330 I CON 13 (2015),

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1 330 I CON 13 (2015), Jessica Green. Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance. Princeton University Press, Pp $ ISBN: Axel Marx, Miet Maertens, Johan Swinnen & Jan Wouters (eds). Private Standards and Global Governance: Economic, Legal, and Political Perspectives. Edward Elgar Publishing, Pp ISBN: Jessica Green s Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance and the volume edited by Axel Marx, Miet Maertens, Johan Swinnen and Jan Wouters, Private Standards and Global Governance: Economic, Legal, and Political Perspectives, together present a complex picture of authority in global governance where multiple authorities public, private, and hybrid interact with and influence one another in the regulation of transnational issues. Recognizing and grappling with this multiplicity and complexity of authority, Green and the contributors to Private Standards and Global Governance offer rich, empirical accounts of private authority. Green examines the role of private actors in global environmental governance and identifies an intricate relationship between private and public authority, where private authority is imbricated in a larger set of governing institutions that also involves states, international organizations, and non-governmental organizations (at 9). Green documents a significant increase in the past two decades of what she terms entrepreneurial private authority where private actors create rules without an explicit delegation of authority from the state (at 8). Private Standards and Global Governance zeros in on non-state market regulatory initiatives the voluntary standards established by private actors to govern a wide range of issues in global supply chains and production processes (at 1). First conceived at a conference held at the University of Leuven, Private Standards and Global Governance brings together practitioners and scholars with expertise in various areas of private standard-setting, including food safety, labor conditions, and natural resource management, and from a range of disciplines, including law, economics, and political science. Like Green, the contributors to Private Standards and Global Governance see private standards as part of a broader transnational regulatory domain, observing that private standards are often not purely private, but result from the combined involvement of businesses, non-governmental organizations, states, and international organizations (at 300). Rethinking Private Authority and Private Standards and Global Governance both offer novel and insightful empirical descriptions of the operation of private authority in contemporary global governance. By detailing the rule-making activities of private actors, the authors improve our understanding of how transnational issues are governed and also draw attention to the complex relationship between private authority and the state, where both public and private instances of authority engage in regulation. Green provides a useful typology that captures variation in the form of private authority. She distinguishes between: delegated private authority that results from states explicitly tasking private actors with some aspect of governance, such as the Clean Development Mechanism of the Kyoto Protocol which empowers private firms to monitor the greenhouse gas offset markets, and which Green discusses in detail in chapter 4; and entrepreneurial private authority that emerges where private actors create rules without an explicit delegation of authority from states, an ex ample being the privately created accounting and reporting standards for greenhouse gas that Green examines in chapter 5 (at 31). This disaggregation of private authority is an important conceptual clarification that captures the range of activity by private actors and, as discussed below, also allows Green to offer a more nuanced understanding of pri-

2 Book Reviews 331 vate authority by isolating changes over time within each of these categories. In examining each of the two forms of private authority, Green offers some of the first systematic data on private authority in global governance. Green acknowledges that many scholars before her have observed activity by private actors in global governance, but notes that there is a dearth of large-n comparative research and that we know surprisingly little about how often private actors are acting as rule makers and whether this has changed over time (at 4, 85). Using data that she collected from 119 transnational environmental civil regulations in the period of certification schemes, codes of conduct, or best practices that are not enforced by a state and are generated by private actors Green identifies a sharp rise in entrepreneurial authority in the past two decades, where private actors have created rules without explicit delegation from states (at 91). To analyze exercises of delegated private authority over time, Green drew on a random sample of multilateral environmental treaties from the period of 1902 to She coded each paragraph of each treaty to first identify the policy function (rule making, implementation, monitoring, enforcement, or adjudication) and, second, to identify who bore responsibility for the policy function, that is, whether states retained responsibility (no delegation) or delegated powers to a subset of states, an international organization, a private actor, or some combination thereof (at 60). Green s analysis revealed that it is rare for states to explicitly mandate private actors with governance responsibility for the environment, 1 and that, when states do choose to delegate to private actors, the authority that 1 Green s data reveals an increase in delegation to private actors in the 1990s and continuing through the early 2000s, but she is careful to point out that this same period produced an increase in the number of multilateral environmental agreements, which ultimately supports her finding that the proportion of policy functions delegated to private actors remains small and constant over time (at 71). is delegated is limited and often of a technical nature, such as in the case of the Indo-Pacific Fisheries Council that delegated authority to private scientists to set dam-specific rules for fish ladders (at 73). Green recognizes that these are potentially important sustainability measures, but writes that they are on a political scale different from those that have wide-reaching and potentially costly domestic impacts (at 73). Green s empirical work advances our understanding of private actors in world politics in important ways. By longitudinally analyzing one issue area environmental governance and disaggregating delegated and entrepreneurial private authority, Green s work draws attention to the interplay of the state and private actors in generating private authority. She also provides empirical support for what many, such as the contributors to Private Standards and Global Governance, have perhaps already assumed that it is in the sphere of entrepreneurial private authority, where authority is not explicitly passed from states to private actors, that private authority has been increasing. Private Standards and Global Governance focuses on private standards, a mode of entrepreneurial private authority in Green s typology. The editors position the book as addressing key questions concerning private standards as an instrument of global governance, by examining the operation of private standards in a variety of transnational issues areas, ranging from food safety to forestry management and labor standards. In the concluding chapter, the editors offer a nuanced and cautious assessment: on the one hand, they point to the findings from the volume which show that private standards have become institutionalized in governance, for example where public laws incorporate private standards (at 304). On the other hand, the editors recall the repeated findings in the volume of asymmetry in the development and adoption of private standards, noting that the most prominent private standards have been developed in Europe and the US and suggesting that private standards may have asymmetric effects worldwide (at 304).

