Non-electoral accountability in global politics: Strengthening democratic control within the global garment industry

European Journal of International Law

Volumn 17, Issue 1, 2006, Pages 89-119

  Macdonald, Terry ^a   Macdonald, Kate ^b  

^a MERTON COLLEGE   (United Kingdom)

^b UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645934542     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chi160     Document Type: Article

References (74)

1. David Held is the most prominent such 'cosmopolitan' democrat. See D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995).
2. See, e.g., ibid.;
3. Falk and Strauss, 'On the Creation of a Global People's Assembly: Legitimacy and the Power of Popular Sovereignty', 36 Stanford J Int'l L (2000) 191.
4. For concrete institutional proposals of 'cosmopolitans' see, e.g., Held, supra note 1
5. Falk and Strauss, supra note 2
6. Archibugi, 'Principles of Cosmopolitan Democracy', in D. Archibugi, D. Held, and M. Kohler (eds), Re-imagining Political Community (1998). We discuss in greater depth, in section one of this article, some important practical difficulties confronting attempts to replicate domestic-style electoral institutions in contemporary global politics.
7. See Dahl, 'Can International Organizations be Democratic? A Skeptic's View', in I. Shapiro and C. Hacker-Cordon (eds), Democracy's Edges (1999),
8. and Keohane, 'Global Governance and Democratic Accountability', in D. Held and M. Koenig-Archibugi (eds), Taming Globalization (2003). Keohane is somewhat ambiguous about the status of the legitimacy claims he seeks to make about the non-democratic forms of accountability he outlines for global politics, though Dahl is clear in conceding that democratic forms confer greater legitimacy than their alternatives.
9. Our empirical analysis here draws primarily on interviews conducted in 2003-2004 with key stakeholders and decision-makers within garment supply chains reaching from factories in Nicaragua to both consumer markets in the US and locations of investors and civil society advocates spanning the US, Europe, and East Asia. The particular case of global supply chains based in Nicaraguan production sites is presented here for illustrative purposes only. While similar arguments could be made with respect to many other production sites in the global garment industry, Nicaragua makes a particularly interesting case study, being characterized by high levels of poverty, a strategically prioritized and rapidly growing garment industry, and relatively high levels of NGO and union activity at the local level connected with the transnational coalitions of actors making demands for corporate accountability. The Nicaragua-based garment supply chain is characterized by production structured within a 'maquila' assembly model with extremely limited backward linkages to the local economy, and by factories that are predominantly financed and controlled by Taiwanese, US, and Korean capital, and export almost exclusively to US consumer markets: Centro de Exportaciones e Inversiones de Nicaragua, Nicaragua: Situación Laboral de Zonas Francas (2001).
10. See, e.g., Held and Koenig-Archibugi (eds), 'Special Issue on Global Governance and Public Accountability', 39 Government and Opposition (2004) 2.
11. It is the distinctive identities of the principals and agents that distinguish democratic from non-democratic accountability relationships; it is possible for 'accountability' relationships to be established between a wide range of actors in global politics, but only those accountability relationships that are between agents of 'public power' and their relevant 'publics' can be considered democratic in character.
12. Like all 'foundational' or 'constitutive' values, detailed specification of the normative content of these democratic purposes must be determined ultimately through political contestation, resulting in some form of political consensus within each context in which democratic institutions are to serve as frameworks for political legitimacy. Democratic theorists widely agree that the legitimacy of a democratic system must be grounded in some such political consensus on these foundational values (although exactly what form of consensus is a highly contested issue within democratic theory). See J. Rawls, Political Liberalism (1996),
13. M. Walzer, Spheres of Justice (1983),
14. and M. Walzer, Interpretation and Social Criticism (1987), for prominent accounts of the forms of consensus on foundational democratic values that are necessary to confer legitimacy upon democratic institutions.
15. This account of public power and democratic publics is developed in greater depth in T. Macdonald, We the Peoples: NGOs and Democratic Representation in Global Politics (D. Phil. thesis, Oxford, 2005).
16. See, e.g., Strange, 'The Declining Authority of States', in D. Held and A.G. McGrew (eds), The Global Transformations Reader: An Introduction to the Globalization Debate (2000);
17. Held, supra note 1.
18. G. Gereffi, A Commodity Chains Framework for Analysing Global Industries, available at http://www.ids.ac.uk/ids/global/valchn.html;
