The Sound of One Hand Clapping? The 'Ratcheting Labour Standards' Proposal and International Labour Law

Developments in regulation theory have generated a wide-ranging literature aimed at making regulation more effective. A general dissatisfaction with 'command and control' regulation by the state has led to an upsurge in interest in the possibilities for corporate self-regulation. This article examines the ramifications for international labour regulation of a recent proposal, the 'Ratcheting Labor Standards' (RLS) thesis of American academics Charles Sabel, Dara O'Rourke and Archon Fung. The traditional conception of international labour regulation as embodied in the International Labour Organisation (ILO) is used as a basis for the analysis of RLS. The authors of the RLS thesis argue that their proposal charts a third way between the polar extremes of inflexible, fixed-rule regulation and a certain form of deregulation. The article concludes that the RLS proposal has much in common with proposals for business self-regulation, and that, taken as a whole, it has radical elements that are close to the deregulatory pole. This conclusion is based on a number of fundamental assumptions which appear to be implicit in the RLS thesis: first, that the transnational realm is a regulatory void, secondly, that the domestic sphere (in developing states) is ungoverned, and thirdly, that the appropriate subject of regulation is the multinational firm. Each of these assumptions represents a profound challenge to the legitimacy of the ILO, its multilevel system of regulation and its traditional philosophies of regulation.