Sunday, June 10, 2007

China, the Olympic Games and Conformity to Evolving International Standards of Behavior

Just when the nation state reached the point where it had essentially acquired a monopoly of positive (and in some places customary) law, new systems of law have arisen to diminish the effect of this sort of control. Among the competing systems of rules that are rising to regulate global commercial activity are private law systems based on contract relations among the chain of suppliers of goods. In one form, rules are created by a corporation, sometimes with the help of elements of non-governmental organizations. These standards are imposed by contract within the supplier chain, conformity with the terms of which are monitored by other non-governmental organizations, authenticated through media exposure and targeted to customers and investors. Governments play an incidental rule, articulating clusters of standards from among which companies and non-governmental organizations. Though governments, corporations and non-governmental organizations all compete for control of norm standard setting through ideological campaigns directed to consumers and investors in developing states. See Backer, Larry Cata, "Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator" . University of Connecticut Law Review, Vol. 39, No. 4, 2007.

In another form, rules are created by non-governmental organizations. Authoritative organizations can create certifications of compliance with certain standards of conduct--for example complying with certain standards of labor relations, or paying a fair price for raw materials and other goods, or "typically promulgate their own standards, which are often considerably stricter than state standards, and to implement them through distinctive inspection and monitoring institutions. Conventionally labeled as 'self-governance' because they are organized around global product chains, the programs also incorporate a growing variety of non-economic interests from around the world in policy making and implementation. " Meidinger, Errol E., "Multi-Interest Self-Governance through Global Product Certification Programs" (July 2006). Buffalo Legal Studies Research Paper No. 2006-016.

While the focus of these forms of private rule making have focused on corporations, consumers and investors in the West, the confluence of the upcoming Olympic Games to be held in Beijing, combined with China's increasingly powerful position as a developing state willing to project power, are combining to turn attention to China. A recent report suggests the context and form of what is likely to be a greater attention to the means by which China emerges as a developed and powerful state among the community of nations. It is unlikely that the Chinese State apparatus will be amused.

The BBC reported that an influential non-governmental organization (influential enough, that is, to be treated as an authoritative source and thereby legitimized as such by the apparatus of the BBC), "
Playfair - an alliance of world trade unions - has condemned "severe workers' rights violations" in four Chinese factories ahead of the Beijing games. . . . The group said it found abuses at the factories - licensed to make official Olympic caps, bags and stationery." Olympic Firms Abusing Workers, BBC News, June 10, 2007. As a consequence, the International Olympic Committee has been forced to respond--carefully noting that it would not merchandise the Olympics using goods that were made by exploited workers. "The IOC said it did not have direct control over merchandise companies - but that host cities were expected to follow guidelines on fair labour standards. . . . An IOC statement said: "The IOC is committed to being a socially responsible leader of the Olympic Movement that takes care of the Olympic brand in the best way possible." Id. It also roused the BBC itself to send it own investigative reporters to the identified factories to find out for themselves. Id. And not just the BBC; the Associated Press also sent investigative reporters to determine whether there was a factual basis for the allegations. Id.

This has put the Chinese government on the defensive: "Sun Weide, a spokesman for the Beijing Olympic Games Organising Committee said he had not read the report, but added: "When we sign an agreement with a firm they have to make a commitment that they will completely honour China's Labour laws and regulations."" Id. But the government still does not understand the power of private norms--and its assertion through formal or informal certification. It will discover, I suspect, that foisting the non-compliance onto the private manufacturers will not save it, or its economic policy, from actions by consumers and investors abroad. And besides, such a policy of indifference goes against the grain of the Marxist-Leninist state ideology grounding China's development. Whether understood in western terms (certification) or Chinese terms ("development with Chinese (Marxist Leninist) characteristics"), the state apparatus will have to act. Either it must act to satisfy the demands of consumers and investors (the incentives under certification or private law making models), or it must act to comply with its mandatory duties as the guardians of the rights and welfare of the proletariat and the state (the incentives under Marxist-Leninist governance models).

And, there is an interesting side note to this power of certification programs to reach directly to China. The current flap over the production of Olympics related souvenirs has revealed again the increasingly strong ties between Taiwan and the People's Republic. One of the factories names in the reports was "Lekit Stationery, . . . a Taiwanese company which has been operating in the city of Dongguan, in Guangdong Province, for the last 20 years."

China is beginning to reap the rewards of a long sought goal--a prominent place in the world. It will soon discover the burdens of that goal--interconnectedness brings with it an expectation of compliance with global rules, some of them formal and legal, many of them global and informal (but grounded in contract and expectation). As the Olympic Games get closer for Beijing, its state apparatus as well as its private ordering will be scrutinized in ways that resemble scrutiny of Western states. Whether the Chinese are prepared for interaction at this level remains to be seen.

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