Part IV - Evolution and Adaptation in Sector-Specific Regimes

10 Organizational Responses of Transnational Private Regulators after Major Accidents The Case of the American Petroleum Institute and the Deepwater Horizon Oil Spill

Margarita Nieves-Zárate

10.1 Introduction

Since 1924, the American Petroleum Institute (API) has developed nearly 700 safety standards and recommended practices covering all segments of the oil and gas industry. Many of API’s standards and recommended practices are incorporated into public regulations, to the point that they are considered the most used standards by national regulators in the oil and gas industry.

This chapter analyzes the organizational changes of the API as a response to pressures and demands from public authorities and investigations in the aftermath of the Deepwater Horizon (DWH) oil spill, the major environmental accident in the oil and gas industry in the United States. The DWH oil spill created new incentives and rationales for API to internalize the need for change.

This exogenous event, and the reaction of the API, will contribute to shine light on the mechanics and dynamics of resilience of transnational private regulators and on the relation between public and private authority – in particular on the capacity (or lack thereof) of the former to effectively enroll, steer, and influence the latter. The organizational response of the API to the regulatory crisis created by the DWH accident support the findings of other chapters in this book that argue that that private bodies grow stronger out of episodes and shocks.¹

Besides API, this chapter focuses on the Bureau for Safety and Environmental Enforcement (BSEE), the federal regulator for offshore oil and gas exploration and production in the United States, in order to investigate how public authorities react to changes undertaken by private regulators in times of crisis. Qualitative research methods such as case studies and the analysis of regulations and investigation reports are used to explain the reorganization of private and public regulators after major accidents in the offshore oil and gas sector.

Section 10.2 explains the emergence of the API as a transnational private regulator and its dynamics such as the resistance to federal safety regulations. Section 10.3 analyzes how the DWH oil spill and the introduction of safety regulations by BSEE became drivers for API’s change. Section 10.4 examines the organizational responses introduced by the API in order to adapt itself to the new demands from the public regulator. Section 10.5 discusses the co-regulatory scheme adopted by BSEE legitimizing the response of API. Taking into account the transnational nature of the API and its organizational changes, Section 10.6 identifies the lessons that regulators beyond the United States may learn in order to promote safety in the offshore oil and gas industry, and monitor compliance with safety standards. Section 10.7 provides conclusions.

10.2 The API’s Strength and Relative Influence as a Transnational Private Regulator

10.2.1 The Origins of API and Its Growth in Significance

Transnational private regulators have emerged and multiplied in the oil and gas industry² in areas such as safety regulation that are considered as the preserve of public authority. The most ancient and influential transnational private regulator in this sector is the API, whose standards are the most used by national regulators worldwide.³ In 1919, API was founded in the United States as a nonprofit national trade association to promote the interests of the petroleum industry in all its branches.⁴ Soon after its foundation, it was clear that in order to be more effective, API had to develop its own standards for the oil and gas industry.⁵ In 1923, API created its Standards Department, and one year after, the API published its first standard on drill pipe threads.⁶ Since then, the API has developed nearly 700 standards and recommended practices covering all segments of the oil and gas industry.⁷ Many of those standards and recommended practices are incorporated into public regulations.

The wide use of the API’s standards by national regulators beyond the United States consolidates the influence of the API as a transnational private regulator. This transnational role is reflected by the API’s twofold mission of not only influencing public policy in support of a strong, viable US oil and natural gas industry but also promoting safety across the oil and gas industry globally.⁸ In order to strengthen its global presence, between 2007 and 2010, the API opened three international offices in Beijing, Dubai, and Singapore.⁹ The API has around 600 members from international major oil companies to small independent firms in all sectors of the industry, including exploration and production, pipeline operators, marine transportation, refining, marketing, and service and supply firms.¹⁰

10.2.2 The API’s Influence and Resistance to Governmental Safety Regulations

The API has sought to expand its influence by promoting the uptake of its standards for the offshore oil and gas industry by BSEE. Historically, the BSEE has formally adopted the standards developed by the API, incorporating them into its own regulations.¹¹ In parallel, the API has also opposed government initiatives to adopt safety regulations. An example of this opposition is the case of the Safety and Environmental Management Systems (SEMS). From 1991 to 2009, the federal offshore safety regulator unsuccessfully tried to introduce SEMS to manage the risks of offshore oil and gas operations. However, its Minerals Management Service (MMS), the predecessor of BSEE, found strong opposition from the API.

The first attempt was in 1991, when, in response to several investigations, MMS initiated a rule-making procedure to require operators to implement a safety and environmental management program (SEMP).¹² The API was averse to this initiative and asked MMS to postpone the rule-making procedure in order to allow the API itself to elaborate an offshore safety standard. MMS acceded to this proposal and participated in the API’s standard-setting process, which was concluded in 1993 when the API published its “Recommended Practice 75” (API RP-75) as a guidance document.¹³

The second rule-making attempt to introduce SEMS was in 2006 and 2009, when, after a period of advocating for voluntary implementation of the API RP-75, the MMS proposed a rule that required operators to implement SEMS. Once more, the API opposed this regulation, arguing that the implementation of SEMS should remain voluntary. The API presented several arguments for this request: (a) the offshore industry had an admirable safety record, (b) voluntary programs that have enough flexibility to suit the culture of each company are the best way to promote safety in the industry, and (c) having a detailed plan on paper will not ensure an improvement in performance.¹⁴ In the middle of this rule-making procedure, the DWH accident occurred, and the federal government adopted SEMS regulations, taking the API RP-75 as its backbone.

The API’s consistent opposition to safety regulations by the federal government has been explained as a reaction to the potential high costs that such regulations could imply for oil and gas operations.¹⁵ Therefore, the API favors regulatory initiatives that foster industry autonomy from government oversight.¹⁶ Such was the API’s influence, that only two decades after its first rule-making attempt and a major event such as the DWH accident, the federal government found the momentum to make the SEMS programs mandatory by regulations. The Section 10.3 describes this exogenous event and the criticisms to the role of the API as standard-setter.

10.3 The DWH Accident

10.3.1 The DWH Accident, Criticisms to the Regulatory Regime, and the Adoption of SEMS Regulations

On April 20, 2010, a sudden explosion and fire occurred on the Deepwater Horizon oil rig in what later became one of the largest marine oil spills in history. The rig was located approximately fifty miles southeast of Louisiana in the Gulf of Mexico and had a 126-member crew onboard. The accident resulted in the deaths of eleven workers and seventeen others were seriously injured. For eighty-six days, oil flowed into the Gulf of Mexico reaching an expanse of shoreline. In total, more than 4.9 million barrels of oil were spilled causing serious environmental damage into the Gulf of Mexico.¹⁷

The DWH accident originated a regulatory crisis in the United States. We define regulatory crisis as periods of instability or disorder caused by unexpected internal or external events that threaten or affect the normal functioning of an organization or system and bring into question the building blocks of the regulatory framework that govern them. The term “crisis” has been deployed by several scholars to describe “an unexpected event that creates uncertainty and poses a direct or perceived threat to the goals and norms of an organization or society”;¹⁸ “a phase of disorder in the seemingly normal development of a system … crises are transitional phases, during which the normal ways of operating no longer work,”¹⁹ and “periods of disorder … along with widespread questioning or discrediting of established policies, practices and institutions.”²⁰ These definitions have features of the three components that according to Boin et al. a crisis possess: a threat, uncertainty, and urgency.²¹ In this sense, our definition of “regulatory crisis” as a specific type of crisis contributes to expand the definition of the term “crisis: provided by the aforementioned scholars as well as in other chapters of this book such as the one by Partiti (“Human Rights Due Diligence and Evolution of Voluntary Sustainability Standards,” Chapter 7), in which he analyzes human rights due diligence and evolution of voluntary sustainability standards.

The DWH accident was an external and unexpected event that brought into question the regulatory regime to prevent accidents and marine pollution from offshore oil and gas operations in the United States. After the accident, both public and private regulators in the offshore oil and gas industry introduced reforms that aimed at changing building blocks of the regulatory regime, such as the regulators, the rules to promote safety in the industry, and monitoring mechanisms.

Regarding rule-making and monitoring mechanisms, one of the major findings of the investigations conducted after the DWH accident was the high reliance of the regulatory framework on prescriptive rules and checklist inspections to manage the risks of offshore oil and gas operations in the United States.²² In order to overcome such weakness, several investigations advised the federal government to complement prescriptive regulations with a risk-based performance approach. This was precisely one of the first measures that BSEE implemented in reaction to the accident. In October 2010, the BSEE issued its Workplace Safety Rule, also known as the SEMS regulation, requiring all oil and gas operators in the US Outer Continental Shelf (OCS) to develop, implement, and audit a SEMS program. The SEMS regulation was amended in 2013 (SEMS regulation II). The SEMS regulation is considered the first environmental and safety performance–based rules adopted by the offshore oil and gas federal regulator in the United States.²³

The SEMS program is a comprehensive system to reduce human error and organizational failure. It is defined by the SEMS regulation as a program where the operator identifies, addresses, and manages safety, environmental hazards, and impacts throughout the life of their offshore operations, comprising the design, construction, start-up, operation (including, but not limited to, drilling and decommissioning), inspection, and maintenance of all new and existing facilities, including mobile offshore drilling units (MODUs) when attached to the seabed. The SEMS program must address the elements described by BSEE’s regulations and meet or exceed the standards of safety and environmental protection of the API RP 75 in its third edition, 2004.²⁴

BSEE does not supervise the SEMS program directly. Instead, it has created a third-party audit scheme to conduct such task. The reasons for this approach are not explicated in the background of SEMS regulations. However, there are at least two hypotheses on the motives for this approach. The first is that BSEE lacked personnel, budget, and expertise to audit the SEMS programs.²⁵ The second is that BSEE did not want the industry to rely on the government to manage the SEMS program.²⁶ Indeed, in 2006, when the federal government presented an advance notice of proposed rule-making to seek comments on the introduction of SEMS, it asked the industry whether the MMS or an independent third party should verify the SEMS plan. Most commenters were not in favor of the MMS approving the SEMS plans. Instead, they suggested that such review should be conducted by a third party because the MMS might not have the resources and expertise to approve a minimum of one plan for each operator.²⁷

Under the third-party audit scheme, operators must maintain and keep up to date with the SEMS program by means of periodic audits.²⁸ Initially, SEMS regulations established that the audits might be conducted either by the operator’s personnel or by independent third parties.²⁹ However, in 2013, a reform to the regulations required operators to audit the SEMS program only by an independent third party. One of the aims of this change was to improve the quality of audits based on the experience of the first cycle of audits.³⁰ Indeed, after the first audits, BSEE found several flaws in the audit processes including the use of diverse audit methodologies, reporting formats, and scope of activities. Due to these shortcomings, BSEE could not assess the status of implementation and effectiveness of many SEMS in the first cycle of audits.

10.3.2 Criticisms of the Role of the API as Standard-Setter

The investigations after the DWH accident not only revealed the shortcomings of the federal government’s regulatory approach to managing the risks of offshore oil and gas operations but also raised concerns about the influence of the API as a standard-setting organization. The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (hereinafter the National Commission) indicated that the API’s role as a standard-setter for drilling safety was undermined by its role as the industry’s main lobbyist.³¹ Furthermore, industry officials asserted that the API’s safety standards had failed to reflect “best industry practices” and that the reliance of the MMS on those standards had affected the entire federal regulatory system for offshore oil and gas safety.³²

As regards the oil and gas industry, the National Commission’s final report primarily advised to create a safety self-regulator, similar to the one established in the nuclear sector in the United States.³³ The commission warned that since the API was culturally ill-suited to drive a safety revolution in the industry, it was essential that the new safety regulator operate apart from the API.³⁴ The report highlighted that the new industry’s safety regulator should prompt continuous improvement in standards and practices by incorporating the highest safety standards achieved globally, including but not exclusively those adopted by the API.³⁵

In the aftermath of the accident, the API reacted to these new demands with an organizational change: the creation of the Center for Offshore Safety (COS).

10.4 The API’s Organizational Response to the DWH Accident

10.4.1 Creation of the Center for Offshore Safety (COS)

In March 2011, the API created the Center for Offshore Safety (hereinafter COS or the Center) in response to both the Commission’s recommendation to the industry of establishing a new safety self-regulator for oil and gas operations and the adoption of the SEMS regulations. The COS is an industry-sponsored group focused on safety of offshore oil and gas operations on the US Outer Continental Shelf (OCS). The mission of the Center is “to promote the highest level of safety for the U.S. offshore oil and natural gas industry through effective leadership, communication, teamwork, utilization of disciplined management systems and independent third-party auditing and certification.”³⁶

COS works as a unit of the API’s Global Industry Services division that is responsible for standards development, certification, training, publications, and safety programs for onshore, offshore, and refinery operations.³⁷

Initially, COS membership was limited to deep-water operators, contractors, and service companies. In 2015, COS allowed membership to all companies operating on the US Outer Continental Shelf.³⁸ Since then, membership for COS is mandatory for the API members who operate offshore but voluntary for non-API members.³⁹ From the around sixty operators and seventeen drilling contractors that work on the US Outer Continental Shelf, as of March 2021, COS had eighteen members. From these members, eleven are operators, three are rig contractors, and four are service companies.⁴⁰ Section 10.4.2 examines the key role of the API and the members of COS in the governance of the Center.

