Unbundling the Regime Complex: The Effects of Private
Authority
Jessica F. Green* & Graeme Auld**
Abstract
The work on 'regime complexes'—loosely coupled regimes linked through non-‐hierarchical relationships—provides
a lens for understanding the increasing density of international rules and institutions. However, the role of private
authority in the regime complex—situations where non-‐state actors set rules or standards that other actors
adopt—has only recently received academic attention. In this article, we 'unbundle' the concept of the regime
complex in two novel ways. First, we argue that an accurate depiction of any regime complex must also include
private authority. Second, using examples from environmental governance, we carefully elaborate four specific
mechanisms through which public and private authority interact, demonstrating the ways in which private
authority can improve the problem-‐solving capacity of regime complexes. In short, a full understanding of the
contributions of private authority to solving environmental problems requires examining its interactions with
public rules and institutions.
Keywords: Environmental governance, regime complex, international cooperation, private authority
Acknowledgements:
We thank Jennifer Hadden, Virginia Haufler, Robert Keohane, Stacy Vandeveer for their helpful comments on
earlier versions of this paper. We also appreciated the feedback received from participants at the Transnational
Governance Interactions — Theoretical Approaches, Empirical Contexts and Practitioners’ Perspectives workshop
held at the European University Institute in Florence, Italy in May 2011, and at the Annual Meeting of the
American Political Science Association in September 2011 held in Seattle, Washington. The final article benefited
considerably from the comments of four referees and the editorial team at Transnational Environmental Law.
*
Corresponding author. New York University, Department of Environmental Studies, New York, NY (United
States). Email: jessica.green@nyu.edu. Green and Auld are equal authors.
**
Carleton University, School of Public Policy and Administration, Ottawa, ON (Canada)
Email: graeme.auld@carleton.ca.
1. INTRODUCTION
The growth in interdependence among states has produced a corresponding increase in governance activities to
manage that interdependence. Observers of world politics have noted (and politicians have criticized) the
increasing density and complexity of institutional arrangements.1 This is particularly true in the area of global
environmental governance, which has experienced a proliferation of new types of institutions and actors in the
transnational arena. Work on ‘regime complexity’ seeks to understand the interactions among regimes in a given
issue area which are loosely linked through non-‐hierarchical relationships.2 This analytic focus has helped to
identify and explain important patterns such as forum shifting, less visible in studies of single regimes. However,
with few exceptions, which cluster in the area of climate change, research on regime complexity neglects the role
of private authority.3
Private authority—situations where non-‐state actors set rules or standards that other actors in world politics
adopt—occurs in an increasing diversity of issue areas, including the environment.4 In this article, we begin from
the well-‐accepted observation that private authority often emerges when there are gaps in public authority.5 That
is, where governments are unable or choose not to govern, 'entrepreneurial' private actors have an opportunity to
create rules to fill the void. In the environmental arena, these include environmental certification schemes such as
organic food or sustainable timber,6 as well as the adoption of environmental standards or disclosure practices,
such as the ISO 14001 standard or the Global Reporting Initiative
Despite fairly extensive study of the emergence of private authority,7 research on interactions between public and
private authority is still relatively new. Most work to date offers frameworks for studying interactions, or looks at
specific cases.8 Moreover, the few studies that do consider private initiatives include a wide range of governance
1
See, e.g. M. Munoz, R. Thrasher and A. Najam, ‘Measuring the Negotiation Burden of Multilateral Environmental
Agreements’ (2009) 9(4) Global Environmental Politics, pp. 1-‐14; T. Bartley, ‘Transnational Governance as the
Layering of Rules: Intersections of Public and Private Standards, (2011) 12(2) Theoretical Inquiries in Law, pp. 517-‐
542.
2
We review this literature in detail in Section 3.
3
J.F. Green, Rethinking Private Authority (Princeton University Press, 2014); H. Bulkeley et. al. Transnational
Climate Change Governance (Cambridge University Press, 2014).
4
Green, n. 3 above, 6.
5
See, e.g. B. Cashore, G. Auld & D. Newsom, Governing Through Markets: Forest Certification and the Emergence
of Non-‐ state Authority (Yale University Press, 2004); L.H. Gulbrandsen, ‘Overlapping Public and Private
Governance: Can Forest Certification Fill the Gaps in the Global Forest Regime?’ (2004) 4(2) Global Environmental
Politics, pp. 75–99; J.-‐C. Graz & A. Nölke (eds), Transnational Private Governance and Its Limits (Routledge, 2008).
6
See, e.g. the ISEAL Alliance (www.isealalliance.org) or the Forest Stewardship Council (https://ic.fsc.org/en).
7
A.C. Cutler, V. Haufler & T. Porter (eds), Private Authority and International Affairs (SUNY Press, 1999); R.B. Hall &
T.J. Biersteker, The Emergence of Private Authority in Global Governance (Cambridge University Press, 2002); T.
Buthe & W. Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton
University Press, 2011); Green, n. 3 above.
