SCRUTINIZING THE DEMOCRATIC LEGITIMACY OF PRIVATE STANDARDS

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SCRUTINIZING THE DEMOCRATIC LEGITIMACY OF PRIVATE STANDARDS THE EXAMPLE OF GLOBALG.A.P. Nicolas Hachez and Jan Wouters ABSTRACT This paper seeks to inquire, through a case-study, into the conditions under which global private standards may be viewed as legitimate. In a first part, this paper develops an articulate view of one of the most important determinants of legitimacy, namely democracy understood as prospective and retrospective accountability to the public. It then seeks to flesh out the conditions under which the democracy ideal could be put to use in relation to private global standards. It first defines the public as the circle of the stakeholders affected by the issue and the standard in question. It then analyzes more in-depth the concepts of prospective and retrospective accountability mechanisms, and focuses, for the former, on participation, and for the latter, on control. The paper also insists on the values of inclusiveness and equality which must permeate those accountability mechanisms. In a second part, this paper accordingly seeks to assess the democratic legitimacy of one of the most pervasive global food safety private standards: GLOBALG.A.P. KEY WORDS Legitimacy, Democracy, Accountability, Private Standards, GLOBALG.A.P. AUTHOR(S) Nicolas Hachez is Research Fellow, Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven Jan Wouters is Jean Monnet Chair Ad Personam EU and Global Governance; Professor of International Law and International Organizations and Director, Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven; of counsel, Linklaters, Brussels ADDRESS FOR CORRESPONDENCE Nicolas Hachez: nicolas.hachez@law.kuleuven.be Jan Wouters: jan.wouters@ggs.kuleuven.be 2010 by Nicolas Hachez and Jan Wouters. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

CONTENTS A. INTRODUCTION...3 B. ANALYTICAL FRAMEWORK: DEMOCRATIC LEGITIMACY AND GLOBAL GOVERNANCE...4 1. The relevance of legitimacy in the debate about private standards...4 2. The determinants of legitimacy: legitimacy as democratic accountability...5 C. CASE STUDY: GLOBALG.A.P...9 1. Presentation of GLOBALG.A.P...9 2. GLOBALG.A.P. as a governing entity...12 3. Prospective accountability: participation...13 4. Retrospective accountability: control...15 D. CONCLUDING REMARKS...17 2

SCRUTINIZING THE DEMOCRATIC LEGITIMACY OF PRIVATE STANDARDS THE EXAMPLE OF GLOBALG.A.P. (*) Nicolas Hachez and Jan Wouters A. INTRODUCTION With globalization, many issues which used to be governed by traditional, domestic regulatory means now have to be addressed at the global level in order to be effectively regulated. Food safety regulation is a prime example of this. As food resources are being produced, traded and consumed at the four corners of the world, it is no longer realistic for each state to pretend regulating, on its own, every piece of food transiting in its territory. However, to date, the public international legal system, despite the existence of specialized institutions to that effect, like the Codex Alimentarius Commission, has not yet been able to effectively regulate the matter and to guarantee the safety of all food worldwide. In order to circumvent the shortcomings of the public international regulation of food safety, large, multinational business actors have progressively developed and implemented food safety norms on their own initiative and using their own resources. These food safety standards are global in reach, as their applicability is not a priori limited to certain territories, and of a voluntary nature, in the sense that they are not binding by virtue of law in the traditional sense. Nonetheless, having spread throughout the global supply chains, having become imposed contractually in producer-retailer relationships, and having increasingly conditioned the access of food products to distribution channels, these private standards end up governing the food market, at least for questions of food safety. 1 We use the expression to govern because such global private food safety standards set rules which accordingly affect the behaviour of the relevant members of society. 2 Therefore, we call global private food safety standard setters governing entities throughout this paper. 3 This evolution, even though it seeks to fill regulatory gaps left open by traditional public authorities, appears as a puzzle to most of us. We have been used to welldefined public regulatory forms, which we have come to trust as democratic and effective. Such trust, we feel, may not be unconditionally extended to private actors, and we may feel uneasy as we attempt to define the principles under which we may recognize those new regulatory actors as rightful. It is this last question that this paper seeks to address, by studying the question which is at the very heart of the relationship between a governing actor and the community of people it seeks to govern: legitimacy, i.e. the sense that we are governed by the right institutions, the right people, and the right norms. (*) This paper was prepared for the Third Biennial Conference of the ECPR Standing Group on Regulatory Governance on the theme 'Regulation in the Age of Crisis', UCDublin, 17-19 June 2010. 1 In practice, a lot of product standards also increasingly include provisions relating to other issues, such as social and environmental requirements. 2 On the progressive acquisition by private actors of an ability to govern, and on what it implies, see Rodney Bruce Hall and Thomas Biersteker (eds.), The Emergence of Private Authority in Global Governance, Cambridge, Cambridge University Press, 2002. 3 On the phenomenon of private actors as standard setters, see Anne Peters, Lucy Koechlin, Till Förster and Gretta Fenner Zinkernagel (eds.), Non-State Actors as Standard Setters, Cambridge, Cambridge University Press, 2009. 3

