The politics of whitelisting: Regulatory work and topologies in commercial security

Whitelists in commercial security

As this special issue underscores, lists are omnipresent in a wide range of forms and political roles. The kinds of lists dealt with here are whitelists in commercial security. The emergence and growing centrality of these whitelists is closely tied to the development of Codes, Best Practices, Benchmarks and Standards (COBBES henceforth). COBBES are hailed as the most (or only) effective response to the complexity of regulating contemporary markets in general. Their malleable, fluid or ‘soft’ form, it is suggested, makes them ideal for handling the many legal and regulatory ‘contradictions’, ‘paradoxes’ and ‘dissonances’ generated by activities that span a range of regulatory spaces (e.g. Fischer-Lescano and Teubner, 2004; Stark et al., 2009; Teubner, 2011). In commercial security, the value of COBBES is further heightened, as they circumvent the political sensitivities that mar all and any regulatory initiative in the area. ‘The very fact of privatization − with its hybrid public-private character − may open up alternative avenues of accountability beyond the formal instruments of international law’, as Dickinson puts it (2005: 141). In commercial security, governments, international organizations, NGOs, interest groups and companies have therefore elaborated a minor forest of standards and codes of conduct (Leander, 2009).

The lists this paper deals with show who has signed up to a specific set of COBBES. In the article, these lists are referred to as whitelists and often in the plural. The reason for the plural is that the article is intent on describing how they (in plural as a horde of minions) transform regulatory politics. This plural does not imply that all whitelists in commercial security lists are the same. They are not. Lists are published by the sponsors of a set of COBBES to show who is committed to them, as well as by companies or organizations to inform what COBBES they have signed up to. These lists refer to a wide range of issues and contexts and therefore are very different, not only in terms of what they are referring to, but also in terms of which entities figure on them and what kind of structure and length they have. This said, the lists in plural can have effects collectively, like other entities that are diverse internally, including NGOs, political parties, companies or states.

But why whitelists? The lists in commercial security are positive lists. There are no negative blacklists. The lists indicate what companies and organizations have signed up to what COBBES. Figuring on these lists provides ‘a particular privilege, service, mobility, access or recognition’ the nature of which obviously varies with the COBBES. Being committed to a set of COBBES may be a precondition for competing for a contract or it may just be a matter of demonstrating that one deserves to be ‘considered acceptable or trustworthy’. Either way, this combination of a particular privilege and a status as acceptable and trustworthy is the dictionary definition of a whitelist (Oxford Dictionary online; also Bedford in this issue). It is important to note that in commercial security this whitelisting does not signal anything beyond an expressed commitment. However, even so, figuring on the lists is the source of privileges and a token of trustworthiness. Disregarding this by not terming the lists pertaining to the COBBES in commercial security whitelists would be misleading and biased.

Three characteristics of lists

To describe the politics of these whitelists, the account below focuses on three interrelated general characteristics of lists that figure prominently in more general discussions of lists and (therefore) also recur in the other articles in this special issue, namely that lists rely on discontinuity and abstraction from context, that they can (therefore) connect these contexts and that they orient towards the future in suspending conflict and contradictions in the present. Another way of summarizing these characteristics is to follow Eco, who distinguishes between practical, pragmatic and poetic lists (2009: 113).

First, to the practical character of lists: as Goody points out in his account of why lists have been core to the development of abstract cultures based on writing from the Sumer to our own, it is because ‘the list relies on discontinuity rather than continuity’ (Goody, 1977: 81). His general point is that lists escape the embedded, embodied, narrative and contextual. Working by discontinuity makes it possible to compile and link things according to abstract, flexible and possibly changing classificatory schemes. According to Goody, lists are therefore central to the development of complex economic and state organizations and to the specific form of abstract and classificatory thinking that accompany these. Lists can be searched and information retrieved without first disengaging and disentangling it from a sticky and complicating context precisely because they abstract from otherwise complex, heterogeneous, contradictory and conflicting information. Bringing out the politics of this ‘invisible work’ of abstracting is at the heart of Staeheli’s treatment of lists (2012, and this issue). Borges famously used lists precisely to bring together the seemingly inconsistent and unrelated. ³ Similarly, to include the heterogeneous content that he thinks is needed to understand the Columbian drug trade without having to impose a single logic on it, anthropologist Taussig relies on a list to provide an inventory of what he terms ‘My Columbian Cocaine Museum’ (2004). As Borges’ and Taussig’s lists indicate, lists work through discontinuity, abstracting from context. This allows them to take on an essential, compiling, role. They are practical, in Eco’s terms.