8
On frameworks, see B. Eberlein, K.W. Abbott, J. Black, E. Meidinger & S. Wood, ‘Transnational Business
Governance Interactions: Conceptualization and Framework for Analysis’ (2014) 8(1) Regulation & Governance,
pp. 1–21. On cases, see T. Porter, ‘Technical Systems and the Architecture of Transnational Business Governance
Interactions’ (2014) 8(1) Regulation & Governance, pp. 110-‐25; L.H. Gulbrandsen, ‘Dynamic Governance
Interactions: Evolutionary Effects of State Responses to Non-‐State Certification Programs’ (2014) 8(1) Regulation &
Governance, pp. 74-‐92; B. Cashore & M.W. Stone, ‘Does California Need Delaware? Explaining Indonesian, Chinese,
and United States Support for Legality Compliance of Internationally Traded Products’ (2014) 8(1) Regulation &
Governance, pp. 49-‐73; T. Bartley, ‘Transnational Governance and the Re-‐Centered State: Sustainability or
institutions (e.g., information and networking, capacity building, and rule-‐making) that, we argue, do not all
conform to the definition of private authority.9 As such, this article advances extant literature in two ways. First,
we seek to add private authority (as defined below) to the study of regime complexity, just as early authors added
it to the study of regimes.10 We show that including private authority in the study of regime complexity elucidates
previously overlooked types of interactions. These interactions suggest distinct ways private authority can affect
the overall design of the regime complex and thereby improve its problem-‐solving capacity. Second, we identify
four mechanisms through which private authority can affect the problem-‐solving ability of the regime complex. At
different phases of the policy process, private authority can: serve as an incubator for ideas; provide a
reformulation of the problem; supply a new institutional avenue to diffuse public rules; and/or contribute to rule
harmonization through 'incorporation by reference'.
Our contribution focuses exclusively on the interaction between public authority and private rule-‐making activities.
We do not include other forms of private governance—information and networking, for instance, which do not fall
within our definition of private authority.
We also recognize that private authority is not always a positive influence on environmental governance. Its
interaction with public authority does not necessarily produce beneficial outcomes.11 However, by identifying and
illustrating the ways in which private authority contributes to the problem-‐solving ability of regime complexes, we
aim to advance the literature towards the development of a causal theory that can identify conditions under which
we should expect benign or deleterious outcomes of public-‐private interactions.
Our contribution is two-‐fold. First, we argue that private authority has been largely excluded from the regime
complex (RC) literature to date, even though interactions between public and private authority have been
discussed in other literatures, which we explore below; we aim to bring these literatures closer together. The
omission from the RC literature is not just cosmetic, but has real consequences for understanding how regime
complexes evolve, and ultimately, whether and how they solve collective action problems. We therefore argue
that the work to date has paid insufficient attention to how the boundaries of a given regime complex are drawn.
Re-‐draw the boundaries to include private authority, and a very different picture emerges. Second, we add to a
growing literature on public-‐private interactions12 to show that private authority can enhance the problem-‐solving
ability of regime complexes through four different mechanisms. If these dynamic effects are included, the
potential influence of private authority on world politics changes considerably.
The article proceeds as follows. The next section reviews the literature on regime complexes and their effects.
Building on the recent research on private authority, the third section carefully describes four mechanisms through
which public and private authority interact. The fourth section is the core of the empirical analysis. We first
describe our three cases—climate change, tropical commodities, and fisheries—and then trace the interaction of
Legality?’ (2014) 8(1) Regulation & Governance, pp. 93-‐109; G. Auld, C. Balboa, S. Bernstein & B. Cashore, ‘The
Emergence of Non-‐State Market Driven (NSMD) Global Environmental Governance: A Cross Sectoral Assessment’,
in M.A. Delmas & O.R. Young (eds) Governance for the Environment: New Perspectives (Cambridge University
Press, 2009), pp. 183-‐218.
9
See, e.g., K.W. Abbott, ‘The Transnational Regime Complex for Climate Change’ (2012) 30(4) Environment and
Planning C: Government and Policy, pp. 571–90; A. Orsini, ‘Multi-‐Forum Non-‐State Actors: Navigating the Regime
Complexes for Forestry and Genetic Resources’ (2013) 13(3) Global Environmental Politics, pp. 34–55; K.W. Abbott,
‘Strengthening the Transnational Regime Complex for Climate Change’ (2014) 3(1) Transnational Environmental
Law, pp. 57-‐88.
10
Cutler, Haufler & Porter, n. 7 above.
11
D. Fuchs & A. Kalfagianni, ‘The Causes and Consequences of Private Food Governance’ (2010) 12(3) Business and
Politics pp? at
21 May 2013; F. Mayer & G. Gereffi, ‘Regulation and Economic Globalization: Prospects and Limits of Private
Governance’ (2010) 12(3) Business & Politics, pp. 1–25.
12
Eberlein et al, n. 8 above.
public and private authority in each to establish the microfoundations of our arguments. The final section draws
broader lessons for work on regime complexes, which incorporate our insights about the role of private authority.
2. DEFINING PRIVATE AUTHORITY
Broadly speaking, private authority can be understood as situations in which non-‐state actors make rules or set
standards that other actors in world politics adopt.13 This definition is consistent with the literature on
transnational regulation, which highlights two central facets of private authority. First, non-‐state actors must
create the rules, which are designed to shape behaviour.14 Non-‐state actors may include non-‐governmental
organizations (NGOs), private firms, multinational corporations, and transnational networks comprising
combinations of these actors. Second, actors in world politics must adopt and adhere to the rules; that is, they
must alter their behaviour in some way as a result of private authority.15 Because our study focuses on regime
complexes, we focus exclusively on transnational forms of private authority—non-‐state actors that work across
borders both above and below the level of the nation-‐state. Of course, private authority also exists at the national
level, but we do not consider that in this article.
Our definition encompasses rules for different game-‐theoretic structures. Private authority includes standards,
where network externalities generate incentives to comply (i.e. coordination games). It also encompasses
situations where compliance requires ongoing incentives to overcome free-‐riding (i.e. prisoner’s dilemma).16
Others are more restrictive in their definitions. Abbott and Snidal, for instance, focus only on those rules that seek
to address prisoner’s dilemmas, rather than simply coordination problems.17 Cashore and colleagues offer a similar
restriction.18 Our broader interest in rules aims to reflect that private authority can be a source of rulemaking that
addresses situations where externality incentives apply, where coordination incentives apply, or where both may
occur.19
We emphasize that the targets of private rules need not be states. Indeed, generally they are not. For instance,
the targets of the Forest Stewardship Council (FSC), a well-‐studied private certification programme, are timber
producers and companies that trade and sell forest products.20 Private authority can also include instances in
which states delegate governance roles or tasks to non-‐state actors in international treaties or through
international organizations. Although this type of delegated private authority falls within our definition, it will not
13
See Green, n. 3 above. R. Falkner, ‘Private Environmental Governance and International Relations: Exploring the
Links’ (2003) 3(2) Global Environmental Politics, pp. 72–87.