This analysis will be carried out in two parts. In a first section (B.), we attempt to discover why legitimacy is normatively important both for global governing entities and for those governed. We then develop a model of legitimacy applicable to private global actors, which we will base on the principle of democracy which is characteristic of government in our times. In a second section (C.) we apply our global democratic legitimacy model to a very important global private governing entity, active in the field of food safety, namely GLOBALG.A.P. We close with a few concluding remarks (D.) B. ANALYTICAL FRAMEWORK: DEMOCRATIC LEGITIMACY AND GLOBAL GOVERNANCE 1. The relevance of legitimacy in the debate about private standards Legitimacy has become a central theme in discussions about regulation in the context of global governance to the point that sometimes the meaning of the word becomes rather fuzzy. This section attempts to unravel the terms of the legitimacy debate and to emphasize the reasons of its relevance for the study of global governance. In doing so, we offer a view of legitimacy based on democratic accountability. As Michael Zürn has rightly argued, two dimensions to the legitimacy of a norm may be identified: a normative one and an empirical/descriptive one. The normative dimension of legitimacy relates to the validity of such norm in regard of the normative expectations of its addressees; its empirical/descriptive dimension designates the level of acceptance of such norm as being the right thing to do. 4 Achieving legitimacy is a major objective for a norm such as a global standard, as it conditions its ability to reach its governing goal. As a certain current of legal theory has shown, legitimacy is one of the elements of the validity of a legal rule, along with its formal validity and its effectiveness, whereas a valid rule is defined as the norm or the act about which it is recognized, in a given legal system, that it may have the legal effect that its authors intended to give it. 5 Likewise, Max Weber and Joseph Raz have shown the many links shared by the legitimacy of rules and their authority, whereas authority may be defined as the ability of a norm to govern its subject matter. 6 From then on, certain authors have convincingly argued that, in polycentric regulatory regimes, characterized by a plurality of actors seeking to govern a particular issue and each issuing their own norms as to it, the regulatory competition was in a large part decided by the perception that the public had of the legitimacy of the said norms and governing entities. Governing entities in such polycentric regulatory regimes therefore strive for legitimacy as a means to impose their own norms as those regulating the relevant subject matter. 7 In global food 4 Michael Zürn, Global Governance and Legitimacy Problems, 39 Government and Opposition 260 (2004), p. 260-261. 5 François Ost and Michel van de Kerchove, De la Pyramide au Réseau? Pour une Théorie Dialectique du Droit, Brussels, Publications des Facultés universitaires Saint-Louis, 2002, p. 309: est valide la norme ou l acte dont on reconnaît, dans un système juridique donné, qu il doit sortir les effets que ses auteurs entendaient lui attribuer [ ]. 6 See Max Weber, Economy and Society: An Outline of Interpretive Sociology (1922, Guenther Roth and Claus Wittich eds.), Berkeley, University of California Press, 1978, Vol. 1, notably pp. 36 ff. and 212 ff.; and Joseph Raz, Legitimate Authority, in Joseph Raz, The Authority of Law Essays on Law and Morality, Oxford, Clarendon Press, 1979, pp. 3 ff. See also Ian Hurd, Legitimacy and Authority in International Politics, 53 International Organization 379 (1999). 7 See notably Julia Black, Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes, 2 Regulation & Governance 137 (2008); Julia Black, Legitimacy and the Competition for Regulatory Share. LSE Law, Society and Economy Working Paper Series, WPS 14-2009, July 2009, available at 4

safety standard-setting, the role of legitimacy deserves particular attention, due to several factors. First, food safety definitely constitutes a polycentric governance regime, characterized by myriads of governing actors, of a public, private, or public/private nature, and of a national, regional, or global dimension. All these constituencies compete with one another for a regulatory share, and therefore should be particularly attentive to their legitimacy. Also, issues of food safety are very complex, and issuing norms in this respect involves a wealth of parallel issues, such as the impact it may have on the viability of small producing exploitations, the environmental consequences of production methods, or the barriers to trade it may create. Therefore, identifying what appropriate food safety regulation is in regard of the general interest which is the yardstick of any judgment of legitimacy is not self-evident (if it ever is). The legitimacy discourse in the food safety regime is thus particularly intricate, and deserves close attention. In the next section, we endeavour to enquire into the determinants of legitimacy, with a special focus on global food safety governance. 2. The determinants of legitimacy: legitimacy as democratic accountability Legitimacy may derive from many factors, such as for example the particular expertise of the governing actor issuing a norm 8, the level of personal respect enjoyed by the governing entity in the public opinion 9, the compliance of a norm with norm-making procedures defined by a legal order (its legality ), or its congruence with the norms and traditions of the public concerned. 10 11 But in modern norm theory, and taking account of the evolution of the ethos of our societies, it seems that the most important determinant of legitimacy is a norm's democratic character. 12 In many scholarly contributions dealing with legitimacy, it is often explicitly or tacitly understood that legitimacy must be understood as democratic legitimacy, and that the democratic character of a norm makes it legitimate. 13 Legitimate and democratic are often used consciously or not interchangeably, and the legitimacy focus sometimes surreptitiously shifts into a study about democracy. We indeed consider democracy to be a very important grid of analysis for assessing the legitimacy of a norm whether global or local; whether public or private. 14 In this regard, there is considerable talk of a democratic deficit in global governance, which must most importantly be redressed. 15 http://www.lse.ac.uk/collections/law/wps/wps2009-14_black.pdf; Errol Meidinger, Competitive Supragovernmental Regulation: How Could It Be Democratic?, 8 Chicago Journal of International Law 513 (2008). 8 For a critical view of uncritical deference to experts, see Claire Cutler, The legitimacy of private transnational governance: experts and the transnational market for force, 8 Socio-Economic Review 157 (2010). 9 What Weber calls the norm-giver s charisma, see Weber, supra, p. 215. 