Power, Procedure, Participation and Legitimacy in Global Sustainability Norms

A Theory of Collaborative Regulation

Karin Buhmann

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138696082
• eBook ISBN: 9781315525433
• Edition: 1
• Topic: Business
• Subtopic: Business Law
• Index: Business

Globalisation of the market, law and politics contributes to a diversity of transnational sustainability problems whose solutions exceed the territorial jurisdictional limits of nation states in which their effects are generated or occur. The rise of the business sector as a powerful global actor with a claim to participation and potential contributions as well as adverse impacts sustainability complicates the regulatory challenge. Recent decades' efforts to govern transitions towards sustainability through public or hybrid regulation display mixed records of support and results. In combination, these issues highlight the need for insights on what conditions multi-stakeholder regulation for a process that balances stakeholder power and delivers results perceived as legitimate by participants and broader society.

This book responds to that need. Based on empirical experience on public-private regulation of global sustainability concerns and theoretical perspectives on transnational regulation, the book proposes a new theory on collaborative regulation. This theory sets out a procedural approach for multi-stakeholder regulation of global sustainability issues in a global legal and political order to provide for legitimacy of process and results. It takes account of the claims to participation of the private sector as well as civil society organisations and the need to balance power disparities.

p.1

Part 1

Sustainability, transnational economic activity and regulatory challenges

p.3

1 Introduction

Overview: This chapter introduces the issue of the book in regards to sustainability challenges and challenges of regulating these at a global level as well as regulatory challenges and legitimacy issues related to the inclusion of non-state actors, such as businesses, in super-national law-making. It describes how this book responds to those challenges and sets out the objective of developing a theory on collaborative regulation. Moving on, the chapter describes the method that has been applied in terms of empirical cases and the applied theoretical framework. Finally, it introduces key terms and sets out delimitations.

1.1 Setting the stage

1.1.1 Sustainability challenges

The early 21st century abounds in transnational sustainability problems whose solutions exceed the territorial jurisdictional limits of the nation states in which their effects are generated or occur. Transnational economic activity is a significant factor for many of these problems. Yet recent decades’ efforts to govern transitions towards sustainability in public, private or hybrid organisations display mixed records of results and outcomes. Recent history has shown that political support, which governments may give to international organisations like the United Nations (UN) to regulate such problems by hard law, is not easily forthcoming or uniform. The difficulties that marked the process of reaching a global climate change agreement in the years up to the 2015 Paris Climate Change Accord¹ are a case in point.

Across the globe, organisations of many types encounter difficulty in adequately meeting environmental and social sustainability challenges. The diversity of processes and outcomes calls for insights into what drives and impedes processes of clarifying what constitutes acceptable conduct. There is a particular need for knowledge on what makes for effective processes for defining norms for such conduct, and for the norms to become accepted with a view to integrating them into organisational practice.

p.4

The natural and social sciences have documented acute global sustainability challenges related to climate change and resource depletion² and business-induced human rights and labour abuse.³ Public and private actors’ overexploitation of natural and human resources enhances economic imbalance and destabilises the global ecology.⁴ The exercise of power, competition, need for and use of natural resources and labour pitch organisations against each other within and across private and public domains. The understanding of sustainable development and sustainability in a more general sense of societal objectives has undergone a significant evolution from the 1987 ‘Brundtland Report’⁵ through the 1992 Rio Declaration on Environment and Development⁶ and the 2000 Millennium Development Goals (MDGs)⁷ to the 2015 Sustainable Development Goals (SDGs).⁸ The evolution of global policy objectives on sustainability displays an expansion of issues related to sustainability from environmental to broad social concerns. From the original environmental and developmental focus, the understanding has expanded to a broader and integrated view that sustainability assumes a convergence between the three pillars of economic development, social equity and environmental protection.⁹ The adoption of the SDGs underscores that sustainability concerns are not tied to specific economies, regions or developmental stages, but are simply global in reach and significance.

