Vol. 15 No.6 (June 2005), pp.587-589

HARD CHOICES, SOFT LAW: VOLUNTARY STANDARDS IN GLOBAL TRADE, ENVIRONMENT AND SOCIAL GOVERNANCE, by John J. Kirton and Michael J. Trebilcock (eds). Burlington, VT: Ashgate, 2004. 390pp. Cloth $99.95/£55.00. ISBN: 0-7546-0966-9.

Reviewed by David Vogel, Haas School of Business and Department of Political Science, The University of California, Berkeley. Email: vogel@haas.berkeley.edu

This important collection of essays addresses the growing importance of “soft law” in international politics. The editors, John J. Kirton and Michael J. Trebilcock, use this term to refer to norms and standards that are not legally enforceable and whose legitimacy does not primarily derive from governmental authority. Soft law primarily takes place through two instruments: voluntary standards, such as those promulgated by corporations or non-government organizations, and international governmental or quasi-governmental institutions that depend on voluntary compliance and participation by firms or other governments. International corporate labor codes, such SA 1000, and NGO sponsored labels, such as those of the Forest Certification Council and Fair Trade, fall into the former category. The corporate codes developed by the Organization for Economic Co-operations and Development (OECD),  the United Nations and the national labor standards of the International Labor Organization fall into the latter.

The broad scope of this volume is both its strength and its weakness.  Its eighteen substantive essays cover topics ranging private forest certification and corporate labor standards to the relationship between trade policies and labor and environmental standards, as well as specific essays on the Canadian government’s policies toward investment in the Sudan and the regulation of agricultural biotechnology. An important advantage of this breadth of coverage is that it permits the reader to appreciate the extensive interaction between private and public regulation, or between soft and hard law. As the editors note, not only is the line between the two fluid, but, as several of the contributors observe, the emergence of voluntary standards has both influenced and been influenced by developments in public policy.

However, the price paid by this breadth of coverage is a certain lack of intellectual coherence. Voluntary standards for labor practices and sustainable forestry may well stem from the failures of states to agree on legally enforceable standards or their unwillingness to incorporate such standards into legally binding trade agreements, but the political and legal dynamics of trade negotiations and agreements are very different from those governing voluntary labor and environmental standards. Moreover, covering both subjects in one volume means that neither is addressed as comprehensively as it deserves.

Nonetheless, this is an important collection of essays that deserves to be carefully read by scholars interested in the dynamics of labor and environmental regulations and standards in the global economy. It represents a comprehensive [*588] and sophisticated effort to place the phenomenon of non-state governance, or “governance without government,” as one contributor puts it, in both an historical and theoretical context. Of particular value is the political and analytical framework it provides for political scientists to appreciate the phenomenon of corporate social responsibility (CSR), an increasingly important dimension of private business regulation, whose study has until recently primarily been confined to students of management. Wilkie’s essay on the relationship between corporate social responsibility and the rules governing international trade and investment presents an especially valuable analysis of the relationship between the two.

Among the more important contributions of this volume is to document the increasing importance of voluntary standards, especially at the international level. Much of this growth reflects the perceived shortcomings of “hard” law. Specifically, World Trade Organization rules and rulings have prohibited the use of labor standards and limit the use of environmental norms as a basis for trade restrictions. At the same time, the governments of many developing countries are either unable or unwilling to enforce adequate domestic protective regulations. The result is that economic globalization has failed to benefit adequately many citizens in the world’s poorer nations.

Voluntary regulation has emerged to fill this legal and normative vacuum. In fact, soft law, such as that reflected in voluntary codes and certification schemes, has some important advantages over “hard” law. Most obviously, it is easier to adopt as it need not go though the laborious process of securing governmental approval, something which can be particularly difficult at the international level. In addition, precisely because it works though market mechanisms, it is more palatable to policy-makers and many citizens in developing countries. The latter have often strongly opposed the efforts of some western governments and many western activists to use trade policy to keep out “irresponsibly” produced products on the grounds that restrictions represent a disguised form of protectionism. Private systems of regulation are less objectionable since they rely on voluntary agreements between western firms or consumers and developing country producers.

There is an enormous literature on CSR, but much of it is marred by a strong normative bias. The typical book or article on CSR is unrestrained in its enthusiasm, based on the uncritically examined assumption that global firms now need to act “responsibly” if they are to maintain the support of consumers, employees and investors. Other writers on CSR dismiss its significance entirely, finding it difficult to believe that firms can act responsibly in the absence of additional legal requirements. The reality, as several essays in this book demonstrate, is more nuanced.

An important strength of this edited volume is that its contributors do not share a uniform perspective about the impact of voluntary standards on global environmental and labor practices. They neither exaggerate nor minimize its importance. For example, the three essays on private forest certification – an area in which the use of voluntary codes and private certification standards has been particularly extensive – present a mixed and balanced picture, noting both its important accomplishments and its [*589] equally significant limitations. The essays on voluntary standards in other areas, such as human rights, labor conditions, and biosafety, present a similarly mixed portrait of their impact.

Yet, at the same time, each essay is informed by a common understanding that soft law is playing an increasingly important role in governing a wide variety of dimensions of international business behavior and that scholars interested in understanding global business regulation can no longer confine their analysis and research to rules and standards primarily issued and enforced by governments. Norms such as those reflected in much of soft law, do matter. Moreover, future regulation of global corporate conduct is likely to involve a combination of hard and soft law. Determining their appropriate mixture represents an important challenge for both activists and policy makers, and this volume makes an important contribution to help us think more clearly about what their relationship has been, and where it might be headed in the future.

It is to be regretted that the high price of this volume will limit its accessibility to many scholars. It deserves to be carefully read by anyone interested in understanding the myriad forms of governance that have emerged in the global economy, and the role each has and is likely to play.

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© Copyright 2005 by the author, David Vogel.