Wednesday, August 23, 2006

Book Review: "Hard Choices, Soft Law" by Kirton & Trebilcock

Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance
John J. Kirton and Michael Trebilcock, eds.
Global Environmental Governance Series
Aldergate: Ashgate Publishing Limited, 2004, pp. xviii, 372

{Note: this book review originally appeared in the Canadian Journal of Political Science vol. 39 no.1 (March 2006), pp.223-25. It will be of particular interest to students of Corporate Social Responsiblity, forestry, and labour standards.}

This book sheds considerable light on the new forms of “soft law” governance (voluntary standards and informal institutions) that are emerging out of the confluence of rationally calculated interests, inter-subjectively shared norms, and entrenched structures of power in the global economy. It benefits greatly from the analytical framework and meticulous exposition provided by the editors, John Kirton and Michael Trebilcock, whose introductory chapter repays close reading. The remaining chapters of the book are grouped in four sections.

Part I, “Setting Standards for Sustainable Forestry”, suggests that soft law options may be serving as a viable alternative to the failed International Forestry Convention. Steven Bernstein and Benjamin Cashore’s chapter on legitimacy of transnational forest certification schemes points out that the requirements for international legitimacy must extend beyond simply the support of major states, since new forms of transnational governance such as the Forest Stewardship Council (FSC) arise precisely in response to the lack of legitimacy and effectiveness of intergovernmental, multilateral processes (40). At the same time, non-state certification requires a second level of legitimacy anchored in the domestic arena, where domestic legitimacy achievement strategies must meet the challenge of competitor certification schemes without unduly compromising the goal of sustainable forest management. Tasso Rezende de Azevedo’s chapter on the impact of the FSC on forest management in Brazil, and Chris Tollefson’s chapter on indigenous rights and forest certification in British Columbia, are both cautiously optimistic that soft law can serve as a useful complement and stimulus to improved hard law regimes.

Part II on “Setting Standards for Labour” raises thorny issues of domestic sovereignty and disguised protectionism. Case studies include Adelele Blackett’s critique of ‘ratcheting labour standards’ (RLS) as an overly-optimistic form of corporate self-regulation that will only serve to supplant, rather than reinforce, more democratic state-based standards; Leah Vosko’s skeptical treatment of consensus-based decision-making in the ILO; and C.S. Venkata Ratnam and Anil Verma’s argument that in the developing world soft law strategies are to be preferred to hard law trade sanctions, which are usually responding to domestic interests in developed countries. Michael Trebilcock ‘s more general analysis rejects “unfair competition” and “race to the bottom” rationales for a link between labour standards and trade policy. He argues persuasively that it is no more ‘unfair’ for developing countries to use low labour costs as a source of comparative advantage, than it is for developed countries to use high labour productivity and better public infrastructure; only violations of universal human rights justify the use of trade sanctions in a labour standards context.

The essays on “Creating Corporate Responsibility” in Part III bring balance to what has been a controversial subject. Wesley Cragg, Hevina Dashwood and John Foster appreciate what CSR has accomplished in setting standards, but mix this acknowledgement with varying degrees of reluctance to leave corporate social responsibility solely to the corporations. Explorations of the link between hard and soft law in Part IV include the perspectives of a number of former high-ranking Canadian officials (Thomas Hocking, Roy MacLaren and Sylvia Ostry), Christopher Wilkie’s chapter on the nexus between CSR and the international trade and investment framework, Robert Matthews’ critical analysis of Canadian corporate responsibility in the Sudanese oil industry, and Lisa Mills’s study of the Codex Alimentarius Commission. Mills shows that high voluntary standards are sometimes too great a competitive disadvantage for corporations, who generally keep genetically modified foods out of only those markets where high consumer pressure to do so exists. She therefore finds international hard law to be indispensable. Nicholas Bayne ends the book with a similar observation, based on his comparison of the WTO and EU with the voluntary and soft law frameworks of the OECD and G7/G8, that hard law and soft law serve different purposes and are generally not alternatives, but rather complements.

Students of the public/private distinction in Critical Legal Studies, or admirers of A. Claire Cutler’s excellent recent book Private Power and Global Authority, may be disappointed by the relatively low profile that critical theory has in this collection. Nevertheless, the editors are careful to recognize that who benefits most from soft law regulation is a question of utmost importance (13). They conclude that “the great debate over the proper role and relationship of soft law and hard law in sustainable global governance will continue…with as much passion as ever, but at a deeper and more refined analytical level” (28). By presenting a number of insightful analyses of the relationship between soft and hard law, particularly in the contentious areas of forestry, labour, and CSR, the authors of this volume have already set a high standard for future debaters to follow.