Stream 6
Cooperative law
Stream leads: Ifigeneia Douvitsa (member, ICA Cooperative Law Committee), Santosh Kumar (Legislation Director, ICA), Hagen Henrÿ (member, ICA Cooperative Law Committee)
Stream Committee: Ifigeneia Douvitsa (member, ICA Cooperative Law Committee), Santosh Kumar (Legislation Director, ICA), Hagen Henrÿ (member, ICA Cooperative Law Committee), David Hiez (President, Ius Cooperativum)
Description:
In 2025 the world will celebrate the 2nd International Year of Cooperatives (IYC) within only 13 years. The respective United Nations resolutions (Doc. A/RES/64/136 and Doc. A/C.3/78/L.11) call/ed on governments to conform their cooperative law to the 1995 International Cooperative Alliance Statement on the cooperative identity (ICA Statement). The content of the ICA Statement, a definition of cooperatives, values and principles, is referred to hereunder as “the cooperative principles”. These resolutions summarize preceding instruments of international organizations which go into much detail as concerns such cooperative law. To mention but the 2001 United Nations Draft guidelines aimed at creating a supportive environment for the development of cooperatives, the Promotion of Cooperatives Recommendation, 2002 [No. 193] of the International Labor Organization (ILO R. 193) and the 2021 United Nations Secretary-General Report on “Cooperatives in social development”.
While these repeated calls on governments – four times in less than 25 years – indicate persistent shortcomings, this period has also seen the inclusion of the cooperative principles in whole, in part, with modifications or by reference in the regional uniform laws on cooperatives (OHADA Cooperative Societies Law; East African Community Cooperative Societies Bill; European Union Council Regulation (EC) No 1435/2003 on the Statute for a European Cooperative Society (SCE)), regional model laws on cooperatives (ICA Framework Law for Cooperatives in Latin America; African Union Law on Cooperatives for Africa), as well as in many national laws on cooperatives.
Against this background, the Stream on Cooperative Law will address three interrelated areas, two relating rather to where we stand, the third one to where we might have to go, namely: Public international law and cooperative law; cooperative law reforms since the adoption of ILO R. 193 and especially between the first and the second IYC (2012-2025); and future cooperative law.
As concerns the first area, contributions might establish whether or not public international cooperative law exists and in which way it orients legislators to translate the cooperative principles. The above mentioned international instruments, especially when read in the context of the two Human Rights Covenants (ICCPR and CESCR), the legal concept of sustainable development and the Articles of Association of the ICA, as well as the mentioned inclusion of the cooperative principles in regional and national laws on cooperatives might constitute one or several sources of public international law according to Article 38 of the Statute of the International Court of Justice.
As concerns the second area, contributions are to take stock of what has been achieved and what remains to be achieved in terms of the translation into law of the cooperative principles.
As concerns the third area, contributions are to suggest legislative solutions to changes in the world of enterprises, of which cooperatives are a part. Indeed, the world of enterprises is undergoing radical changes, mainly caused by the factors of globalization, namely digitization, digitalization and the technical means to transfer data quasi instantaneously. These changes affect the structure of cooperatives and the perception of the social and societal role enterprises should play. The structure of cooperatives has become/is becoming more complex as far as the notion of members, the activities and the beneficiaries of these activities are concerned. In addition, new cooperative structures mix private and public actors and interests, as well non-commercial and commercial approaches, and they fuse the figures of producer, distributor and consumer. While the factors of globalization open hitherto underused possibilities to materialize democratic member participation, which runs as a metaprinciple through all parts of the ICA Statement, they also cause or allow enterprises of all types to mutate from being singular permanent entities that link their operations by means of contracts with other entities to becoming organizational elements of more or less permanent global vertical and horizontal value chains. Elements of the value chains or whole value chains dissolve into networks of global ephemeral and amorphous actors. They mutate from being collectives to being connectives. The value chains compose of different enterprise types subject to different national and/or regional laws. So far, the value chains themselves are not subject to any law, but are often regulated by the general contract clauses imposed by the chain leaders. It appears that the networks of actors cannot be regulated by law, but they are ever more regulated by algorithms whose authors are either anonymous or non-tangible.