14
Ibid; Cutler, Haufler & Porter, n. 7 above.
15
Our definition is thus generally consistent with authority defined as ‘the ability to induce deference in others’ by
D. Avant, M. Finnemore & S.K. Sell (eds), Who Governs the Globe? (Cambridge University Press, 2010), p. 9.
16
For discussion of compliance processes, see: O. Perez, ‘Private Environmental Governance as Ensemble
Regulation: A Critical Exploration of Sustainability Indexes and the New Ensemble Politics’ (2011) 12(2) Theoretical
Inquiries in Law, pp. 543-‐79; Büthe & Mattli, n. 7 above; G. Auld. ‘Private Market-‐Based Regulations: What They
Are, and What They Mean for Land-‐Use Governance’, in K. Seto & A. Reenberg (eds) Rethinking Global Land Use in
an Urban Era (MIT Press, 2014), pp. 217-‐38.
17
K.W. Abbott & D. Snidal ‘Strengthening International Regulation Through Transnational New Governance:
Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal of Transnational Law, pp. 501-‐78.
18
B. Cashore, ‘Legitimacy and the Privatization of Environmental Governance: How Non-‐State Market-‐Driven
(NSMD) Governance Systems Gain Rule-‐Making Authority.’ (2002) 15(4) Governance, pp. 503-‐29; S. Bernstein & B.
Cashore, ‘Can Non-‐State Global Governance Be Legitimate? An Analytical Framework’ (2007) 1(4) Regulation &
Governance, pp. 347-‐71.
19
See also Büthe & Mattli, n. 7 above.
20
Cashore, Auld & Newsom, n. 5 above; G. Gereffi, J. Humphrey & T. Sturgeon, 'The Governance of Global Value
Chains' (2005) 12(1) Review of International Political Economy, pp. 78-‐104.
be considered in this article.21 We omit delegated authority because it derives from states, and thus, interactions
are both inevitable and anticipated. Rather we focus on instances when non-‐state actors create rules and
persuade other actors to adopt those rules without the ex-‐ante transfer of authority by states.
Other scholars that examine public and private interactions include governance activities beyond rulemaking.
Abbott’s delineation of the transnational regime complex for climate change includes initiatives that set standards
and commitments (closest to our focus on rulemaking), perform operational functions like capacity building, share
information and network, and provide finance.22 Andonova, Betsill, and Bulkeley’s study, also of climate change,
examines initiatives that share information, perform capacity building and implementation, or undertake rule
making.23 Eberlein et. al. focus on transnational business governance (with an illustration from the forest sector),
where governance encompasses ‘organized and sustained attempts to change the behaviour of target actors to
further a collective end, through rules or norms and means of implementation and enforcement’.24
While we are sympathetic to the aims of these broader efforts to delineate the potential full extent of the public
and private elements of climate governance (or governance of other problems), our focus on private authority
enables us to gain clearer analytic traction on specific interactions that may occur and to map their consequences.
We encourage more research, perhaps following Eberlein et. al.’s conceptual framework for the study of
interactions, to examine how, for instance, transnational governance initiatives that focus on information and
networking may operate through certain additional mechanisms and have other kinds of effects. Indeed, drawing
from work on epistemic communities25 or boundary organizations26 may be a fruitful avenue for such
investigations.
3. THE EFFECTS OF REGIME COMPLEXITY
This section reviews the literature on regime complexity and other relevant works that describe interactions
between public and private authority. A regime complex is defined as ‘an array of partially overlapping and
nonhierarchical institutions governing a particular issue-‐area.’27 It is an analytical unit that delimits areas of
institutional density, exhibiting three key characteristics. Regime complexes comprise ‘elemental regimes’ which
may functionally overlap. As Raustiala and Victor discuss,28 the elemental regimes in the regime complex for plant
genetic resources include entities such as the Food and Agriculture Organization (FAO) of the United Nations (UN),
the UN Convention on Biological Diversity (CBD),29 and the World Trade Organization’s (WTO) Agreement on
21
Green, n. 3 above; T. Buthe, ‘The Globalization of Health and Safety Standards: Delegation of Regulatory
Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization’ (2008) 71(1)
Law and Contemporary Problems, pp. 219–256.
22
Abbott, n. 9 above.
23
L.B. Andonova, M.M. Betsill, & H. Bulkeley, ‘Transnational Climate Governance’ (2009) 9(2) Global Environmental
Politics, pp. 52-‐73. See also M. Hoffmann. ‘Climate Governance at the Crossroad: Experimenting with a Global
Response After Kyoto’ (Oxford University Press, 2011).
24
Eberlein et al, n. 8 above, at 3.
25
P.M. Haas, ‘Introduction: Epistemic Communities and International Policy Coordination.’ (1992) 46(1)
International Organization, pp. 1-‐35.
26
J-‐F. Morin, S. Louafi, A. Orsini, & M. Oubenal. ‘Boundary Organizations in Regime Complexes: A Social Network
Profile of IPBES" Forthcoming, Journal of International Relations and Development.
27
K. Raustiala & D.G. Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 58(2) International
Organization, pp. 277–309.
28
Ibid. Orsini and colleagues offer an alternative, much more complicated (and we think, problematic) definition.
A. Orsini, J.-‐F. Morin & O. Young, ‘Regime Complexes: A Buzz, a Boom or a Boost for Global Governance’ (2013)
19(1) Global Governance, pp. 27–39.
