Thought on Transnational Private Regulation of Food safety

Abstract. Transnational private regulation (TPR) of food safety infiltrates into food regulation and trade in the form of private standards of food safety. In this paper, it provides a basic framework for the case analysis of the TPR, and it answers two questions: what TPR of food safety is, namely the overview of TPR and underlying causes; how to look upon the TPR, namely the relation between private and public authority, as well as how to judge the legitimacy of TPR.

Key words: food safety, TPR, legality.

1. Overview of TPR

1.1 Concept of TPR

TPR is an emerging system consisting of a series of rules, practices and programs, and it is firstly initiated by private actors, such as company, non-governmental international organization, or independent experts. TPR of food safety occurred at the beginning of the 20th century firstly, and then it developed rapidly, especially at the end of the 20th century. Owing to the diversity of participants, as well as the mixture of rulemaking, implementation and ‘judiciary’, it is difficult to define the private rules accurately. However, it covers at least:

1).Any group of rules framework involving the food safety, no matter it is initiated by social organizations or profit-making organizations.

2). Requirements on production or overall procedural regulations in the food production chain

3).The most significant triangular structure of TPR of the food safety formed by the standards, certification or accepted procedural rules of food safety.

1.2 Drives of the profiling transnational private governance

At first, it should deal with international fragmentation. Owing to the diversified differences of a country’s legislation system, the market supervision standards are torn into pieces (W.Leeborn, 1996).Fragmentation of domestic standards, especially fragmentations of legal standards, result in barriers for the trade system. Of course, the authorization of the international governmental organization is an approach for dealing with the fragmentation, but it is only limited to the making of standards, as well as limited implementation capacity. TPR can construct relatively consistent governance for the food chain through the food safety standard, certification processes.

Secondly, it is a supplement for the failure of national governance. It is difficult for a country to receive results with public right supervision, such as international agreements, and even there are international standards, they are only about the implementation of standards. Generally, TPR emerges as a response to intergovernmental failures. When the country fails to sign international treaty through political approach, there would be corresponding supplementary transnational private rules. Studies have shown that failures of political negotiations result in the drastic increase of private rules (E.Meidinger,2006).

Furthermore, doubt on the effectiveness of states implementation of food safety regulation. The state agency is often inefficient as a legislator and at wit's end as an implementer and judicial punisher of transnational system (B. Kingsbury &N.Krisch, 2006). Usually, the executing agency of transnational standards is domestic administrative organ, while the legal operation department is domestic court, with vertical execution mode from the public right to private governance. Such a mode may result in conflict of interest in domestic level of transnational rules (F.Cafaggi, 2012). The state monitoring resources might sacrifice the global public goods for protecting the domestic interests.

Eventually, the development of scientific technology, especially the occurrence of conflict of interest, leads to the redistribute rule making power between private actors and state institutions. The technical standards are always made by private actors from the international level. In the field of food safety, the entire food supply chain is controlled by various standards, and it is difficult to be controlled by the country for transnational public laws or private rules. In other words, application of technical standards not only decreases the standards for quality management of the entire food production chain actor, but also shortens the distance between private and public rights departments.

2. Legal status of TPR

There is no strict and authoritative definition for TPR. It is similar to the meaning of ‘rules, control, restrictions and adjustment’ in various related studies, strengthening the intervention, constraint or influence of specific power. Attention should be paid to the following points for the properties of TPR.

2.1 Quasi-public right

Although these non-obligatory regulations have no compelling force, they are not inferior to the official regulations in influence on the market. On one hand, they follow the market demands and consider about the market participants to a great extent, such as opinions from consumers and rancheros. As a result, it has an extensive application foundation. On the other hand, it is voluntary, and its expansion process is a process of being accepted. That does not imply that TPR is isolated from the state power. Most private standards organizations are aimed to cooperate with the government or industry association and state institutions. The adoption or making of private standards can be treated as ‘due diligence’ for the market actors. Therefore, the boundary between public and private standards is vague.

2.2 Differs from international soft law

At present, many scholars interpret the inter-government management network as soft law, and it is easy to confuse TPR and inter-government private network, but it should be understood clearly. As for the transnational perspective, although soft law is not in the public authority or legal category, it is characterized by quasi-judicial nature and still related to the democratic governance. The private regulation, originating from the market or social movement, is a rule with implementation compelling force.

From transnational perspective, the soft law will enhance the competitions between public and private regulation makers, and decrease the mutual cooperation between the two. In current literatures, discussions about the application of soft law are related to the search for private rules, strengthening the supplements of the two. However, these systems are distinct from domestic systems, and the latter is usually connected to hard laws and private regulations. Under certain circumstances, soft law takes over legislative power from the public authoritative organizations, with higher elasticity and practicability. It can be said that soft law is a replacement rather than the supplement of private rules.