10.4.2 The Governance of COS

COS is governed by a charter, governing procedures, and the governing board. The charter establishes COS’ objectives, guiding principles, responsibilities, and API oversight and interfacing. In turn, the governing procedures provide information on the policies and procedures for COS’ governing board, its activities, and guidelines for its conduct. The Center’s governing board consists of a maximum of twenty-four members that represent oil and gas producers, drilling contractors, service companies, and industry associations. As stated in COS’ charter and governing procedures, the API has several mechanisms to control the Center. These mechanisms comprise the approval of COS’ board members, charter, and annual plans, reporting obligations, and the revision of all work products developed by COS intended to inform member companies, industry, and the public.⁴¹ The Center is accountable to, and must interact with, several API committees and follow the API’s internal policies and procedures.⁴² Regarding its structure, COS works through subordinate groups approved by the board, which are designated as committee, subcommittee, or work group.⁴³ Figure 10.1 presents an overview of the COS’s structure.

Figure 10.1. The structure of COS

Source: The author, adapted from COS, 2020

Besides the governing board, COS has six groups. The first group is a single point of contact committee to manage communication between COS and member companies. The five remaining groups are the accreditation body, the SEMS audit and certificate committee, the data collection analysis/reporting committee, the good practice development pillar, and the sharing industry knowledge pillar. From all the activities developed by the Center, the groups in charge of the accreditation body and the SEMS audit and certificate committee perform functions directly related to the monitoring of the SEMS program.

10.5 Changes to SEMS Regulations: Introducing a Co-regulatory Scheme

10.5.1 The Role of COS for the Implementation of SEMS Regulations

The role of COS in the implementation of SEMS regulations has increased over time. Just a few years after its creation, BSEE embraced the Center and provided it with a formal role in the implementation of SEMS programs. Such a formal role was the result of acknowledging the leadership that COS displayed to guide operators in their audits. In order to assume leadership in the audits processes, in 2012, COS started an audit service provider (ASP) accreditation program.⁴⁴ The goal of the program was to improve the audits through a consistent and unified set of requirements for ASP and their auditors.⁴⁵ For this purpose, in 2012, COS adopted a series of standards to guide operators on how to conduct audits (SEMS toolkit) and the competences that ASP’s and auditors should fulfill (ASP – accreditation program). The proactive role of COS was acknowledged by BSEE in 2013 when it adopted SEMS regulations II (SEMS II).

SEMS II modified several aspects of the SEMS program both in its content and the auditing process. With respect to the content of the SEMS program, SEMS II included best practices that were not covered by the API RP-75 regarding the involvement of the workforce in the SEMS program. Therefore, besides the thirteen elements established by the API RP 75 third edition, operators must include four new elements in their SEMS program: stop work authority, ultimate work authority, employee participation plan, and reporting unsafe working conditions.⁴⁶ Figure 10.2 presents a diagram with the seventeen elements of the SEMS program, highlighting in blue those established by the API RP-75 and in yellow those incorporated by SEMS II.

Figure 10.2. The seventeen elements of the SEMS program.

Source: The author, based on SEMS II

Regarding the audit process, SEMS regulations II indicate that audits should only be conducted by independent third parties, which were called audit service providers (ASPs). In turn, the ASPs must be accredited by an accreditation body (AB) approved by BSEE as an independent third-party organization that assesses and accredits ASPs.⁴⁷ In 2015, BSEE approved COS as the first and, so far, only AB to accredit ASPs.⁴⁸ Since June 2015, all SEMS programs must be audited by a COS-accredited ASP. As of March 2021, COS had accredited five ASPs.⁴⁹ Figure 10.3 illustrates the roles of BSEE, COS, and ASPs in the audit scheme.

Figure 10.3. SEMS II third-party audit scheme.

Source: The author, based on SEMS II

Besides these changes, SEMS II required operators to comply with three COS standards related to the third-party audits. With SEMS II, BSEE introduced a model of co-regulation to monitor the implementation of the SEMS program elements of which are analyzed in Section 10.5.2.

10.5.2 SEMS Regulations through the Lens of Co-regulation

Co-regulation is a form of regulation that combines elements of private self-regulation and state or public regulation.⁵⁰ Under this approach, a government regulator identifies a problem and commands the industry to develop plans aimed at solving it.⁵¹ In response, the industry, as a self-regulator, develops its own internal regulations.⁵² By implementing a scheme of co-regulation, the government transfers part of its regulatory tasks – either rule-making, monitoring, or enforcement – to the regulated industry.

In the case of the SEMS regulations, BSEE transferred part of its rule-making and monitoring powers to the oil and gas industry. An example of the delegation of rule-making responsibilities is the adoption of the API RP-75 as the backbone of the SEMS program. By requiring operators to implement a SEMS program on the basis of a standard developed by the API, BSEE yielded part of its rule-making tasks to the industry self-regulator.

The SEMS program gives the opportunity to oil and gas operators of developing risk management systems identifying the mechanisms to address their safety and environmental risks. For example, operators can devise their instruments for risk analysis, monitoring, maintenance, and procedures for managing change.⁵³ Thus, these mechanisms become the rules that operators must comply with.

However, management systems do not operate alone.⁵⁴ Their effectiveness depends not only on the capacity of regulatees to comply with their obligations but on the regulator’s capacity to monitor and enforce the management system.⁵⁵ Precisely, this is another co-regulatory element in SEMS regulations: the delegation of the government’s monitoring task to the oil and gas industry through different mechanisms. The two main mechanisms that BSEE chose to monitor the implementation of SEMS regulations are a form of meta-regulation that involves the offshore oil and gas industry and third-party audits. Meta-regulation is described as the activity of “regulating the regulators, whether they be public agencies, private corporate self-regulators or third party gatekeepers.”⁵⁶

Through meta-regulation, a regulator oversees another and sets standards for its activities.⁵⁷ Meta-regulation may involve the delegation of regulatory activities by a public authority to private actors aiming at improving voluntary compliance with regulations, reinforcing the ownership of responsibilities among the regulates, and decreasing public enforcement costs.⁵⁸

In the case of the SEMS regulations, BSEE (meta-regulator) approved the COS (industry self-regulator), which, in turn, accredits the third parties that audit SEMS programs. The involvement of the COS is not limited to accrediting the auditors. The BSEE has also adopted several of COS standards, therefore, influencing the rule-making tasks of the meta-regulator.

Taking into account the role of the API and COS in both the rule-making and monitoring aspects of the co-regulatory scheme introduced by SEMS regulations, one of the main concerns is the role of BSEE as meta-regulator. This concern was highlighted by the US Chemical Safety and Hazard Investigation Board in its last report on the DWH accident, indicating that if BSEE does not independently assess the quality and effectiveness of the third-party audits, the scheme could “devolve into ineffective industry self-regulation.”⁵⁹

Taking into account that, by design, the role of BSEE as meta-regulator is to oversee the third-party audit scheme, Section 10.5.3 will describe the tools that BSEE has to perform such functions and its relations with COS.

10.5.3 The Role of BSEE as Meta-regulator and Its Interactions with the COS

The interactions between the BSEE and COS as public and private authority are shaped by several mechanisms developed by both authorities in their respective domains. In the case of BSEE, there are at least seven of those mechanisms in SEMS regulations. The first three mechanisms are in relation to COS and the remaining four mechanisms are in relation to the audit scheme. In relation to COS, the first mechanism is the approval of BSEE to COS as the AB.⁶⁰ SEMS regulations establish the requirements that COS had to fulfill in order to obtain such approval, as it did in 2015. Those requirements include standards from the International Organization for Standardization⁶¹ and from COS itself.⁶² The relation between the BSEE and COS is governed through a memorandum of understanding that authorizes the Center to review auditors and accredit those qualified to conduct the SEMS audits.⁶³ The second and third mechanisms that BSEE has to steer the work of COS and monitor its performance are the establishment of new regulatory requirements for the AB and audits.⁶⁴ The objective of such audits is to verify the compliance of COS with the accreditation requirements. Beyond these mechanisms, it is important to notice that SEMS regulations do not establish enforcement tools against the AB.

In relation to the audit scheme, the fourth instrument of BSEE to oversee it are all the instances where BSEE receives information from the audits, including the audit plan, the audit report, and the CAP.⁶⁵ In the case of the audit plan, operators must send it to BSEE before the audit, and BSEE reserves the right to modify the list of facilities proposed to audit. Regarding the CAP, the BSEE may notify the operator if the proposed schedule to correct the deficiencies identified in the audit is not acceptable or if the CAP does not effectively address the audit findings.⁶⁶

The fifth monitoring tool of BSEE over the co-regulatory scheme is direct evaluations of the SEMS. BSEE retains power to evaluate or visit facilities directly or through its authorized representative.⁶⁷ These evaluations or visits may be random and may be based upon the operator’s performance or that of its contractors.⁶⁸

The sixth monitoring mechanism of BSEE is directed SEMS audits. If based on the results of BSEE’s inspections and evaluations, or as a result of an event, BSEE identifies safety or noncompliance concerns, BSEE may direct the operator to have an ASP audit of his SEMS program.⁶⁹ BSEE-directed audit is an additional requirement to the regular audit required by SEMS II. BSEE can also opt for conducting the SEMS audit directly.⁷⁰

Finally, if BSEE considers that the operator is not in compliance with SEMS regulations, it can issue a notice of noncompliance (NNC). By NNCs, BSEE informs the operator in the case of an event of noncompliance and the actions needed to correct it in order to avoid the use of enforcement tools against the operator.⁷¹ According to the severity of the violation, BSEE can use several enforcement tools, including a warning, shut-in, civil penalty, performance improvement plan, referral for criminal penalties, and a disqualification referral.

In turn, COS has developed its own mechanisms to interact with the BSEE and, eventually, influence its behavior. The main mechanism is the issuance of guideline documents or standards on the third-party audits. COS has been successful in developing several documents that BSEE has incorporated by reference in SEMS regulations. The second mechanism is an External Stakeholder Group where BSEE and other governmental organizations celebrate regular meetings with COS to review the progress of the Center.⁷²

After the introduction of this co-regulatory scheme, the question whether the BSEE provides effective oversight of the operator’s implementation of SEMS.⁷³ This question brings also concerns upon the transparency of the system and how BSEE has used the tools at its disposal to oversee the co-regulatory scheme.

10.5.3.1 The Oversight of BSEE to the Third-Party Audit Scheme

Under the BSEE-COS co-regulatory scheme, BSEE became to a large extent a receiver of information from the operator, mainly the audit plan, the audit report, and the CAP. With those documents, BSEE can assess the implementation of the SEMS programs at both the industry and operator’s level, and even more importantly, it can assess the improvement of safety in the industry. Therefore, the role of BSEE assessing the information delivered by the operator and making decisions on the basis of such information is paramount for the success of the co-regulatory scheme. This section analyzes, first, how BSEE has assessed such information and, second, whether it has used its enforcement tools to ensure compliance with SEMS regulations.

The third-party audit scheme introduced in 2015 applied to the second and third cycle of SEMS audits completed by early 2017 and 2019, respectively. However, from 2015 to 2019, BSEE published limited information on the implementation of SEMS programs and the audit results. In addition, since 2017, BSEE has not published annual reports informing the public on the results of its regulatory functions. Only in 2020, BSEE published two documents on the results of the second and third SEMS audits on its website.

The first document is a safety alert issued by BSEE in May 2020 with the analysis of SEMS audits from forty-one operators in the Gulf of Mexico. The safety alert identified several common deficiencies for each SEMS assessed. However, it was not a complete report on the results of SEMS audits but an alert to operators.

The second document is an analysis of the results of the third SEMS audits published on BSEE’s website in October 2020. This document does not indicate its author nor date. The fact that it is not signed by BSEE’s officials, does not have the logo of BSEE, and based on the wording that it uses, it may be inferred that the document was prepared by a firm hired by BSEE.⁷⁴ The document includes as an appendix a memorandum issued by BSEE in October 2017 with a review of the second cycle of SEMS audit reports. This “anonymous” document and its appendix are the main information published on the BSEE’s website on the results of the second and third cycle of SEMS audits.

In its memorandum issued in October 2017, BSEE presented the results of sixty SEMS audits conducted in the second cycle. BSEE highlighted the success of COS accreditation program in several aspects. COS held the third-party auditors to account for their adherence to quality auditing standards and to standardize reporting formats, which was reflected in more consistent audits. This improvement allowed BSEE to review the audit findings more in depth, as well as the status of implementation of SEMS. In this way, the work of the Center supported BSEE to address the auditing and reporting challenges found during the first audit cycle.⁷⁵

BSEE also found opportunities for improvement in the auditing process. The main concern was that the assessment of the SEMS was general and not centered on the operations conducted by operators such as exploration, drilling, construction, production, well maintenance, and decommissioning. Therefore, BSEE considered to implement a more risk-based approach in future audits, focused on the riskiest operations, with high volume of accidents or with more concerns on the effectiveness of SEMS. In this way, future audits could evidence where SEMS work and not.⁷⁶

Regarding the result of the second cycle of SEMS audits, 47 percent of the findings were considered as deficiencies, 28 percent opportunities for improvement, and 25 percent good practices. Six SEMS elements accounted for the most deficiencies (60 percent): safe work practices, hazards analysis, mechanical integrity, general (policy and leadership), operating procedures, and management of change.⁷⁷ Beyond this analysis, the report did not refer to the results of implementing the CAP after the audits.