29
Rio de Janeiro (Brazil), 5 June 1992, in force 29 Dec. 1993, available at: http://www.cbd.int.
Trade-‐Related Aspects of Intellectual Property Rights (TRIPS).30 Each of these elemental regimes is governed by a
separate international agreement, with its own organizational structure. Second, there is no agreed upon
hierarchy to resolve conflicts among regimes. Third, because of the density of governance arrangements, regime
complexes exhibit path dependence; present rules constrain and shape the creation of new ones.31 Beyond plant
genetic resources, several global problems have been studied explicitly as regime complexes, including energy,
food security, and humanitarian relief.32 In particular, there has been a flurry of recent work on regime complexity
in the context of climate change, though these works do not explicitly invoke this terminology.33 We acknowledge
that these are useful contributions to an emerging literature. While recognizing that research in this area is
relatively new and still developing, we point to two shortcomings of existing research that we aim to address in
this paper. These oversights, in our view, limit the conceptual ability of the regime complex to explain both
governance arrangements and their outcomes.
Our first critique concerns the way in which the concept has been defined and operationalized. With few
exceptions, the foundational literature focuses on public authority, leaving many, potentially important non-‐
hierarchical and overlapping private rule-‐making institutions unattended. For example, Raustiala and Victor note
that regime complexes are ‘marked by the existence of several legal agreements.’34 In their description of the
regime complex for climate change, Keohane and Victor focus on multilateral agreements and programmatic
efforts by international organizations.35 A special issue by Alter and Meunier similarly focuses on the institutional
fora created by multilateral arrangements.36 (The exception in that issue is Kelley’s work on election monitoring,
which considers the role of non-‐state actors.)37 Orsini and colleagues describe a network of three or more
international regimes with potentially problematic interactions.38 Similarly, earlier work by Aggarwal, which
considers the nesting arrangements and parallel institutions under conditions of complexity, is limited to two
institutional forms: bilateral and multilateral.39
More recent work acknowledges that private authority has been overlooked. It incorporates private authority into
the broader governance landscape, but casts a wide net to include many types of institutions.40 Abbott, for
30
Marrakesh (Morocco), 15 Apr. 1994, in force 1 Jan. 1995, available at:
http://www.wto.org/english/docs_e/legal_e/27-‐trips.pdf.
31
Raustiala & Victor, n. 27 above.
32
R.O. Keohane & D.G. Victor, ‘The Regime Complex for Climate Change’ (2011) 9(1) Perspectives on Politics, pp. 7–
23; J. Colgan, R.O. Keohane & T. Van de Graaf, ‘Punctuated Equilibrium in the Energy Regime Complex’ (2012) 7(2)
Review of International Organizations, pp. 117-‐43. M.J. Struett, M.T. Nance & D. Armstrong, ‘Navigating the
Maritime Piracy Regime Complex’ (2013) 19(1) Global Governance, pp. 93–104; A. Betts, ‘Regime Complexity and
International Organizations: UNHCR as a Challenged Institution’ (2013) 19(1) Global Governance, pp. 69–81.
33
M. Betsill et al., ‘Building Productive Links between the UNFCCC and the Broader Global Climate Governance
Landscape’ (2015) 15(2) Global Environmental Politics, pp. 1–10; C.F. Sabel & D.G. Victor, ‘Governing Global
Problems under Uncertainty: Making Bottom-‐up Climate Policy Work’ (2015) Climatic Change, pp. 1–13; A.J.
Jordan et al., ‘Emergence of Polycentric Climate Governance and Its Future Prospects’ (2015) 5(11) Nature Climate
Change, pp. 977–82.
34
Raustiala & Victor, n. 27 above.
35
Keohane & Victor, n. 32 above.
36
K.J. Alter & S. Meunier, ‘The Politics of International Regime Complexity’ (2009) 7(1) Perspectives on Politics, pp.
13–24.
37
J. Kelley, ‘The More the Merrier? The Effects of Having Multiple International Election Monitoring Organizations’
(2009) 7(1) Perspectives on Politics, pp. 59–64.
38
Orsini, Morin, & Young, n. 28 above, at p. 29.
39
V.K. Aggarwal, ‘Reconciling Multiple Institutions: Bargaining, Linkages and Nesting’, in V.K. Aggarwal (ed.)
Institutional Designs for a Complex World: Bargaining, Linkages, and Nesting (Cornell University Press, 1998), pp.
1–31.
40
See Andonova, Betsill & Bulkeley, n. 23 above. Hoffmann, n. 23 above. H. Bulkeley, L. Andonova, M. Betsill, D.
Compagnon, T. Hale, M.J. Hoffmann, P. Newell, Transnational Climate Change Governance (Cambridge University
instance, notes that standards and commitment initiatives (governance institutions that would fit our definition of
private authority) are relatively rare on the transnational private governance triangle compared to their prevalence
in the public regime complex for climate governance.41 Including such diverse institutions vastly increases the
types of interactions that might occur with public authority, and complicates analysis. To keep our analysis
focused, and to group together like institutions, we restrict our investigation to private rule-‐making activities, and
their interactions with equivalent public institutions.
