Private Standardization in Public International Lawmaking

Abstract

This article explores the influence of private international standardization on international lawmaking in fields of public policy within the mandates of public international organizations and their member States. It assesses the advantages and limitations of self-regulatory action in areas relating to public policy through an empirical review of the recent development of the International Standard on social responsibility (ISO 26000). Particular attention is given to the interaction between private and public actors including governments and the United Nations and other international organizations. Specific reference is made to the cooperation between the International Organization of Standardization (ISO) and the International Labour Organization (ILO), the United Nations agency with a global mandate to develop and monitor the effect given to international labour standards, one of the subjects with which the Standard was integrally concerned.

International rules and policies govern the conduct of private actors and their responsibility in specific fields of standardization under international trade law and, more broadly, under international human rights law. These rules impose duties on private standardization bodies to ensure that their decisions and actions are consistent with principles underlying public international law. In addition, codes of good practice provide guiding criteria for private standardization that draw upon principles relating to coherence, representativity, meaningful participation and transparency. Where matters of public interest and policy are concerned, such principles should inform and guide the interaction between private regimes for standardization and public international governance structures. The recognition of legal duties of private actors and principles of good practice for standardization provides the basis for a proposed Protocol, or other instrument of good practice, to guide private standardization activity in fields of public policy. As a starting point, an overall presumption should be applied by private standards bodies to give priority to standards that have been developed through public processes of democratic governance, in determining whether to enter a field relating to public policy and how to proceed. The approach seeks to build upon the comparative advantages of public and private action, and to encourage complementarity for effective action.

Keywords: private international standardization, public international lawmaking

JEL Classification: K31, K33, K20