Introduction
Contemporary Business and Human Rights (BHR) frameworks are built on the premise that the primary perpetrators of profit-driven human rights abuse are legally recognised business entities operating within functioning regulatory systems. This premise underpins the dominant architecture of BHR – from the UN Guiding Principles on Business and Human Rights (UNGPs) to regional due diligence regimes like the EU Corporate Sustainability Due Diligence Directive – but they may systematically overlook some of the most pervasive and harmful forms of profit-oriented business behavior.
This contribution advances the core claim that human rights abuse linked to profit generation is not confined to licit corporate actors. Instead, it frequently arises in a structurally distinct but normatively connected context: illicit business. Illicit business often flourishes precisely where formal governance is weak, captured or instrumentalised by political power. In these scenarios, legal form obscures economic function, and compliance-oriented BHR models struggle to respond effectively.
Rather than proposing another reform blueprint, the contribution seeks to shed light on how African legal perspectives and normative leadership can inform the discourse by integrating adjacent disciplines, such as organized crime frameworks and internal investigations methods, into the discipline of BHR. By centering the experiences with informal and illicit economies, it argues for a more inclusive and realistic BHR paradigm – one capable of addressing the actors and structures that currently operate beyond the reach of orthodox frameworks.
The Reality of Illicit Business
It is estimated that the global illegal economy comprised around 5% of the world’s gross domestic product (GDP), amounting to US $6 trillion (International Coalition Against Illicit Economies). Human rights violations committed for profit, including forced labor, child exploitation, and displacement, do not stem exclusively nor predominantly from licit companies, but from illicit business. However, this formalist approach that treats business as a legal category – typically registered corporate entities subject to state and market regulation, ignores the core insight that legal form (the act of incorporation) is in fact not determinative of normative function (the potential to cause or facilitate human rights violations).
A more functional and purposive approach may be necessary, so advocates of the enterprise model of organized crime, a paradigm conceptualizing organized crime as governed by the same economic principles as apply to legitimate business and legal markets, meaning that organized criminal groups respond to the needs and demands of suppliers, customers, regulators and competitors in the same way that legitimate businesses do. During the early days of this school of thought, organized crime was seen as an exact mirror of the legitimate business world, however, it was discovered later that there are certain differences between legal and illegal organizations and between legal and illegal marketplaces, one being that illegal markets are typically characterized by competition, not by collusion (U.S. Department of Justice). In their 2025 book, McCarthy-Jones & Turner found that illicit business operates on the same five criteria that licit business does, these being.
These similarities, and the differences must not be ignored by the BHR discourse of 2026, as this would exclude those actors most likely to commit human rights violations merely due to legal technicalities. A purely formalist and isolated approach might undermine the principle of effectiveness (effet utile) in human rights protection and not enhance the principle of systemic integration under Art. 31(3)(c) of the Vienna Convention on the Law of Treaties, suggesting that BHR should in fact be interpreted in light of related areas of international law, including international criminal law, anti-corruption law, and transnational organized crime frameworks. Such a holistic reading supports the inclusion of illicit and complicit business, particularly as these regimes already recognize collective and structural responsibility in analogous contexts (e.g. United Nations Convention Against Corruption (UNCAC), UN Convention against Transnational Organized Crime (UNTOC)).
An African Case: Governing Economic Activity Beyond the Corporation
Illegal gold mining in Ghana illustrates the difficulty. The system of “Galamsey” is not simply a collection of isolated criminal acts, it involves the entire spectrum from extraction, financing, labour, land access, transportation and the sale of gold, and generates roughly $11 billion in foreign exchange. Its effects have included severe environmental degradation, including pollution of river systems and the destruction of agricultural land. Reporting on the issue has also documented the social consequences for communities dependent on affected land and water resources. Despite this exceptional turnover, much of the activity occurs in artisanal and small-scale operations, and therefore outside formally incorporated enterprises. The regulatory response can thus not be reduced to corporate compliance. Over the past years, Ghana has combined criminal enforcement under mining and environmental legislation with administrative interventions and enforcement operations. This included substantially increased sanctions for illegal mining, introduced via the Amendment Acts 900 and 995 to the Minerals and Mining Act 703 of 2006, enacted in 2015 and 2019 respectively. Section 99 now includes a penalty of 15–25 years of imprisonment and substantial fines for buying or selling minerals without a licence or a valid authority. This legislative artifact is not “BHR legislation” in the sense of a business-and-human-rights law, but it seems to be tackling a BHR issue. The significance of Galamsey for BHR seems to lie precisely in the complexity that a BHR legislation might not reach the sector in question. Asking which company should conduct due diligence may be necessary and productive where formal enterprises participate in the gold supply chain; it is however not sufficient for understanding the entire economic system that produces the harm.
Next to the described legislative developments, Ghana’s response to galamsey has also involved the creation of specialised enforcement structures. The National Anti-Illegal Mining Operations Secretariat (NAIMOS), established in June 2025 by the Ministry of Lands and Natural Resources, serves as a coordinating body for the government’s anti-illegal-mining operations, and brings together intelligence, security, environmental and legal functions. Its role illustrates an important feature of the Ghanaian approach: illegal mining is treated not as a failure of individual compliance, but as an enforcement problem requiring coordination across these different areas of state capacity. This builds on earlier operations such as Operation Vanguard, launched in 2017 by the Ministry of Defence as a joint military and police operation to combat illegal mining, and subsequent Operation Halt and Operation Halt II, which deployed the armed forces in areas affected by illegal mining, particularly around water bodies and forest reserves. These operations were accompanied by measures aimed at identifying and dismantling illegal mining sites and equipment, while the mining authorities continued to use licensing and regulatory mechanisms to distinguish authorised small-scale mining from illegal operations. It is evident that NAIMOS and the earlier operations were not designed to make companies conduct better human rights due diligence. They seek to intervene directly and relentlessly in the economic activity through which the harm is generated. Where profit-generating activity is organised outside formally incorporated enterprises, effective regulation may require institutions capable of investigating and disrupting the activity itself, alongside the regulation of formal companies that participate in its supply chains.