Related to this is a second characteristic of lists, namely that lists often work to link and relate diverse and perhaps contradictory and incompatible contexts. Because they are abstract, lists can also be acceptable across contexts. They can work as ‘boundary objects’, spanning the boundaries between contexts and hence linking them while taking on different and perhaps contradictory roles in each. As Star insists, precisely this is a key (frequently overlooked) role of boundary objects. According to her, boundary objects make it possible to have ‘a sort of arrangement that allows different groups to work together without consensus’ (Star, 2010: 602). Lists function similarly. They can pragmatically (to use Eco’s terminology again) link different contexts without being marred by their contradictions and incompatibilities. The pragmatism of lists makes it possible for them to occupy a fore place in a ‘Global Law’ in which ‘lists plus algorithms’ are ‘conduits’, ‘shortcuts’ and ‘objects’ (Johns this issue). More generally, the fact that boundary objects link contexts often makes them the fall-back option, something relied upon by default as it were. ‘When an object [in this case a whitelist] becomes naturalized in more than one community of practice, its naturalization gains enormous power, to the extent that a basis is formed for dissent to be viewed as madness or heresy’ (Bowker and Star, 2000: 312).

The tendency to accept lists and allow them to become a ‘natural’ part of a context is reinforced by a third characteristic of lists, namely their openness and future orientation. Because lists work by disconnection and by tying contexts together, lists seem to follow an open-ended ‘logic of the ands’ (Fuller, 2005). Additions can be made. The criteria for adding to the list may be rethought and revised. This makes the list at least potentially follow a ‘logic of infinite addition’ (Staeheli, 2012; as well as Weber and de Goede and Sullivan in this issue). As Eco puts it: A book about lists ‘cannot but end with an etcetera’ (2009: 7). This openness and future orientation make lists appear full of potential. They direct attention away from an inscrutable present/past towards an open future. They evoke the ineffable as Eco emphasizes when discussing the poetic character of lists (2009, passim). The list is ‘seductive’ to a point where even those observing its politics are prone to be seduced and describe lists in almost lyrical terms (Staeheli, 2012: 238–240). Eco is certainly seduced by lists. As he explains to his readers he ‘did not hesitate for a second, and proposed the list’ when given a free hand by the Louvre to select a theme to work with in 2009 (Eco, 2009: 7).

These three characteristics do not mark all lists in the same way. ‘There are lists and lists’ (Eco, 2009: 112–130). A shopping list is no pragmatic enumeration and no approximation of the ineffable. This is no less true in commercial security than elsewhere. There are few lists that would immediately strike observers as poetic in commercial security. However, lists are not of one or the other kind. Rather, the three recurring characteristics of lists are interlinked and overlapping in a myriad of changing ways depending on the situation. The shopping list may have more in common with the approximation of the ineffable than we usually think. It may be not only practical but also a poetic expression of potential future relationships and bonds (Miller, 1998) or also a pragmatic part of a more general to-do-today list. The characteristics of lists are therefore neither pure nor essential nor unchanging. This is as true of whitelists in commercial security as of other lists. However, to bring out the politics of whitelisting, I direct attention to the significance of one characteristic at the time: that is to the practical, pragmatic and poetic sides of lists.

Tracing the politics of whitelist through their regulatory work and topological imprint

Conceiving of lists as doing politics may be controversial. It involves a contention that lists are not simply used, mobilized or interpreted in various ways that have political consequences, but that they are actually doing politics. Lists ‘come alive’ (Leyshon and Thrift, 2009). One way of insisting on this point is to present lists as ‘actants’. The idea of actants has been popularized through the work of Bruno Latour, who borrowed it from literary analysis, where it refers to someone or something that makes things happen in an account. The attractiveness of the term is that it makes the symmetry between the material and the human explicit. It opens up for conceiving of material objects, such as the whitelists in this article, as having a form of ‘agency’ that is of course distinct from human agency in many ways. It does not involve the same kind of cognitive, emotional and more generally psychic processes as human agency. However, the agency of lists remains symmetrical in that they can make things happen and can therefore also be held co-responsible for political developments. Obviously (and again symmetrically to human actants), they do so in a context as part of an ‘agencement’ or a ‘network’ or a field (Callon, 2008: 35 ff; Latour, 2005: 54 passim; Leander, 2013).