10 Id.. 11 An interesting distinction in this regard is that between input and output legitimacy. Input legitimacy rests on the fact that the norm (notably as it was made) reflects the preferences of the people; while output legitimacy is based on the contents and effects of the norm as promoting the general interest. See Fritz Scharpf, Governing in Europe Effective and Democratic?, Oxford, Oxford University Press, 1999, pp. 6 ff. 12 See already Weber, supra, pp. 266 ff. 13 See for example Robert Keohane, Global Governance and Democratic Accountability, in David Held and Mathias Koenig-Archibugi (eds.), Taming Globalization Frontiers of Governance, Cambridge, Polity Press, 2003, p. 130: We live in a democratic era, and I share the widespread belief that rules are only legitimate if they conform to broadly democratic principles, appropriately adapted for the context. 14 See in this regard, among many others, Steven Bernstein, Legitimacy in Global Environmental Governance, 1 Journal of International Law & International Relations 139 (2005); Steven Bernstein and Benjamin Cashore, Can non-state global governance be legitimate? An analytical framework, 1 Regulation & Governance 347 (2007), pp. 353 ff.; Gráinne De Búrca, Developing Democracy beyond the State, 46 Columbia Journal of Transnational Law 221 (2008); David Held and Mathias Koenig-Archibugi (eds.), Global Governance and Public Accountability, Oxford, Blackwell, 2005; Klaus Dingwerth, The New Transnationalism: Private Transnational Governance and its Democratic Legitimacy, Basingstoke, Palgrave Macmillan, 2007. 15 See e.g. Andrew Moravcsik, Is there a "Democratic Deficit" in World Politics? A Framework for Analysis, 39 Government and Opposition 336 (2004). 5

Democracy is however a very historically loaded concept, and analysts struggle to approach it in relation to the regulation of the emerging global society and its problems. 16 Some argue that this may have to do with the fact that democracy is too often associated with certain fixed forms, such as parliamentary representation, and the use of vote as the ultimate instrument of popular participation in, and control of, government. 17 This may explain why some governing entities are trying to foster their legitimacy in global governance without necessarily referring to democracy per se. 18 We seek to avoid those difficulties, as we take the view, along with the deliberative democracy school of thought, that democracy may be successfully conceived at the global level by promoting a strong though formally flexible link between government and public deliberations rather than relying on fixed social, institutional or procedural preconditions. 19 There is no need here to restate the principles of deliberative democracy. However, we would like to dwell on the particular way it can be operationalized in global governance, and more in particular in the food safety regime. We submit that this democratic link can be fruitfully thought of in terms of the accountability principle. Intuitively regressing conceptions of democracy to the very core of the notion seems to yield the simple principle that regulating authority ultimately rests with the people, who are free to exercise it directly or delegate it. 20 In cases when public regulation is exercised by a governing entity and not by the people directly (as is the case when private actors issue global standards), democracy is therefore ultimately concerned with the connection of such governing entity with the group of people which it intends to govern. 21 We suggest that this connection largely matches the notion of accountability. The democratic character of a governing entity and of the rules it produces is therefore a function of its accountability to the public. This suggestion raises two questions in relation to our field of enquiry (global governance, food safety in particular): (i) what is the public and what is its role? and (ii) what does accountability concretely mean? Below, we attempt to provide elements of answer to these two questions in turn. We do of course not pretend to be exhaustive on this, but attempt to provide sufficient material for reflection for the purpose of our case-study. The question of the public is important, because it relates to the idea of a demos, i.e. the political collectivity thought to be a logical prerequisite for democracy. Certain critics have doubted the practical applicability of the democratic ideal at the global level, due to the absence of a global demos. We disagree with this view, and consider the issue of the democratic citizenry in a global context more in the deliberative-democratic sense of a public, which must not necessarily be territorially defined or linked with a particular nation-state, but may be approached from a more functional, problem-solving point of view. In this connection, we agree with the proposition that global publics may be forming along certain global issues. In other (Habermasian) words, groups of persons may be identified which are affected by a 16 See e.g. Jan-Aart Scholte, Reconstructing Contemporary Democracy, 15 Indiana Journal of Global Legal Studies 305 (2008). 17 See e.g. Jacques Lenoble and Marc Maesschalck, Democracy, Law and Governance, Farnham, Ashgate, 2010 (identifying two blockages in democratic theory). See also the distinction made by John Ferejohn between folk democratic theory (characterized by strong forms and mechanisms) and deliberative democratic theory. John Ferejohn, Accountability in a Global Context, IILJ Working Paper 2007/5, Global Administrative Law Series, 2007, available at http://iilj.org/publications/documents/2007-5.gal.ferejohn.web.pdf., pp. 7 ff. 18 As indicated above, the tendency of certain global governance institutions to resort to pure expertise as a surrogate for democratic accountability is often criticized. In this regard, see supra. 19 In this regard, see Steven Wheatley, Democratic governance beyond the state: the legitimacy of non-state actors as standard setters, in Peters, Koechlin, Förster and Fenner Zinkernagel, supra, pp. 226-227. 20 See Lenoble and Maesschalck, supra, p. 1 (the authors however choose to frame the concept of democracy in terms of an applied theory of collective action.) 21 See Patrizia Nanz and Jens Steffek, Global Governance, Participation and the Public Sphere, 39 Government and Opposition 314 (2004), p. 314: The idea of democratic legitimacy is that the citizens decide for themselves the content of the laws that organize and regulate their political association. Separating the process of rule-making from politically accountable institutions, global governance is argued to suffer a massive "democratic deficit". P. 314 6