19. G. Gereffi and M. Korzeniewicz, Commodity Chains and Global Capitalism (1994).
20. See supra note 8.
21. Such images have been used repeatedly in high-profile cases such as the 'expose' of conditions in factories producing for Kathy Lee Gifford's clothing line, as well as in the Hard Copy television reports discussed in later sections of this article.
22. This notion was invoked, for instance, by President Clinton during his launch of multi-stakeholder discussions attempting to tackle sweatshops, when he declared that' [n]o-one should have to put their lives or health in jeopardy to put food on the table for their families': States News Service, 2 Aug. 1996, 'Rep George Miller Joins President in Effort to Stop Child Labor'.
23. Such unemployed are likely to be located both in current producing countries and in countries such as the US which are losing jobs as a direct result of corporate sourcing decisions.
24. This is not to deny the fact that other stakeholder groups will frequently have legitimate claims to other (non-democratic) forms of accountability, many of which are in fact already institutionalized via conventional structures of corporate governance, and underlying structures of corporate law.
25. Such an expansion of democratic stakeholder constituencies would not alter substantively the argument we present in this article. The one significant change would be in relation to appropriate institutional mechanisms via which we could facilitate public choice (reaching a unified 'stakeholder' preference to communicate to power-wielders). We discuss this point further below.
26. A plausible case could be made for identifying a wider community of stakeholders for state governments than the territorial population subject directly to its laws, but it is beyond the scope of the present discussion to defend any specified account of the legitimate democratic stakeholders of states.
27. For explanatory purposes, we are referring here to the structures of a 'state' in its simplest form. Federal structures and other overlapping jurisdictions within states of course complicate the picture, but generally such added layers of jurisdictional complexity are minimal compared with the level of jurisdictional complexity arising in the stateless domain of contemporary global politics that we are concerned with here.
28. It is, of course, this latter form of public power that is the subject of 'administrative law', as a distinct area of public law.
29. Elsewhere, however, we present additional normative reasons for viewing elections as an inappropriate decision-making tool in certain political contexts such as these, since the aggregative social choice mechanism embodied in elections is unable to take fair democratic account of the sometimes widely varied intensities of impact and interest at stake in the decisions of certain agents of public power within a radically decentralized framework of public power. See T. Macdonald, supra note 9.
30. For an example of the way democratic values are invoked in the defence of non-electoral mechanisms of corporate accountability see http:// reclaimdemocracy.org/corporatećountability/.
31. Dahl develops his account of a liberal democratic system in R. Dahl, On Democracy (1998),
32. and R. Dahl, Modern Political Analysis (1991).
33. For discussions of such 'mirror' representation see H. Pitkin, The Concept of Representation (1967), ch. 7
34. A. Phillips, The Politics of Presence (1995),
35. I. Young, Justice and the Politics of Difference (1990),
36. and I. Young, Inclusion and Democracy (2000).
37. This method of selecting representatives was employed to some degree in ancient Greek and Roman systems, and in early Renaissance Florence. It has also been advocated by more contemporary, theorists - notably John Burnheim, who has proposed a revised model of representation by lot. For an elaboration of these proposals see J. Burnheim, Is Democracy Possible? (1989).
38. John Stuart Mill and James Madison - although both also advocates of certain electoral systems - each displayed some degree of sympathy for this elitist method of selecting representatives. For elaborations of their positions on this issue see J.S. Mill, Considerations on Representative Government (1865)
39. and J. Madison et al., The Federalist Papers (ed. I. Krammick, 1987). These elitist views of representation are echoed in more contemporary debates in global politics by those who endorse the representative legitimacy of certain 'experts' or 'technocrats' on the ground that they are more competent than the uneducated global majority to identify and advance the interests of global stakeholders.