Our second critique builds on the first. We demonstrate how the effects of complexity change when one includes
private authority in the regime complex. To date, the literature has identified several different effects of
complexity; these describe what happens when a single regime no longer serves as the focal point for international
cooperation. One set of effects resulting from complexity reflects what happens when actors can choose from a
variety of tactics to avoid inconvenient rules. These include forum-‐shopping, regime shifting, or capitalizing upon
inconsistencies among rules.42 Goldstein and Steinberg describe a shift in trade rulemaking from inter-‐state
negotiations to a judicial process for resolving inter-‐state disputes.43 Helfer describes attempts by various actors to
shift the governance of intellectual property rights both to and away from the TRIPS Agreement.44 Merry shows
how a group of academics and the United Nations Development Program (UNDP) developed and promulgated the
Human Development Index (HDI) as an alternative metric to Gross Domestic Product (GDP) for development to
bypass the interest of states and the resistance of the United Nations (UN) Statistical Division.45 Mattli and Büthe
demonstrate a shift in the form of regulation—from domestic to international product standards—and discuss
how the degree of complementarity between national and international standard-‐setting institutions affects which
countries have the most influence on the content of international standards.46 Other scholars have identified
situations in which states forum shop to find institutions most hospitable to their political goals.47
Another commonly identified effect of complexity, drawn from the literature on environmental governance, is
fragmentation, which is often perceived to be a hindrance to effective governance. Fragmented governance is
characterized by a patchwork of institutions that vary in their “constituencies, spatial scope, subject matter and
objectives.”48 Literature on the creation of a World Environment Organization (WEO) takes up various strategies to
minimize the ill effects of fragmentation, through strategies such as centralization, greater coordination, and
clustering.49 However, as Biermann and colleagues point out, ‘fragmentation is a relative concept’50 since all global
Press, 2014); K.W. Abbott & Thomas Hale, ‘Orchestrating Global Solutions Networks: A Guide for Organizational
Entrepreneurs’ (2014) 9(1) Innovations, pp. 195-‐212.
41
Abbott, n. 4 above, at p. 10.
42
Raustiala & Victor, n. 27 above; Betts, n. 32 above; L. Helfer, ‘Regime Shifting in the International Intellectual
Property System’ (2009) 7(1) Perspectives on Politics, pp. 39–44; E. Burton, ‘The Power Politics of Regime
Complexity: Human Rights Trade Conditionality in Europe’ (2009) 7(1) Perspectives on Politics, pp. 33–7.
43
J.L. Goldstein & R.H. Steinberg, 'Regulatory Shift: The Rise of Judicial Liberalization at the WTO', in W. Mattli and
N. Woods (eds) The Politics of Global Regulation (Princeton University Press, 2009), pp. 211-‐41.
44
N. 30 above. See Helfer, n. 42 above.
45
S.E. Merry, ‘Global Legal Pluralism and the Temporality of Soft Law’ (2014) 46(1) The Journal of Legal Pluralism
and Unofficial Law, pp. 108-‐22.
46
W. Mattli &T. Büthe, ‘Setting International Standards: Technological Rationality or Primacy of Power’ (2003)
56(1) World Politics, pp. 1–42.
47
C.L. Davis, ‘International Institutions and Issue Linkage: Builiding Support for Agricultural Trade Liberalization’
(2004) 98(1) American Political Science Review, pp. 153–69.
48
F. Zelli, ‘The fragmentation of the global climate architecture’ (2011) 2(2) Wiley Interdisciplinary Reviews: Climate
Change, pp. 255-‐270.
49
A. Najam, ‘The Case Against a New International Environmental Organization’ (2003) 9(3) Global Governance,
pp. 367–84; J. Whalley & B. Zissimos, ‘What Could a World Environmental Organization Do?’ (2001) 1(1) Global
Environmental Politics, pp. 29–34; W.B. Chambers & J.F. Green, Reforming International Environmental
Governance: From Institutional Limits to Innovative Reforms (United Nations University Press, 2005).
governance architectures exhibit it to some degree. Without a transparent and replicable way to measure and
compare degrees of fragmentation, we do not find this to be a compelling critique of governance structures.
There are other frameworks that seek to characterize the complex nature of global governance institutions. For
example, work on institutional interplay emphasizes the interactions among institutions that occur for both
functional and political reasons.51 The growing body of work on orchestration—defined as ‘a wide range of
directive and facilitative measures designed to convene, empower, support, and steer public and private actors
engaged in regulatory activities’—adopts a similar interest by examining how states and international
organizations can and should intervene to improve the effectiveness of highly fragmented transnational
governance.52
Finally, Alter and Meunier’s special issue on regime complexity identifies a third set of ‘feedback effects’ that result
from institutional complexity, which they describe as competition and reverberation.53 Competition among
institutions and actors can give rise to both positive and negative effects. Negative effects include turf battles,
repetitive efforts or uncoordinated policy that is easily undone.54 Positive effects include productive
experimentation, diffusion of risk, a race to the top, and increased resources addressing the issue. Reverberation
occurs when changes in one institution cause changes in another, which are unintended and/or difficult to
control.55 We agree that changes in one part of a complex system can have unintended effects on other parts of
the system; however, the notion of reverberation is underspecified.
We argue that forum shopping, fragmentation, competition, and the under-‐specified ‘reverberation’ are the
effects of complexity that result from interactions among public institutions. However, if private authority is
included in the regime complex, then the types of observed effects of complexity expand. Specifically, we argue
that private authority can improve the problem-‐solving capacity of regime complexes through the following four
different mechanisms: serve as an incubator for ideas; provide a reformulation of the problem; supply a new
institutional avenue to diffuse public rules; and/or contribute to rule harmonization through 'incorporation by
reference'.
4. THE EFFECTS OF PRIVATE AUTHORITY ON REGIME COMPLEXES
We now turn to the mechanisms through which private authority can affect the larger regime complex. These
mechanisms build on our knowledge about the processes of both public and private rulemaking to uncover the
potential effects of private authority on the regime complex.
50
F. Biermann, P. Pattberg, H. van Asselt & F. Zelli. ‘The Fragmentation of Global Governance Architectures: A
Framework for Analysis’ (2009) 9(4) Global Environmental Politics, pp. 14-‐40, at p. 17.