In turn, the document published on BSEE’s website in October 2020 analyzed the audit reports of the third cycle where fifty-two SEMS were evaluated.⁷⁸ Though the report did not refer to whether the third cycle of audits addressed the recommendations of the second cycle of focusing the audits on the riskiest operations, the report presented conclusions regarding the adoption of SEMS, the audit process, and the corrective action plan. With respect to the adoption of SEMS, the main findings were that all the operators included in the report had developed their SEMS program, however the main challenge was to implement it. More than 60 percent of the deficiencies were related to the same five SEMS elements found in the second cycle of audits: safe work practices, mechanical integrity, hazard analysis, operating procedures, and management of change. Half of all deficiencies were regarding the implementation of the SEMS policies and procedures.⁷⁹ Despite these findings, the report found that SEMS were moving toward a level of maturity in comparison to the results of the first and second audits.

With regard to the audit process, the report concluded that the quality of the SEMS audit reports increased significantly compared to the first and second cycles. However, it found opportunities of improvement in the audit process. The report indicates that the approach of the audits was to review the seventeen elements of the SEMS program through a checklist included as a reference by SEMS regulations. In this regard, the report recommended to adopt performance-based audit practices, instead of the checklist approach, and to inform the audit plans with performance indicators based on incident history, leading and lagging indicators, and the a risk-based sampling of operations by the auditors.⁸⁰ The latter recommendation, replicated to some extent BSEE’s conclusion after the second cycle of SEMS audits.

With respect to the CAP, the report recommended two measures: (a) to adopt COS standards and (b) to implement surveillance audits as part of the corrective plan close out process, in order to verify that the deficiencies found in the auditing process were addressed.

From the two documents published by BSEE on the implementation of the co-regulatory scheme, this chapter draws several conclusions regarding both the audit process and the implementation of SEMS by operators. The first one is that BSEE is satisfied with the role of COS. The Center has supported BSEE to improve the third-party audits, accrediting the auditors and making audits more standardized. However, the audit process needs to move from checklist audits to risk-based audits focused on the riskiest operations in order to assess how effective SEMS programs are in improving safety in the real world and beyond the information documented on paper.

The second conclusion regards the adoption of SEMS. The message from the analysis of SEMS audits is that the implementation of SEMS programs is moving toward a level of maturity. Nevertheless, multiple deficiencies persist and most of them are constantly found in the same core SEMS elements: safe work practices, mechanical integrity, hazard analysis, operating procedures, and management of change.

Other conclusions relate to the oversight of BSEE to the third-party audit scheme. In first instance, the role of BSEE needs to be more transparent. Such transparency is insufficient due to the fact that BSEE has not published annual reports since 2017 and the only two documents related to the analysis of SEMS audits by third-parties were published five years after the implementation of the scheme. A second challenge of the BSEE is related to how it analyzes the information provided by the operators and how implementing SEMS has impacted the levels of safety and environmental protection in offshore oil and gas operations.

Since offshore safety depends on identifying relevant indicators, and making them matter,⁸¹ it is important to correlate the findings of SEMS audits with leading and lagging indicators. Some indicators include numbers of loss of containment events, gas releases and fires, explosions, loss of well control, injuries, blowouts, speed or response to well kicks, numbers of cementing failures, numbers of times gas alarms are triggered,⁸² and incident investigations.⁸³

In the analysis of the second SEMS audit cycle, BSEE already mentioned the importance of performance metrics, indicating that it would track metrics, particularly number and gravity of incidents, and examine if SEMS deficiencies and corrective actions were leading operators to improve their underlying systems.⁸⁴ Yet this analysis continues as a pending task for BSEE.

At this point, the question remains regarding what the enforcement approach of the BSEE toward the co-regulatory scheme is. Though there is not complete information on how BSEE has used its enforcement tools and directed audits to enforce SEMS regulations, a few documents published by BSEE evidence that the regulator mainly uses its enforcement tools when operators do not comply with deadlines to submit, for instance, their audit report or CAP. For example, in November 2013, BSEE posted on its website that it had issued INCs against twelve operators for their failure to comply with SEMS regulations. BSEE ordered five operators to halt operations because they did not submit their audit plans and SEMS audits. The remaining seven companies failed to complete the audits before the deadline and were directed to provide BSEE with a copy of their SEMS programs and complete the audits.⁸⁵

Furthermore, in 2019, BSEE published its SEMS Oversight and Enforcement Program (OEP) where it establishes a policy to standardize its approach to the oversight and enforcement of compliance by operators.⁸⁶ The main approach is the limited use of INCs. The policy indicates in which specific cases BSEE specialists can issue enforcement tools in the case of violations of SEMS regulations. Most of the cases listed in the policy are related to failures to submit the audit plan, audit report, the CAP, and other documents required by SEMS regulations.

Besides the information on the initial INCs and the OEP, there is not concrete information on how BSEE has used its enforcement tools and directed audits to enforce SEMS regulations. In the analysis of the second SEMS audit cycle, BSEE mentioned that on the basis of performance metrics, it will consider using its “directed audit” to explore unidentified deficiencies that may be contributing to incidents and noncompliance events.⁸⁷

Though BSEE publishes a list of all incidents of noncompliance issued to offshore operators on its website, the list does not indicate the motive of noncompliance. This missing information and the lack of BSEE’s annual reports from the years 2017 to 2019 hamper the analysis on how often BSEE has used its enforcement tools due to noncompliance with SEMS regulations, and how SEMS directed audits have been used as an enforcement tool.⁸⁸

In addition to the self-assessment of the BSEE, external organizations to the co-regulatory audit scheme have also examined the implementation of the scheme and highlighted its strengths and weaknesses. Section 10.5.3.2 presents some of the assessments from the US Chemical Safety and Hazard Investigation Board, the National Academies of Sciences, Engineering, and Medicine (NAS), as well as the analysis of the author of this chapter.

10.5.3.2 The Strengths and Weaknesses of the BSEE-COS Co-regulatory Scheme

In its last report, the NAS admitted that COS is making important contributions to offshore safety.⁸⁹ The Center plays an important role not only in its capacity as AB but also sharing safety information from its members on a regular basis. Indeed, since its creation, COS has published six annual performance reports from 2014 to 2019. In its annual performance reports, COS presents safety performance indicators and data from the learning from incidents and events shared voluntarily by its members under confidentiality agreements.

Though the information published by COS is limited to the information provided by its members, in the annual report from 2019, it included an analysis of forty-seven SEMS audits submitted between 2017–2019 to BSEE by COS members and nonmembers.⁹⁰ The data was supplied to COS by BSEE, excluding identifying information of operators in order to ensure confidentiality and reduce any bias.⁹¹ Taking into account that BSEE had not published information on the results of the third cycle of SEMS audits, the COS report contributed providing transparency to the co-regulatory scheme regarding the partial results of the third audits.

Regarding the weaknesses of the co-regulatory scheme, one of the major points of concern is that BSEE misses the opportunity of developing its own expertise in a scheme where it does not audit SEMS programs directly.⁹²

The second major point of concern is related to the independence of the co-regulatory scheme. The independence of this scheme has been criticized from at least two angles: independence of COS from the API and independence of the third-party auditors from the operators. As it was discussed in Section 10.2, the National Commission provided a warning regarding the need for creating an industry safety self-regulator separated from the API. However, as it was described in the section on the governance of COS, the Center is not only part of the API, but the latter has many mechanisms to control COS’s work. The criticisms on such dependence have persisted in several investigation reports, bringing into question the Center’s credibility and objectivity.⁹³

The other concern on the independence of the scheme is grounded on the fact that SEMS regulations do not establish any requirement regarding the independence of the ASP from the operators.⁹⁴ In the case of the AB, the regulations require that it must establish measures to avoid conflict of interests with the ASPs, however, there are not similar requirements regarding the independence of ASPs and operators.⁹⁵

Another weakness is the low number of COS members. Indeed, the number of COS members has decreased from twenty members in 2016 to eighteen members in 2021. The NAS considers that all companies conducting offshore oil and gas operations should participate in the safety institute advised after the DWH accident. However, several barriers may prevent them to join COS, including the annual cost of membership or the requirement to provide to the Center the resulting data of audits.⁹⁶

Besides these concerns, several aspects of the governance of COS could improve in order to represent different interests of the oil and gas industry beyond oil and gas producers, drilling contractors, service companies, and industry associations. For instance, COS could allow the workforce to have representatives in its governing board. This may be an aspect to improve, considering the key role of workers to advance safety in the offshore oil and gas industry.

So far, this chapter has explained the organizational changes undertaken by the API after the DWH accident in the United States. To conclude this research, this chapter will explore the transnational dimension of the API’s organizational changes and what lessons regulators outside the United States that rely on the API RP-75 standard can learn.

10.6 The Transnational Dimension of the API’s Organizational Changes and Lessons for Regulators beyond the United States

The API has taken several steps to strengthen the transnational dimension of its organizational changes both around COS and the API RP-75. Since 2012, COS has developed a SEMS certificates program to demonstrate that an organization has completed a SEMS audit by an accredited ASP and satisfies the requirements of the API RP 75.⁹⁷ Though initially the certificate was only allowed for COS members, in 2020, COS allowed non-COS member companies and operations outside the United States to obtain the SEMS certificate.⁹⁸ The certification program is open not only to operators but also to drilling contractors and other offshore service providers. Furthermore, in 2019, the API published a new edition of its RP-75 in order to strengthen its global relevance.

Even before these changes, other regulators around the world had adopted the API RP-75 in their regulations.⁹⁹ Safety regulators beyond the United States that endorse the API RP-75 for offshore oil and gas operations may have several lessons to learn from the experience in the United States. One of the lessons is that the sole adoption of the API RP-75 does not guarantee that oil and gas companies are implementing best safety practices in their operations.

Indeed, SEMS regulations II by BSEE and several investigation reports evidenced that API RP-75 does not reflect several good practices in the offshore oil and gas industry, such as the involvement of the workforce in the management system and current process safety principles, including a risk reduction goal, a focus on major hazards, measurements, and metrics.¹⁰⁰ The first deficiency was addressed by SEMS II, however, the other issues were not tackled by the regulation nor by the new version of the API RP-75. Therefore, regulators should consider to complement the API RP-75 with their own regulations in order to incorporate good practices missing in this standard.

Another lesson is on the implementation of the API RP-75. The BSEE has developed a whole third-party scheme to audit the SEMS programs. Other regulators should be aware that it is not sufficient just to adopt the API standards in their regulations, it is important to follow up with mechanisms to ensure that oil and gas companies are actually complying with such standards. Regulators can verify the compliance with standards directly or use third parties. When developing third-party audit schemes, a good practice is to put in place mechanisms to ensure their independence from the regulated industry.

10.7 Conclusion

After the major accident in the history of the oil and gas industry in the United States and the criticisms that emerged against the API as private standard-setter, it would have been expected that the regulatory reforms adopted after the accident reduced the reliance of the federal regulatory framework on the API. Looking back, during the decade after the accident, BSEE not only neglected the recommendation of reducing its dependence on the API but increased it in more dimensions than the regimen that preceded the oil spill. Despite the criticisms, the API adapted to the post DWH–era, strengthening the influence of its safety standards in the federal regulatory framework and through organizational responses that allowed it to fill some of the gaps identified by investigation reports. The resilience of the API in the wake of the DWH disaster is the result of its decades of expertise, resources, and leadership in the offshore oil and gas industry that contrast with a public regulator in need of those resources. Over time, BSEE has been receptive to the solutions provided by the API and endorsed them with the introduction of a co-regulatory regime for the implementation of SEMS regulations.

Though this new co-regulatory regime still has to stand the test of time, there are already concerns on its effectiveness. The most significant concern is that the goal of BSEE endorsing the API RP-75 was to implement a performance-based rule to manage the risks of offshore oil and gas operations. Yet the formulation of the API RP-75, its implementation, and the audits are far from a performance-based approach. The model remains prescriptive with the risk of reducing the SEMS program to paperwork disconnected from operations in the real world and far from achieving its goal of improving the safety and environmental performance of oil and gas companies. Precisely, the disconnection between the implementation of SEMS, its effectiveness, and the lack of indicators that show how the environmental and safety performance of operators has evolved since the implementation of SEMS is one of the aspects that undermine the co-regulatory scheme. The scheme could benefit from more transparency by the BSEE as a meta-regulator, analyzing those indicators on an annual basis and evidencing how it has used its oversight powers to ensure compliance with the scheme or introduce the changes needed to make it effective.

Given the transnational nature of the API, its response to the DWH accident has also implications for regulators outside the United States, who have several lessons to learn regarding the strengths and weaknesses of the API RP-75 and the challenges to implement it.