3 332 I CON 13 (2015), Private Standards and Global Governance also describes a complex relationship between state and private authority, where instances of private authority are not neatly separable from state authority. For instance, Spencer Henson and John Humphrey s chapter shows how private standards can be shaped by state regulations even without an explicit delegation from the state. Henson and Humphrey examine food safety standards and detail how several private standards schemes on food safety that developed in the UK during the 1990s responded to new UK food safety regulations (at 104). The UK Food Safety Act of 1990 made food business operators strictly liable for the safety of food sold to consumers, but also established a due diligence defense for a seller who took reasonable precautions to ensure that food sold complied with safety requirements. As Henson and Humphrey argue, retailers quickly realized that it was more cost effective to act together with other retailers to establish private standards to ensure compliance (at 105). It is not only state and national level regulation that contributors of Private Standards and Global Governance look to for the institutionalization of private standards in governance. International organizations are also influencing and influenced by private authority. Henson and Humphrey s chapter illustrates how the Food and Agriculture Organization s (FAO) Codex Alimentarius (Codex) has inspired private standards, which, while drawing on the Codex, provide further specification for operationalizing the Codex than the FAO sets out (at 106). The chapter by Jan Wouters, Alex Marx, and Nicholas Hachez examines the complex relationship and possible tensions between private standards and the international trade regime, particularly the World Trade Organization s (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) (at 255). The SPS Agreement designates FAO s Codex as the standard setter for food safety regulation: any domestic food safety regulation that sets a standard at or below those of the Codex will be compliant with the SPS Agreement; but a regulation that sets a higher standard will be in breach of the SPS Agreement, unless the standard is scientifically justified (at 264). As the authors explain, it is by no means clear how the SPS Agreement treats private standards that are more ambitious than the Codex and suggest that exercises of private standard setting can potentially interfere with the regulatory goal of the SPS Agreement of encouraging harmonization. The volume s serious consideration of developing countries is commendable and draws attention to important variation, not only in how private standards are created, but also in the effects of private standards. Both Green and the editors of Private Standards and Global Governance acknowledge that there may be important differences across issue area and recognize this as an important area for future research (Green, at 85; Marx et al., at ). Private Standards and Global Governance identifies further variability in private standards by questioning whether private standards are truly global (at 295). The editors acknowledge that not only are private actors of wealthy states, such as the US and the EU, likely over-represented in the development and adoption of private standards, but also that the effect and costs of private standards can vary depending on economic and regulatory capacity of states (at 295). Miet Maertens and Johan Swinnen s chapter, for example, focuses on the impact of private food safety standards on developing countries and identifies both the potentially exclusionary effect of such standards for example, if the costs of compliance with such standards become barriers to trade and possible benefits of the standards for developing countries for example, where standards might increase trade through reduced transaction costs and improved consumer confidence in the safety of the product (at 154). Acknowledging these differential effects of private standards on developing countries, the chapter by Wouters, Marx, and Hachez calls on both public and private actors to foster the helpful features of private standards, while mitigating the exclusionary effect on small players in developing countries who cannot afford the costs of compliance with private

4 Book Reviews 333 standards (at ). Wouters, Marx and Hachez echo recommendations from other scholars and international organizations for financial and technical assistance to aid compliance in developing countries, and also call for improved information sharing that facilitates the integration of developing country producers into private standard setting or ganizations (at 278). The authors emphasize the role of private actors themselves in improving the legitimacy of private standards by forming agreements among key actors as to what constitutes legitimacy in a particular regulatory context (at 281). 