51
T. Gehring & S. Oberthur, ‘Interplay: Exploring Institutional Interaction’, in O.R. Young, L.A. King & H. Schroeder
(eds), Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers (The MIT
Press, 2008); pp. 187-‐224; O.R. Young, The Institutional Dimensions of Environmental Change: Fit, Interplay, and
Scale (The MIT Press, 2002).
52
Abbott & Snidal, above n 12. K.W. Abbott & D. Snidal. ‘International Regulation without International
Government: Improving IO Performance through Orchestration’ (2010) 5(3) The Review of International
Organizations, pp. 315-44.
53
Although Alter and Meunier refer to these as 'feedback effects', this is accurate in the strict sense of systems
theory. In systems theory, a feedback loop can be understood as instances in which a stock (in this case,
institutions) affect a flow (in this case, rule-‐making activities) in or out of the stock. On systems theory see D.H.
Meadows, Thinking in Systems: A Primer (Chelsea Green Publishing, 2008). Alter and Meunier arguably fail to
describe clearly how the flow affects the growth, diminution or change in the stock.
54
Alter & Meunier, n. 36 above.
55
Alter & Meunier, n. 36 above, at pp. 19–21.
Prior to describing the mechanisms, we contrast various design and operational principles of public and private
authority.
4.1. Differences between Public and Private Authority
We know from existing research that certain institutional and organizational rigidities affect the operation of
intergovernmental processes.56 International institutions often present the challenge of path dependence.
Keohane, for instance, notes that increasing returns and sunk costs help explain the persistence of institutions that
are not optimally efficient.57 Similarly, Young explains inertia in regimes as a consequence of collective-‐choice
rules that ossify regime requirements if some states stand to lose from a new arrangement.58 Moreover,
international organizations (IOs) are prone to dysfunctions that direct efforts away from their core mandate.
Barnett and Finnemore provide an extensive assessment of the causes of these challenges.59 For example,
material concerns can drive IOs to pursue their own interests over the goals outlined by their mandate.
We suggest that, though public and private authority each face institutional inertia and organizational
dysfunctions, certain rigidities in public governance are less acute in private governance. Consequently, the
inclusion of private authorities in regime complex may be beneficial by tempering the ossification tendencies that
plague public regime complexes.
In contrasting the characteristics of public authority with private authority, three key differences and their
implications become clear. First, whereas states are the key members of intergovernmental regimes with
responsibilities for domestic implementation and enforcement, private authority generally targets those actors
responsible for economic activities in a given sector. Most often, the targets of private transnational regulation
are not sovereign states, but non-‐state actors, who voluntarily accede to a private regulatory regime. For example,
private authority projected by the FSC is directed at forest product producers and at companies that trade and sell
forest products, not at governments.
Second, because private rules are voluntary—firms and other non-‐state actors decide whether or not to adopt
them—there is generally greater turnover of regulatory targets than with public authority. States do emerge and
fail and they may enter and exit intergovernmental agreements; however, the level of volatility among
corporations is without doubt orders of magnitude higher. If compliance with private regulation becomes too
costly, or otherwise undesirable, firms can simply exit the regime, either by ending compliance or divesting from
the business operation targeted by the rules. The changing landscape of regulatory targets means that regulatory
gridlock is less likely to occur in private authority. Interests can change more regularly with entry and exit, and
private governance institutions form, collapse, and restructure with greater ease. Without the external constraints
imposed by states, private rule-‐makers are freer than public ones to make organizational and regulatory changes
as needed.60 For example, private regulatory institutions faced with competition from similar organizations can
shift the focus of their activities, or even their mandate, with relative ease. Certain initiatives are constrained by
influential stakeholders—including funders and members—but most have considerable decision-‐making
56
T.N. Hale, D. Held & K. Young, Gridlock: Why Global Cooperation is Failing when We Need It Most (Polity, 2013).
57
R.O. Keohane, 'International Institutions: Two Approaches' (1988) 32(4) International Studies Quarterly, pp. 379-‐
96.
58
O. Young, 'The Politics of International Regime Formation: Managing Natural Resources and the Environment'
(1989) 43(3) International Organization, pp. 349-‐75.
59
M.N. Barnett & M. Finnemore, Rules for the World: International Organizations in Global Politics (Cornell
University Press, 2004).
60
G. Auld, Constructing Private Governance: The Rise and Evolution of Forest, Coffee, and Fisheries Certification
(Yale University Press, 2014).
discretion.61 By contrast, an equivalent change by an international organization would require the approval of all
member states.62 Of course, state preferences are not immutable; they are subject to change for any number of
reasons. However, these changes do not necessarily translate to a change in states’ participation in international
law and organizations. The greater level of decision-‐making discretion held by private rulemaking initiatives mean
they are able to change direction and react more quickly than an equivalent intergovernmental process. And when
they are not able to effect such changes, they can simply form a new private initiative.
Third, forms of private authority are often less highly legalized and therefore are more easily changed or
reversed.63 The administrative procedures governing private regulators dictate how rules are created and revised;
they are the equivalent to collective-‐choice rules in public authority.64 However, private governance regulators
have considerable discretion in creating and amending these procedures. Thus, the consensus rules that apply in
some international conventions are rare in private authority, and very few private rulemakers have procedures
that allow stakeholders to challenge how they make decisions. The lack of administrative review, or stakeholder
standing, is a sign of the weak legalization of accountability mechanisms for enforcing procedural obligations.65
One consequence of this limited legalization is that private regulators can more easily change the rules in response
to new information or circumstances than public regulators. Because private authority is generally less legalized,
we posit that it is actually more flexible in terms of the kinds of institutional structures it can create at the outset.
It has greater flexibility to design institutions that can respond to difficulties encountered among public institutions
in the regime complex. In this sense, we can think of private authority as politically similar to soft law, where actors
have preferences for more flexible arrangements.66 It may also mean less opposition to private governance
arrangements, since the targets of private regulation know that rules can be amended.