The question then becomes how to best engage the politics that these actants are part of making happen. For the purpose of this article, I distinguish between the politics that inheres in the regulatory work of the actants/whitelists and the imprint the actants/work leave on the regulatory topology more generally. This distinction is inspired by work in the Deleuzian tradition (where Stengers also locates her work). More specifically, it stems from Manuel DeLanda’s distinction between ‘assemblage’ and ‘topology’ (2006), where assemblage captures the actual (the work done by lists) and topology the folding of the present into the future (the imprint of this work). The two are obviously linked. However, as DeLanda puts it:

Assemblage theory is not conceptual but causal, concerned with the actual mechanisms operating at a given spatial scale. On the other hand, the topological structure defining the diagram of an assemblage is not actual but virtual and mechanism independent, capable of being realized in a variety of actual mechanisms, so it demands a different form of analysis. (DeLanda, 2006: 31)

To return to ‘breaking the spell’, this article provides a description of how a specific group of minions (whitelists) do politics. It looks at how the work they do helps assemble a specific form of regulatory politics, and it looks at the imprints left by their constant activities on the regulatory topology. The politics of these whitelists is described through a focus on how three general characteristics of lists – their practical, pragmatic and poetic character – fashion their work and its topological imprint. To look ahead, the place this description will lead to is one from which it is easier to grasp, resist and refashion the role of whitelists in turning a soft- or self-regulated commercial security market into an ‘infernal alternative’.

Staking out regulatory space

The practical character of whitelists allows them to do important signposting work. They delineate the territory of the COBBES in commercial security. This is much needed. It is far from clear which COBBES apply to whom in what context. COBBES may be formulated by international organizations, by national governments, by professional associations or by companies. In practice, therefore, a multiplicity of codes and standards coexist and overlap. In a strong manifestation of the ‘fragmentation of international law’, COBBES relevant to commercial security seem to be in effect mushrooming. Providing an overview of these COBBES is far beyond the scope of this paper. The importance of any specific COBBES is both context specific and deeply contested. In some situations, adhering to a specific set of COBBES is turned into an obligation, and its significance is therefore relatively uncontroversial. ⁴ In other cases, COBBES are followed because of pressures from advocacy groups, the activities of an energetic manager or the views of a consultancy company. ⁵ This makes the weight of the COBBES uncertain. Not surprisingly therefore, finding out which COBBES exist in any given context at a precise time and to whom they apply is exceedingly difficult. In 2007, one single company, ArmorGroup, pledged to abide by more than 30 different codes and standards (Leander, 2012: Table 1). That number would certainly have been different for another company at the time and would be different for ArmorGroup/G4S today.

This disputed and unstable multiplicity of COBBES renders the practical recording work done by the whitelists in commercial security vital. The whitelists indicate who, at any given time, has pledged to abide by a specific set of COBBES. The lists signpost the regulatory space of the COBBES. A graphic illustration of the central (and growing) role of this practical work is the development of the ICoC/ICoCA websites. ⁶ In 2013, the ICoC site featured a world map where countries were coloured according to how many signatory companies were headquartered there. This map occupied the bulk of the welcome page, visualizing the regulatory space of the ICoC. In 2015, the ICoCA had expanded the place it devoted to mapping and made the link between the maps and lists visible. As shown in Figure 1, the membership tab on the website displays the access to the searchable lists and the maps in direct connection. Both lists and maps are more refined and differentiated. It has become possible to visualize the private security companies, governments and civil society organizations separately. This emphasis on the mapping work of whitelists may be exceptionally strong on the ICoCA website. However, it usefully highlights the more general point that lists play a core role in the mapping of regulatory space, a point that is valid even if it is not fronted on the website of the COBBES the list refers to.

OPEN IN VIEWER

Figure 1.

Linking Lists and Regulatory Maps.