global issue and are likely or willing to enter into public deliberations in order to regulate that issue in the public or general interest. Some authors argue that the emergence of such a global public sphere is not inconceivable and that it may actually be in formation. 22 The relevant public associated with a governing entity and its norms may be identified in relation to a particular issue, on the basis of an affected principle. 23 A public in relation to a particular issue would encompass the circle of persons affected by that issue and by its being regulated, which are often called stakeholders. In the field of food safety, the public therefore potentially includes consumers, producers, commercial intermediates, retailing groups, etc. The potentially enormous size of the public is not everyone a consumer of food products? may lead to very important problems of identification, representativeness, or feasibility in designing democratic governance processes in a given field. But whereas those problems are real, they are certainly not all insoluble (especially in regard of the progress of information technologies), and in any case they should not be used as excuses to disregard the public s entitlement to democratic accountability in global governance. 24 Accountability is also a notion subject to much debate, and is becoming one of the most important governance principles in democratic orders, to the point that one authors now affirms that accountability is an almost universally accepted standard for public administration. 25 In a narrow sense, accountability has exclusively a retrospective dimension, and designates a relationship in which an actor in our case the general public may require that another e.g. a governing entity render account of its activities, and impose a cost on them as the case may be. In the democratic discourse, such views of accountability emphasize the control exercised by the public on governing entities. 26 In democratic societies, the people must be able to control those that govern them, and this may be achieved in many ways, following different channels. 27 This view of accountability is retrospective because it logically presupposes that the governing entity has already acted, or issued and/or implemented norms, before control may be exercised, and it tends to be sanctionsand redress-oriented. 28 Examples of such retrospective channels of accountability are the elections which rhythm political life in democratic states, or the legal processes which allow to judicially review norms against higher norms. 29 We will examine below how these retrospective means of accountability materialize at the global level and in relation to private food safety standard-setting. 22 See for example Joshua Cohen and Charles Sabel, Global Democracy?, 37 N.Y.U. Journal of International Law & Politics 763 (2005), pp. 794 ff. 23 See Scholte, supra, p. 309; De Búrca, supra, pp. 248 ff. 24 In this regard, see Wheatley, supra, 232-233. 25 Adam Wolf, Symposium on Accountability in Public Administration: Reconciling Democracy, Efficiency and Ethics Introduction, 66 International Review of Administrative Sciences 15 (2000), p. 16. 26 See examples of such conceptions in Ruth Grant and Robert Keohane, Accountability and Abuses of Power in World Politics, 99 American Political Science Review 29 (2005), p. 99: Accountability, as we use the term, implies that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met. (emphasis in original). See also Mark Bovens, Analysing and Assessing Public Accountability: A Conceptual Framework, 13 European Law Review 447 (2007) p. 450, according to whom accountability is A relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences. 27 In this regard, Grant and Kehoane (supra, p. 36) identify seven accountability mechanisms in World Politics: hierarchical, supervisory, fiscal, legal, market, peer and public-reputational. 28 Control may however take a more continued form, for example as a constant monitoring is established to oversee in real time the activities of an agent, notably to pre-empt dysfunctions and create learning curves. See Jan Wouters, Nicolas Hachez and Pierre Schmitt, 'Managerial Accountability: What Impact on International Organisations' Autonomy?', in Richard Collins and Nigel White (eds.), International Organisations and the Idea of Autonomy, London, Routledge, 2010, forthcoming. 29 The first mechanism is of a political nature, while the second is of a legal nature. They both tend to be adversarial and sanctions based, but other retrospective channels may be less so, for example mechanisms of mediation between an administration and a dissatisfied citizen (ex: ombudsman). 7

For the purposes of the present paper, we adhere to a more extensive view of accountability, by adding a prospective dimension to the retrospective one. While the retrospective conception focuses on the governing entity rendering account of its activities to the public, the prospective dimension insists on the necessity for the governing entity to take into account the preferences, interests and concerns of the public in making government decisions and issuing public norms, through appropriate means. 30 This side of accountability emphasizes the responsiveness which a governing entity must show to the public s concerns. 31 It is most effectively 32 33 achieved my means of mechanisms of inclusive and egalitarian participation, which can take many forms, such as voting procedures to adopt particular rules (directly or through representatives), public notice and comment procedures prior to making a decision, etc. Accountability is therefore this relationship of a governing entity to its public, according to which the former must allow inclusive and egalitarian participation of the latter in its governing activities, in order to take account of the public s preferences in making government decisions, as well as that relationship according to which the public is entitled to control and sanction a posteriori the governing entity for the way it has conducted its government functions (rule-making, rule-implementation, rule-enforcement, rule-interpretation, etc.). If such accountability relationship is effective between the governing entity and the public, the norms issued by the governing entity for the purpose of regulating issues of concern to the public should be what we call democratic, and hence have good chances to be viewed as legitimate. Trying to operationalize democratic responsiveness and control in global governance regimes such as food safety may lead to enormous practical problems, as the size and the diversity of the public augments. This is why probably questions of democratic participation and control at the global level should be asked along with a parallel reflection about representation of groups and interests in the normative debate. 