3. Thought on the legality of TPR of food safety

TPR of food safety attracts too many disputes and criticisms over the past several years. Such criticism mainly comes from states, international organizations (WTO, UNCTAD, etc.), civil social groups and science laboratories, which directly aiming at various aspects of private governance. Since food safety standards under such governance are usually stricter than that of the international standard organizations (such as the CAC (Codex Alimentarius Commission)), there would be unfair and unnecessary international trade barriers, which are quite unfavorable for developing countries. Seen from this perspective, the standards are mainly condemned for its ‘unscientific, zero-risk and market means’, and as a result, it is conflicting with rules of international trade. The governance is criticized as violating the concept of fairness with accountability and non-democracy, while there is a lack of transparency, representation and participating mechanism in the standard formulation procedure. In addition, private governance of food safety employs European agricultural production mode for production and processing (PPMs), which is incompatible to the local society, economy and religious culture. Civil social groups also criticize that private governance cannot be applied for environment protection, public health and safety, social welfare, animal and plant welfare. These criticisms are all against the private governance of food safety, including functional, standard, democratic challenges, and it is concluded as legitimacy and accountability by scholars. That is to say, how to legalize the private governance? Legal, standardized and descriptive research method is an effective approach for the case analysis of private regulation for food safety.

3.1 Research method of legitimacy

The country can guarantee the support for governance with the authority of public law, and guarantee the observation of laws, which cannot be realized by private governance network. Just because of this reason, legality is quite significant for TPR.

1).Normative study: how to legalize the non-state private governance, it should answer how to look upon the legality, implying that non-state governance rules should be equipped with ‘predicating legality’. In other words, the method of standardized rules is to require that articles must has acceptable legality. Standardized study consists of various proposals and logics. Blake defined four broad and basic deontic logics for legality, including constitution, judiciary, function or implementation, and democracy (Black, 2008) It is worth noting that different bases of legality are much more important when compared to the functions and participating activities of governance team. The democratic ideals mentioned, such as transparency, participation, accountability and reviewing process, which are now negotiated and discussed, are beyond the state governance, while logic expressing functions or performance, such as profession, efficiency and validity, are strengthened in literatures of private governance. On the contrary, fairness, judicial proceedings, coherence, adaptability or consistency, which is advocated by the constitutionalism, is of great importance during the rule making process of non-state actor.

2). Descriptive study: it attempts to answer questions from experience perspective, why governance network has legality, and the legality referred by the descriptive research method is accepted by reality. Different from the standardized research method, it does not require legality to generate ‘power’. On the contrary, legality referred by the descriptive research method aims to determine if and how to make the society accept private governance and consider it as legal. Suchman provided a comprehensive mode that is frequently quoted and regarded as the empirical study on private governance, and according to him, ‘legality is a cognition in broad sense or the concept that the behavior of an entity is accepted and appropriate, or it is in accordance with the system constructed by the social norms, values, beliefs and definitions’ (Suchman, 1995). Suchman proposed three pillars consisting legality. At first, the community of legality can be endowed with legality via governance, and groups in community can gain profits according to their behaviors legality of pragmatism. Secondly, when the governance network is in line with the legal community in perception, it can also endow legality moral or spiritual legality. Seen from such a perspective, the legality under descriptive study is not isolated from the standards, and on the contrary, it may be (or may not be) the problem of several standards. However, such standard is based on the positivism, rather than pure theoretical study. Finally, non-state governance is based on the legality endowed by cognition cognitive legality. Therefore, the discussion about legality is not based on the evaluation of cost benefit, or the standardized evaluation (Suchman,1995). Cognitive legality refers to the deep-rooted understanding of the governance network and its behaviors based on legal community, as well as the inevitability of perception.

However, various requirements on legality may conflict with the governance network of a certain legal community, and requirements of legality may not be homogeneous or in the same system. Although the legality may be consistent or overlapping, there may be certain compatibility in some requirements of legality. Similarly, these requirements of legality may result in occurrence of competitions or the so-called ‘legality dilemma’, the governance should make decisions on how to deal with the competitions of legality requirements.

References

[1] Cafaggi, Enforcement of Transnational Regulation: Ensuring Compliance in a Global World [M], Cheltenham: Edward Elgar, 2012.

[2] C.Coglianese, Finkel,A.and D.Zaring,(eds.), Import Safety.Regulatory Governance in the Global Economy[M], Philadelphia:University of Pennsylvania Press, 2009.

[3] David Held and Mathias Koenig-Archibugi (eds), Taming Globalization Frontiers of Governance [M], Cambridge: Polity Press, 2003.

[4] Tim Buthe and Walter Mattli,The New Global Rulers The Privatization of Regulation in the World Economy, Princeton: Princeton University Press, 2011.

[5] W.Mattli and N.Woods,(eds.),The Politics of Global Regulation[M],Princeton: Princeton University,2008.

[6] Julia Black, Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes [J],Regulation and Governance, 2008, vol.2 (2).

[7] Mark C Suchman, Managing Legitimacy: Strategic and Institutional Approaches [J], Academy of Management Review, 1995, vol.20.

[8] Nicolas achez and Jan Wouters, A Glimpse At The Democratic Legitimacy Of Private Standards[J], Journal of International Economic Law 2011,vol.14(3).