Abstract
Elaborating on Ethical Trade Networks as a Catalyst for Corporate Compliance with Human Rights, Kirsteen Shields considers why voluntary regulatory efforts channelled by social movements, in particular Fairtrade, may achieve compliance in areas beyond the reach of traditional regulatory methods of international law. Insights from network theory cast light on how ethical trading networks may serve as catalysts for corporate compliance. Moreover the development of transnational voluntary regulation challenges the democratic accountability of traditional methods of international law, whilst bearing its own democratic deficits.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The UN constituted a Commission on Transnational Corporations [E.S.C. RES. 1913, U.N. ESCOR, 57TH Sess., Supp. No. 21, U.N. Doc. E/5570/ADD. 1 (1975)] but failed to establish draft norms on the code of Transnational Corporations due to disagreements between industrialized and developing countries. See generally Muchlinski (2007).
- 2.
OECD, 21 June 1976 adopted the Guidelines for Multinational Enterprises.
- 3.
ILO, November 1977 (revised November 2000), Tripartite Declaration of Principles concerning MNEs and Social Policy. The aim of the Tripartite Declaration of Principles, then, is to ‘encourage the positive contribution which multinational enterprises can make to economic and social progress and to minimize and resolve the difficulties to which their various operations may give rise, taking into account the UN resolutions advocating the Establishment of a New International Economic Order’ (para 2). Apart from specific references to fundamental worker’s rights as guaranteed under conventions and recommendations adopted within the ILO—including the ILO Declaration on Fundamental Principles and Rights at Work, adopted in June1998 by the International Labour—Conference—such as references to the principles of freedom of association and the right to collective bargaining, the prohibition of arbitrary dismissals or the protection of health and safety at work, the Tripartite Declaration contains a general provision relating to the obligations to respect human rights—Para 8 on General Policies.
- 4.
See generally De Schutter (2006), pp. 1–41.
- 5.
Ibid., pp. 474–476.
- 6.
UN Doc. E.S.C. RES. 1913, U.N. ESCOR, 57TH Sess., Supp. No. 21, U.N. Doc. E/5570/ADD. 1 (1975).
- 7.
Creation of the UN Global Compact, the UN Sub-Commission for the Promotion and Protection of Human Rights approved in Resolution 2003/16 of 14 August 2003.
- 8.
UN ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights’ adopted 30 May 2003, Un Doc. E/CN.4/Sub.2/2003/12/Rev.1.
- 9.
See International Commission of Jurists (2008).
- 10.
Human Rights Council (2007).
- 11.
Ruggie (2008).
- 12.
- 13.
UNOG News Report (2011).
- 14.
See for example International Federation for Human Rights Press Release (2011).
- 15.
Human Rights Watch Press Release (2011).
- 16.
Although some might argue that it bolsters competence to regulate corporations through municipal courts. See Muchlinski (2012), pp. 145–177.
- 17.
The instruments listed are ‘the International Bill of Human Rights (consisting of the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights), coupled with the principles concerning fundamental rights in the eight ILO core conventions, as set out in the Declaration on Fundamental Principles and Rights at Work.’ Ruggie (2011), Commentary to Principle 12.
- 18.
Indeed they may have already begun to do so through litigation under the US Alien Torts Claim Act and some developments in common law jurisdictions. See Muchlinski (2009), pp. 148–170.
- 19.
- 20.
Boyle (1999), pp. 901–913.
- 21.
Guzman and Meyer (2010), p. 171.
- 22.
Jessup, Philip C., is generally accredited with introducing the concept of transnational law in 1956. See Jessup (1956), p. 2, wherein Jessup introduces the term transnational law on the grounds that international law is ‘misleading since it suggests that one is concerned only with the relations of one nation (or state) to other nations (or states). […] [I]nstead of “international law,” the term “transnational law” [is used,] to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.’ The term has subsequently been developed. See for example Friedmann et al. (1972); Tietje et al. (2006); Zumbansen (2006); Zumbansen proposes the concept of “transnational legal pluralism” central to which is “a shift in perspective, which leads to a focus on actors, norms and processes as the building blocks of a methodology of transnational law.” Zumbansen (2012b), p. 6.
- 23.
Chinkin (1989), p. 850.
- 24.
Id.
- 25.
