The ISO 26000 International Guidance Standard on Social Responsibility: Implications for public policy and transnational democracy

Theoretical Inquiries in Law

Volumn 12, Issue 2, 2011, Pages

  Ward, Halina ^a  

^a NONE

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EID: 80051489326     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1282     Document Type: Article

References (104)

1. INTERNATIONAL ORGANIZATION FOR STANDARDIZATION (ISO), ISO 26000 (2010).
2. Brian Mikkelsen, Minister for Econ. & Bus. Aff., Speech at the Opening Session of the 8th Meeting of the ISO Working Group on Social Responsibility, Copenhagen, Den. (May 17, 2010).
3. See INTERNATIONAL ORGANIZATION FOR STANDARDIZATION (ISO), ISO 14000: ENVIRONMENTAL MANAGEMENT (2009), available at http://www.iso.org /iso/theiso14000family-2009.pdf.
4. See generally List of ISO Technical Committees, ISO, http://www.iso.org/ iso/standards-development/technical-committees/list-of-iso-technical-committees. htm (last visited Oct. 22, 2010).
5. A more complete analysis (including a justification for these suggested system boundaries) must await a different study. For example, this Article does not consider in any detail the internal dynamics, governance structures or values of the organizations from which the experts in the international working group on social responsibility (referred to as the WGSR in this Article) were drawn; or the dynamics, governance structures and values of the so-called "mirror processes" formed within the various national standards bodies associated with the process; or the variety of other "corporate social responsibility" standards that have been developed both by national standards bodies within the ISO family and other stakeholder groupings, many of them referred to in this Article.
6. See Lauren B. Edelman & Mark C. Suchman, The Legal Environments of Organizations, 23ANN. REV. SOC. 479 (1997) (describing the role of law in creating the "constitutive environment" of organizations);
7. see also Richard Swedberg, The Case for an Economic Sociology of Law, 32THEORY&SOC. 1, 4 (2003) (arguing that "[l]aw, in modern society, is constitutive for most economic phenomena, meaning by this that it is an indispensable as well as an organic part of them").
8. Alan Bryden, Sec'y Gen., Report to ISO Gen. Assemb. (Oct. 2008), available at http://www.iso.org/iso/livelinkgetfile?llNodeId=188625&llVolId= -2000.
9. See ISO/IEC Directives and ISO Supplement, ISO, http://www.iso.org/iso /standards-development/processes-and-procedures/iso-iec-directives-and-iso- supplement.htm (last visited Oct. 22, 2010).
10. INTERNATIONAL ORGANIZATION FOR STANDARDIZATION (ISO), ISO/IEC GUIDE, pt. 2 (2004).
11. Council Resolution 32/2009 (Free availability of ISO 26000), quoted in Letter from Kristina Sandberg, Secretariat of ISO/TMB/WG SR, to Nominated Experts and Observers of ISO/TMB/WG SR (Sept. 25, 2009), available at http://isotc.iso.org/livelink/livelink/fetch/-8929321/8929339/892934 8/3935837/3974906/4034859/8680335/2009-09-25-Cover-letter%2C-ISO-Council- Resolution-No-free-availability-of-ISO-26000.pdf?nodeid=8419078&vernum= -2. (agreeing, in what seemed to most participants a minor concession, that the Draft International Standard (DIS) rather than the final version would be made freely available).
12. Anthony Damato, International Law as an Autopoietic System, in DEVELOPMENTS OF INTERNATIONAL LAW IN TREATYMAKING 335 (2005).
13. See EUROPEAN COMMISSION, GUIDE TO THE IMPLEMENTATION OF DIRECTIVES BASED ON THE NEW APPROACH AND THE GLOBAL APPROACH (2000), available at http://ec.europa.eu/enterprise/policies/single-market-goods/files/blueguide/ guidepublic-en.pdf.
14. Tim Bartley, Transnational Governance as the Layering of Rules: Intersections of Public and Private Standards, 12 THEORETICAL INQUIRIES L. 517 (2011);
15. see also Kevin Kolben, Transnational Labor Regulation and the Limits of Governance, 12 THEORETICAL INQUIRIES L. 403 (2011).
