Redesigning enforcement in private labour regulation: Will it work?

• Date: 01 September 2016
• DOI: http://doi.org/10.1111/j.1564-913X.2015.00040.x
• Author: Axel MARX,Jan WOUTERS
• Published date: 01 September 2016

Copyright © The authors 2016

Journal compilation © International Labour Organization 2016

International Labour Review, Vol. 155 (2016), No. 3

Redesigning enforcement in private

labour regulation: Will it work?

Axel MARX* and Jan WOUTERS*

Abstract. Private labour regulation has emerged as an international governance

tool for the enforcement of international labour standards. Yet, doubts have recently

been expressed concerning the potential of such private systems for effectively

improving labour conditions in supply chains. Their typical top-down auditing

approach to enforcing standards is considered inappropriate when it comes to in-

ternational labour standards. This article assesses whether the design of these sys-

tems can be strengthened in order to ensure better compliance. In particular, the

authors draw attention to mechanisms which empower stakeholders, such as com-

plaint mechanisms, whose potential and constraints are discussed.

T

he international protection of labour rights has a long history.1 The earliest

attempts to coordinate the improvement of labour rights internationally

can be traced back to the late nineteenth century, leading to the establishment

of the International Association for Labour Legislation, formally established

in Basel in 1901.2 But the real turning point came in 1919, when a multilat-

eral institution, the International Labour Organization (ILO), was established

to develop international norms on a range of labour-related issues. The basic

idea was to contribute to world peace by promoting social justice and prevent-

ing a global race to the bottom in the protection of labour rights in a world

which saw increasing international competition and trade (Mahaim, 1934;

Servais, 2011). It was indeed assumed that increased trade would lead to the

* Leuven Centre for Global Governance Studies, University of Leuven, emails: axel.

marx@ggs.kuleuven.be and Jan.Wouters@ggs.kuleuven.be. The authors wish to thank an anonym-

ous reviewer of the International Labour Review for excellent comments on a previous version of

this article.

Responsibility for opinions expressed in signed articles rests solely with their authors, and

publication does not constitute an endorsement by the ILO.

1 Throughout the literature terms such as labour rights, working conditions and working

rights are used interchangeably. In this article, we consistently refer to labour rights. Although

there is no generally accepted denition, for the purpose of this article we refer to labour rights as

a broad body of rules pertaining to working people and their organizations, which derive from a

variety of legal sources.

2 Another landmark was the adoption in Berne of the 1906 International Convention re-

specting the Prohibition of the use of White (Yellow) Phosphorus in the Manufacture of Matches.

International Labour Review436

deterioration of a range of labour rights, such as working time limits, occupa-

tional safety, etc.

In more recent decades, the debate on trade and labour rights has been

high on the political agenda. Several empirical studies have analysed the rela-

tionship between trade growth and labour rights, showing that increased glo-

balization can negatively affect a number of labour rights. Using a composite

index on the protection of labour rights, Mosley (2 011) shows that such pro-

tection declined in almost all regions of the world over the period 1985–20 02.

She also investigates the specic relationship between increased trade (in terms

of sourcing from other countries) and foreign direct investment, nding that

increased outsourcing puts downward pressure on labour protection. As a re-

sult, political and social forces are pursuing multiple attempts to condition fur-

ther liberalization of international trade upon compliance with international

labour standards (Cuyvers and De Meyer, 2012).

Notwithstanding the existence of international norms and procedures es-

tablished by the ILO, several trade unions and other social movements have

put the enforcement of labour standards high on the political agenda, criti-

cizing (international) governmental agencies for failing to enforce the rules

sufciently (Keck and Sikkink, 1998). Multinational enterprises have been criti-

cized as well, and social activists discovered that corporate reputation was a

tangible business asset which they could easily attack. This spurred a prolif-

eration of social protest, such as the Clean Clothes Campaign (CCC), which

directly targeted enterprises (Bartley, 200 3 and 2007; Esbenshade, 2004; Ger-

ef, Garcia-Johnson and Sasser, 2001). Many of these actions were directed

against well-known brands, such as Nike and Levi Strauss, which were exposed

to claims about the violation of several key labour rights.

These developments resulted in the emergence, in the early 1990 s, of

new forms of private governance, which aimed to implement international

labour standards across entire value chain (Abbott and Snidal, 20 09; Mattli

and Woods, 2009). Many enterprises began by establishing codes of conduct.

By 2003, the World Bank estimated that there were more than 1,00 0 indi-

vidual company codes in existence, and their number has been growing ever

since. Several of these codes, however, were attacked for being too weak and

amounting to nothing more than window-dressing (Wells, 2007). This, in turn,

resulted in the emergence of new forms of private governance which brought

various actors and stakeholders together. Alongside the initiatives taken by

international organizations, such as the United Nations’ Global Compact (see

Kayser, Maxwell and Toffel, 2014), many private initiatives thus emerged, such

as the Fair Labour Association (FLA), the Worldwide Responsible Apparel

Production Program (WRAP) and the Social Accountability 8 000 Standard

(SA8000) (see Fransen, 2012). These pioneering initiatives brought together

enterprises, NGOs, trade unions, governments and international organizations

to create new forms of international regulation. The issue of labour stand-

ards also spilled over into the many other initiatives which promote sustain-

ability standards via certication and eco-labelling (Abbott and Snidal, 2009;