2 Still, there may be good reason to question whether significant financial and technical assistance for developing country compliance with private standards will be forthcoming. In addition, there are reasons to doubt whether actions by private standard setters themselves will be satisfactory in improving legitimacy in private standards. It is not hard to imagine how the legitimacy of private standards incorporated into a contract may be assessed very differently across the globe, regardless of the legitimacy bolstering efforts by private standard setters. A large Western multinational corporation that has been influential in creating and shaping the private standards incorporated in the contract is much more likely to regard these standards as legitimate in comparison to a small developing country producer that had no opportunity to participate in creating these standards and that faces increasing vertical coordination and dominance of large multinationals in the local market. These are difficult issues not prone to easy resolution. As the editors and contributors to Private Standards and Global Governance clearly set out, the complexity of private standards goes beyond their institutionalization as 2 Here the authors point to the ISEAL Alliance s Code of Good Practice for Setting Social and Environmental Standards, a sort of second order private standard that aims to provide member private standard setting organizations with credibility and legitimacy in their private standards if the private standards that they in turn adopt comply with ISEAL s Code (at 281). part of governance and their incorporation in and impact on national and international regulatory efforts, but also extends to the varied impact of private standards on individual actors within differently situated states. The rich and detailed description of the operation of private authority in contemporary global governance is a valuable contribution made by both Rethinking Private Authority and Private Standards and Global Governance. Their descriptive insights, taken together with the authors conceptualization and theoretical explanations of private authority and global governance advance the scholarship of non-state actors and transnational relations. By employing a broad conception of authority that captures the rule making activities of private actors and situates these activities in a complex, multifaceted transnational regulatory domain, these books avoid a conceptualization of the relationship between public and private authority in global governance as zero-sum and instead draw our attention to the multiplicity of rules and rule makers and to the significance of the interactions between them. In doing so, both Green and the contributors to Private Standards and Global Governance help move scholarship of transnational relations and non-state actors beyond what John Ruggie has termed the institutional substitutability criterion. 3 According to Ruggie, earlier examinations of transnational relations deemed relevant only the behavior of non-state actors that directly challenged and potentially substituted for the state. 4 Green too criticizes previous scholarship concern- 3 John Ruggie, Reconstituting the Global Public Domain: Issues, Actors, and Practices, 10 Eur. J. Int l Relations 499, 500 (2004). 4 Id. at In an earlier article, Ruggie explained that, [s]ince global markets and transnationalized corporate structures... are not in the business of replacing states, they are assumed to entail no potential for fundamental international change. See John Ruggie, Territoriality and Beyond: Problematizing Modernity in International Relations, 47 Int l Org. 139, 143 (1993).

5 334 I CON 13 (2015), ing private authority for presenting an unnecessarily narrow view of the relationship between private and public authority (at 8). 5 Jessica Mathews, for instance, described the continuing diffusion of power away from nation-states and toward non-governmental organizations, multinational corporations, and international organization as necessarily diminishing state authority. 6 According to Mathews, [i]n using business, NGOs, and international organizations to address problems they [states] cannot or do not want to take on, states will, more often than not, inadvertently weaken themselves further. 7 Green s book, in contrast, positions private actors as one component in a complex regulatory domain, where private and public authority coexist and interact with each other, and are not necessarily in a zero-sum relationship. Green defines authority as relational it is mutually constituted; the source of authority makes rules and the target of authority agrees to obey them and defines private authority as situations in which nonstate actors make rules or set standards that other relevant actors in world politics adopt (at 21, 27). With this definition, we can easily see how Green classifies the rule-making and standard-setting activities of private actors in environmental regulation as exercises of authority where private actors make rules and other actors agree to follow them. What is more, using such a definition allows us to see private authority as an instance of a broader concept of authority and to conceptualize private authority as coexisting and interacting with state authority, while not necessarily directly posing a challenge or alternative to 5 From this earlier generation of scholarship, Green cites Philip Cerny, Globalization and the Changing Logic of Collective Action, 49 Int l Org. 595 (1995); Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy (1996); Jessica Mathews, Power Shift, 76 Foreign Aff. 35 (1997); A. Claire Cutler, Virginia Haufler, & Tony Porter, Private Authority and International Affairs (1999). 