16. See About Us, ISEAL ALLIANCE WEBSITE, http://www.isealalliance.org/ content/ about-us (last visited Nov. 21, 2010).
17. ISEAL ALLIANCE, GOVERNMENTAL USE OF VOLUNTARY STANDARDS: INNOVATION IN SUSTAINABILITY GOVERNANCE (2008), available at http://www. isealalliance.org/ resources/r079-governmental-use-of-voluntary-standards-innovat ion-in-sustainability-governance.
18. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 6 (6th ed. 2003).
19. Technical Barriers to Trade (TBT) Agreement (1994).
20. Annex 1 (defining "technical regulation" and "standard").
21. In addition to the TBT Agreement, there are additional concerns relating to conformity assessment, to the Agreement on Sanitary and Phytosanitary Measures (1994), and a range of other WTO rules, which are not considered in any detail in this Article.
22. Consumer Protection in the Global Market Working Group of the ISO Consumer Policy Committee (COPOLCO), The Desirability and Feasibility of ISO Corporate Social Responsibility Standards, Report to ISO COPOLCO (2002), available at http://www.basisboekmvo.nl/files/ The%20desirability%20and%20feasibility%20of %20ISO%20corpor ate%20social%20responsibility%20standards.pdf.
23. For further information, see Corporate Social Responsibility: INNI Articles, INTERNATIONAL NGO NETWORK ON ISO, http://inni.pacinst.org/inni/CSR.htm (last visited Oct. 22, 2010).
24. See Membership of the ISO Strategic Advisory Group on Social Responsibility as of Sep. 16 2003, IISD, http://www.iisd.org/standards/csr- members.asp (last visited Nov. 21, 2010).
25. ISO ADVISORY GROUP ON SOCIAL RESPONSIBILITY, WORKING REPORT ON SOCIAL RESPONSIBILITY (2004), available at http://inni.pacinst.org/inni/cor porate-social-responsibility/WorkingReportonSR.pdf.
26. ISO/TMB AG CSR N 32, RECOMMENDATIONS TO THE ISO TECHNICAL MANAGEMENT BOARD (2004), available at http://inni.pacinst.org /inni/corporate-social- responsibility/AG-Recs-to-TMB.pdf.
27. ISO Technical Management Board resolution 35/2004, ISO, http:/ /isotc.iso.org/livelink/livelink/fetch/2000/2122/830949/3934883/3935096/02-news /resolution35.h tml (last visited Mar. 20, 2011);
28. ISO CENTRAL SECRETARIAT, NEW WORK ITEM PROPOSAL - SOCIAL RESPONSIBILITY (ISO/TMB N 26000) (2004), available at http://inni.pacinst.org/inni/corporate- social-responsibility/ SR-NWIP.pdf.
29. See, e.g., David Levi-Faur, Regulatory Capitalism: The Dynamics of Change Beyond Telecoms and Electricity, 19 GOVERNANCE 497, 520 (2006) (arguing that "[r]egulatory capitalism may best be seen as one of the most important hybrids of controls in a governance system that is a patchwork of hundreds and thousands of meso- and microregulatory regimes that govern different aspects of our lives").
30. See, e.g., Greta R. Krippner, The Elusive Market: Embeddedness and the Paradigm of Economic Sociology, 30 THEORY& SOC. 775 (2001) (arguing that "markets are treated in [the governance] literature as the other of the social economy, rather than constitutive of it").
31. Telephone interview with Tom Rotherham, IISD's Representative on the Strategic Advisory Group (May 2010).
32. Online Update, Issue #8, INTERNATIONAL NGO NETWORK ON ISO (Mar. 2005), http://inni.pacinst. org/inni/inni-online-update-8.htm (last visited Nov. 21, 2010). Two additional documents issued by the TMB set out the basic operating procedures for the working group established to manage the process, ISO/TMB N 26000.
33. (as distinct from a series of guidance standards covering different aspects of social responsibility).