Establishing regulatory relations

The pragmatic character of lists makes them do a second kind of regulatory work in commercial security: that of managing relations between heterogeneous regulations. COBBES overlap not only with each other but also with other regulatory norms and legal arrangements. Administrative rules, regulations specific to companies, armed forces, states and international organizations, as well as national and international law cover the same terrain (for an overview, see Leander (2009)). This overlapping makes the question of how to handle the tensions and contradictions inevitable. Which code, standard, benchmark, best practice, law, norm or treaty counts? What should be done in case they are conflicting? What is the hierarchy of regulatory norms to be applied? Whitelists are helpful when it comes to answering, or better evading, these fundamentally political questions. Their pragmatic character afford them the position of the intermediary, who is not directly involved in or expressing the messy conflicts and tensions that need to be resolved, between each set of COBBES and the many rules and regulations with which they overlap.

Consider the way the relationship between the ICoC and other regulations is established. The UN and some states, including the US, have made ICoCA membership a condition for contracting. They require companies to figure on the ICoCA whitelist. Companies can pledge to abide by ICoC. Concretely, this implies figuring on the ICoCA whitelist or listing the company commitment to the ICoC among its COBBES commitments. The ICoC itself refers to a range of national and international laws as well as to best practices and company codes. Figuring on the ICoCA whitelist therefore establishes links to these forms of regulation. In all these cases, the list makes it possible not to sort out what the exact relationship between these multiple regulatory standards is or even begin arguing about what it should be. There is no need to for the UN or the US to make explicit what they think it means for contractors to follow the ICoC or how this might relate to other obligations. It is enough to refer to the whitelist. Analogously, the reference to the whitelist makes it unnecessary for the companies to explicate how exactly the ICoC relates to other COBBES, laws and norms they follow or for the ICoCA to clarify how it views the relationship between the many kinds of laws and regulations its Code refers to.

Whitelists, in sum, open the possibility of constructing a web of linkages that tie the heterogeneous and contradictory COBBES, rules and norms into a criss-crossing web of relationships. They can do this because they pragmatically leave out the details and allow the rules and regulations they are dealing with to remain in the background. The ICoC has been used to illustrate this, but the rationale is more general. A company listing the UN Guiding principles, the US/UK Voluntary Principles, the ANSI/ASIS PSC 1-4 (PSCI 1-4) or the Defense Industry Initiative (DII) is in effect doing something analogous. It places the list as an intermediary that pragmatically circumvents the complications of having to explicate what exactly this Code, Best Practice Benchmark or Standard means, including how adjustments, tensions or conflicts that arise from abiding by its rule are handled.

Prioritizing potentiality

Finally, their open character has made the whitelists do important work to confirm and consolidate the future orientation of regulation in commercial security. Those who promote COBBES are clear that, unlike classical law and binding rules, their regulatory norms are future oriented. As explained by the former vice president of BAE systems, who has also been directly active in developing core ethics codes, ⁷ ‘the goal here [with the IFBEC] is to actually influence correct conduct. It is not to punish them [companies that do not follow the rule]. It is about how we get them to do the right thing’ (Chadwick, 2013). COBBES emphasize ‘dialogue’ and ‘self-reporting’ intended to foster reflexivity and help companies become better at creatively imagining and engaging their tasks in ways conforming with the norms they are signing up to. Monitoring, policing and controlling are thought of as counterproductive for this process. They destroy the trust and engagement of the companies that dialogue and encouragement can generate. But more fundamentally, from this perspective, monitoring, punishments and expulsions from an association miss the point. They close the future. They block the possibility of supporting processes of improvement. As those responsible for the ethics code of the ADS (AeroSpace and Defence Industries Association of Europe; Salzmann, 2013) put it:

The NGOs have been railing on about their [large defence company’s] past demeanours. Our attitude is that they are setting a new bench mark in terms of corporate social responsibility behaviour policies. The new [major defence company] has very little, if any, relation to former [major defence company]. Therefore why punish someone on the basis of past misdemeanours by a previous management? We would rather have the possibility to work with them in the future.