However, the significance of this approach is not that formalisation automatically resolves the human rights risks associated with mining. It does not. Nor is the alternative necessarily to remove informal miners from the sector through coercive enforcement, particularly where mining constitutes a livelihood for communities that have few viable economic alternatives. That is shortsighted. Rather, it illustrates a different regulatory starting point. Instead of assuming that economic activity becomes governable only once it fits neatly into the category of the formal company, regulation can attempt to change the status and structure of the economic activity itself.
African Leadership: Two Regulatory Lessons
The example of Galamsey points towards a broader form of African regulatory leadership. The point is not to suggest that there is a single African model of business regulation. Rather, particular African institutions have developed regulatory approaches that address problems that conventional corporate governance can struggle to capture.
The African Mining Vision (AMV) is the fitting example for the described sector. Adopted by the African Union in 2009, the AMV calls for the “transparent, equitable and optimal exploitation” of mineral resources to support broad-based sustainable development. It explicitly seeks to integrate mining into local, national and regional development, including through value addition, local economic linkages, community benefits, environmental protection and the development of artisanal and small-scale mining. The African Minerals Development Centre (AMDC) is tasked with supporting coherent policies on licensing, contracting, taxation and regulation, while also integrating artisanal and small-scale mining into regional and global value chains. This is a significant conceptual move for BHR. The AMV asks what kind of economic system mining should constitute, rather than only what individual companies should do within that system. Its implementation architecture similarly extends beyond corporate actors.
For European BHR regulation, the lesson is not that corporate due diligence should be abandoned. It is that corporate due diligence can be complemented by sectoral governance. This may initially appear less relevant to Europe, where economic activity is generally more formally regulated. Yet European markets also contain sectors in which human rights risks are produced not simply by the conduct of an individual company, but by the way an economic sector is organised. Agriculture provides a particularly clear example. In Italy, the phenomenon of “Caporalato” illustrates how labour exploitation can develop within a formally regulated and commercially integrated sector. Agricultural workers, including migrant workers, may be recruited and placed into employment through illegal labour intermediaries who organise recruitment, transportation and access to work. The companies ultimately purchasing or processing agricultural products may therefore form only one part of a wider economic structure in which exploitation is generated. Caporalato, too, demonstrates the limitations of looking exclusively at the formal enterprise. In agriculture, too, addressing the risk requires not only corporate due diligence, but also regulation of labour intermediation, recruitment, employment conditions and the broader agricultural market. The same logic applies to other sectors in which formal businesses depend on economic relationships that may extend beyond their immediate corporate structures and sectors in which economic activity is structurally close to criminal activity.
A different form of African regulatory leadership can be found in the growing attention given to the informal economy. The fiction that economic activity takes place through formally incorporated enterprises, is not assumed by African human rights institutions, who have increasingly sought to develop regulatory frameworks for informal workers. On 03 June 2024, the African Commission on Human and Peoples’ Rights adopted Resolution 584 (LXXVIII), mandating the development of Guidelines on the Protection of the Rights of Workers in the Informal Economy and model laws addressing different forms of informal work. Two years later, the Commission subsequently published a draft of the Guidelines for consultation, and received comments until 21 September 2026. Again, the importance of this initiative for business and human rights lies in its regulatory starting point. Informal economic activity is not synonymous with illicit business: many, but not all, informal workers operate lawfully and provide essential goods and services without being incorporated into conventional corporate structures. Nevertheless, the informal economy demonstrates the limitations of conventional BHR approaches. A regulatory framework that begins exclusively with the corporation may therefore struggle to identify the actors, relationships and conditions through which human rights risks arise. Hence, this is also particularly relevant to illicit business, as criminal structures that similarly informally organise labour, production, transportation and distribution of illicit goods can be addressed.
Conclusion: A better way of legal borrowing
Illicit and informal business exposes a structural limitation in contemporary BHR. Corporate due diligence is an important mechanism for identifying and addressing human rights risks, but it is not designed to govern every form of profit-generating economic activity. Where production, labour, finance and trade are organised through illicit networks or hybrid relationships between formal and informal actors, the relevant object of regulation may not be a corporation at all. African regulatory initiatives demonstrate that alternative starting points are possible. The lesson for BHR is not simply to “include African perspectives”, but to look beyond the corporate entity when the economic structure producing human rights harm extends beyond it. This may require combining corporate due diligence with sectoral regulation, criminal law and similar disciplines.
Such an approach would also change what it means to identify a human rights risk, which would surely go beyond this contribution. Instead of asking only whether a company has a problematic supplier, BHR could (or maybe should) ask how a market is organised, who controls access to it, which actors finance and facilitate it, where profits flow, and which formal institutions make the activity possible. There seems to be the impression that BHR is “more a band-aid than it is a transformative field”, but if it were to be one, these would be the questions to ask.
