Private Standardization in Public International Lawmaking

The interplay between market forces and legal compulsion is as old as the Code of Ur-Nammu, yet the financial incentives for social conformity have never been more patent. In what may be its most ambitious effort yet, the International Organization for Standardization (ISO) recently launched the International Standard ISO 26000:2010 (ISO 26000) on social responsibility (SR), a new voluntary standard providing guidance to any organization on good practices in SR.2 ISO 26000 provides wide-ranging guidance on areas of social and environmental conduct that are relevant to public policy and regulation. The single ISO-branded package offers a new product that markets publicly developed legal norms for commercial use. It operates through a system of voluntary compliance based on market reputation for SR and is largely delinked from public regulatory mechanisms. This Article explores the emerging role of private international standardization in addressing, on a global scale, public interests and issues traditionally addressed through international public law and policy. It assesses the advantages and limitations of such private action, using the development and launch of ISO 26000 as an example. The Article assesses the purpose for and process of developing ISO 26000. It reviews the factors that motivated ISO’s decision to develop such a standard and examines the search for legitimacy and accountability in the “multistakeholder” process leading to its final submission to ISO member bodies for a vote. The analysis focuses in particular on the interaction between private and public actors, including governments and international organizations, and specifically on ISO’s cooperation with the International Labour Organization (ILO), the specialized U.N. agency whose mandate is to establish and supervise international labor standards, one of the subjects with which ISO 26000 was integrally concerned.