34. From the second WGSR meeting onwards after the initial Vice-Chair Catarina Munck af Rosenschöld resigned. She was due to take maternity leave.
35. Staffan later joined WWF-Sweden.
36. ISO TECHNICAL MANAGEMENT BOARD, GUIDANCE ON STAKEHOLDER CATEGORIES IN THE ISO/TMB/WG SR (2005), available at http://isotc.iso.org/livelink/livelink/ fetch/2000/2122/830949 /3934883/3935096/04-organization/N048-rev1.pdf.
37. In the ISO 26000 process, some forty Liaison organizations nominated experts to take part.
38. ISO TECHNICAL MANAGEMENT BOARD, RESOLUTIONS FROM THE FIRST MEETING OF ISO/TMB/WG SR, SALVADOR, BRAZIL (N 15) (Mar. 17, 2005), available at http://isotc.iso.org/livelink/livelink?func=ll&objId=3973639&objAction= browse& viewType=1.
39. ISO TECHNICAL MANAGEMENT BOARD, ISO GUIDANCE STANDARD ON SOCIAL RESPONSIBILITY - ISO 26000: DESIGN SPECIFICATION (N 49) (Sep. 30, 2005), available at http://inni.pacinst.org/inni/corporate-social-responsibility/ ISO26000 DesignSpecificationN49.pdf.
40. See ISO/TMB/WG, RESOLUTIONS FROM THE 5TH MEETING OF ISO/TMB/WG SR, VIENNA, AUSTRIA, resolution 2 (Nov. 9, 2007), available at http: //isotc.iso.org/livelink/livelink?func=ll&objId=6936335&objAction=Open.
41. for details on the composition and mandate of the IDTF.
42. ISO/TMB/WG SR, RESOLUTIONS FROM THE 6TH MEETING OF ISO/TMB/WG SR, SANTIAGO, CHILE, resolution 5, (Sept. 5, 2008), available at http://isotc.iso.org/livelink/livelink?func=ll&objId=7571477&objAction= Open.
43. This was particularly evident in discussion of the international norms principle, and in the presentation of the draft design specification to some two hundred participants in the Bangkok plenary by a small and diverse working group which had worked until after 2am to agree on a proposal to put forward.
44. ISO/TMB/WG SRN175, http://isotc.iso.org/livelink/livelink?func= ll&objId=87188 17&objAction=Open (last visited Mar. 27, 2011).
45. See WG SR Leadership Statement, in Letter from Kristina Sandberg, Secretariat of ISO/TMB/WG SR, to Nominated Experts and Observers of ISO/TMB/WG SR (Dec. 17, 2009), available at http://isotc.iso.org/livelink/livelink?func= ll&objId=86 05221&objAction=Open&ne xturl= %2Flivelink%2Flivelink%3Ffunc%3Dll%26ob jId%3D8680335%26objActio n%3Dbrowse%26viewType%3D1. In the event, only eleven non-P-members voted, six of them positively. See ISO TECHNICAL MANAGEMENT BOARD, RESULT OF VOTING (N 196) (Closed by ISO/CS on 2010-09-13 11:59:50), http://isotc.iso.org/livelink/ livelink/fetch/- 8929321/8929339/8929348/3935837/N196-Result-of-ballot-ISOFDIS- 26000.pdf ?nodeid=9779426&vernum=-2 (last visited Mar. 27, 2011).
46. See infra Part IV.
47. Cf. Martin Marcussen & Lars Bo Kaspersen, Globalisation and Institutional Competitiveness, 1 REG. & GOVERNANCE 1, 2 (2007) (describing the concept of institutional competitiveness, as concerning "the intentional and unintentional outcomes of the attempts of people to optimize their institutions in innovative ways with a view to performing in the wake of globalization").
48. Letter from George Kell, Exec. Dir., UN Global Compact Off., to Robert Steele, Sec'y Gen., ISO (June 19, 2009), available at http:// www.scribd.com/doc/16741502/20090619-Letter-from-Global-Compact-to-ISO.