The transnational nature of sustainability challenges limits the political and jurisdictional powers of states and international organisations, leading to governance gaps.¹⁰ Despite some progress, particularly in natural resource law,¹¹ regulation of sustainability often relies on market-based sanctions¹² and informal law.¹³ Pragmatic socio-legal approaches to processes of turning societal needs into aspirational norms that may transform into changed practices recognise a multiplicity of governance forms,¹⁴ but still fail to fully explain the dynamics that trigger change and deliver solutions. Discursive evolution of norms of conduct has proven significant for their uptake,¹⁵ but the evolution of norms related to sustainability has also been shown to be vulnerable to capture by specific interests and power relations.¹⁶

p.5

Climate change has been high on the global sustainability agenda in recent years.¹⁷ Yet global sustainability concerns go beyond climate change, often related to economic practices with social and environmental impacts. Excessive natural resource exploitation, land-grabbing and sub-standard labour conditions in global supply chains are frequent occurrences that also have high sustainability relevance. Such practices pose risks to the environment and human lives currently as well as in a longer-term sustainability perspective of balancing current needs with those of the future. Investments and trade have caused depletion of large stretches of tropical forests, which not only harms the environment and adds to climate change, but also affects the socio-economic conditions of communities. The transnational character of these economic activities often involves or affects numerous private and public actors in several states or regions. This causes challenges for singular or even sector-wide private self-regulatory initiatives, and reduces the effectiveness of self-regulation by individual actors on their own.

The challenges that marked the road to the Paris Climate Change Accord for years are telling of the difficulties that the conventional international law-making process encounters in regard to developing and adopting norms of conduct related to sustainability problems. By contrast to the situation when the state-centric international legal system was created, actors to be regulated are increasingly not public but private. Moreover, despite overall convergence, political interests are highly dispersed at national, regional or even sectoral levels. Failures by the international society to address societal challenges and needs of global concern have drawn attention to the impact that private actors have on society and the responsibility that firms of all sizes have for such impacts. The combination of, on the one hand, the weaknesses encountered by the existing public institutional structures to deal with such problems and, on the other, increased societal awareness of the impact and perceived societal responsibilities of business has placed pressure on the UN, which is the world’s key international organisation concerned with social and economic growth and sustainability, set up under a state-centrist international law and policy regime. At the same time, the immensity and encompassing character of global sustainability challenges have also drawn attention to the limitations of singular initiatives like the private or sectoral Corporate Social Responsibility (CSR) guidelines, reporting schemes and codes of conduct.

p.6

Through the SDGs, the UN General Assembly also sent a message that sustainability and responsibility for sustainable development are global in reach and not limited to particular countries or regions. This is a call to the world on the need to solve impending dilemmas: first, that political and regulatory issues confronting global sustainability development challenges are on the rise; and, second, that there is a need to find novel ways to govern the sustainability impact of economic activities, whether those are linked to the private sector or the public sector or a combination.

Adding to the complexity is the fact that much norm creation related to sustainability is transnational and trans-systemic in process as well as intended applicability. The trans-systemic character transgresses not only conventional boundaries between public and private, international and national law, but also boundaries between the legal, the political and the economic systems.

The past has shown that the evolution of new sustainability concerns is dynamic and often goes beyond our current imagination. When labour issues rose high on the agenda in the 1990s, few suspected that climate change mitigation would move forcefully on to the global sustainability agenda in terms of both public and private regulation. The governance and exploitation of water as a resource for transport, production and sale and a condition for human health are among emerging challenges, as is the exploitation of the land or sea areas around the Arctic or Antarctic. In view of the natural resources available, it may not be far-fetched to speculate that even outer space may be among future challenges for sustainability. Against this backdrop and against the CSR area in general, the field of business and human rights stands out. As explained below, this field has undergone a major transition in less than two decades: contention and disagreement have been turned around into multi-stakeholder development and agreement on guidance for both public and private actors. The human rights field has broad relevance across public and private governance, because many human right issues are directly linked to public policy objectives of a social, economic or political character. This applies whether the issues at stake are at risk of harm caused by the private sector, or whether businesses may contribute to improved delivery of services or other public goods.

1.1.2 Regulatory and legitimacy challenges

Traditionally, non-state actors like businesses do not have a role in international law. This means that they have neither obligations nor a right to participate in law-making. The lack of obligations leads to a situation of impunity or at least a severe lack of normative guidance for firms in regard to their impacts on society. The non-inclusion in international efforts to regulate is a challenge too: it may contribute to alternative ways to influence law-making, but inclusion also causes legitimacy issues because firms are not democratically representative or elected for that role, and because of a risk of capture of the process.

p.7

In fact, non-state actors such as civil society organisations increasingly take some p...

Table of contents

• Cover Page
• Praise
• Power, Procedure, Participation and Legitimacy in Global Sustainability Norms
• Globalization: Law and Policy
• Title
• Copyright
• Dedication
• Contents
• List of Tables
• List of Abbreviations
• Acknowledgements
• Part 1 Sustainability, Transnational Economic Activity and Regulatory Challenges
• Part 2 Legitimacy and Public–Private Regulation of Transnational Sustainability Concerns
• Part 3 Collaborative Regulation
• References
• Index