The lists bolster the orientation towards potentiality also in a second way. They generate momentum and community around the COBBES. The lists are in most cases the concrete manifestation of the breadth and depth of the backing and support for the COBBES. They display who is committed to the set of COBBES besides the organization(s) that issued it. The lists hence demarcate the boundaries of the community backing a set of COBBES and not only of its regulatory space. These communities may be very different in size and type. A company code usually rests on a community of the employees of the company, who formulated it possibly extending to the subcontractors. Other codes, such as the DII, International Forum on Business Ethical Conduct (IFBEC) or the ICoC, have a varied range of signatories including states, advocacy groups, companies and international institutions. Either way, the display of commitment carried out by the list is important not only because it shows these differences among the communities but also because this display is essential for the momentum (or lack thereof) around the lists and hence for whether or not their boundaries expand or shrink. This has been the case for the ICoCA, where the reluctant enrolment of Civil Society Organizations has been prompted by the concern of being left out of a process that has seemed to gain momentum and importance. The lists’ display of commitment has the same performative effect as classical political representation. It represents a community which it creates in the process of representing it. The lists produce a version of the ‘mystery of ministry’ (Wacquant, 2005).

To sum up, the whitelists in commercial security do significant regulatory work. They signpost the regulatory space to which the COBBES apply, they help establish the relationship between the COBBES and other regulatory instruments, and they contribute to defining the community the COBBES rest on. This regulatory work is profoundly political. It weighs on what kind of rules apply where, how they are related and what kind of activities they regulate. But more than this, this regulatory work also enacts and enshrines the specific form of regulation the COBBES are tied to and the political choices that are embedded in them. It turns this form of regulation into the most feasible, useful and attractive form of regulation. Just as the minions produce the infernal alternatives necessary for the ‘spell of capitalism’ to retain its magic, so the regulatory work whitelists do produce the ‘infernal alternative’ of softly regulated commercial security. The next section takes this description further. It follows the imprints this work is leaving on the regulatory topology in commercial security.

The devaluation of evidence

Whitelists in commercial security have a practical, matter of fact, character. As underscored above, precisely this practical character enables list to take on an important role in signposting regulatory space. However, the practical disregard of context and complexity – the work by ‘discontinuity’ as Goody puts it – changes the place of evidence in regulatory debate. Inherent in the practical work of abstracting is the capacity to disregard and also dismiss the relevance of contextual evidence and empirical argument about who figures on the whitelists and why. Moving from the engaged and involved to the abstract and general, to begin ‘seeing like an index’, is at the heart of listing (as Staeheli explains in this issue). An implication is that referring to context and complexity to criticize or simply raise questions about the way lists signpost regulatory space (and work more generally) misses the point. ‘Evidence’ of what happens in a specific case or context is irrelevant.

This is true when it comes to debate about the regulatory space established by whitelists. Including Boeing on a list of companies abiding by a code of ethical conduct in relation to corruption or Triple Canopy on an Ethics Code pertaining to the provision of security services would be very difficult if the lists could not abstract. Their inclusion depends on disregarding the many contextual and complex bribery incidences involving Boeing and the ‘Big Boy Rules’ Triple Canopy reportedly draw on when dealing with civilians, independently of whether or not the accusations are warranted. Analogously, the practical capacity to work by discontinuity, to see like an index, also makes arguments referring to the complexities of the contextual appear irrelevant in the debate about the thematic scope of the regulatory space of lists. The claim that the same corruption ethics standards are adequate for companies ‘whether they do private security or sell Christmas decorations’ (Salzmann, 2013) is much easier to make if there is no need to consider the issues involved or the consequences of disregarding ethical standards in the two areas.

The devaluation of evidence is starkly expressed in the limited opportunity there is for bringing evidence to weigh upon specific whitelisting practices or the COBBES they are referring to. Institutionalized channels through which contextual evidence can be made relevant are scarce. The few COBBES that do institutionalize such channels, for example by creating complaint mechanisms, carefully guard information about their workings. The extent to which these mechanisms are functional at all is an open question. The message of the vice president of the ICRC – that ‘rules should be implemented’ – addressed to those gathered to celebrate the fifth anniversary of the Montreux Document ⁹ is therefore of more general pertinence (Beerli, 2013). Even COBBES purporting to embrace auditing and monitoring processes that would valorize evidence appear to have dysfunctional institutional channels. A case in point is the reportedly rigorous US PSC 1-4 standards. ANAB/ASIS PSC1 establishes that there are to be company-level complaints mechanisms. It leaves open how these should work and to what effect. Moreover, it does not require that complaints, their outcomes or the related reports be made public. The consequence is that, even in this case, contextual evidence and complaints based on it are marginalized or become invisible. ‘Have a look at it [the ANAB complaint mechanism ¹⁰ ]. I tried. It is impossible to find out what complaints were launched, let alone how they were handled’ (De Winter-Schmitt, 2013). ¹¹ Contextual evidence when brought forward in other words disappears. It may linger on in the background but is fundamentally devalued.