34 In this respect, much attention is presently being paid to the incremental formation of a vibrant and variegated global civil society, for the explicit purpose of participating in the governing of the global public space. 35 In various domains, global civil society organizations, most importantly Non-Governmental Organizations (NGO), were quite successful in generating debate and in participating in the 30 The prospective/retrospective distinction is of course heuristic, and many connections exist between the two. When control shows a deficiency in decision-making, the governing entity may learn from that and apply what it has learned in future rule-making. Retrospective control therefore feeds into prospective rule-making. This evidences that retrospective accountability has a control function, but also ultimately a learning and improvement function (see Bovens, supra). 31 Richard Mulgan, "Accountability": An Ever-Expanding Concept?, 78 Public Administration 555 (2000), pp. 566 ff. 32 De Búrca (supra, p. 251-252) identifies the principle of participation as being the prime building block of democracy, properly consubstantial with the latter. She insists on the principle of political equality in participation, which refers both to the idea of equal opportunity to participation in the process of governing and to that of equal consideration for the interests of all members of the community. See also Nanz and Steffek, supra, p. 321. The equal participation of the public in the activities and the decisions of a governing entity is here meant to lead to deliberation, in which a common public will is formed thanks to the force of the better argument. See generally in this regard Jürgen Habermas, Between Facts and Norms Contributions to a Discourse Theory of Law and Democracy (William Rehg trans.), Cambridge, Polity Press, 1996). Participation is also sometimes understood in relation to retrospective accountability towards the general public, as opposed to delegation models of accountability, working along the lines of principal/agent relationships (see Grant and Keohane, supra, p. 29). We think this distinction is useful to emphasize the links between participation and control, but we prefer the internal/external divide, for the sake of clarity. See Robert Keohane, Accountability in World Politics, 29 Scandinavian Political Studies 75 (2006) pp. 79 ff. 33 See Nanz and Steffek, supra, p. 315: The deliberative theory of politics claims that democratic legitimation can be generated by means of deliberation between a variety of social actors (e.g. government officials from different national communities, scientific experts, NGOs, etc.). Political decisions are reached through a deliberative process where participants scrutinize heterogeneous interests and justify their positions in view of the common good of a given constituency. In [those authors view], any bestowal of democratic legitimacy on global governance must ultimately depend on the creation of an appropriate public sphere, i.e., an institutionalized arena for (deliberative) political participation beyond the limits of national boundaries. 34 For an attempt at doing this, see Jan-Aart Scholte, Civil Society and Democracy in Global Governance, 8 Global Governance 281 (2002). 35 See Nanz and Steffek, supra, p. 315. 8

establishment of truly global sets of norms, either of a public or private nature. 36 The question is however the extent to which, and the ways to find out whether, such civil society organizations, through their participation in global public deliberations, are really representing the public at large. Criticism is for example often expressed that most NGOs advocating certain positions in favour of third world populations are in fact northern/western organizations which are not representative of those affected by the issues they address. As a result, the advocated positions are sometimes counterproductive for those they are supposed to benefit. 37 Accountability, to function effectively, also needs other supporting meta-principles to be put in place. Transparency is one of them, and can be defined as the level of access enjoyed by the relevant public to information about, from, or concerning the governing entity and its activities. Without access of the public to such information, participation will be meaningless, and control will be curtailed. 38 This is why transparency is a major stake in struggles for increased accountability in global governance 39, even though, according to us, it should not be understood as a component of the notion of accountability itself, as is sometimes done, but well rather as an enabler of accountability. Another principle which is crucial for deliberation in global governance, as well as for retrospective control thereof is that of stating the reasons for making a government decision. 40 Stating reasons will allow shedding light on the deliberative dynamics, and on the arguments at play, and will make the control of the norm and of the governing entity all the more objective. 41 We now turn to the analysis of the rules standards concerning food safety, which are issued by a private actor, GLOBALG.A.P., having pretense to act as a governing entity in the global field of food safety. We will attempt to assess the extent to which such standards are democratically legitimate with the help of the above grid of analysis. C. CASE STUDY: GLOBALG.A.P. 1. Presentation of GLOBALG.A.P. GLOBALG.A.P was founded as EurepGAP in 1997 by the Euro-Retailer Produce Working Group (EUREP). Given the global reach achieved by the standard, it was re-branded 'GLOBALG.A.P. in 2007. 