49. A self-evaluation all the more extraordinary since the notion of "social responsibility" (as distinct from "corporate social responsibility") had not clearly existed until ISO 26000 invented it.
50. Fears over the Annex's wider significance ran so deep that even after agreement on the text of the FDIS in May 2010, India (presumably in fact the Indian delegation) lodged a formal process of complaint to the ISO TMB on the refusal of the "Chairman/Co-Chairman" to allow discussion of the Indian delegation's proposal to delete Annex A in Copenhagen. See Appeal Against the Decision of the Co-Chairman/Chairman, ISO/TMB/WG SR to Disallow India's Request for Discussions for Deletion /Modifications of Annex A of ISO/DIS 26000 at the 8th Meeting of WG SR at Copenhagen, Denmark (17.05.10-21.05.10), SCRIBD (July 23, 2010), http://www.scribd.com/doc/36059833/2010-07-23-Appeal-from- India-against-decision-on-Annex-A-of-ISO-26000 (last visited Mar. 27, 2011). ISO/TMB had not made any pronouncement on the complaint by the time ISO 26000 was declared adopted, on September 13, 2010.
51. ISO/DIS 26000, cls. 6.3.7.1 & 6.3.10.2;
52. ISO/TMB/WG SR N 172 (2009), http://isotc.iso.org/livelink/livelink?func= ll&objId=8385467&objAction=Open (last visited Mar. 27, 2011).
53. ISO/TMB/WG SR N 176, NSB CONSENSUS COMMENTS AND COMMENTS FROM D-LIAISON ORGANIZATIONS RECEIVED ON ISO/DIS 26000 GUIDANCE ON SOCIAL RESPONSIBILITY (2010), available at http://isotc.iso.org/livelink/livelink?func=ll& objId=8748415&objAction=Open.
54. Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and UAE all eventually voted to adopt ISO 26000.
55. Libya did not vote, and Iran abstained.
56. However, the consent of ISO to a final Memorandum of Understanding between ISO and the Global Reporting Initiative (UNEP-affiliated but effectively a nongovernmental, multi-stakeholder initiative) might be understood as confirmation that at least one conceptual underpinning for those Memoranda was the existence of "potentially globally competing norm-setting authority" rather than deference to the legitimacy of intergovernmental processes.
57. Memorandum of Understanding Between Int'l Labor Org. and Int'l Org. for Standardization in The Field of Soc. Resp. (2005) [hereinafter ISO-ILO MoU], available at http://inni.pacinst.org/inni/corporate-social-responsibility/MoU%20 ILO%20&%20ISO.pdf.
58. Memorandum of Understanding between UN Global Compact Off. & Int'l Org. for Standardization (N 82) (2006), available at http://inni. pacinst.org/inni/corporate-social-responsibility/N082%20MoU%20ISO%20UN%2 0Global %20Compact.pdf.
59. Memorandum of Understanding Between Org. for Co-operation and Dev. (OECD) and Int'l Org. for Standardization (N 114) (May 2008) [hereinafter ISO-OECD MoU], available at http://inni.pacinst.org/inni/corporate-social-responsibility/ N 144,%20ISO%20OECD %20Agreement%20on%20SR.pdf.
60. Respectively theWorld Health Organization, United Nations Industrial Development Organization, United Nations Environment Programme, and United Nations Conference on Trade and Development.
61. See Press Release, ISO, Consumer Call for The Development of International Standards for Corporal Social Responsibility (June 19, 2002), available at http://www.iso.org/iso/pressrelease.htm?refid=Ref826.
62. Julia Black, Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a 'Post-Regulatory' World, 54 WORLD CURRENT LEGAL PROBS. 103 (2001).
63. Professor Ruggie was appointed to this role in 2005, reporting to the United Nations in 2008 and proposing the adoption of a policy framework for business and human rights based on three pillars: protect (the state duty to protect human rights), respect (the corporate responsibility to respect human rights), and remedy (the access of victims to remedies). His mandate was extended for a further three years in 2008, to provide, in effect, recommendations on how best to operationalize the framework.