Ultimately, the whitelists work only to accurately register who has committed to following the COBBES in general terms. They are not concerned with the actual behaviour of those figuring on the list. ‘For ADS, it all depends on the sincerity of the company. If they don’t give a stuff, that would be born in mind. It is better to apologize and be forgiven’ as Salzmann explained (2013). There is no reference to actual behaviour, to evidence beyond a declared commitment. This systematic disregard of contextual evidence will no doubt suit some. However, no conspiracy is necessary for it to come about. The visible imprint left by the practical work of whitelists on the regulatory topology is sufficient.

The emergence of COBBES expertise

A second imprint left by the work of whitelists on the regulatory topology is the creation of a specific kind of expertise, a ‘COBBES expertise’. As underscored in the discussion above, the work of the lists requires a special pragmatic quality to link the different regulatory environments. This quality needs to be developed and nurtured. It does not spontaneously emerge from the lists to those involved in regulatory activities. As in other professions, those involved in regulation defend their own turf in the overall landscape. ¹² There is no reason for them to enthusiastically embrace the COBBES establishing themselves, threatening their turf and worse still purporting to be masterminding the map of regulatory relationships, let alone even allow this if they had a choice.

Rather, a range of COBBES-specific pragmatic practices, involving people invested in the COBBES, and COBBES-specific documents and technologies are integral to the work COBBES do in imposing regulatory relationships. Just like the practices of any profession, and if we should believe Latour (2010¹³) of the legal and regulatory profession in particular, these practices are largely self-referential, those involved draw lessons from their work and that of their colleagues. Existing documents and technologies become the foundation for further work and developments. As the former director of the IFBEC explained:

When we created our company accountability questionnaire, we started with the parallel document from the US DII plus the TII Defense Companies Anti-Corruption Index questionnaire. We then picked and chose from those documents and added what we thought were important elements not covered by either of those sources. (Chadwick, 2013)

This self-referential expertise is inserting itself into the regulatory map and altering it in the process. It is also affecting the position of other forms of authoritative knowledge in the field and hence their possibilities of engaging in regulatory work, whether related to specific COBBES or more generally. Most obviously, the growth of a specific COBBES-related expertise weakens the standing of critics who do not wish to accept the terms of debate and who are also prone to exclude themselves. This often becomes the foundation for deploring the absence of reasonable and rational critique. Occasionally, it becomes an object of critique. The US-based feminist organization Code Pink, for example, issued a fake press release in the wake of the Nisour Square shooting stating that Blackwater was creating a new ‘Department of Corporate Integrity’ that would put the ‘mercy back in mercenary’ (Code Pink, 2007). Besides obviously criticizing Blackwater, this fake press release ridiculed the self-referential regulatory debate focussed largely on self-regulation through codes of conduct. It clearly stated that Code Pink was not willing to partake in a regulatory debate on those terms.

The emergence of this pragmatic regulatory expertise is not only weakening the position of critics and experts who reject and refuse to engage COBBES altogether, but is also weakening many conventional legal experts and regulators who are interested in the process, would like to engage with it but who raise critical points about the COBBES form of regulation or are not specialized in that area. Human rights advocates and lawyers, for example, often find themselves relegated to peripheral positions, as they fall outside the self-referential circle of COBBES experts and yet work on a terrain closely related to it. ¹⁵ A case in point is the shifting fortunes of the UN working group on mercenaries. It began holding a central place as a venue in which regulation could be discussed, and it continues to actively engage in reporting on and working with the regulation. However, with the emergence of alternative fora and the fragmentation of regulatory expertise, it has been excluded. For example, in relation to the ICoC process, although the UN Office of the High Commissioner for Human Rights (OHCHR) under which the working group is placed is based in Geneva, as are Democratic Control over Armed Forces and the International Committee of the Red Cross (ICRC), who initiated and are pushing the ICoC, although the people know each other, and although the working group is interested in the ongoing process, it is not involved, not even in a consulting function. ¹⁶ On the contrary, it is often summarily dismissed. ¹⁷ Along with other specialized (non-COBBES) forms of expertise, its role in the regulatory landscape has been decidedly diminished.