What do these three characteristics mean for interactions between public and private authority within a regime
complex? We identify four mechanisms of interaction that roughly correspond to different phases of the policy
making process.67 In the first mechanism, private authority serves as an incubator in which different policy
approaches can exist until their time becomes ripe. The second mechanism is problem reformulation, where
private actors re-‐frame the issue in a way that overcomes extant political obstacles. This happens most frequently
at the agenda-‐setting phase, but can also happen during policy formulation and negotiation phases, so that
approaches are viewed as vetted and appropriate once implementation begins. In the third mechanism, private
authority serves as an additional means through which to diffuse public authority, generally in the implementation
phase. Finally, private authority may provide rules that are eventually incorporated into public regulations. We
describe each of these mechanisms below.
61
Differences in the governance of the Marine Stewardship Council (MSC) and the Forest Stewardship Council
(FSC) are illustrative. Broader reviews have also shown that many private regulatory institutions have highly varied
stakeholder participation or engagement. See www.standardsmap.org.
62
K.W. Abbott, J.F. Green & R.O. Keohane, ‘Organizational Ecology and Institutional Change in Global Governance’
(2016) 70(Spring) International Organization, pp. 1–31.
63
K.W. Abbott et al., 'The Concept of Legalization' (2000) 54(3) International Organization, pp. 401-‐20.
64
Young, n. 58 above; E. Ostrom, Governing the Commons (Cambridge University Press, 1992).
65
See L.H. Gulbrandsen ‘Accountability Arrangements in Non-‐state Standards Organizations: Instrumental Design
and Imitation’ (2008) 15(4) Organization, pp. 563-‐83; L.H. Gulbrandsen & G. Auld ‘Contested Accountability Logics
in Evolving Nonstate Certification for Fisheries Sustainability’ (2016) 16(2) Global Environmental Politics
66
K.W. Abbott & D. Snidal, 'Hard and Soft Law in International Governance' (2000) 54(3) International
Organization, pp. 421-‐56.; A.T. Guzman & T. L. Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis,
pp. 171-‐225.
67
Abbott and Snidal refer to agenda-‐setting, negotiation, implementation, monitoring and enforcement stages of
the policymaking process, see K.W. Abbott & D. Snidal. ‘The Governance Triangle: Regulatory Standards
Institutions and the Shadow of the State’, in W. Mattli & N. Woods (eds) The Politics of Global Regulation,
(Princeton University Press, 2009), pp. 44–88.
4.2. Idea Incubator
The first way in which private authority may interact with public authority is by providing an 'incubator' for ideas,
which may be drawn on by public actors at some point in the future. Much like Kingdon’s primordial soup of policy
ideas,68 private authority serves as a space in which ideas can sit dormant until their time is right. As others have
argued, private authority can serve as an arena of experimentation and learning, open to projects which may not
be feasible within intergovernmental fora.69 As noted above, there is a greater potential fluidity in private
institutions. Hence, private authority may provide an opportunity to experiment with alternative governance
solutions outside the intergovernmental arena.70 In this view, private authority serves as a space for
experimenting with the implementation of different policies, which can co-‐exist with other public responses. This
ensures that the alternative private conceptualization is not systematically excluded from the agenda of a given
regime complex; rather, it can remain 'dormant' until the demand for a new solution arises.71 When thinking
about addressing some of the dysfunctions of intergovernmental processes, such a latent idea can serve as the
starting point for a broader regime transformation.72 In essence, private authority creates an alternative approach
that operates alongside existing public responses, to be re-‐inserted if and when public institutions are more
inclined.
Idea incubation implies that individual approaches are taken from private authority to public authority in a
piecemeal way. Unlike problem reformulation, which we define to include an articulation of a problem and a
proposed set of institutionalized solutions (in the form of rules), idea incubation can be about smaller, discrete
programmes and policies such as implementation of transparency measures or a particular approach to monitoring
or accounting. In this respect, there are several observable implications of this causal mechanism. First, private
regulators involved with idea incubation should have long standing activity and expertise in the issue area.
Second, since incubation requires some trial and error, we should expect gradual uptake by public actors, to
ensure that the new idea works before wholesale implementation. Finally, we should expect the uptake of
incubated ideas through processes of bricolage,73 where the ideas are adapted to fit the purpose of the public
authority.
4.3. Problem Reformulation
Given our supposition that private authority has greater autonomy from the strictures of intergovernmental
processes, we posit that when faced with a problem that has reached the international agenda, private authority
will search for ways to frame the problem that will garner political support. Private actors learn from others’
actions, sizing up the political landscape as well as the political constraints. When intergovernmental efforts stall,
private actors may reframe the problem to alter the types of institutional responses and the political winners and
68
J. Kingdon, Agendas, Alternatives, and Public Policies (HarperCollins College Publishers, 1995), Chapter 6.
69
C. Overdevest & J. Zeitlin, 'Assembling an Experimentalist Regime: Transnational Governance Interactions in the
Forest Sector' (2014) 8(1) Regulation & Governance, pp. 22-‐48.
70
Hoffmann, n. 23 above, broadens this argument to look at a wide range of climate experiments being
undertaken at different governance levels and both by public and private institutions. See also P. Newell & M.
Paterson, Climate Capitalism: Global Warming and the Transformation of the Global Economy (Cambridge
University Press, 2010). The experimentalist literature also points to this learning approach; however, they do not
apply it specifically to private actors. See C.F. Sabel & J. Zeitlin, Experimentalist Governance in the European Union:
Towards a New Architecture (Oxford University Press, 2008).
71
Kingdon describes this as the process through which solutions become coupled to problems. Kingdon, n. 68
above, at pp. 172-‐5.
72
C. Crouch & H. Farrell, 'Breaking the Path of Institutional Development? Alternatives to the New Determinism'
(2004) 16(1) Rationality and Society, pp. 5-‐43.