6 Mathews, supra note 5, at Id. at 66. the state. Private Standards and Global Governance offers several examples of such interactions of authority, where private authority is shaped by state authority, and where private authority can also influence state authority. This interplay between public and private authority does not necessarily weaken the state. For both Green and the contributors to Private Standards and Global Governance, the state plays an important role in the regulation of transnational issues; it is, however, not the only regulatory actor that warrants consideration. In their chapter in Private Standards and Global Governance, Wouters, Marx, and Hachez argue for a new governance model that captures this important role of the state but also recognizes the significance of private authority. Building on the new or reflexive school of governance, 8 the authors describe the state s role as one of a facilitator that steers and directs governance by selecting regulations that are most effective (at 275). According to Wouters et al., states should not attempt to shape all aspects of life in society through prescriptive legislation, but should rather place themselves in a position of catalyst, facilitator or orchestrator of regulations which are set by the (public or private) actors which are most effective, representative, competent and knowledgeable in the relevant field (at 275). In this model of governments as facilitators, private and public authority can be mutually reinforcing, and need not necessarily operate at each other s expense. In Green s account of the rise of private authority, states play an important role in cre- 8 Here Wouters, Marx, and Hachez refer approvingly to Kenneth Abbott & Duncan Snidal, The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State, in The Politics of Global Regulation 44 (Walter Mattli and Ngaire Woods eds., 2009); Alfred Aman, The Limits of Globalization the Future of Administrative Law: From Government to Governance, 8 Ind. J. Global Legal Stud. 379 ( ); Richard Stewart, Administrative Law in the Twenty-First Century, 78 N.Y. L. Rev. 437 (2003); Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342 (2004).

6 Book Reviews 335 ating the initial demand for private authority and shaping delegated private authority, but, interestingly, in instances of entrepreneurial authority it is private actors that establish and determine standards of behavior. Green argues that private authority emerges when demand for private authority aligns with supply, meaning that there are established private actors with expertise in the issue area (at 39). Demand, according to Green, depends on whether key actors in world politics states, private actors, and institutions expect to benefit from private authority, such as through reduced transaction costs, enhanced credibility, a first-mover advantage, or reputational advantages (at 39). When demand and supply align, states delegate authority to private actors if the preferences of powerful states are aligned and if there is a strong focal institution (at 133). If either of these attributes is lacking powerful states interested in the subject matter disagree as to delegation or a focal institution is not present Green argues that entrepreneurial private authority is more likely to arise (at 122). Where both books could have gone further, and where further research on private actors in global governance is needed, is in continuing to broaden the analysis and conceptualization of private authority. While both books take important steps in illustrating that the relationship between states and private actors in global governance is not zero-sum, they restrict their analysis of the relationship between private and public authorities to direct and overt interactions. Insights from research on legal and policy diffusion offer a promising way forward to expand the an alysis of the interaction between regulatory actors. In addition, situating these multiple regulatory actors within the broader phenomenon of fragmentation and pluralism in international law and governance further expands the possibilities to understand interaction and influence among regulatory domains. William Twining, for instance, argues that much comparative law scholarship on legal diffusion has erroneously assumed direct, one-way transfers of law from country A to country B and has failed to recognize the complexity of the diffusion process. 9 Twining proposes a more complex understanding of the process, where diffusion may take place between several legal orders and across different levels of legal orders and where the pathways of diffusion are indirect or reciprocal. 10 Beth Simmons, Frank Dobbin, and Geoffrey Garrett provide a framework for understanding policy diffusion across jurisdictions that identifies four possible causal mechanisms of policy diffusion across states coercion, competition, learning, or emulation. 11 As Simmons, Dobbins, and Garrett s mechanisms of learning and emulation demonstrate, policy diffusion is not simply a unidirectional transfer of one jurisdiction s policy to another, but is the result of changing beliefs and shared intersubjective understandings that can lead states to adopt similar policies. 12 Taken together, the research on diffusion suggests ways in which scholars of private authority could begin to assess how, perhaps more indirectly and less overtly, private authority influences and shapes state authority, and vice versa. For instance, might private authority influence the shared understandings that inform and underlie state regulatory choices? Broadening our focus to these more indirect interactions can also draw attention to the multiple actors, for instance individuals and sub-state actors that exercise private authority. How might other sub-state actors, such as courts or state regulators, participate in the potential diffusion of private standards? 