In spite of the insistence on ‘dialogue’ and ‘inclusiveness’ in most COBBES contexts, the work of the whitelists is in sum generating an exclusive and self-referential expertise that is increasingly influential in regulatory debates. Arguably, this is precisely what pragmatic expertise is all about. It is an expertise that marginalizes experts who would take strong and hence non-pragmatic positions – like the UN working group in favour of a binding instrument for example – undermining the seemingly smooth and non-conflictual interlinking of regulatory forms. The pragmatic work done by lists is not only affecting the regulatory topology by leaving its own imprint but in the process it is also shifting the place of other experts and their expertise.

The displacement of criticism

A final imprint left by the whitelists is that they have restricted the scope for criticism. The emphasis placed on potential also works as a soundproofing against the disturbing noise of criticism. If indeed ‘the important thing is to have the standards [and] having the standards is more important than what exactly they say’ (Chadwick, 2013) because they have potential, then clearly critique is difficult to wage. To become credible, criticism has to show that the alleged potential does not exist. It has to present an image of the future persuasively demonstrating that the potentiality the list opens up is either absent or, even more strongly, that allowing the work of the lists to continue would have some regrettable consequence. Constructing such an image is difficult. It requires nothing less than becoming a reader of the future, a soothsayer, to be taken seriously. This feat is formidable. It requires overcoming the positive mood, the atmosphere of optimism, which surrounds ‘potentiality’. This includes both the positive affect generated around COBBES specifically – i.e. the promise that they will be the solution to the regulatory conundrums that mark commercial security – and the more generally positive affect generated by the idea of ‘potentiality’ that has become a trope of contemporary management and politics (e.g. Holmqvist and Spicer, 2012). Criticism therefore begins from a singularly weak position. There is no need for Apollo’s curse to make critics of the whitelists and the COBBES appear as the Cassandras. Potentiality does the work.

The focus on potentiality displaces critique by making its emergence less likely and the form it takes when it does emerge easier to reject. This is so strong that those observing the regulatory discussions lament the weakness/absence of Civil Society engagement. They have been surprisingly ‘friendly’, as Joachim and Schneiker (2012) put it. Or as the Amnesty International Business and Human Rights Initiative explained with respect to the ICoC process specifically: ‘The civil society representation is really weak. There are tremendous shortcomings… there are no Southern states, no Southern NGOs’ (DeWinter-Schmitt, 2013). At the same time a considerable number of very important civil society initiatives have formulated fundamental criticism. War on Want (2006), Human Rights First (2008), International Alert (2003), StateWatch (2010) and CorpWatch (2009) have all participated in the painstaking effort of documenting abuses and suggesting better regulations. Organizations such as the American Civil Liberties Union, The Centre for Constitutional Rights or the Centre for Public Integrity have placed the emphasis on the need for more effective legislation. ¹⁸ However, these engagements are not reflected upon in the processes surrounding the COBBES. Instead, the critical work of civil society organizations is reduced to a refusal to engage; a ‘radical and unreasonable attitude', as a government representative at the Montreux +5 Conference put it in his response NGO criticism. ¹⁹ The displacement of conventionally formulated critique as radical and unreasonable may be one of the reasons art and irony are occupying a growing space, as illustrated for example by the already cited Pink Code fake press release.

The displacement of criticism both by weakening its credibility and by dismissing it as radical and unreasonable makes it possible to present the whitelisting processes and the COBBES they refer to as if they were consensual. This consensus in turn becomes a reason for sticking to the status quo of the listing practices and for not responding to whatever critique about them transpires through the cracks in the soundproofing wall. As Chadwick phrased it when reflecting upon the possible inclusion of a human rights provision in the IFBEC standard:

We could be accused of not being expansive enough, not moving quickly enough. However, we would rather implement something we know everyone can agree on, dig our heels and grow slowly. That is far better than trying to achieve a perfect world tomorrow and, therefore, get no consensus and no action at all. (Chadwick, 2013)