In this way, the analysis on the resilience of the API in times of crisis and the increase of the interdependence between public and private authorities contributes to the empirical evidence on proactive free-riding discussed in this book, particularly in the chapter on the resilience of private authority in times of crisis. The reorganization of the API after the DWH accident provides an example of the perpetuation of private regulatory power not only regarding rule-making but also monitoring the implementation of standards.

11 The Accountability Response of the Global Anti-doping Regime to the Russian Doping Scandal (2015-2020)

Slobodan Tomic and Rebecca Schmidt

11.1 Introduction

This chapter looks into the response of the global, public–private regime of anti-doping regulation in sports to the Russian doping scandal from late 2014,¹ which revealed a state-sponsored doping scheme that enabled Russian athletes to take prohibited doping substances during their preparation for and participation at several international tournaments. The scandal highlighted the inadequacy of the system’s regulatory framework and raised multiple accountability issues relating both to the “field level” and the governing level. The former includes actors involved in the operational aspect of the anti-doping policy, namely athletes, local anti-doping agencies, and testing laboratories, and the latter includes the governing body of the sports governance regime, the International Olympic Committee (IOC) and its anti-doping regulator, the World Anti-Doping Agency (WADA).

The scandal put enormous pressure on the IOC and WADA to demonstrate a strong accountability response. In this chapter, we explore the resilience of the regime by examining whether and to what extent it has been responsive to accountability calls. We look into two key aspects of the regime’s response: Its ad hoc accountability measures as well as systemic changes to its accountability framework. This is to address both notions of accountability – “as a virtue” and “as a mechanism.”² The former refers to the normative dimension of accountability and focuses on whether an actor takes measures that others see as signs of responsible conduct. The latter refers to the prescriptive-legal dimension of accountability and analyzes whether appropriate accountability provisions are set out in the regime’s legal framework.

The anti-doping regime is an interesting case for the study of organizational resilience and adaptability because, at the time of the scandal outbreak, it lacked an accountability mechanism for its governing organizations – the IOC and WADA. Neither of them was subject to the formal scrutiny of stakeholders, their performance indicators were not defined, and they could not bear any consequences for their potential failures or underperformance.

Prior to 2015, the Olympic regime’s legal framework and related statutory documents, such as the Olympic Charter and World Anti-Doping Code, defined none of Mashaw’s five parameters of accountability: To whom, how, for what, in accordance with what standards, and with what consequences its governing organizations are accountable.³ Furthermore, the regime has featured a favorable political economy for non-responsiveness to stakeholders, as athletes from around the world and other regime stakeholders, such as sponsors, sports clubs, and sports federations, could not defect to or create a competing international sporting regime. This has rendered the IOC and the wider sports governing regime a “hard case” for the pursuit of accountability.

Given this constellation, the Russian doping scandal has posed a curious empirical puzzle: On the one hand, the regime has found itself under enormous legitimacy pressure. A theoretical expectation is that, in such situations, regimes seek to demonstrate a strong accountability response. The exercise of accountability is crucial for repairing lost legitimacy,⁴ and legitimacy represents a critical “ingredient” for regimes’ survival. On the other hand, the regime’s “foreclosed” political economy has afforded it a position from which it could demonstrate little responsiveness to stakeholders’ concerns at almost no cost to the formal position and power of its governing organizations.⁵ What, then, has the regime’s accountability response been in this constellation featuring two contrasting forces, namely soaring legitimacy pressures versus a “foreclosing” structure?

11.2 The Practice and Systems of Accountability in Transnational Regimes

11.2.1 Defining and Conceptualizing Accountability

The pursuit of accountability is a process in which one actor is justifying its own conduct to another actor, or a group of actors, with the possibility of bearing sanctions for this conduct.⁶ The pursuit of accountability can be part of a formalized process, but it can equally be less institutionalized – accountability can be sought and demonstrated without a formal obligation. Alongside a controlling function, accountability has a learning function, too.⁷ It can help the regime’s authorities to identify and remove failings that have been plaguing regime constituents/users. Addressing such failings will increase the regime’s resilience⁸ making it fit for purpose. As such, the regime would continue operating without a breakdown or demise.

While some authors have discussed accountability referring to arguably equivalent concepts such as responsibility,⁹ others see accountability as a unique concept, often understood as comprising multiple dimensions. One of the most prominent multidimensional frameworks that deconstructs the meaning of accountability is that by Koppell, which points to five conceptions of accountability: transparency, liability, controllability, responsibility, and responsiveness.¹⁰ To map out the accountability response of the global anti-doping regime to the Russian scandal, we have deployed Koppell’s framework, questioning to what extent the regime has demonstrated each of its five conceptions (Table 11.1).

Table 11.1. The five dimensions of accountability^a

Conception of accountability	Key determination
Transparency	Did the organisation reveal the facts of its performance?
Liability	Did the organisation face consequences for its performance?
Controllability	Did the organisation do what the principal desired?
Responsibility	Did the organisation follow the rules?
Responsiveness	Did the organisation fulfil the substantive expectation (demand/need)?

^a Koppell, Pathologies of Accountability, at 96.

11.2.2 Accountability and Legitimacy in Transnational Regulatory Regimes

Legitimacy is a key factor for motivating regulatees’ compliance and stakeholders’ support,¹¹ and it is the pursuit of accountability that enables the building, maintaining, and repairing of legitimacy.¹² Regimes enjoying low legitimacy can hardly prevent stakeholders’ defection to or creation of competing regimes. It has been argued that the adoption of a robust accountability framework is an important strategy for repairing legitimacy particularly during crisis times.¹³

Outside the context of nation-states, developing accountability systems is far from a standardized and predictable process. In the context of transnational governance, there is no democratic legitimation, and the regime complex can involve multiple actors and interdependencies.¹⁴ Allocating power within and across stakeholder groups can be difficult and deciding who should be accountable, to whom, for what, and under which standards¹⁵ is not straightforward. Further, accountability processes can be hindered by an ongoing power dynamic among the regime actors, particularly where there is one or more predominant “veto-player” actor. That is the case with the International Olympic Committee, which, before the creation of the hybrid (public–private) anti-doping regime and its regulator WADA in 1999, had been building for about a century its supreme authority as the (sole) owner of the private transnational system of Olympic governance.

11.3 The Setup of the Anti-doping Regime Prior to the Scandal Outbreak

The anti-doping regime is a hybrid, polycentric regime, nested within the global system of sports governance.¹⁶ It is comprised of several actors who come from two main communities, namely the sporting and anti-doping communities (See Figure 11.1).

Figure 11.1. The structure of the anti-doping regime as a regime nested within the broad international system of sports governance

At the uppermost level is the IOC, which is the supreme authority of the global sports governance system. The IOC is a nongovernmental sports organization based in Switzerland, created in 1894, responsible for promotion of the Olympic movement and organizing of the Summer and Winter Olympic Games.¹⁷ At a lower, medium level of the governing tier of the regime, is WADA, the global anti-doping regulator whose task is to develop and oversee the implementation of the anti-doping policy in international sports. WADA was established in 1999¹⁸ after a group of governments put pressure on the IOC to create a specialized anti-doping regulator as a response to the doping scandal in cycling.¹⁹

WADA’s mission is to direct and monitor the work of specialized anti-doping organizations. Its tasks include research, education, development of anti-doping capacities, and monitoring of how the World Anti-Doping Code (henceforth, Code) is enforced by anti-doping organizations and by members of the Olympic system.²⁰ WADA’s work is governed by the regime’s statute and the Code, whose provisions have been incorporated into international legislation through UNESCO provisions and the Council of Europe Convention on Sports.²¹ The Code is globally harmonized, having been adopted by a large number of Code signatories, including the IOC, the vast majority of international and national sports federations, national and regional anti-doping organizations, local anti-doping laboratories, and other actors.

Although it is a stand-alone regulator, WADA, by institutional design, enjoys low institutional autonomy²² from the IOC. Since its creation, WADA has been run (and funded) in equal proportions by IOC representatives and representatives of national governments, who each nominate eighteen members²³ out of the maximum thirty-eight of the WADA Foundation Board. Similarly, the Executive Board of WADA, a twelve-member body elected by the Foundation Board, comprises an equal number of government and IOC delegates.²⁴ Despite this parity, in practice, the IOC’s influence over WADA is perceived as greater because its members, both on the WADA Executive Committee and on the Foundation Board, make for a more homogenous bloc and mobilize more easily.²⁵ A WADA director general is not allowed to hold dual roles, although all of WADA’s presidents in their prior career had served as IOC members (most of them coming from a prior governing role in an international or national sports federation).

At the lowest operational level of the anti-doping regime are specialized anti-doping bodies and sport governing organisations. These specialized bodies include regional and national anti-doping organizations (RADOs/NADOs) and testing laboratories. Sport governing bodies include international sports federations (IFs, of which there are more than fifty globally, one for each sport in the Olympic realm). While WADA sets the anti-doping policy, develops doping standards, and monitors their implementation, these standards are in practice implemented by the RADOs and NADOs, whose mission is to develop strategies that set out when and which athletes will be tested. RADOs and NADOs direct and execute the testing of athletes, and when they discover that an athlete has violated the Code by taking a prohibited substance, they are supposed to inform the athlete’s sports organization, which then determines the sanction (within the statutory prescribed range). The appellate body for doping-related sanctions is the Swiss-based Court for Arbitration in Sports (CAS).²⁶ The work of RADOs and NADOs is overseen by WADA.²⁷

11.3.1 A ‘Void Accountability Mechanism’ for the Governing Bodies and a Weak Accountability Framework at the Operational Level

When the Russian doping scandal hit, WADA and IOC were widely perceived as the foremost responsible entities for the anti-doping policy. However, at that point, neither was subject to the usual mechanisms of accountability, such as, for instance, dismissal of functionaries, ex-post reporting, and other sorts of performance audit and sanctions. The Code, like the Olympic Charter, did not designate WADA as answerable for the anti-doping policy to external forums, the IOC included. Like the Olympic Charter, the Code did not specify performance benchmarks, sanctions, or means through which sanctions shall take place (in cases of policy failure and underachievement).

The effectiveness of RADOs and NADOs is crucial for preventing and suppressing doping among athletes. However, in the period preceding the scandal, WADA had lacked the necessary capacity and authority to adequately monitor them and to make sure their conduct was within the prescribed standards. WADA’s lack of ability to exert strong control over the sporting and specialized anti-doping organizations operating at the local level directly impacted the prospects of accountability for the doping athletes. Further, the system’s design, prior to the scandal, featured various in-built conflicts of interest. For instance, the sanctions for athletes who were caught doping were decided by national and international sports federations, whose commercial and sport promotion interests could prevail over anti-doping efforts.²⁸ This could lead them to abstain from imposing (harsh) punishments²⁹ or to avoid them altogether.³⁰ Also, domestic authorities could collude with the NADO or national laboratories to produce deliberately ineffective targeting strategies for athlete testing or to tamper with or misreport evidence in potential discoveries of doping.

The result of the weak control framework at the operational level was that the system of anti-doping was ineffective, as indicated by recurring low rates of positive tests. In 2016, out of about 300,000 tests conducted worldwide, only 4,822 were adverse findings,³¹ amounting to a catching rate of only 1.6 percent. Based on their anonymous survey of elite athletes, Ulrich and colleagues³² estimate a 30–31 percent prevalence of doping among athletes at the world championships level. The targeting strategies by NADOs were thus suboptimal, and “dopers” enjoyed an advantage over the authorities in the use of the latest medical technology.

The monitoring framework was sporadically tightened through measures such as the introduction of the “whereabouts rule,” which mandated athletes to report their whereabouts for one hour each day and to make themselves available every day for a potential no-notice drug test.³³ Another examples was the introduction of so-called Athlete Biological Passports – a WADA database of athletes’ testing results that enables cross-time tracing of athletes’ markers and identification of suspicious sample patterns even when they are within the prescribed limits. However, despite the progress that these measures allowed for, the system could still be “cheated” on the ground. As the investigation into the Russian doping scandal revealed, state authorities were able to obstruct the control process by pressing the RUSADA (the national Russian NADO) to under-target expected cheaters or misreport the sample analysis³⁴ during their preparations for international competitions such as the London Summer Olympics 2012,³⁵ or, in the case of the Russian hosting of the Winter Olympics in Sochi 2014, by coercing on site, at the Olympic village, the lab staff to tamper with the collected samples.

Overall, the regulatory system that was in place prior to the outbreak of the Russian doping scandal suffered from two major accountability deficits. First, at the governing level, its main organizations – IOC and WADA – were not subject to any formal accountability obligations. Second, WADA’s capacity to monitor the enforcement of its policies through a network of local anti-doping bodies was weak. This increased the possibilities for athletes to dope with impunity, reducing accountability prospects for this “target” population.