13 9 William Twining, Social Science and Diffusion of Law, 32 Journal of Law and Society (2005) William Twining, Diffusion of Law: A Global Perspective, 49 Journal of Legal Pluralism and Unofficial Law (2004) 3, at Beth Simmons, Frank Dobbin, and Geoffrey Garret, The Global Diffusion of Markets and Democracy (2008). 12 Ibid. at For instance, in rejecting a motion to strike the claim of indigenous Guatemalans alleging human rights abuses against three Canadian mineral companies, the Ontario Superior Court of Justice cited arguments by intervenor Amnesty International that referred to the OECD Guidelines for Multinational Enterprises and the United Nations Global Compact to support the existence of a duty of care. Choc. v. Hudbay Minerals Inc. [2013] O.J

7 336 I CON 13 (2015), Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale J. Int l L. 301, 304 (2007); Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, (1996). 15 Eyal Benvenisti and George Downs have argued that the proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries, is the intentional creation of powerful states that benefit from the fragmentation of regulatory order. Eyal Benvenisti & George Downs, The Empire s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595, 598 (2007). Other scholars emphasize the social origins of legal fragmentation, for instance Gunther Teubner and Andreas Fischer-Lescano Finally, it is important to consider private authority within the broader concepts of legal pluralism and fragmentation of international law and international governance. Paul Berman s pluralist approach to international law that focuses on norm-generating communities rather than nation-states, or Harold Koh s transnational legal process that centers on the interaction of private and public actors in the creation, enforcement, and internationalization of international norms both seem well suited to providing a framework for understanding private authority as part of larger processes of transnational regulation and governance. 14 These frameworks can more broadly situate private authority, directing scholars to important questions of how multiplicity in private authority relates to or differs from fragmentation in international public authority. 15 Legal pluralism further pushes scholars to address the interaction of these multiple normative orders, and can offer a check on assumptions of the inevitability or benefit of regulatory harmonization. Both Green and the editors of Private Standards and Global point to harmonization of standards as a solution to the challenges and compliance costs of multiple standards schemes, and rely on private standard setters themselves to offer a way out of this frag mentation by developing benchmark standards (at ). 16 Nevertheless, we know very little about processes of regulatory convergence and which harmonized standards will be likely to result and should be mindful of the political motivations and distributional consequences that are implied. Addressing such questions should be at the forefront of further research. Elizabeth Acorn ea346@cornell.edu doi: /icon/mov015 Individual Contributions to Private Standards and Global Governance Axel Marx, Miet Maertens, Johan Swinnen, & Jan Wouters, Introduction: Private Standards and Global Governance; Frans van Waarden, Governing Global Commons: The Public-Private Protection of Fish and Forests; Axel Marx, Emilie Bécault, & Jan Wouters, Private Standards in Forestry: Assessing the Legitimacy and Effectiveness of the Forest Stewardship Council; Spencer Henson & John Humphrey, Private Standards in Global Agri-food Chains; Ludo Cuyvers & Tim De Meyer, Market-driven Promotion of International Labour Standards in Southeast Asia: The Corporatization of Social Justice; Miet Maertens & Johan Swinnen, Private Standards, Global Food Supply Chains and the Implications for Developing Countries; explain global legal fragmentation as a reflection of a deep fragmentation of global society: At core, the fragmentation of global law is not simply about legal norm collisions or policy conflicts, but rather has its origins in contradictions between society-wide institutionalized rationalities. Gunther Teubner and Andreas Fischer- Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int l L. 999, 1004 (2004). 16 Green too identifies several processes for harmonization and convergence [that] can potentially curtail the unabated growth of entrepreneurial authority, including her empirical finding that many of the more recent private standards are explicitly borrowing from preexisting standards (at 103).

8 Book Reviews 337 Liesbeth Colen, Miet Maertens, & Johan Swinnen, Globalization, Private Standards and Poverty: Evidence from Senegal; Fabrizio Cafaggi, Transnational Governance by Contract: Private Regulation and Contractual Networks in Food Safety; Gretchen H. Stanton, Food Safety-related Private Standards: The WTO Perspective; Jan Wouters, Axel Marx, & Nicolas Hachez, Private Standards, Global Governance and International Trade: The Case of Global Food Safety Governance; Axel Marx, Miet Maertens, Johan Swinnen, & Jan Wouters, Conclusion: Private Standards A Global Governance Tool?