Shaffer (2003). Shaffer focuses mainly on how private firms collaborate with relevant government institutions in the US and the EU to challenge various trade barriers before the WTO dispute settlement system.
- 26.
Dommen (2005), p. 201.
- 27.
Mosoti (2005), p. 171.
- 28.
Agreement between the UN and the ILO Art IV, 115 UN Treaty Series 194 (1948).
- 29.
Mosoti (2005), p. 172.
- 30.
See Anderson (2006).
- 31.
As Shelton points out that ‘[f]urther, compliance may result not from the possibility of sanctions but from recognition of the need to ensure sustainability of the common good. Public goods theory may be more appropriate, in fact to the subjects of environment and human rights than game theory, which may apply to arms control and trade.’ Shelton (2000), p. 14. See also Brown Weiss and Jacobson (1998).
- 32.
- 33.
Lewis (2003).
- 34.
- 35.
See for example International Council on Human Rights Report Policy (2002), p. 8: ‘By definition, voluntary initiatives apply only to those who accept them. A company might accept a code of conduct because of genuine commitment to the principles or because its reputation is at stake. Even where there is genuine commitment, voluntary codes may not be respected if their principles clash with other, more powerful commercial interests. People sometimes argue that, if it makes good commercial sense to respect human rights, then market forces will ensure compliance. It is not self-evident however, that human rights norms are always “good for business”. Many companies have prospered under authoritarian regimes. In any case, the issues are often too complex for markets to understand and respond to. It would be difficult, for example, to insert into market mechanisms incentives and disincentives which would give competitive advantage to those companies that behave ethically.’
- 36.
For examples see Cohen and Rai (2000).
- 37.
The Kimberley Process Certification Scheme. http://www.kimberleyprocess.com. Accessed 30 July 2013.
- 38.
The Rainforest Alliance Certification Scheme. http://www.rainforest-alliance.org/. Accessed 30 July 2013.
- 39.
The Fairtrade Labelling Organisation International. http://www.fairtrade.net/. Accessed 30 July 2013.
- 40.
- 41.
- 42.
Prevezer (2012).
- 43.
Ibid., p. 23.
- 44.
- 45.
UN General Assembly Resolution [on the report of the Third Committee (A/64/432)] (11 February 2010) Cooperatives in Social Development. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/64/136. Accessed 30 July 2013.
- 46.
As set out in the Generic Fairtrade Standards for Hired Labour, Fairtrade Labelling Organisation Docs (updated May 2011).
- 47.
Ibid. For further discussion see Nicholls and Opal (2005).
- 48.
- 49.
See for example Fair Trade Foundation Press Release (2002), where we can read that “the Fairtrade Foundation is enabling farmers to meet with shoppers in UK supermarkets setting up internet links and running a competition so winners can visit coffee growers in Costa Rica.”
- 50.
See for example Tea Growers Build School in Vietnam, 11 January 2012. http://www.fairtrade.net/967.html?&cHash=161b9e464989697b5493a6776ce47a5b&tx_ttnews[tt_news]=279. Accessed 30 July 2013. Many other examples are available at http://www.fairtrade.net/meet_the_producers.html. Accessed 30 July 2013.
- 51.
Martin and White (2002).
- 52.
- 53.
- 54.
According to Schumpeter’s definition, the democratic method is that institutional arrangements for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote. Schumpeter (1962), p. 269.
- 55.
Dine (2005).
- 56.
- 57.
Ochoa (2007).
- 58.
Just one example is the extensive use of offshore tax havens. See Alldridge and Mumford (2005), p. 253.
- 59.
Teubner argues that private law has become simply ‘juridification of economic action’ in Teubner (2007).
- 60.
Scholte (2004).
- 61.
- 62.
- 63.
- 64.
See Beitz (1999), p. 148.
- 65.
Kaufmann, for example, grounds her support for centralised labour standards (as opposed to standards varying between states) on the basis of democracy, see Kaufman (2007).
- 66.
See for example Haight (2011).
- 67.