It is unclear how the metaprinciple of member democratic participation can materialize through cooperative law in these new types of cooperatives, in such value chains and networks. But if we take this metaprinciple as that distinctive characteristic which continues setting cooperatives apart from other enterprise forms beyond that which is being required by the Corporate Social Responsibility (CSR) and from the social and solidarity economy actors, then the cooperative law will have to accommodate these changes in order to allow and empower cooperatives to remain economically, socially and culturally relevant for their members and the communities in which they act, as required by their definition and by the 7th ICA Principle.
At the same time, these changes require scrutinizing the notion of cooperative law in at least six directions: firstly, the scope of cooperative law cannot be limited to the law on cooperatives, but it must comprise any other legal principle, rule or practice that affects the organization of cooperatives; secondly, the individualistic notion of law as it currently dominates the legal discourse might not serve as vehicle for the expression of the core element of cooperatives which is solidarity; thirdly, in light of the ‘de-organization’ of enterprises (from collectives to connectives) the current notion of cooperative law as organizational law might have to be complemented with a notion that institutionalizes the idea of cooperatives without necessarily organizing it; fourthly, as the factors of globalization reduce the outreach of state laws, and by extension that of regional and international laws, and as the social and societal responsibility of enterprises increases as expressed in the notion of stakeholder and as it juridifies, not the least in view of the requirements of the legal concept of sustainable development, other laws than state laws, such as for example, religious law, customary laws, standards set by private actors, law of or in the informal sectors, have to be taken into account; fifthly, different laws meet ever more frequently and need articulating, for example in cooperatives in which the members do not share the same culture and where cooperatives integrate organizationally into global value chains. Articulating these different laws is to take the centrality of the person in cooperatives seriously; it improves the implementation of the cooperative law; and it allows ‘constructing’ social justice. Social justice is the central aspect of sustainable development. It cannot be anything else than a fabric of the different perceptions of social justice of which all laws in a specific situation are the most adequate expression; and, sixthly, as indicated by the foregoing five directions, the notion of law must both be a composite of and an enabler for the existence of different and diverse laws.
Contributions
Not excluding other themes, the chairs of this stream suggest the following themes related to the cooperative principles and to cooperative law as defined in the description:
Regional and national cooperative law and public international law;
Regional and national cooperative law and the legal concept of sustainable development;
Cooperative law-making and implementation;
Cooperative law reforms since the adoption of ILO R. 193 and especially during the period between the 1st and the 2nd IYC;
Cooperative law and new types of cooperatives;
Cooperative law, cooperation among cooperatives according to the 6th ICA Principle, value chains and networks;
Cooperative law and algorithms;
Cooperative law and the legal concept/principle/goal/objective of sustainable development;
Cooperative law and sustainability reporting standards;
Cooperative law and the laws on the social and/or solidarity economy;
Cooperative law, comparative law and the notion of law.
References:
the 1966 International Covenant on Civil and Political Rights (ICCPR);
the 1966 International Covenant on Economic, Social and Cultural Rights (CESCR);
the 1995 International Cooperative Alliance Statement on the co-operative identity (International Co-operative Review, Vol. 88, no. 4/1995, 85 f.; http://ica.coop/en/whats-co-op/co-operative-identity-values-principles);
the 2001 United Nations Draft guidelines aimed at creating a supportive environment for the development of cooperatives (Annex to the 2001 Report of the Secretary-General of the United Nations on “Cooperatives in social development”, Doc. A/56/73-E/2001/68);
the Promotion of Cooperatives Recommendation, 2002 [No. 193], of the International Labor Organization (www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:R193);
the 2021 Report of the Secretary-General of the United Nations on “Cooperatives in social development” (Doc. A/76/209);
ICA Articles of Association (Article 12.1 in connection with the Appendix ’A’). (https://www.ica.coop/en/about-us/our-structure/alliance-rules-and-laws)
Concerning the legal concept/principle/goal/objective of sustainable development, see
Case Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment. I.C.J. Reports 1997, Paragraph 140;
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports (2010) 14 at Paragraph 177;
Indus Waters Kishenganga (Pakistan v. India), Partial award 2013, at Paragraph 450.
As for sustainable development being a legal principle, see also Voigt, C., Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law, Nijhoff 2008.