11.3.2 The Role of the State

While, back in 1999, the anti-doping regime emerged due to pressure by nation-states, whose representatives have since co-participated in the running of WADA, the state has generally had limited capacity to intervene in the regime’s mechanics within the wider context of the IOC’s ownership and running of the global Olympic regime. It is one of the rare transnational regimes that originated “organically” as a private actor, through “entrepreneurial development of authority”³⁶ (the regime was created in the late nineteenth century, by Pierre de Coubertin)³⁷ rather than through delegation by the state.³⁸ Over time, it has independently developed its expertise, and reinforced its position as the sole possible owner of a global sports competition. Due to the regime’s monopolistic position in running Olympic Games, creating a competing transnational regime has de facto not been viable. Historically, the IOC did not need the state’s recognition and support to obtain legitimacy. Today, despite the state’s presence in WADA the IOC still has a crucial say over what the anti-doping regime will look like. As such, it has enjoyed better preconditions for resilience than the majority of other transnational private regimes and has been less dependent on the state for survival, including with regards to financial and operational considerations.

So far, the state has mainly acted as a disruptor, that is, an underminer of the current regime, rather than as a facilitator of its resilience and survival. As will be seen in the review of the Russian doping scandal, the state has the possibility to obstruct the anti-doping system of controls on the ground.³⁹

11.4 The Outbreak of the Scandal and the Regime’s Accountability Reactions

News of the Russian doping scandal broke in 2015 after German TV channel ARD released a documentary in which two Russian whistleblowers – a medal-winning runner and her coach – confessed that the Russian authorities had orchestrated a doping scheme in order to maximize the achievement of Russian athletes at international competitions.⁴⁰ The scheme had been going on for several years, enabling a number of Russian athletes to compete doped at several major international competitions, including the 2012 Olympic Games in London and the 2014 Winter Olympics in Sochi. About a year later, a Russian doctor, Grigory Rodchenkov, who had defected to the United States from the Moscow Anti-Doping Center (Russia’s laboratory), confirmed the scheme in an interview with the New York Times in which he revealed further details of Russian public authorities’ involvement.⁴¹

As the scandal gained public traction, WADA decided to investigate it. Thus, within a year (November 2015–December 2016), WADA undertook two investigations that resulted in three reports, all finding considerable evidence of a state-orchestrated doping scheme.

The first investigation, led by the former WADA President Richard Pound, found evidence that, both voluntarily and under pressure, athletes were taking doping substances in order to improve their individual and team performances.⁴² The report also found that the cheating was facilitated and covered up by doctors, coaches, and laboratory personnel, indicating “a deeply rooted culture of cheating” in the Russian Olympic team.⁴³ In some sports, such as athletics, cheating was further facilitated through corruption at the international federation level, where intermittent reports of possible doping were ignored or covered up.⁴⁴

The second investigation, led by Richard McLaren, a Canadian attorney and a former president of WADA, focused on the 2014 Winter Olympics. This investigation resulted in two successive reports. The first report, published prior to the Rio Olympics in July 2016, drew on witness testimony, analysis of thousands of documents, forensic analysis of seized hard drives, urine samples, and laboratory results.⁴⁵ The report found, beyond reasonable doubt, that there had been an orchestrated doping scheme during the Sochi Olympics, which was perpetuated through a so-called disappearing positive (test) methodology at the testing premises, where state intelligence agents were swapping dirty urine samples with pre-supplied clean samples at the lab, located in the Olympic Village.⁴⁶ From a tiny fraction of reexamined samples that were declared clean following the initial laboratory analysis, the investigation found that as many as 643 were, in fact, positive.⁴⁷ The full scale of the cheating could not be determined though, since the vast majority of the samples were still being withheld by Russian authorities.⁴⁸

The second McLaren report was published after the Rio Olympics in December 2016. It discovered more than 1,000 new positive samples of Russian athletes⁴⁹ relating to prior competitions. Based on this, the report concluded that the scheme had been in place for several years at least, and that, over time, particularly prior to and during the 2012 London Olympics and the Winter Olympics in Sochi, it was further refined.

Overall, the WADA investigations found that the doping scheme involved over 1,000 Russian athletes in more than 30 sports who were assisted or pressured by their medical staff to take doping substances. These findings put pressure on the anti-doping regime to act in two main directions: (a) to sanction the perpetrators of the scheme and those actors whose omissions, or complicity, allowed the scheme to continue until the scandal broke and (b) to improve the governance structure of the anti-doping regime in order to reduce opportunities for athletes to dope with impunity.

11.5 Analyzing the Regime’s Resilience through Its Accountability Response

This section analyses the anti-doping regime’s response in the five years after the scandal, looking across the five dimensions of accountability set out by Koppell.⁵⁰

11.5.1 Transparency

Transparency is the component where the regime’s accountability response throughout the observed period (2015–2020) was the strongest, although this increase in transparency was mostly based on ad hoc responses rather than the institutionalization of transparency mechanisms. Furthermore, there are still objections from stakeholders that, in some mechanisms, transparency needs to be further strengthened, primarily within the governing tier of the regime, where calls have been made for the adoption of permanent transparency measures.

It is WADA that spearheaded the regime’s efforts to respond to the scandal with increased transparency and, subsequently, with building new transparency mechanisms into the regulatory system. The IOC was making pledges during the observed period to enhance its transparency level as well, but in practice it adopted fewer transparency measures than WADA.

WADA’s publication of the three investigation reports could in itself be seen as a significant measure of ad hoc transparency, although a previously leaked memo revealed that its president instructed its staff to monitor public reaction before deciding whether to start an investigation, a detail that indicates WADA’s opportunism.⁵¹ Nonetheless, the significance of the WADA investigations into the Russian doping scheme was paramount for the regime’s later developments in accountability. The resulting investigation reports brought to light a number of key facts and findings in relation to the suspected doping scheme. They not only confirmed that the scheme happened but also highlighted the weak spots in the regulatory system. The findings increased the initially dismissive IOC to take more than a symbolic action in response to the scandal. They also reduced the credibility of early denials of other organizations from the sports movement that the doping scheme claims are fabricated or ill-intentioned. As WADA’s investigation reports revealed, new details and evidence of the doping scheme, the IOC could no longer resist taking stronger accountability measures and could hardly oppose the reform initiatives launched by WADA.

Regarding its internal governance, over the last few years WADA adopted several rules, including the one on publication of all details related to the work of its bodies, from the Foundation Board to various commissions and other units. Note, though, that the Executive Committee has been a partial exception to this positive transparency trend. As critics observed, instead of verbatim minutes, edited minutes – in third person – were published for meetings of the Executive Committee; those minutes were often published late, several months or even more than a year after a meeting.⁵² Recently, the US Anti-Doping Agency and Olympic & Paralympic Committee required WADA to make all Executive Committee and Foundation Board decisions publicly available.⁵³

WADA also started producing and publishing annual compliance reports,⁵⁴ which present detailed information about the activities undertaken in the previous year to advance anti-doping efforts and their effects. It also introduced external audits to strengthen “outside” monitoring of its work. These measures could be seen as including two accountability dimensions, namely transparency and controllability. Still, WADA also adopted a rule to move the promulgation of actors’ noncompliance with the Code from the Foundation Board’s to the Executive Committee’s remit. This was criticized by the athletes as a measure that reduces transparency, given that the work of the Executive Committee was not open to the public and the athletes could not get real-time updates regarding the promulgation of actors’ noncompliance with the Code.

At the operational level of the regulatory system, WADA’s reform of the monitoring framework has led to the adoption of several instruments that have helped the collection of information on developments in the field. These instruments include the Code Compliance Questionnaire (CCQ), which every NADO/RADO are obliged to fill in on an annual basis. CCQ include reports of all relevant information related to the NADOs’/RADOs’ work environment and developments on the ground, starting from their capacities, through challenges that might pertain to their specific environment, to other details that could affect the anti-doping fight. CCQ are followed by physical audit visits of WADA inspectors.

In its response to the scandal, the IOC demonstrated much less ad hoc transparency, contributing little to WADA’s early efforts to investigate the doping allegations. In a later development, the IOC visibly intensified its public communication, however, it has not implemented any new major mechanism to make it obligatory for its governing bodies to release all important details related to their work and the decision-making process. This was despite the fact that, previously, IOC had set out and has worked on an Olympic 2020 Agenda, which highlighted increased transparency as one of its pledges⁵⁵.

11.5.2 Liability

Liability, the second aspect of the “accountability bundle,” is about consequences of one’s own actions, which could be imposed both for a rule violation or for performance failure. In our case study, liability has both reactive and proactive aspects. The reactive aspect concerns the imposition of sanctions for a discovered instance of cheating; the proactive form of liability is being realized when an organization adopts stronger liability measures for its future operation.

Regarding the reactive aspect, we have seen that only limited sanctions have been imposed for the discovered cheating scheme. Instead of imposing immediate and wholesale sanctions against the Russian team, the IOC prioritized “individual responsibility.” Under this “route,” an individual ban request is directed to the Court of Arbitration for Sport (CAS) for every Russian athlete for whom a review of the prior test samples had indicated the presence of prohibited substances.⁵⁶ For the then fast approaching Rio 2016 Olympics, the IOC delegated the process of sanctioning to the IFs rather than making a binding and harmonized decision itself (the latter was a statutory possibility). Some IFs, such as the IF of athletics (then IAAF, now World Athletics), imposed a wholesale ban on the Russian team, but others did not. The result was that one-third of the Russian Olympic team was allowed to compete.⁵⁷ This led to growing pressure and criticism of the IOC during and after the 2016 Rio Olympics.⁵⁸ Later on, as the criticism of the IOC’s handling of sanctions of Russian athletes increased, it decided to impose a wholesale ban on the Russian Olympic team ahead of the 2018 PyeongChang Winter Olympics, in which, according to the ban, Russian athletes could only compete under a neutral flag, that is, as individuals rather than representatives of their country.⁵⁹ The sanctioning situation was further complicated from 2018 onwards, after a series of doping-related suspensions of Russian athletes were overturned by CAS.⁶⁰

The IOC and WADA also suspended the Moscow laboratory; however, a later decision by the IOC to open talks about the laboratory’s relaunch and WADA’s work on readmission of the Russian Anti-Doping Agency (RUSADA) were criticized by a group of NADOs and stakeholders as too lenient and a sign of tolerance. In 2019 and 2020, these processes came to a halt and/or were reversed due to Russia’s ongoing non-compliance with the Code. As a result, Russia continued to be prevented from hosting international events, and it was repeatedly contested whether Russian athletes could participate under the Russian flag.⁶¹

The governing organizations themselves – IOC and WADA – were not subject to any form of liability for their failures to create a more effective system and for the fact that the anti-doping regime had allowed such a large-scale doping operation for years.⁶² The investigations into the scandal discovered that WADA was ignoring repeated reports of doping. The two whistle-blowers mentioned above, who triggered the scandal, had filed a large number of reports to WADA before appearing in the German documentary, but WADA did not act on the information, instead passing the reports to the IAAF for verification.

Neither the IOC nor WADA were of the opinion that they needed to take responsibility for these failures. True, the rules that governed the legal framework of the system did not oblige them to do so. Yet there have not been instances of “moral accountability,”⁶³ in which individuals would resign to take the blame for the discovered failure.⁶⁴ This contrasts with some prior examples where sports officials, for instance, Iranian weightlifting official Abdullah Falahatinejad, had resigned to demonstrate “moral accountability.”⁶⁵

In terms of proactive liability measures, over the last five years, the regime adopted stricter sanctions for athletes for future doping discoveries. At the level of enforcement, a whole range of measures was introduced, from the adoption of stricter certification codes and audit standards for laboratories, through the provision of training to doping enforcement officers, to the introduction of private anti-doping organisations, thanks to which the prospects of athletes being doped without being discovered have significantly reduced.⁶⁶

At the level of governing organizations, no performance or procedure-related changes have been introduced to institute sanctions for IOC and WADA members for the regime’s ineffectiveness. Their transparency has increased to an extent, as discussed earlier, but their liability has not. For the principle of accountability to be realized, increased transparency in itself will not suffice if there are no consequences for the observed breaches or failures.⁶⁷

Overall, the observed developments in the five years after the scandal indicate that the liability response has been limited and certainly much less present than the transparency response. In terms of sanctioning, there has been a mixed reaction, which sent similarly mixed messages and did not conclusively demonstrate the IOC’s immediate resolve to impose adequate sanctions against the doping scheme’s perpetrators. In terms of the proactive aspect of liability, considerable progress has been made at the lowest level of the hierarchy, namely in the operational aspect, but not as much in the ad hoc and systemic liability among the governing organizations.

11.5.3 Controllability

Controllability refers to whether actors within a system are subject to control by other actors.⁶⁸ Several levels of controllability can be distinguished in our case. One is the way in which WADA controls the actors operating at the lowest level of the system such as the NADOs, domestic laboratories, and sporting federations. As a group, they constitute the weakest link within the regulatory system, whose failures or complicity enabled the doping scheme to continue for a longer period.

Over the observed five years, controllability from WADA downwards has significantly improved.⁶⁹ WADA has adopted a number of governance changes that have tightened sanctioning and monitoring standards. It introduced a system of graded sanctions and adopted rules to clarify the sanctioning framework, specifying responsibilities of signatories.⁷⁰ The result is that sporting federations can no longer use their discretion to interpret Code ambiguities in ways that would enable doped athletes to avoid (major) sanctions.