40. The value conferred upon a system of democratic representation by this kind of public control over representatives' actions is derived in part from the straightforward pragmatic need to restrain potential self-interested behaviour of representatives, and in part from the epistemological imperative to ensure that representatives properly understand what the public interest is. These are central liberal values, and as such our democratic framework here must be understood as strongly liberal in character (as distinct from 'republican' values, preoccupied more strongly with participation, deliberation, and public consensus). We adopt a liberal rather than a 'republican' approach here, since we take liberal democratic values to be more appropriate than 'republican' values for the large-scale, complex, and pluralistic sphere of global politics.
41. Most notably, Hanna Pitkin makes this distinction in her important discussion of political representation. See Pitkin, supra note 24, chs 2 and 3.
42. This distinction is made in the more detailed analysis of global representation in T. Macdonald, supra note 9.
43. P. Raynard, Mapping Accountability in Humanitarian Assistance (2000), available at http://www.alnap.org/pubs/html/mappingacc.html#b19.
44. D. Spar and J. Burns, Hitting the Wall: Nike and International Labor Practices (2000).
45. www.indianet.nl.irene.html. Even more specifically, it was claimed that 'sweatshops are the result of corporate abuse, greed, excessive power and the lack of accountability': National Labor Committee, No More Sweatshops: Campaign for the Abolition of Sweatshops and Child Labor, available at www.abolishsweatshops.org
46. Such control of garment supply chains by large northern buyers is widely documented elsewhere. See for instance, K. Macdonald, Emerging Institutions of Non-state Governance within Transnational Supply Chains: A Global Agenda for Empowering Southern Workers? (2004), paper presented to the American Political Science Association, Chicago, 2-5 Sept.
47. See www.sweatshopwatch.org/swatch/headlines/1997/nica_dec97.html.
48. Spar and Burns, supra note 31
49. Rosen, 'Neediest, Greediest Sweatshop Companies Listed by National Labor Committee', available at www.houstonprogressive.org/hpn/nlc-swsh.html.
50. T. Ricker, Network Mobilisation, unpublished manuscript.
51. See Rosen, supra note 35.
52. Kathy Lee Gifford initially resisted activist attempts to identify her publicly as being responsible for the exposed cases of under-age 'sweatshop' labour, retorting with some indignation: 'I'm supposed to be personally responsible for everything that happens around the world? In Honduras?' Soon afterwards, in the face of intense public pressure, she had done an about turn, transforming herself into a high-profile advocate for children's rights and non-exploitative labour in the clothing industry, and accepting responsibility for the conditions in her factories, declaring proudly to the public that 'I'm responsible for what I do and what I say, and this experience has been very empowering for me'. See States News Service, supra note 14.
53. Paul Fireman, Reebok's chairman and CEO, speaking on 18 Oct. 1999, quoted in 'Life, Liberty and the Pursuit of Fairness', Footwear News, 6 Mar. 2000.
54. Even where such information is available, workers rarely possess a clear understanding of the extent of leverage wielded by such brands over their direct management, instead perceiving factory owners as being the ultimate power wielders. They therefore invest little effort in seeking and acquiring such information about brand identity, even in cases where it is nominally available. See, e.g., K. Macdonald, supra note 33.
55. Using more common but less conceptually precise terminology, we could call this 'transparent governance'.
56. Although such transparency in decision-making processes has been commonly neglected, some writers have highlighted it in some recent work. See, e.g., Woods, 'Governance and the Limits of Accountability: the WTO, the IMF and the World Bank', 53 International Social Science J (2001) 569
57. and A. Wood, Structural Adjustment for the IMF: Options for Reforming the IMF's Governance Structure (2001), available at http://www.reformwatch.net/fitxers/120.pdf.
58. While such broader decisions do not pertain directly to wages and conditions, they often have important implications for the way these broad normative commitments translate into actual factory practices. To take a very important example, negotiation of turn-round time on delivery of contracts is directly relevant to overtime demands that are likely to be placed subsequently on workers.
59. Focus group with workers participating in the Mesa Laboral (a grouping of Sandinista-affiliated unions), Managua, Sept. 2004.
60. For instance, in response to an enquiry about the US retailer Target's policies regarding development and implementation of its corporate code of conduct, the company simply provided some general information and, when further details about relevant rules and procedures were requested, responded that: '[u]nfortunately, Target will not be able to further discuss this issue. The procedures used by our Corporate Compliance area are considered proprietary. In order to stay competitive, we cannot provide further details on our merchandise sourcing systems. I apologize for any disappointment.': Personal correspondence from Target, 28 Nov. 2003.