64. John Ruggie, Note on ISO 26,000 Guidance Draft Document (2009), available at http://www.scribd.com/doc/23098499/Nota-de-John-Ruggie-sobre-la-ISO-26000- Nov-2009.
65. See ISO/TMB WG SR N 186, Copenhagen Discussion Document: Copenhagen Key Topics, 11-14 (May 4, 2010), available at http://isotc.iso.org/livelink/ livelink? func=ll&objId=9180193&objAction=Open.
66. India Opposes Move to Link CSR, Trade, THE ECONOMIC TIMES, May 5, 2010, available at http://economictimes.indiatimes.com/news/economy/foreigntrade/ india-opposes-move-to-link-csr-trade/articleshow/5891434.cms.
67. For a detailed analysis written in 2007, see Alice Palmer, The Relationship Between the ISO Social Responsibility Standard and the WTO Agreement on Technical Barriers to Trade (Paper prepared for the Int'l Inst. for Sustainable Dev., Apr. 2007), available at http://inni.pacinst.org/inni/ General/IISD-ISO26000WTOpaper.doc.
68. Such a step was considered and rejected by the ISO Central Secretariat in the case of ISO 26000, on the basis that it would not elicit any response from the WTO Secretariat. The problem is on both sides.
69. (arguing that a system, after all, is more than the sum of its parts).
70. Cf. Sanford E. Gaines & Cliona Kimber, Redirecting Self-Regulation, 13 J. ENVTL. L. 157 (2001);
71. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 LAW& SOC'Y REV. 239 (1983).
72. This Part draws in part on the author's blog post, Halina Ward, Governments, Democracy and Public Policy in International Standardisation: The Curious Case of ISO 26000 and the Precautionary Approach, ENG. L. BLOG (May 22, 2010), http://www.fdsd.org/2010/05/iso2600-governments-and-precaution.
73. U.S. Proposes Major Surgery on ISO 26000, CROSSLANDS BULLETIN (Aug. 22, 2008) (on file with author), www.crosslands.com (by subscription).
74. Letter from Susan C. Schwab, Trade Representative, U.S., to Ewa Björling, Trade Minister, Swed. (Oct. 27, 2008) (on file with author).
75. This was particularly the case during the eighth WGSR meeting in Copenhagen, May 2010, in which the author participated.
76. See, e.g., Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1, princ. 15 (1992);
77. Simon Marr, The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources, 11 EUR. J. INT'L L. 815 (2000).
78. See, e.g., Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. ENVTL. L. 221 (1997).
79. See UNITED NATIONS, THE GLOBAL COMPACT, princ. 7 (1999), available at http://www.unglobalcompact.org/aboutthegc/thetenprinciples/principle7.html ("Businesses should support a precautionary approach to environmental challenges").
80. Dispute Settlement, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291 (Nov. 21, 2006). For a summary of the dispute, which began with a U.S. request for consultations in 2003, and links to key documents, see European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WORLD TRADE ORGANIZATION, http://www.wto.org/english/tratop-e/dispu-e/cases-e/ds291-e.htm (last visited Nov. 21, 2010).
81. ISO/DIS 26000, supra note 74, cl. 6.5.2.1 ll. 1825-30 (emphasis added).
82. See CHATHAM HOUSE RULE, http://www.chathamhouse.org.uk/about/chatham houserule/ (last visited Oct. 22, 2010) ("When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed").
83. JOHN BRAITHWAITE& PETER DRAHOS, GLOBAL BUSINESS REGULATION (2000).
84. Ken Abbott & Duncan Snidal, Nesting, Overlap and Parallelism: Governance Schemes for International Production Standards, Memo for Alter-Meunier Princeton Nesting Conference (Feb. 2006), available at http://www.princeton.edu/~smeunier/Abbott%20Snidal%20memo.pdf.
85. Karen J. Alter & Sophie Meunier, Literature Review on Nesting (Nw. Disp. Resol. Res. Center, Working Paper No. 322, 2005), available at http://www.princeton.edu/~smeunier/AlterMeunierlitreview.pdf.