WADA has also adopted new certification standards for laboratories.⁷¹ Further, as mentioned, WADA has introduced external audit visits to local NADOs, as a method of verifying the information received through the CC. In practice, though, representatives of local NADOs find WADA audits a rigid “one-size-fits-all” instrument that does not encourage the staff in local anti-doping communities to tailor their approaches to the local context.⁷² An Independent Testing Authority (ITA) has been formed too, following a joint decision by WADA and the IOC, to manage anti-doping programs for international sporting federations, organizers of international competitions, and other organizations requiring support.⁷³ ITA is supposed to reduce commercial conflicts of interests among those preparing testing strategies and carrying out athlete testing in the field.

Controllability is not always, and in every aspect, a positive feature that contributes to stronger accountability of a regime. At the higher, governing level of a regime, stronger inter-organizational controllability could be a negative occurrence, if it comes at the expense of the autonomy of its key organizations. In our specific case, WADA’s autonomy vis-à-vis IOC has remained low throughout the observed period, and this has not played into the efforts to strengthen WADA’s position vis-à-vis the sporting community whose conduct it is supposed to regulate. The fact that IOC is reluctant to grant WADA fuller autonomy – and thus leadership in the anti-doping regime – encourages sporting organizations, particularly the richest ones, to drag their heels in observing the Code.⁷⁴

In 2016, the IOC indicated that it is ready to reduce its presence in WADA and thus make it more independent,⁷⁵ but, to date, the IOC continues to retain significant appointment and funding powers over WADA. It has enabled the adoption of provisions that define that WADA should have an independent president and vice-president, appointed without the IOC’s nomination, but, even so, IOC has remained the most powerful stakeholder in its internal work, where, de facto, IOC representatives have stronger impact on WADA’s decisions than the government representatives.

11.5.4 Responsibility

Responsibility is a broad notion that can mean various things in the context of accountability, including adherence to rules, adherence to professional standards, or adherence to internal standards of behavior and performance.⁷⁶ Translating the principle of responsibility into observable implications in our case study is not a straightforward endeavor, not least because some of the interpretations of responsibility overlap with other dimensions of accountability, such as transparency, controllability, or liability.

If responsibility is contextualized as the adoption of professional and wider integrity standards, then, again, WADA has demonstrated significant activity in its response to the crisis, and the IOC slightly less so. As mentioned in the discussion of the various aspects of accountability above, WADA has instituted a range of integrity and certification standards related both to the work of the “lower tier” actors whose work it monitors and to its internal standards. These have served to remove a number of embedded conflicts of interest that had existed in the network of local anti-doping organizations and sports federations and to enhance the procedural decision-making and performance integrity of WADA itself. CAS restructured itself, too, creating a separate specialized unit to deal with anti-doping cases. This was in line with the principle of specialization and autonomization, a measure that removed some conflicts of interest embedded within the institution when deciding on cases.

Responsibility can also be understood as increasing external monitoring capacities over an actor. In the last five years, we could observe significant increases in the prospects of a wider stakeholders’ community to follow WADA’s work and sometime make interventions, in event of misconduct. WADA has made a number of changes that have led to increased effectiveness and transparency in the monitoring of its internal wrongdoings. It has enhanced the system for discovering violations within its own organization, by setting up an external ombudsman, to deal with complaints in relation to the failure to act or abuse of powers by its officials, and has set up an internal whistle-blower unit.⁷⁷

11.5.5 Responsiveness

Responsiveness refers to two aspects: whether a regime attends to the demands of its constituencies/stakeholders and whether it attends to their needs as implied by the proclaimed mission.⁷⁸ It is worth noting that the anti-doping regime’s audiences are diverse. Some stakeholder groups were louder in imposing their demands than others (e.g., the Western-bloc headed by the American NADO – USADA),⁷⁹ and the solutions that they required of the IOC and WADA might not have all been shared by other athletes, anti-doping organizations and other stakeholders. But there were common directions of change that were widely considered as being shared by the sporting and anti-doping stakeholder communities: more robust sanctioning, governance reforms to strengthen the regime’s capacity to remove conflicts of interest and monitor compliance, and greater independence for WADA.

The expectations of more robust sanctioning were partially met. As mentioned, the IOC showed a protracted and patchy response in banning the Russian Olympic team, Russian federations’ hosting of international sporting events, and the suspension and reintroduction of the Moscow lab. This response was severely criticized in the years following the 2016 Rio Olympics by athletes, representatives of national anti-doping agencies, and WADA.

Yet, over time, as the pressure from those groups increased, the IOC attended to some of their expectations of adopting a total ban on the Russian team (for the 2018 Winter Olympics). At the same time, it allowed the reinstatement of the Moscow lab as well as some of the Russian federations under looser criteria than was being demanded. Similarly, the IOC did not grant the level of independence to WADA that some of the loudest stakeholders required. Conversely, WADA undertook a range of reform measures that were praised by the broader stakeholder communities as steps in the right direction, that is, toward removing some of the long-standing conflicts of interest within the system and toward ensuring stronger compliance monitoring.

In terms of improving systems to gauge and attend to stakeholders’ needs, both WADA and the IOC increased opportunities for athletes’ representation, whether through newly formed dedicated commissions run by athletes’ representatives or through increases in quotas to these representatives who sit on their governing bodies.⁸⁰ However, athletes and other stakeholders have found this to be insufficient. Recently, a growing number of voices from the athlete community could be heard complaining about “voice suppression” tactics both in the IOC and WADA, the result of which has arguably been a marginalization of athletes’ influence on institutional decision-making.⁸¹ Thus, limited progress has been made. Formal institutional co-optation of athletes into the IOC and WADA has not been matched by a notable increase in their influence over the decision-making in these organizations.

11.6 Discussion

Reflecting on the regime’s response across the five accountability dimensions, several observations can be made.

First, the anti-doping regime has, overall, demonstrated in the five years after the scandal some degree of accountability in its response to the Russian doping scandal, certainly more than it was mandated to do by the formal legal framework. Accountability can, therefore, be pursued as a virtue even when accountability as a mechanism does not exist.⁸²

Second, the levels of demonstrated accountability vary across its different dimensions. It is not possible to compare with precision whether the extent of accountability is greater, and how much, in one dimension rather than another, so any attempt to “weigh them” up against each other would be a rough approximation. Still, it seems safe to say that the regime’s response in the transparency and controllability dimensions has been stronger than in the other three dimensions. Liability was partially demonstrated in both the reactive and proactive aspect. We have also seen only partial responsiveness to stakeholders’ demands and needs, although the level of responsiveness was somewhat greater in WADA than the IOC.

What does this variation across these five conceptions of accountability tells us regarding a regime’s resilience? It could be the case that increasing transparency is the easiest response to a legitimacy crisis. It could also be that the immediate response is first demonstrated as a virtue, and thereafter it can set in motion a process of further institutionalization, that is, the establishment of accountability as a mechanism.⁸³ “Giving in” to other aspects of accountability might be less opportune, that is, more threatening to a regime’s or an organization’s power; increasing transparency could be seen as the least “sacrificing” accountability measure. A strong transparency response is also in line with commonly observed post-scandal organizational behavior where, often, one of the first responses that an affected organization takes is to increase its transparency, with the aim of restoring the stakeholders’ trust.

Further, we could see that, following the scandal, some degree of institutionalization of the regime’s accountability framework has occurred. Five years after the crisis, the anti-doping regime has formalized certain accountability parameters, both at the enforcement and governing level. That was not always the case in the previous history of the regime. During the first fifteen years, from WADA’s creation in 1999 to 2015, the regime did not take measures that would lead to the institutionalization of its accountability framework, despite occasional calls for this and intermittent voices of discontent with the regime’s performance.⁸⁴

Why has the regime’s accountability response differed this time then? It is possible that the severity of the crisis played a role. Unlike prior calls for a stronger accountability response, the Russian doping scandal has the features of a ‘focusing event,” which, as observed in the literature on policy dynamics, can precipitate major change after long-standing inertia and long periods of stasis.⁸⁵ The noninstitutionalized accountability framework has set in motion a strong “negative feedback” dynamic, which for a long time helped the regime deflect pressures for change and resist major reform. If we look into the institutionalization of the regime’s accountability framework over a wider period of twenty years, the model it has developed conforms to the punctuated-equilibrium model of institutional change,⁸⁶ rather than an incremental one. This suggests that systems with noninstitutionalized accountability frameworks might “push” regimes toward rarer yet more intense episodes of institutionalization. In systems that have some form of institutionalization from their outset, it is likely that changes to the system will be more frequent and probably less comprehensive, as its governing actors will be more responsive to demands for change.

Third, the extent of undertaken accountability response was strongest at the lowest, operational level, and it decreased as one moves up the hierarchy. At the top, WADA regime’s gave strong accountability responses in some respects – fewer than it forced at the lowest operational level, and the IOC showed accountability response in even fewer aspects than WADA.

The institutionalization of the accountability framework varies across the regime’s tiers. As one moves up the hierarchy of the accountability framework system, the degree of institutionalization decreases. As Table 11.2 indicates, this institutionalization is stronger at the bottom, the enforcement tier of the system, than at the upper tier, the governing tier. The differences between WADA and the IOC could be indicative too.

Table 11.2. Observed accountability responses within the anti-doping system between 2015 and 2020, across the five dimensions of accountability

	Transparency	Liability	Controllability	Responsibility	Responsiveness
IOC	✓	x	x	✓	x
WADA	ü	x	x (no autonomy from IOC) ✓ (overall operational level)	✓	✓
Operational level	ü	ü	ü	ü	N/A

Note: The bigger the “tick signs” in a cell – the greater the extent to which the given aspect of accountability has been demonstrated by the actor in question.

This suggests that the observed model is one of “nested institutionalization.” What does this model indicate? Two observations can be made. First, that the limits to how extensive one’s accountability response will be were probably conditioned by the regime’s initial noninstitutionalized framework. Its “void accountability” did not oblige the governing organizations to be fully responsive to wider expectations. This afforded them the “luxury” to attend to calls for accountability only to a certain point. Second, the extent to which the IOC resisted an extensive accountability response, as opposed to WADA, was probably mediated by the power dynamic between them. The legal organizational framework gave the IOC a comfortable “starting position.” As mentioned, before the crisis, the IOC enjoyed the position of the regime’s supreme authority, under a constellation where its stakeholders did not have “exit” possibilities. From a political economy perspective, this means that the cost of limited accountability response is nonexistent or lower than in other transnational regimes.

Of course, the observed period of five years, while long enough to cover more than a full Olympic cycle, could at the same time be viewed as only a snapshot of a longer transformative period. Thus, one could argue that the regime’s accountability development is still “in flux” and that the framework that has emerged so far is not yet consolidated. It is difficult to predict whether the extant accountability process will “accelerate,” “slow,” or “halt” in the coming period. Still, an interesting question that could be raised is whether WADA’s ongoing progress in accountability institutionalization will have any implications for the internal regime’s power play. Will WADA’s stronger accountability response give it an opportunity to profile itself as an “accountability champion” within the anti-doping community – specifically when juxtaposed to the IOC – and, if so, will this have any implications for the regime’s future transformation? As WADA potentially increases its legitimacy within the system,⁸⁷ this could build momentum to force the IOC to change its own accountability structure, too. Currently, the IOC still enjoys supreme authority in the system, primarily because of the present institutional design according to which its members and leadership cannot be changed externally or be subjected to external accountability forums. This might keep eroding its reputation within the system and increase pressures to institutionalize its own accountability, but at the same time the IOC will still have a strong institutional basis to keep its position of superior authority. In any case, it will be interesting to see how their respective pursuit of accountability will shape future development of power-play between the IOC and WADA.

11.7 Conclusion

In this chapter, we analyzed, from an accountability perspective, the response of the global sports anti-doping regime to the Russian doping scandal. We have asked two questions. First, could legitimacy pressures force the pursuit of “accountability as a virtue” even when formal “accountability as a mechanism” is nonexistent? Second, can legitimacy pressure lead to an institutionalization of a regime’s accountability framework?

The analysis yielded three main findings, which contribute to our understanding of the drivers of the evolution and resilience of transnational private regulation organizations amidst a crisis:

• First, in the face of major legitimacy pressure, which in our case occurredfollowing a “system shock,” there will be a pursuit of accountability as a virtue despite the nonexistent accountability mechanism. Put differently, the normative can overcome the formal-legal (design).

• Second, noninstitutionalized frameworks can evolve into institutionalized ones; and partially institutionalized frameworks can evolve into more fully institutionalized frameworks. There are limits to the “negative feedback” potential that a noninstitutionalized framework will have in retaining the status quo. Strong legitimacy pressures can catalyze institutionalization, even in the most unfavorable structural environment.

• Third, although legitimacy pressure can be a catalyst of a regime’s institutionalization of accountability, at the same time this will be limited by the regime’s prior structure. Legitimacy can “bend” even the most “resistant” structure, but the more resistant the structure is, the less range this bending will have. The extent of accountability demonstration will be shaped by power struggles, and where the prior structure accords one governing actor the position of supreme authority, the accountability institutionalization will be most pronounced in the “lower tiers” of the system.