61. For instance, for workers to be able to evaluate whether appropriate trade-offs were being made by management with respect to the goal of winning production contracts and thereby sustaining job security for workers, versus the goals of increasing wages and minimizing overtime, workers (or their representatives) would require access to basic information about contracts with clients, pricing, internal profits, and financial performance.
62. Interview with Taiwanese embassy representative, Managua, Nov. 2004.
63. See, e.g., Committee on Government Reform, A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, House of Representatives, 108th Congress, 1st Session, Report 108-172, available at www.fas.org/sgp/foia/citizen.html. We could imagine, for instance, some kind of 'Information Commissioner' being responsible for collecting such information, and releasing it subject to an appropriately formulated 'public interest' test. Such an institution would not be without precedent. The UK, for example, has an Information Commissioner charged with the task of balancing the protection of private information with democratic demands for freedom of information with respect to 'public sector' decision-making.
64. For instance, in the case of Nicaraguan factory disputes such as that in Chentex (described below), there have been very pronounced conflicts between the two opposing union confederations and between the unions and the influential women's organization Maria Elena Cuadra. See K. Macdonald, supra note 14.
65. While the institutional forms required to perform these functions are more elaborate at the transnational than the local level, such institutional requirements are certainly not prohibitive. Electoral forms of worker representation have strong precedent at the transnational level in the form of traditional democratic structures of international union confederations (such as the ITGLWF in the garment industry). More deliberative, network-based institutions linking (non-union) organizations of garment workers are also well established in many parts of the world, as exemplified for instance by the network REDMAQ (which links organizations of women maquila workers across Central America) and the Asian Transnational Corporations Monitoring Network, co-ordinated by the Hong Kong-based Asia Monitor Resource Centre. An initiative is currently underway to establish a programme of continuing co-ordination between the work of these two networks, thereby entrenching even further the transnational reach of such communicative networks of workers.
66. Focus group with workers from Chentex, CTNa union, Managua, Nov. 2004.
67. In addition, there should be greater consultation with workers in the initial formulation of codes, since there is rarely an opportunity for workers to signal their preferences regarding the content of these rules in the first place, leading to many codes of conduct being driven by top-down consumer-focused agendas. Consequently, such codes often fail to deal with issues identified by workers themselves as higher priorities. Such priorities as expressed by Nicaraguan women are discussed by M. Prieto and J. Bendell, If You Want to Help Us Then Start Listening to Us! From Factories and Plantations in Central America, Women Speak Out about Corporate Responsibility (2002), 8, available at www.new-academy.ac.uk/publications/index.htm.
68. K. Macdonald, supra note 14.
69. This concentration of power in the hands of US members of the network results both from their greater ease of access to corporate headquarters and from their disproportionate access to financial resources and communication technology. Additionally, it is only those workers with direct knowledge of and connections to international groups who can utilize such mechanisms, and these are in the minority. This is particularly the case given that such contacts tend to require the existence of some kind of union organization, which is strongly resisted by firm management in the majority of cases.
70. The importance of reputational effects is reflected in the statement in 1994 by the then CEO of Levi Strauss, Bob Haas, that '[i]n today's world a TV exposé on working conditions can undo years of effort to build brand loyalty'. See R.O. Jenkins, Corporate Codes of Conduct: Self-regulation in a Global Economy (2001).
71. Reputation is important not only with respect to concerned consumers, but also regarding a range of business relations on the production side, including relations with current and potential employees, business partners, and government: V. Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (2001);
72. Ruggie, 'Global-governance.net: The Global Compact as Learning Network', 7 Global Governance(2001), 371.
73. Interview at Nien Hsing Head Office, Taipei, 10 Mar. 2004.
74. Such legal reforms would need to be adopted by countries in which companies incorporated or, depending on the legal mechanism, in which they conducted retail operations. In the case of Nicaraguan workers, this would require the adoption of legal reform by the US government, and potentially also by the governments of South Korea and Taiwan.