References
Addo MK (1999) Human rights standards and the responsibility of transnational corporations. Kluwer Law International, The Hague
Alldridge P, Mumford A (2005) Tax evasion and the proceeds of crime act 2002. Legal Stud 25:353–373
Anderson G (2006) Corporate governance: a (legal pluralist) constitutional perspective. In: Macleod S (ed) Global governance and the quest for justice. Hart, Oxford, pp 27–47
Anderson S, Cavanagh J (2000) Top 200: the rise of corporate global power. Institute for Policy Studies Publications. http://www.ips-dc.org/reports/top_200_the_rise_of_corporate_global_power. Accessed 30 July 2013
Armour J, Deakin S, Lele P, Siems M (2009) How do legal rules evolve? Evidence from a cross-country comparison of shareholder, creditor and worker protection. Am J Comp Law 57:579–640
Barrientos S, Smith S (2007) Mainstreaming fair trade in global production networks: own brand fruit and chocolate in UK supermarkets. In: Raynolds T, Murray D, Wilkinson J (eds) Fair trade: the challenges of transforming globalisation. Routledge, London, pp 104–122
Beitz CR (1999) Political theory and international relations. Princeton University Press, Princeton
Bernard N (2002) Multilevel governance in the European Union. Kluwer Law International, The Hague
Boyle A (1999) Some reflections on the relationship of treaties and soft law. Int Comp Law Q 48:901–913
Brown C (2002) Sovereignty, rights, and justice: international political theory today. Polite, Cambridge
Brown Weiss E, Jacobson HK (eds) (1998) Engaging countries: strengthening compliance with environmental accords. MIT, Boston
Castaldo S, Perrini F, Misani N, Tencati A (2009) The missing link between corporate social responsibility and consumer trust: the case of fair trade products. J Bus Ethics 84:1–15
Chinkin CM (1989) The challenge of soft law: development and change in international law. Int Comp Law Q 38:850–866
Chomsky N (1999) Profit over people: neoliberalism and global order. Seven Stories, New York
Christian Aid (2004) Behind the mask: the real face of corporate social responsibility. Christian Aid Reports, London
Cohen R, Rai S (2000) Global social movements. Athlone, London
Cox M, Dunne T, Booth K (2001) Empires, systems and states: great transformations in international politics. Cambridge University Press, Cambridge
Dahl RA (1956) A preface to democratic theory. University of Chicago Press, Chicago
De Schutter O (2006) The challenge of imposing human rights norms on corporations. In: De Schutter O (ed) Transnational corporations and human rights. Hart, Oxford, pp 1–41
Dine J (2005) Companies, international trade, and human rights. Cambridge University Press, Cambridge
Dine J, Shields K (2008) Fair trade and reflexive democracy. Eur Bus Organ Law Rev 9:163–186
Dommen C (2005) Two practical suggestions for promoting coordination and coherence: commentary on Victor Mosoti. In: Cottier T, Pauwelyn J, Burgi E (eds) Human rights and international trade. Oxford University Press, Oxford, pp 199–204
Drucker PF (1991) The new productivity challenge. Harv Bus Rev 6:69–79
Elkins Z (2000) Gradations of democracy. Am J Polit Sci 44:293–300
Fair Trade Foundation Press Release (2002) Share the passion for Fairtrade.http://www.fairtrade.org.uk/press_office/press_releases_and_statements/archive_2002/feb_2002/share_the_passion_ for_fairtrade.aspx. Accessed 30 July 2013
Friedmann W, Henkin L, Lissitzyn O (eds) (1972) Transnational law in a changing society. Essays in the Honor of Philip C. Jessup. Columbia University Press, New York
Friedrich CJ (1950) Constitutional government and democracy. Ginn & Co, New York
George S (2011) Abandon the Washington Consensus, Forge the Istanbul Consensus. http://www.tni.org/article/abandon-washington-consensus-forge-istanbul-consensus. Accessed 30 July 2013
Granados ML, Hlupic V, Coakes E, Mohamed S (2011) Social enterprise and social entrepreneurship research and theory: a bibliometric analysis from 1991 to 2010. Soc Enterp J 7:198–218
Guzman AT, Meyer TL (2010) International soft law. J Legal Anal 2:171–225
Haight C (2011) The problem with fair trade coffee. Stanford Soc Innov Rev 9:11
Henderson D (2001) Misguided virtue: false notion of corporate social responsibility. The Institute of Economic Affairs, London
Horst DVD (2008) Social enterprise and renewable energy: emerging initiatives and communities of practice. Soc Enterp J 4:171–185