12 “Keynesian” Shipping Containers? Maritime Transnational Regulation before the Advent of “Neoliberalism”

Daniel R. Quiroga-Villamarín

Containers are the material representations of the rhizomatic movement of global capital that characterizes the post-West. They are a concrete symbol of the transnational imaginary they embody.¹

At present [1992] we are living through a curious combination of the technology of the late twentieth century, the free trade of the nineteenth, and the rebirth of the sort of interstitial centres characteristic of world trade in the Middle Ages.²

12.1 Introduction

Future observers will not hesitate in concluding that our age has been profoundly marked by the anxieties of the adjective “global.”³ In law, history, ethnography, and other diverse fields of knowledge and practice, much ink has been spilled on what exactly does it mean to have a global perspective.⁴ For better or worse, the relentless onslaught of what is understood as “globalization” rang the death knell of methodological nationalism across the social sciences: The nation-state has slowly, but surely, lost its privileged place as primal unit of the international system.⁵

In this vein, the (international) legal field has witnessed the emergence of an ever-growing body of literature that questions the traditional assumptions regarding the (state-centric) sources and processes that govern lawmaking in the international sphere. Thus, it appears that a classical approach concerned mainly with state consent can no longer explain – if it ever did – the complex regulatory dynamics of informality, normative pluralism, and fragmentation that occur in contemporary global governance.⁶ Transnational law, a term coined by Jessup in the past century, seems to be more analytically precise than international law to categorize the way regulation at the world scale occurs nowadays.⁷ In this spirit, international lawyers and their fellow interdisciplinary travelers have opened the “black box” of the state – daring to “disaggregate” its inner contents and de-reify its “univocity.”⁸ This, in turn has diminished its relative importance vis-à-vis other actors in the international sphere, such as international organizations and even private actors.

Implicit in this narrative, however, lies an ambiguous assumption about the role of time in the transformations that occur in (international) law and society. This assumption revolves a seemingly banal question: what is globalization and when did it exactly occur? Was it in the nineties, as most early theorists of globalization tend to argue? Or, as historians suggested, was there a deeper longue durée in the genealogy of the processes of world-making?⁹ But even if this was the case, when did this earlier and broader globalization occur?¹⁰ If not the nineties, were then the seventies the pivotal decade where the “shock of the global” was first felt?¹¹ But what to make then of the pioneer global connections of the nineteenth century and its so-called first globalization?¹² And what shall we do if, as postcolonial scholars have argued, these different interpretations about the origins of globalizations have been dazzled by the spell of Eurocentrism, and instead one must go back to the Early Modern or even the Medieval periods to think about non-Western global connections?¹³ Perhaps, as my decolonial Latin American colleagues have suggested, one could trace the start of globalization all the way back to the Caribbean encounters that happened in 1492.¹⁴

In this chapter, I do not aim to provide a definitive and comprehensive answer of how international legal scholars should engage with the “origins” of globalization or of “transnational law.”¹⁵ Indeed, as Bloch reminds us, often the search for origins can mislead historians and laypeople alike into confusing causes and effects.¹⁶ Instead, my much more modest contribution is to highlight that, for better or worse, international lawyers have overwhelmingly come to adopt one (out of many) interpretations about the beginnings of globalization: the so-called neoliberal late eighties.¹⁷ While it is undeniable that the end of the cold war has brought unprecedented qualitative and quantitative changes in the way global integration occurs, it might also be a disservice to focus too much on the novelty of it all.¹⁸ Or, to paraphrase Bloch again, one must not exaggerate the advantages of the present.¹⁹ In fact, for a long time the state has often relied –willingly or not – on hybrid and private authorities to “govern in different sites, in relation to different objectives.”²⁰ Historians, to paraphrase Tuori, have long shown that the only accurate use of the adjective “Westphalian” is related to dogs, not states or world-systems.²¹

For this reason, in this chapter I invite the discipline to also interrogate the plethora of instances of private regulation and non-state lawmaking that predated the arrival of neoliberal globalization at the end of the twentieth century. To do so, I reconstruct the process through which private and public actors from the North Atlantic competed within (and beyond) the International Organization for Standardization (ISO) to set the global standards for containerized maritime shipping in the mid-twentieth century. I argue that in this “Keynesian” epoch, the lines between the private and the public were as blurry as they seem in our contemporary regulatory dilemmas. To be sure, I do not claim there was anything distinctively “Kenyesian” about shipping containers. My use of the adjective is meant to describe how they emerged in a period that the Western legal imagination has often associated with the dominance of a broad Keynesian compromise in macroeconomic management during the so-called Les Trentes Glorieuses (1945–1975), which was later upended by the general crisis of the seventies and the rise of “neoliberalism.”²² This framing, I suggest, casts a shade of doubt on the narratives that center the novelty of private lawmaking. It highlights, instead, that we have much to learn from the long histories of “pre-neoliberal” non-state transnational regulation – of which maritime shipping is but merely one example. After the introduction already presented to the reader, I turn to the relative hegemony of the ‘globalization as a product of the nineties’ thesis in contemporary studies of transnational law-making and private governance (Section 12.2). Then, I turn to the concrete case of shipping containers as an example of “pre-neoliberal” transnational standardization (Section 12.3). Finally, I close with some concluding remarks on the importance of material “nuts and bolts” standards in global governance, at a time in which most attention seems to turn to the allure of immaterial, digital, or service-based standards (Section 12.4).

12.2 Visions of Globalization in the Scholarship on Private Lawmaking

Despite the “almost infinite variety” of transnational law and its corresponding analyses,²³ there is a common trope in most of the recent scholarly interventions: a repetition of key words that denote the emergence of something new or the transformation of a previous state of affairs. As Steinitz puts it, regardless of the differences between different theories or approaches, one can detect an underlying sense of “increased urgency” in academic narratives.²⁴ Transnational legal norms or actors “have grown in prominence,”²⁵ are “increasingly frequent,”²⁶ or stem from an “evolving complex society.”²⁷ Instances of private lawmaking emerge out of the “progressive” interlinking of commerce or on the heels of certain rising technologies of communication or transport.²⁸ For instance, Berman links both the rise of human rights norms (which he pinpoints to a post–world war II constellation) and the end of the cold war in an overarching narrative arc of the erosion of traditional law throughout the twentieth century.²⁹ Graz, in turn, suggest the late eighties were the moment in which governance finally escaped from the narrow corridors of corporate management to become a global trend – a view that is shared by Delimatsis’ helpful introduction to this edited volume (“The Resilience of Private Authority in Times of Crisis,” Chapter 1).³⁰ To cite one last example, Zumbansen notes that “while the globalization of human and institutional, material and immaterial affairs is widely accepted to have prompted, inter alia, significant challenges for inherited conceptual frameworks of societal ordering, the contours of what will replace them remain nebulous at best.”³¹

But the rather ambiguous notion of globalization itself is hardly problematized in a historical fashion.³² While interventions recognize that the phenomena of transnational and private governance is not entirely new, scholars tend to suggest we are standing on the verge of a threshold.³³ Perhaps the most explicit elaboration of this radical transformation has been offered by Pauwelyn, Wessel, and Wouters, in their oft-cited conclusion that the post–cold war formal lawmaking enthusiasm of the nineties has bled into a more complicated landscape of informal regulation in our post-national age.³⁴ This framing dovetails neatly with the contested history of the body of knowledge and practices that we often understand under the label of “neoliberalism.”³⁵ While Slobodian and other global historians have shown the long roots of this school of thought in the early twentieth century, few would deny that its heyday would come in the late eighties and in specially in the aftermath of the cold war.³⁶ Indeed, wouldn’t it make sense to date the rise of private rule-making precisely at the crossroads of this paradigm shift in the ways states and markets (and their relations) were understood in Western political thought?³⁷

In this chapter, I do not want to create a straw person argument. It is undeniable that there is much truth to this framing. At the same time, following Winner and other proponents of the history of science and its cousin science and technology studies (STS), I want to take a step back before assuming the novelty of our neoliberal world.³⁸ Instead of seeing technology as a game changer per se, Winner would push us to see how seemingly unprecedented forms material and ideological techniques draw from the legacy of previous institutional arrangements.³⁹ While it is tempting to feel that our age has long surpassed the dilemmas of the previous century, a closer look into the historical record shows that many of the techniques of governance that we now associate with the emergence of private authority in the last decades have indeed long roots in the previous forms of regulatory imaginaries. Logistics, as we will see with more detail, was long a science closely related to military and public power before it became the realm of transnational private lawmaking.⁴⁰ Technical standards created by private transnational bodies, despite their recent salience, were an integral part of the nineteenth-century project of “governing the world.”⁴¹ As Tzouvala (drawing from the work of the historian Pedersen) recently noted, international legal scholarship on the use of standards, indicators, and “international best practices” can learn much from the seemingly unrelated context of the interwar colonial mandates system of the League of Nations.⁴² While the power of multinational corporations and their supply chains might seem unprecedented, our colleagues working on imperial history would be quick to point out that “company-states” have been a fundamental force in the making of the modern world.⁴³ While Delmitatsis convincingly argues that enormous transformations have occurred in the domain of privately led normative constellations in the last decades, in this chapter, I take his caveat that one must not forget that not all of this means that non-state regulatory orders are –themselves – a “recent phenomena.”

Indeed, as Zumbansen himself noted,

it is important to mention that a growing segment of transnational law scholarship points to the fact that the questions raised by transnational law resonate on many levels with those already raised by critical legal scholars and, in particular, legal sociologists and legal anthropologists at earlier times in the context of domestic [and colonial] law.⁴⁴

For these reasons, my aim in this chapter is to push transnational legal scholars to look for traces of our contemporary fascinations in previous times and places, especially those in which the silhouette of territorial state is less visible: cases of colonial administration and the high seas.⁴⁵ I suggest that we might be able to understand better the resilience of private authority and lawmaking if we place their normative activity in the a broader chronological and spatial framework of analysis.⁴⁶ In what follows, I provide a modest example of the role of private and non-public actors in the creation of maritime shipping standards in the mid-twentieth century, long before the advent of neoliberalism (broadly understood). I suggest this is only but an initial sketch of a history that remains to be written about the domestication of land and sea by private (or privatized) visions of world ordering in the second half of the twentieth century.⁴⁷ To do so, I draw from the rich literature on containerization that has emerged in neighboring disciplines to augment our understandings of transnational regulation.⁴⁸

12.3 Keynesian Standardization? Container Standardization before the Heyday of Neoliberalism

To begin, a word or two on the world of pre-containerized shipping is in order, so the reader can better grasp the sociotechnical transition that occurred in just a couple of decades. Indeed, if one looks today at what George has called our “mechanized, inhuman docks,”⁴⁹ it is difficult to imagine these places as bustling entrepôts of human interaction. For instance, as its Port Authority itself recognizes and celebrates, Hamburg has been “transformed dramatically” since the first container ship arrived on their docks on May 31, 1968.⁵⁰ Before that, in crowded and dense spaces, the movement of cargo and the conditions of labor were negotiated at every twist and turn. For this reason, Sekula argues that the European ports of the interwar era should be remembered as unstable melting pots of “overlapping cosmopolitanisms, both bourgeois and proletarian.”⁵¹ Appalling work conditions converted these docks into spaces of contention, in which disputes between labor and capital slowed down the operations of an already lethargic industry. Tight relationships between kin and a particular understanding of the nature of the dangers of this industry gave rise to a distinct “maritime masculinity” working class culture.⁵²

For our present discussion, what matters is that all goods were transported as break-bulk cargo, which can be “characterized by its multiplicity and diversity [as] cargo arrive[d] in any number of shapes, sizes, and configurations.”⁵³ This, of course, required “swarms of workers [that] clambered up gangplanks with loads on their backs or toiled deep in the holds of ships, stowing boxes and barrels in every available corner.”⁵⁴ For this reason, maritime shipping demanded a copious amount of workers, both when it comes to sailors and stevedores (also called dockers in the United Kingdom, wharfies in Australia, or longshoremen in the United States). What is more, the packing, loading, and delivery of cargo took quite some time, which entailed that vessels could spend more time at port than at the high sea. This “colorful chaos of the old time pier,” in which workers, cargo, and crewmates of all places swelled in spatially dense locales seems almost foreign in comparison with today’s automatized ports.⁵⁵ The rise of containerized maritime trade – a revolution that occurred across several decades and regions of the globe – can only be understood in the backdrop of the crisis and collapse of this previous regulatory imagination of world ports.