86. Though arguably the parallel is not wholly convincing, given that Alter and Meunier, as cited in Abbott & Snidal, supra note 128, at 4, define nesting in terms of "more specific institutions being part of broader institutions," and (more resonantly) use the metaphor of Russian dolls.
87. Julia Black, Constitutionalising Self-Regulation, 59 MOD. L. REV. 24, 44 (1996).
88. Of course, some will find this distinction between social and political democracy problematic, since the social may also be intensely political.
89. Catherine E. Rudder, Private Governance as Public Policy: A Paradigmatic Shift, 70 J. POL. 899, 900 (2008). The democracy of ISO 26000 is itself political democracy.
90. FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD (2007).
91. Halina Ward & Anandini Yoganathan, What Is Democracy? A Review of Approaches, Models and Their Relevance to an Enquiny into 'The Future of Democracy in the Face of Climate Change' (The Future of Democracy in the face of Climate Change Project, Paper Two, Mar. 2010) (unpublished manuscript), available at http://www.fdsd.org/wordpress/wp-content/uploads/Paper-Two-whatis- democracy.pdf.
92. Anthony Ogus, Rethinking Self-Regulation, 5 O.J.L.S 97 (1995).
93. Jem Bendell, In Whose Name? The Accountability of Corporate Social Responsibility, 15 DEV. PRAC. 362 (2005).
94. Sasha Courville, Social Accountability Audits: Challenging or Defending Democratic Governance?, 25 LAW & POL'Y 269 (2003);
95. Anne Tallontire, CSR and Regulation: Towards a Framework for Understanding Private Standards Initiatives in the Agri-Food Chain, 28 THIRDWORLD Q. 775 (2007).
96. See, e.g., ROBERT DAHL, ON DEMOCRACY (1998) (proposing criteria for a democratic process, namely: effective participation, voting equality, enlightened understanding, control of the agenda and inclusion).
97. 221 experts from national standards bodies in developing countries and 136 from those of developed countries, for example, at the seventh WGSR meeting in Quebec in May 2009. See the presentation at http://isotc.iso.org/livelink/ livelink/fetch/-8929321/8929339/8929348/3935837/3973638/8007666/8141018/ 6%2C-Report-of-the-secretariat%2 C-Quebec.pdf?nodeid=8140313&vernum=-2.
98. But see James Cameron & Ruth Mackenzie, Access to Environmental Justice & Procedural Rights in International Institutions, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION 129, 135 (Alan Boyle & Michael Anderson eds., 1996) (arguing that the participation of nongovernmental organizations in international processes signals a challenge to the primacy of the state in international law and relations).
99. See, e.g., DonaldWittman, What is so Special about Special Interest Politics, Paper presented in White Oak Tobin Project Conf. (Feb. 2008) (pointing to the tendency of political economy to ignore the significance of contested elections and voting in analysis of the purported influence of special interest politics in the United States).
100. It has become gradually more commonplace over the past quarter-century for intergovernmental negotiating processes to admit representatives of nongovernmental organizations or civil society to negotiations as observers. In some processes, for example that leading to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, civil society participants have been admitted as negotiators or allocated a variety of fact-finding or advocacy roles.
101. See United Nations Economic Commission for Europe (UNECE), Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 163 U.N.T.S 131 (1998), available at http://www.unece.org/env/pp/documents/cep43e.pdf.
102. See, e.g., UNPA CAMPAIGN, http://www.unpacampaign.org (last visited Oct. 22).
103. See the presentation from the WGSR Secretariat at http://isotc.iso.org/ livelink/livelink/fetch/-8929321/8929339/8929348/3935837/8742970/9225278/6% 2C-Report-of-the-secretariat%2C-Copenhagen.pdf?nodeid=9224951&vernum=-2.
104. Though rumors abounded, particularly towards the end of the process, that the Government of China, which had invested considerable effort in advocacy on the margins of the process, might expend additional efforts to secure "No" votes from those national standards bodies that had not been involved in the process at all. In the event, China voted "Yes."