Human Rights Council (2007) Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, business and human rights: mapping international standards of responsibility and accountability for corporate acts. UN Doc. A/HRC/4/035 (9 February)
International Council on Human Rights Policy (2002) Beyond voluntarism: human rights and the developing international legal obligations of companies. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553201. Accessed 30 July 2013
Human Rights Watch Press Release (2011) UN Human Rights Council: weak stance on business standards (16 June). http://www.hrw.org/en/news/2011/06/16/un-human-rights-council-weak-stance-business-standards. Accessed 30 July 2013
International Commission of Jurists (2008) Report of the ICJ expert legal panel on corporate complicity in international crimes (16 September 2008). http://www.icj.org/report-of-the-international-commission-of-jurists-expert-legal-panel-on-corporate-complicity-in-international-crimes/. Accessed 30 July 2013
International Federation for Human Rights Press Release (2011) UN Human Rights Council adopts guiding principles on business conduct, yet victims still waiting for effective remedies (17 June). http://www.fidh.org/UN-Human-Rights-Council-adopts-Guiding-Principles. Accessed 21 May 2012
Ireland P (2003a) Recontractualising the corporation: implicit contract as ideology. In: Campbell D, Collins H, Wightman J (eds) Implicit dimensions of contract: discrete, relational, and network contracts. Hart, Oxford, pp 255–288
Ireland P (2003b) Property and contract in contemporary corporate theory. Legal Stud 23:453–509
Jacobsen T, Sampford CJG, Thakur RC (2008) Re-envisioning sovereignty: the end of Westphalia? Ashgate, Aldershot
James A (1999) The practice of sovereign statehood in contemporary international society. Polit Stud 47:457–473
Jerbi S (2009) Business and human rights at the UN: what happens next? Hum Rights Q 31:299–320
Jerbi S (2011) UN adopts guiding principles on business and human rights - what comes next? http://www.ihrb.org/commentary/staff/un_adopts_guiding_principles_on_business_and_human_rights.html. Accessed 30 July 2013
Jessup PC (1956) Transnational law (Storrs lectures on jurisprudence, Yale Law School). Yale University Press, New Haven
Joerges C (2007) Integration through de-legalisation? An irritated Heckler. Paper presented at the European University Institute’s Seminar on ‘Governance, Civil Society and Social Movements’, on 30 June
Jones B, Hartlieb S (2009) Humanising business through ethical labelling: progress and paradoxes in the UK. J Bus Ethics 88:583–600
Jones S, Bayley B, Robins N, Roberts S (2011) Overview, impact, challenges, fairtrade: study to inform DFID’s support to fairtrade. http://portals.wi.wur.nl/files/docs/ppme/ACF3C8C.pdf. Accessed 30 July 2013
Kaufman C (2007) Globalisation and labour rights: the conflict between core labour rights and international economic law. Hart, Oxford
Keene E (2002) Beyond the anarchical society: grotius, colonialism and order in world politics. Cambridge University Press, Cambridge
Kinley D, Nolan J, Zerial N (2007) The politics of corporate social responsibility: reflections on the United Nations human rights for corporations. Companies Securities Law J 25:30–42
Klein N (2007) The shock doctrine: the rise of disaster capitalism. Metropolitan Books, New York
Kogut B, Zander U (1992) Knowledge of the firm, combinative capabilities, and the replication of technology. Organ Sci 3:383–397
Lewis S (2003) Reputation and corporate responsibility. J Commun Manag 7:356–366
Lipset SM (1963) Political man: the social bases of politics. Doubleday & Co., Garden City
Lyons G, Mastanduno M (1995) Beyond Westphalia? State sovereignty and international intervention. Johns Hopkins University Press, Baltimore
Martin W (2002) Countries still rule the world: the notion that corporations wield more power than governments rests on flawed calculations and conceptual confusion. Financial Times (6 February). http://globalarchive.ft.com/globalarchive/article.html?id=020206001749&query. Accessed 30 July 2013
Martin A, White A (2002) Who owns the world’s forests? Forest tenure and public forests in transition. http://www.rightsandresources.org/publication_details.php?publicationID=98. Accessed 22 February 2013
Mosoti V (2005) Law-making: institutional cooperation and norm creation in international organizations. In: Cottier T, Pauwelyn J, Burgi E (eds) Human rights and international trade. Oxford University Press, Oxford, pp 165–180
Muchlinski P (2007) Multinational enterprises and the law, 2nd edn. Oxford University Press, Oxford
