Abe 2022: 26). With ongoing developments around the Treaty dialogue at the UN level, we can expect the proposed African Union Business and Human Rights Policy to eventually galvanize needed support at national levels but, until such meaningful local adoption becomes commonplace, impact effectiveness would remain challenging to demonstrate.

Lastly, and closely related to the former point, there are divergent understandings of corporate human rights in domestic legislation and what constitutes justice or remedy. The so-called governance gaps that are purported to be part of the reason a norm like the UNGPs exist do not emerge out of a vacuum; for instance, they are informed by years of government neglect of communities that struggle with corporate resource exploitation and a general legislative negligence that has been fashioned along the popular neoliberal logic of deregulated or open markets (see Andrews 2021; Osei-Kojo and Andrews 2020). In other words, the same legislative nonexistence or loopholes that are created to allow companies to thrive in a competitive environment also create an incentive for some governments to expect the private sector to deliver human rights as a social good even though, by the UNGPs own definition, states are the bearers of the key responsibility to protect their citizens from human rights abuses.

The divergent understanding of corporate responsibility vis-à-vis state duty creates an atmosphere for ‘unreasonable expectations’ by community members, as noted by a corporate executive.²⁶ Another consequence is the lack of effective social accountability on both sides (that is corporate and government), and a misunderstanding of justice or who is responsible for this. This means that despite the existence of ‘engagement processes’, the absence of ‘remedial processes’, or a misguided sense of where to go suggests that a complete practical response to the ‘Protect, Respect, and Remedy’ framework is found wanting on the ground—highlighting the challenges of realizing impact effectiveness. This divergence is also a function of the challenges involved in interpreting key pillars of the BHR norm in a manner that is understandable and applicable in local settings, which has resulted in a recent proposal for the implementation of pillar II of the UNGPs (that is, 'respect') through the lens of the Afrocentric Ubuntu philosophy of ‘I am because you are’ (Ogunranti 2023: 67). Adopting such a philosophy at least within the African context is expected to help interpret and operationalize the UNGPs in a language that local audiences can associate with. The discussion of this third point here explains why we can understand the what (output effectiveness) and the how (outcome effectiveness), but significant insight on the question of whom (impact effectiveness) remains lacking. This gap leads to a narrow, rather than holistic, appreciation of the diffusion and utility of BHR norms.

5. Conclusion and implications for future research

The field of BHR remains an evolving area in Africa and elsewhere (Addo 2024; Abrahams 2021; Hamann et al. 2009; Jägers 2020; Ogunranti 2023; Olawuyi and Abe 2022; Smit 2016; Srinivasan and Venkatachalam 2021), despite it being taught as a discipline for more than 30 years worldwide (Ewing 2021). By drawing upon a multidimensional conceptualization of effectiveness and specific case studies, this article has sought to advance our knowledge around both the prospects and challenges of BHR. Despite the growing expectation that global governance norms will make a difference where they are implemented the paradox we have examined here is what to make of these expectations considering the evidence (or lack thereof) around norm effectiveness and demonstrable capacity of requisite agents and agencies to enforce needed changes. This reality speaks to existing business ethics scholarship that identifies a gap between policy and practice with regard to the implementation of voluntary CSR codes of conduct (for example Andrews 2019a,b; Bondy et al. 2012; Fasterling and Demuijnck 2013; Grant and Wilhelm 2022; Kemp and Vanclay 2013; Sethi and Williams 2000).

In Ghana and South Africa, extractive industry players are instrumental in embracing and advancing the BHR agenda. More specifically, output effectiveness has been demonstrated through extractive sector industry leadership and commitment to the business and human rights agenda. Similarly, companies have made efforts to change and/or to align their corporate policies with the UNGPs—which reflects a demonstration of outcome effectiveness. Even so, approaches to these voluntary norms differ nationally and across the sub-region. What is missing, however, for both Ghana and South Africa is the careful evaluation of how these norms contribute to solving practical problems ‘on the ground’ (that is, impact effectiveness), and how BHR implementation is being grounded in communal understandings of duty, respect, responsibility and justice.

The analysis offered in this article reveals the need for more empirical work that engages with theoretical explorations of norm diffusion and effectiveness. There are several promising areas for future research on this topic, some of which have already been raised in the preceding section. Since what is evidently missing is a rigorous assessment of impact, future research can use the previously mentioned OHCHR’s BHR Africa Project as a starting point to critically examine how human rights concerns have changed in response to the UNGPs since 2011 and the role NAPs can play in advancing our knowledge of impact effectiveness. In sum, it can be reiterated that a nuanced understanding of effectiveness from all three dimensions explored in this article could greatly enhance the theorization of BHR and better reflect both the triumphs and prevailing concerns in local sites of norm implementation.

Conflict of Interest

None declared.

References

Footnotes

Author notes