42 GLOBALG.A.P. is a private initiative owned by the food industry. Membership to the organization is open to all relevant food retailers, producers and suppliers which agree to the terms of reference of the organization (see below, this section). Membership is divided into three groups: retailers, producers/suppliers and associates (i.e. members engaged in activities 36 The corporate social responsibility movement, for example, was largely incepted and is driven by CSOs. For an account of NGO participation in UN proceedings, see Nicolas Hachez, The Relations between the United Nations and Civil Society, 5 International Organizations Law Review 49 (2008). See also more generally an argument that the involvement of CSOs in global rule making is creating a global stakeholder democracy : Terry Macdonald, Global Stakeholder Democracy Power and Representation beyond Liberal States, Oxford, Oxford University Press, 2008. 37 See Hachez, supra, pp. 81 ff. 38 For a study of the interplay between transparency and accountability, see Thomas Hale, Transparency, Accountability and Global Governance, 18 Global Governance 73 (2008). 39 As a token hereof, NGOs and pressure groups have formed around the issue of transparency alone, such as Transparency International (http://www.transparency.org/). 40 This is already considered a general principle of administrative law in traditional domestic or international administrative settings. See for example in the EU Article 296 TFEU and Koen Lenaerts and Piet Van Nuffel, Constitutional Law of the European Union, London, Sweet & Maxwell, 2005, p. 759. In global governance, the practice of giving reasons seems to also be gaining ground, as it was identified as a Global Administrative Law principle. See Benedict Kingsbury, Nico Krisch and Richard Stewart, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems 15 (2005), p. 39. 41 See Cohen and Sabel, supra, p. 778, who argue that, thanks to justification, control accountability mechanisms become much less adversarial and strong, and give way to more dynamic and fluid peer review. 42 See http://www.globalgap.org/cms/front_content.php?idcat=19 (visited 8 June 2010). 9

related to the food industry or exercising standardization-related activities). In practice, membership to GLOBALG.A.P. originates in a very large majority from developed, western countries. 43 Governance of GLOBALG.A.P. is led by a Board, which agrees on the vision and short- and long-term activity plan of the organization. 44 It is elected by the retailer and producer/supplier members. The day-to-day management of the organization and implementation of the standards is ensured by a Secretariat, incorporated as a private German not-for-profit company, FoodPlus GmbH, which may legally represent the organization. 45 The GLOBALG.A.P. standard itself is elaborated by Sector Committees elected by the retailer and producer/supplier members. The Sector Committees each work on the technical aspects of specific sub-scopes of the GLOBALG.A.P. standard. 46 There is also a Certification Body Committee, composed of (public and private) certification bodies which are members of GLOBALG.A.P. 47 The Certification Body Committee is there to harmonize the varying interpretations of the standard that may arise in the more than 100.000 yearly audits. 48 The terms of reference of the organization are: '[t]o respond to consumer concerns on food safety, environmental protection, worker health, safety and welfare and animal welfare by: (i) Encouraging adoption of commercially viable farm assurance schemes, which promote the minimization of agrochemical and medicinal inputs, within Europe and worldwide. (ii) Developing a Good Agricultural Practice (G.A.P.) framework for benchmarking existing assurance schemes and standards including traceability. (iii) Providing guidance for continuous improvement and the development and understanding of best practice. (iv) Establishing a single, recognized framework for independent verification. (v) Communication and consulting openly with consumers and key partners, including producers, exporters and importers.' 49 As such, GLOBALG.A.P. develops one standard: the Integrated Farm Insurance Standard, which is product-oriented and contains requirements specific to each concerned agricultural product group. The concerned product groups are crop 43 See the Membership list, broken down into categories, at http://www.globalgap.org/cms/front_content.php?idcat=4 (visited 8 June 2010). 44 GLOBALG.A.P., General Regulations Integrated Farm Assurance,,November 2009, available at http://www.globalgap.org/cms/upload/the_standard/ifa/english/grs/gg_eg_ifa_gr_part_i- V_ENG_V3_1_Nov09_update.pdf (visited 8 June 2010), Part I, p. 10. [Hereinafter the General Regulations ] 45 See http://www.globalgap.org/cms/front_content.php?idcat=15 (visited 8 June 2010). The exact nature of GLOBALG.A.P. itself as an organization is undefined, and it describes itself as 'a body' without relying on a legally organized form. Only its secretariat is incorporated as a non-profit limited company wholly owned by the EHI retail institute, which is 'a scientific institute of the retail industry. The 550 members of EHI include international retail companies and their industry associations, manufacturers of consumer and capital goods, and various service providers.' (see http://www.ehi.org/nc/en.html visited 8 June 2010). The 'Members' of GLOBALG.A.P. should thus not be considered as 'shareholders' of the organization, but rather as actors showing 'additional commitment to shape and improve GLOBALG.A.P. (EUREPGAP) as active partners.' (See General Regulations, Part. I, p. 9). 46 General Regulations, Part I, p. 10. 47 GLOBALG.A.P. defines certifications bodies as follows: 'Certification Body: also known as conformity assessment bodies, are organizations who provide conformity assessment services such as inspections and certifications to producers or producer groups for GLOBALGAP (EUREPGAP) standards in context with the requirements established under EN 45011 / SO/IEC Guide 65.' (See General Regulation, Part I, Annex I, p. 2). The Certification Body Committee (CBC) is open to all Certification Bodies that are GLOBALGAP associate members and ISO/IEC Guide 65 accredited to at least one GLOBALG.A.P. scope. (See General Regulations, Part. I, p. 11). The full list of GLOBALG.A.P.'s associate members is available at http://www2.globalgap.org/members.html?memtype=associate (visited 8 June 2010). See also the rules applicable to the Certification Bodies at General Regulations, Part II). 48 See http://www.globalgap.org/cms/front_content.php?idcat=22 (visited 8 June 2010). 49 General Regulations, p. 8-9. 10