Muchlinski P (2009) The provision of private law remedies against multinational enterprises: a comparative law perspective. J Comp Law 4:148–17
Muchlinski P (2012) Implementing the UN corporate human rights framework: implications for corporate law, governance and regulations. Bus Ethics Q 22:145–177
UNOG News Report (2011) 16 June 2011, UN Human Rights Council endorses new guiding principles on business and human rights 2011 (16 June). http://www.unog.ch/80256EDD006B9C2E/%28httpNewsByYear_en%29/3D7F902244B36DCEC12578B10056A48F?OpenDocument. Accessed 30 July 2013
Nicholls A, Opal C (2005) Fair trade: market-driven ethical consumption. Sage, London
Ochoa C (2007) The relationship of participatory democracy to participatory lawmaking. Paper presented at the Indiana University School of Law’s Conference on ‘Democracy and the Transnational Private Sector’, on 12–13 April
Philpott D (2001) Revolutions in sovereignty: how ideas shaped modern international relations. Princeton University Press, Princeton
Prevezer M (2012) Fairtrade governance – a framework. In: Dine J, Granville B (eds) The processes and practices of fairtrade, trust, ethics and governance. Routledge, London, pp 19–42
Rejai M (1967) The metamorphosis of democratic theory. Ethics 77:202–208
Ronchi L (2002) Monitoring impact of fairtrade initiatives: a case study of Kuapa Kokoo and the Day Chocolate Company. http://portals.wi.wur.nl/files/docs/ppme/TwinMEKuapaandDayA_5version.pdf. Accessed 30 July 2013
Ruggie J (2008) Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, protect, respect and remedy: a framework for business and human rights. Advance Edited Version 7 April, UN Doc A/HRC/8/5. http://www.businesshumanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil/2008. Accessed 30 July 2013
Ruggie J (2011) Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, guiding principles on business and human rights: implementing the United Nations ‘Protect, Respect and Remedy’ framework. Advance Edited Version 21 March, UN Doc A/HRC/17/31. http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf. Accessed 21 May 2012
Schattschneider EE (1960) The Semisovereign people. Holt Rinehart & Winston, New York
Scholte JA (2004) Globalization and governance: from statism to polycentrism. University of Warwick Centre for the Study of Globalisation and Regionalisation, Coventry
Schumpeter JA (1962) Capitalism, socialism and democracy. Harper & Row, New York
Shaffer GC (2003) Defending interests: public-private partnerships in WTO litigation. Brookings Institution Press, Washington, DC
Shelton D (2000) Commitment and compliance: the role of non-binding norms in the international legal system. Oxford University Press, Oxford
Shields K (2011) Labor exploitation. In: Kaufmann P, Kuch H, Neuhauser C, Webster E (eds) Humiliation, degradation, dehumanization. Springer, Berlin
Shields K (2012) Fairtrade and labour standards: why fairtrade is succeeding where international law has failed. In: Dine J, Granville B (eds) The processes and practices of fairtrade, trust, ethics and governance. Routledge, London, pp 232–245
Sullivan R (2003) Business and human rights: dilemmas and solutions. Greenleaf, Sheffield
Sullivan R (2008) Corporate responses to climate change: achieving emissions reductions through regulation, self-regulation and economic incentives. Greenleaf, Sheffield
Teubner G (2007) The public/private dichotomy: after the critique? Presentation at the European University Institute’s Seminar on ‘Governance, Civil Society and Social Movements’, on 30 June 2007
Tietje CH, Brouder A, Nowrot K (eds) (2006) Philip C. Jessup’s transnational law revisited – on the occasion of the 50th anniversary of its publication (Essays in Transnational Law No 50). Transnational Economic Law Research Center, Halle-Wittenberg
Tilly C (2007) Democracy. Cambridge University Press, New York
Zumbansen P (2006) Transnational law. In: Smits J (ed) Encyclopaedia of comparative law. Edward Elgar, Cheltenham
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Shields, K. (2014). Ethical Trade Networks as a Catalyst for Corporate Compliance with Human Rights. In: Fenwick, M., Van Uytsel, S., Wrbka, S. (eds) Networked Governance, Transnational Business and the Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-41212-7_7
Download citation
DOI: https://doi.org/10.1007/978-3-642-41212-7_7
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-41211-0
Online ISBN: 978-3-642-41212-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)