In sum, this fragmented system of break-bulk cargo did not allow for standardized practices, which in turn implied that cargo loads, working conditions, and ship sizes were negotiated at every loading, departure, and arrival. In fact, laborers did not even have a fixed or guaranteed schedule of work. Across the North Atlantic, the turns of employment were adjudicated each dawn following a rather irregular practice called the “pick-up,” “shape-up,” or “scramble.” Thus, even in one country, ports worked under very different conditions. One example of this is the variety of jurisdictional approaches, regulations, and strategies pursued by organized labor in one coast of the United States compared to the other.⁵⁶

Another important issue was the tight connection between the (private) merchant navy and the (public) military-industrial complex. One must note that the concept of the “merchant navy” itself was only coined amidst the interwar fears of the return of a total war.⁵⁷ With the rise of oil and diesel power, naval strategy demanded “maritime time, previously unpredictable, [to be submitted] to a new metronomic industrial regularity.”⁵⁸ With the cold war looming over the horizon, North Atlantic elites realized that it was important to maintain a robust and reliable national private fleet that could be temporarily enlisted in the support of the war effort if needed.⁵⁹ In other words, maritime policy was strongly connected with the fears and anxieties of national security concerns, and private actors were expected to act taking into account this national interest rather than the pure maximization of profit. Of course, there were exceptions to this trend, especially in the industry of oil tanking, where some rogue companies were avoiding these national regulations by listing their ships in the registry of another (laxer) state: a practice we now call “flags of convenience.” Sekula and Khalili have shown that these unorthodox practices later became a template for containerships in the late eighties.⁶⁰ However, in the fifties and sixties, public and private actors in the shipping field still saw their métier as an extension of national maritime war policy.

In exchange, North Atlantic states provided generous subsidies and enacted protectionist regulations to strengthen their domestic seafaring industries. In the United States, for example, the 1916 Shipping Act, the 1920 Jones Act, and the Marine Act of 1936 “combined a New Deal interest in invigorating the nation’s dormant industrial base with a concern for future [military] international engagements.”⁶¹ While they required companies to use domestic captains, crews, and ships for all domestic trade, they rewarded their loyalty with discounted prices on wartime ships and public assistance for the creation of new models. Even if these measures did not apply for international trade, a similar mindset prevailed on the high seas. As Broeze reminds us, a transnational network of commodity and bulk conference maintained the stability of prices in transatlantic shipping.⁶² While Hoovestal assumes that containerization has, from its very beginnings, implied a (neo)liberal challenge to state sovereignty and its regulatory overreach.⁶³ I argue that this reading fails to capture the enormous dependence of early (and even contemporary) containerized trade on state subsidies, international trusts, and other non-market mechanisms.

It was in this context of a union between maritime trade and war policy and the irregularity of break-bulk cargo that the owner of a US trucking company first thought of linking sea and land in a single transport chain. While some companies had tried loading automobiles and trailers into ships (a technique that is now called roll-on & roll-off: ro/ro), the owner of this North Carolina trucking company, the magnate Malcolm McLean, wanted to maximize the amount of cargo per ship. He suggested removing the chassis of the truck and leaving only a box filled to the brim with goods on the ship’s deck. After acquiring a peripheral steamship firm (renamed Sea-Land), McLean had to remove himself from the chair of his previous hauling company, to avoid contravening the regulations of the US Interstate Chamber of Commerce.⁶⁴ In what has been called an “unprecedented piece of financial and legal engineering,” he pursued a leveraged buyout with a loan delivered by the National City Bank (now Citibank) to buy a bigger shipping firm: Waterman.⁶⁵ Then, he bought (through a subsidized government program) a couple of old World War II–era oil tankers, which he adapted to make the pioneer vessels of containerization. Instead of seeing McLean as a lone private entrepreneur, I argue that one must note his dependence on public subsidies and other elements of the regulatory landscape of the mid-fifties.

In his quest, McLean enlisted the help of an engineer named Keith Tantlinger from Brown industries (based in Spokane, Washington) to design the first modern shipping containers. These novel boxes could be stacked up to two when placed on a ship, travel by train, or fit in a chassis pulled by a truck, Tantlinger suggested a length of thirty-three feet just because the available space aboard the refitted oil tankers was divisible by thirty-three, making these new boxes at least seven times bigger than all previous experiments. The first container-carrying ship left port in New York in 1956, signaling the start of containerized trade on the US east coast. On the west coast, a rival company called Matson sailed its first hybrid ship in 1958, which was quickly followed by its first fully containerized ship in 1960. For Broeze, this was the threshold of a new decade in which “the fundamentals of the new system were determined, on the basis of which containerization during the 1970s could spread all over major trade routes of the world.”⁶⁶

Before this global expansion could take flight, the “early days of containerization … were plagued by the kind of format war familiar to historians of science: differences in widths, interlocking methods, and internal as well as external specifications generated turbulence.”⁶⁷ In 1957, McLean had used a slightly bigger model of thirty-five-foot long containers, as this was the maximum length of trucks allowed by the state of Pennsylvania. Over on the west coast, Matson instead opted to carry out an “extensive engineering analysis” that revealed that twenty-four feet was the best length for the narrow Hawaiian roadways, which their business model wanted to conquer. Moreover, after the Korean War, the US Army had been using ten-foot “Conex” boxes. With the purpose of calming the standards wars raging between overlapping regulatory authorities and competing companies, the US Maritime Administration (MarAD) created a panel in 1958 tasked with the creation of universal sizes for containers. The same year, the American Standards Association (ASA) (renamed to the American National Standards Institute [ANSI] in 1969), a private nonprofit organization, also created a task force with the same aim. Then the National Defense Transportation Association also demanded a seat at the table. The stage was set for a competition between different visions of (self-)regulation by private and public actors. I suggest we see this confrontation as an early case of what Delimatsis identifies as instances of “voluntary economic activism.” Each transport operator sought to cloak their private – and even often patented – standards with a stamp of public approval, thus setting the industry-wide norms of conduct. While the old system of maritime trade was not, yet, in crisis, private and public actors quickly understood that the potential of standardized containerized trade could create a “critical juncture” to reshape the rules of the game.⁶⁸

In this context, MarAD created two expert commissions (on dimensions, construction, and fittings) tasked with endorsing “the principle of standardization of container sizes for the United States Merchant Marine.”⁶⁹ This was not a minor issue, because only the ships that accommodated standardized containers could be allocated public “differential subsidie[s], mortgage insurance or other form of Government aid.”⁷⁰ This can be seen as a pioneer case of “free riding of private ordering”: non-state actors benefit from state legitimacy and even public subsidies without assuming the political costs of their outward role as standard-makers. These norms, as Delimatsis argues, function “in the shadow of the state” but still have a very heavy weight in the sliding scale of bindingness due to their function as gatekeepers to the market or to public aid.⁷¹

Due to the importance of these standards, it quickly became clear that creating a single universal size would not be easy, these committees instead tried to make a “modular family” of containers. In their proceedings, they argued that they “would have to be guided mainly by domestic requirements with the hope that foreign practice would gradually conform to our standards.”⁷² Hence, they settled on a width of eight feet, as this was the average dimension in US regulations (whereas some European railroads and highways had a limitation of seven feet). The question of length, however, proved more controversial: as we have seen, the shipping companies of the east coast tended to prefer longer containers (thirty-five feet) whereas west coast firms would have preferred a length of twenty-four feet. As a compromise, MarAD suggested a modular family based on multiples of eight: eight feet, sixteen feet, twenty-four feet, thirty-two feet, and forty feet.⁷³

On the other hand, also in 1958, ASA had created a Materials Handling Sectional Committee (MH-5). This committee was composed of several subcommittees, one of them tasked with “van” containers.⁷⁴ This body suggested instead a modular family of twelve feet, seventeen feet, twenty feet, twenty-four feet, thirty-five feet, and forty feet. Against them both, the National Defense Transportation Association (which represented firms handling military cargo, without participation from “civil” shipping or trucking companies) instead pushed for the adoption of a system comprising lengths of multiples of ten feet (to facilitate integration with the Army’s Conex format).⁷⁵ In the midst of this dispute, the chairperson of ASA’s MH-5 surprisingly agreed with the military cargo companies’ standards and argued for the elimination of the twenty-four foot and thirty-five foot sizes and to instead adopt a modular family of ten feet, twenty feet, thirty feet, and forty feet.⁷⁶ In “three critical meetings” that occurred in late 1959, this proposal was eventually ratified.⁷⁷ This left the two early proponents, Sea-Land and Matson, with abnormal sizes compared to the agreed upon standards. While they would try to overturn these sizes throughout the sixties (eventually raising their complaints against the ASA all the way up to the US Congress), their ultimate defeat meant that standardization helped latecomers “gain at the expense of the pioneers.”⁷⁸

This struggle in the United States ultimately proved to be only a dress rehearsal for a later global dispute that began when, in 1961, the ISO created its own committee for the standardization of containers (chaired by the ASA).⁷⁹ As Vince Gray (who worked in the US Merchant Marine Academy, the ASA, the US Navy, the US delegation to ISO, and ISO itself) reminds us, when ASA brought their case before the ISO for the creation of an ISO committee on container standards, they did so because they wanted to globalize their national formula.⁸⁰ The assigned committee, Technical Committee 104, would have its inaugural meeting in New York (1961), followed by other meetings in France (1964), Germany (1964), The Netherlands (1965), London (1967), and the USSR (1967), and it would adopt its first global standard, ISO 668, in 1968. In 2020, this standard has just been updated for the seventh time, and it has now been joined by a wide variety of ISO standards on shipping containers.⁸¹ It would be too simplistic, however, to tell this story as if it were simply a US imposition on the rest of the world.⁸² Klose aptly noted that Kurt Eckelmann (the Hamburg-based shipping magnate who chaired the ISO’s subcommittee on container sizes) pushed for the ASA standards due to the profound divisions among the European delegations (and the absence of the global south at the negotiation table).⁸³

For this reason, it would be more precise to narrate the ISO negotiation process as a long dispute not only between national preferences but also among the different transportation philosophies of shipping, trucking, and train executives from all around the North Atlantic region. Length and sizes were not the only thorny questions at hand. While Sea-Land had initially threatened to sue the firms that followed their interlocking designs, McLean and Tantlinger eventually permitted royalty-free use of their corner castings and twist locks.⁸⁴ At the end of the process, the 1967 draft forwarded by the ISO to its member bodies for review included three accepted series of sizes, of which only Series 1 became a universal industry standard.⁸⁵ According to this model, boxes should comply with a uniform height and width of eight feet (or 2,435 millimeters) and could have lengths of forty feet (12.192 meters), thirty feet (9.144 meters), twenty feet (6.096 meters), or ten feet (3.048 m).⁸⁶ These new sizes eventually became the “universal yardstick of the brave new world of containerisation.”⁸⁷ Ever since, the acronym TEU (twenty-foot equivalent unit) became a cornerstone of the new universal language of the maritime trade. The later global (and perhaps neoliberal) development of the containerization only became possible due to these seemingly banal normalized series of material practices and discursive knowledge that entrench a particular socio-technical imaginary of world commercial integration.⁸⁸

12.4 Concluding Remarks: Material Standards in Global Governance

In their pathbreaking history of global standards, Yates and Murphy argue that we could periodize the creation of transnational engineering norms in at least three waves.⁸⁹ While they recognize the undeniable importance of the “third wave” that emerged in the late eighties,⁹⁰ they insist on the pioneer efforts of the late nineteenth century and the historical relevance of the processes that led to the creation of standards for a global market in the sixties and seventies.⁹¹ In my view, international legal scholars have tended to focus mostly on the (undeniably important) actors and events of this third wave, paying little heed to the longer history of technical standardization.⁹² In a way, this is entirely understandable – the third wave standards seem to deal with cutting-edge issues of social regulation that intersect with certain traditional legal concerns, like corporate social responsibility or environmental protection.⁹³ Most importantly, the rise of the service economy has led scholars to focus their attention on the immaterial and digital “containers” that underpin global commerce today, instead of the sturdy old boxes that remind us more of the technological feats of yesteryear.⁹⁴

Instead, I conclude this chapter with a plea for the interrogation of “old twentieth century” technological devices, especially their material implications. As I have explored more elsewhere, in the last decades across the social sciences and the humanities there have been important calls to reengage with the materiality of the social world, in the wake of the critique of the fascination of our intellectual age with discourse.⁹⁵ Slowly but surely, even our discipline has come up to speed with this “new materialist” perspective that comes from feminist social theory and the history of science, leading to new studies of the material practices, objects, and infrastructures of global governance.⁹⁶ But, as I have argued in the past, one of the limitations of these first waves of new materialist interventions has been their fidelity to “traditional” state and consent-centered understandings of regulation. As Pottage has argued in the case of new materialists approaches to domestic law, often our work has been “too indulgent of the lawyer’s sense of the law.”⁹⁷ Perhaps we have been caught under Article 38’s specter of sources,⁹⁸ in our studies of legal documents, rituals, and courts.

For this reason, the materiality of standards (and the standardization of materiality) remains a relatively unexplored and promising area for further cross-fertilization between new materialist approaches and a transnational law perspective. This chapter, with its incipient exploration of the little-known history of material standards in the history of maritime commerce is only but a snapshot of the many instances the relation between (private) expertise and physical and technical infrastructures colluded to create socio-technical imaginaries of world ordering. If we are, indeed, living in an era of “Private Ordering 2.0,” perhaps it might be helpful to unearth the blueprints of previous hybrid regulatory constellations that preceded the age of the “territorial” and “public” nation-state. In hindsight, such an age might appear as a rather short interlude in a longer span of time marked by “private” and “extraterritorial” forms of global ordering.⁹⁹