products, livestock products and aquaculture products. The products covered are therefore only primary agricultural products. The standard addresses issues pertaining to plant and livestock production, plant propagation materials and compound feed manufacturing. 50 In GLOBALG.A.P. s own words, the standard is a pre-farm gate standard that covers the whole agricultural production process of the certified product from before the plant is in the ground (origin and propagation material control points) or from when the animal enters the production process to non-processed end-product (no processing, manufacturing or slaughtering is covered). 51 The actual procedure for the development of new GLOBALG.A.P. standards or of new product-specific modules for the existing standard involves adoption of the project (after consultation of the stakeholders) by consensus at Board level, followed by a public review phase of said standard/module project, and discussions at the Sector Committee level, taking into account public comments. Sector Committees normally decide by consensus, but may vote in the absence of consensus. Draft standards approved by the relevant Sector Committee and by the Board are then subject to a new public comment phase, to correct technical errors, after which standards become final. Standards are normally revised every four years to ensure continued relevance and effectiveness. The adoption procedures for GLOBALG.A.P. standards state that [p]articipation in the standard-setting procedures of GLOBALG.A.P. is open for interested parties in the subject matter. Balance of interested representatives is always promoted between producers and retail/food service organizations. 52 Concretely, producers of relevant primary agricultural products may apply for certification, which is given by approved certification bodies after several on-site inspections. 53 The objective of GLOBALG.A.P. certification is to form part of the verification of Good Practices along the whole production chain. 54 An elaborate system of sanctions and appeals is also put in place for cases of non-compliance with the standard. 55 The certification process is of a purely private nature, and ends with the delivery of a 'certificate' if the product in question meets the standard requirements. 56 License to grant certification under the GLOBALG.A.P. standard is given by the latter to certification bodies according to a private contract. 57 The certification under the GLOBALG.A.P. standard which is then granted to individual producers by the certification bodies is also governed by a model contract between the certification body and the producer. 58 The GLOBALG.A.P. certificate of compliance 59 is normally valid for twelve months 60, and maintenance of the certification implies that the full verification process must be 50 See http://www.globalgap.org/cms/front_content.php?idcat=3 (visited 8 June 2010), and the list of products covered at General Regulations, Part I, Annex I.2. 51 General Regulations, p. 9. 52 On all this GLOBALG.A.P., Procedures for the Setting and Revision of GLOBALG.A.P. Standards, August 2008, http://www.globalgap.org/cms/upload/the_standard/ifa/english/guidelines-supp- Docs/GLOBALGAP_Standard_setting_procedure_V1_Aug08.pdf (visited 8 June 2010). 53 See a description of the Certification process at General Regulations, pp. 17 ff. 54 General Regulations, p. 9. 55 Ibid., pp. 30 ff. 56 In this respect, it is interesting to note that certification processes are defined in reference to ISO rules: 'Certification: All those actions leading to the issuing of a certificate in terms EN45011 or ISO/IEC Guide 65 Product Certification.' See General Regulations, Part I, Annex I.2., p. 2. 57 See General Regulations, Part II, p. 3: 'Licence and Certification Agreement'. 58 See the 'Sublicence and Certification Agreement', available at http://www.globalgap.org/cms/upload/the_standard/ifa/english/slca/gr_annex_i- 5_Sublicence_Certification_Agreement_V3_01042009_website.pdf. It is interesting to note that the contract is governed by German Law (see art. 12). 59 See the certificate templates at General Regulations, Part I, Annex I.6. 60 General Regulations, Part I, p. 22. 11

renewed each year. 61 The cost of the procedure must be borne by the producer, and often implies significantly upgrading the farm in order to become compliant. The financial burden of such improvements can be very high, especially for small producers. 62 Once the farm is compliant, the certification cost for the product itself is however reasonable in relation to sales, and amounts to a few percents of the sale price per product. 63 GLOBALG.A.P. is aware of the difficulties that small farming exploitations may have in the certification process, and it has therefore developed a Smallholder Involvement programme. Under that programme, GLOBALG.A.P. has issued a specifically crafted Smallholder Manual, which constitutes a starting point for producers who would like to get certified, and smallholder implementation guidelines, which are practical tools and global best practice guidelines to facilitate implementation of the standard by smallholders worldwide. 64 Also, smallholders can apply for group certification in order to reduce their individual certification costs. 65 Finally, GLOBALG.A.P. wants to include the situation of smallholders into the future developments of the standard, and therefore has set up a Smallholder Task Force 66 and appointed an observer for Africa. An ambassador of smallholders was appointed in 2009 to participate in all Sector Committee meetings and provide input on the situation of smallholders. A working group specifically dedicated to discussions relating to smallholders was now also created and met for the first time in early 2010. 67 2. GLOBALG.A.P. as a governing entity The GLOBALG.A.P. standard is formally voluntary, in the sense that producers and retailers are not legally bound to use it. The standard was however meant to become a harmonized and single benchmark for Good Agricultural Practices, and in practice, it indeed gained great prominence, as certification is now required by numerous retailers all across the globe. Without such certification the chances of a producer to access the retailing market in many countries is severely compromised. In this regard the GLOBALG.A.P. standard has therefore become a norm the significance of which extends throughout the supply chain and effectively governs the wholesale and consumer markets in respect of food safety, but also of social and governmental issues, well beyond the individual contractual relations in which a retailer or supplier requires GLOBALG.A.P. certification from a producer. Indeed, GLOBALG.A.P. is now the most widely implemented farm certification scheme worldwide. 68 As one can see GLOBALG.A.P. is a private initiative, and therefore not a governing entity by nature. As indicated above, this does not prevent it from playing a governing role 69, but its 'authority', i.e. its ability to set rules effectively influencing the behaviour of the public, depends for a good deal on its democratic legitimacy (supra). In this regard, since GLOBALG.A.P. cannot rely on the legitimacy bestowed by a public mandate, it will have to build its democratic legitimacy by displaying 61 Id., pp. 24-25. 62 WTO Committee on Sanitary and Phytosanitary Measures, Private Voluntary Standards and Developing Country Market Access: Preliminary Results, Communication from the OECD, G/SPS/GEN/763, 27 February 2007, at 3-4. 63 Ibid., and GLOBALG.A.P., General Fee Table 2009, 1 September 2009, http://www.globalgap.org/cms/upload/the_standard/ifa/english/guidelines-supp-docs/general-globalgap- FEE-TABLE-2008_230408.pdf (visited 8 June 2010), at 1-5. 64 See http://www.globalgap.org/cms/front_content.php?idcat=70 (visited 8 June 2010). See 'Success Factors for Option 2 Implementation', April 2010, available at http://www.globalgap.org/cms/upload/the_standard/ifa/english/guidelines-supp- Docs/GLOBALGAP_Success_Factors_Option_2-DRAFT_16April10.pdf. 65 This is described as 'Option 2'. See General Regulations, Part III. 66 See http://www.globalgap.org/cms/front_content.php?idart=299&idcat=70&lang=1&client=1 (visited 8 June 2010). 67 See http://www.globalgap.org/cms/front_content.php?idcat=70 (visited 8 June 2010). 68 See http://www.globalgap.org/cms/front_content.php?idart=316&idcat=46&lang=1&client=1 (visited 8 June 2010) 69 See generally Peters, Koechlin, Förster and Fenner Zinkernagel, supra. 12

accountability to the public. 70 This is a delicate exercise, notably in the sense that, as a business-driven initiative, it rather pursues non-public profit objectives. However, an element which might spur GLOBALG.A.P. s quest for legitimacy, and which may motivate it to adopt best accountability practices is that, in regards to food safety, GLOBALG.A.P. is bound to cohabit with other public and/or private regulatory schemes aiming to regulate the food products market. It is therefore important, notably in regards of the role of the standard in consumer preferences, to win the regulatory competition, which is notably dependent on the standard being perceived as legitimate or not. 71 Competition between standards is thus arguably a source of continuous improvement of the standards 72, and of constant research of public preferences 73, and therefore maybe of increased legitimacy. The cohabitation of several regulatory schemes is also to some extent a guarantee against the capture thereof by a powerful stakeholder group. 74 We will verify in the next sections whether these presumptions prove effective in GLOBALG.A.P. s case. 3. Prospective accountability: participation The prospective side of accountability entails that the governing entity must take into account the preferences, views and interests of its public, and seek to generate deliberation leading to decisions reflecting the public interest. This involves putting in place inclusive and egalitarian participation mechanisms. Designing such participation modes, especially when they potentially concern very large and diverse groups of stakeholders, as is the case with any global regulation involving food products, is particularly difficult. Such participation schemes must be meaningful in the sense that their outcome must find some reflection into the governing entities activities and decisions, and at the same time must not be so burdensome as to make any decision impossible, or to damage the effectiveness of the governing entities operations. 75 Therefore, designing appropriate, accountability-enhancing participation mechanisms is a difficult task which involves subtle fine-tuning. In this section we study the participation opportunities which GLOBALG.A.P. makes available to its stakeholders and evaluate their contribution to the democratic legitimacy of its standards. As was indicated above, the primary principle for participation is inclusiveness: all impacted stakeholders must be given a chance to participate in the regulatory processes that will affect them. 76 This should be actively pursued by the governing entities, and located at the heart of the normative process. 77 Participation should also be egalitarian, and all constituencies of the public should have an equivalent chance of weighing in on public regulation. In this regard, the conditions of 70 On the issue of the absence of mandate bestowed on private regulators, see Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. Law Review 543, 2000, pp. 556 ff.; and Black, supra, 2008, p. 139. 71 Black, supra, 2009, p. 15. 72 See Meidinger, supra, p. 518. 73 See Spencer Henson, The Role of Public and Private Standards in Regulating International Food Markets, available at http://www.ilr1.uni-bonn.de/iatrc/iatrc_program/session%204/henson.pdf, p. 14. 74 It is argued notably that the competition between several regulatory schemes, makes that if one institution were captured, its competitors would quickly reveal and criticize that fact. See Kenneth Abbott and Duncan Snidal, Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vanderbilt Journal of Transnational Law 501 (2009), p. 552. 75 Richard Stewart, Administrative Law for the 21 st Century, 78 N.Y.U. Law Review 437 (2003), p. 460. As was indicated above, the legitimacy of norms does not only depend on the accountability of the governing entity, but also on their content, their effectiveness, etc. So participation mechanisms which would negatively impact on those aspects may be counterproductive for legitimacy. See Black, supra, 2009, p. 21. 76 In this regard, in relation to the public-private World Commission on Dams, Klaus Dingwerth argues that "[t]he fact that a small and select group of insiders effectively decided what constituted stakeholder groups and based on this definition, the decision about participants in the WCD can, from the perspective of democratic theory, hardly be legitimated." Klaus Dingwerth, The Democratic Legitimacy of Public-Private Rule-Making: What Can We Learn from the World Commission on Dams, 11 Global Governance 65 (2005), p. 78. 77 De Búrca, supra, p. 253. 13