73
See J.L. Campbell Institutional Change and Globalization (Princeton University Press, 2004).
losers.74 In this context, we expect to see sources of private authority constructing governance arrangements in
ways that explicitly seek to respond to public authority and/or to address rigidities or other perceived failures in
intergovernmental processes. Moreover, in contrast to idea incubation, reformulation of a problem allows for the
use of different rules, modes of implementation, and approaches for monitoring and enforcement to address a
problem.
We note that reframing need not be the result of public governance failures; private authority may offer an
alternative frame for a problem in the absence of political gridlock. However, following Stone, we believe that
alternative presentations of a problem are a baseline condition of all politics.75 Since distribution of gains and
losses depends on how the problem is defined, framing is a persistent condition of politics. This means that
reframing is always possible. Nonetheless, we focus on problem reformulation here as a result of previous failures
of public governance.
This mechanism has two observable implications. First, in cases where public governance failure occurs, we should
expect to see the emergence of alternative rules and practices promulgated by private institutions to provide
solutions to the same problem unsuccessfully addressed by public governance. The private, alternative rules and
practices should differ in content and approach from their publicly developed predecessors. Second, since a public
governance failure of some sort has already occurred, we should expect to see reformulation occur in the
rulemaking and implementation stages of the public policymaking process, rather than in agenda-‐setting.
4.4. Diffusion of Public Authority
The third mechanism through which private authority may affect the evolution of the regime complex is by serving
as a means to diffuse public authority. In this view, private authority actors provide additional venues for the use
and adoption of public rules. Private rule-‐makers may voluntarily adopt public rules, and apply them to their own
targets of regulation, thus indirectly expanding the scope of public authority. Alternatively, they may build on
public authority by coupling their rules with public ones, and expanding the overall scope of authority in the
regime complex. Through this re-‐appropriation, private authority may serve to diffuse and reinforce public
authority.76
Unlike delegation, where the state grants authority to private actors to undertake specific activities, diffusion
captures situations where private actors work autonomously to deepen the institutionalization of public authority.
For example, Tarrow suggests that IOs serve a ‘coral reef’ function, attracting advocates to the locus of political
activity, where they can then form connections among themselves.77 In our version, forms of public authority
attract private actors, who in turn build on extant public rules. Through their use and appropriation of public
authority, private actors build off and build up the coral reef, potentially strengthening and expanding its effects.
The observable implication of this mechanism is the substantive overlap between public and private rules. If
private authority serves as a diffuser of public authority, it should adopt public rules, and then modify them in
ways that serve their goals.
74
On strategic approaches to problem definition in the policy process, see D.A. Rochefort & R.W. Cobb, The Politics
of Problem Definition: Shaping the Policy Agenda (University Press of Kansas, 1994); D.A. Stone, Policy Paradox
and Political Reason (Scott Foresman and HarperCollins, 1988).
75
Stone, n. 74 above.
76
For similar mechanisms, see Perez, n. 16 above. For a preliminary application of this model to the interaction of
public and private, see: O. Perez, ‘International Environmental Law as a Field of Multi-‐Polar Governance: The Case
of Private Transnational Environmental Regulation’ (2012) 10 Santa Clara Journal of International Law, pp. 285-‐
296.
77
S.G. Tarrow, The new transnational activism (Cambridge University Press, 2005).
4.5 Incorporation by Reference
Incorporation by reference is the final mechanism for public-‐private interaction.78 It refers to ‘the practice of
codifying material published elsewhere by simply referring to it in the text of a regulation’.79 Incorporation by
reference occurs when public regulations adopt or build upon private rules. We view this as a strong interaction,
in the sense that incorporation by reference provides a new institutional framework for private authority.
If incorporation by reference has occurred, then we should expect to find the 'fingerprints' of some or all of private
rules in public regulations. In some cases, this may entail specific protocols, but in others, it may be the principles
upon which rules are based.
5. EMPIRICAL ANALYSIS
In order to explore the plausibility of our suggested mechanisms, this final section traces the development of
private authority in three regime complexes: climate change, tropical commodities, and fisheries. These have been
selected because they all are characterized by dense institutional landscapes and the presence of private authority.
Dense landscapes provide more opportunities for interaction and, obviously, the presence of private authority is a
requirement for public-‐private interactions. Thus we have chosen three “most-‐likely” cases to develop our
arguments and illustrate how the mechanisms function. We acknowledge the limitations of such an approach, and
underscore the need for future work in other issue areas to evaluate the robustness of our arguments.
The empirical discussion proceeds in two steps. We first focus on the multilateral institutions that serve as the
central public nodes of each regime complex and describe the ways in which public authority has failed to achieve
its desired outcomes. We offer a brief assessment of the shortcomings of the public node of each regime complex.
This is not meant to be a rigorous analysis of institutional processes or outcomes. Rather, our aim is to identify
opportunities for private authority to contribute to the problem-‐solving capacity of the regime complex. We then
turn to the interactions of private authority with each major public node, since these are the focal point for rule-‐
making activities within a given regime complex. If private authority serves as an idea incubator, it should provide
policies or proposals that constitute the basis for experimentation in the public realm. If it provides a
reformulation of the problem, private regimes will try to circumvent public focal points by creating alternative
rules to address the problem. In the diffusion mechanism, we should expect to see private authority adopting, and
then amending public rules. Finally, in instances of incorporation by reference, we expect that public regulations
will appropriate parts of private rules.
5.1 The Cases
Climate Change. The UN Framework Convention on Climate Change (UNFCCC)80 provides the international legal
foundation for the current climate regime complex. Parties agree to track and report their greenhouse gas (GHG)
emissions and, in the case of developed nations, to create domestic policies to reduce emissions. The Kyoto
Protocol81 is the second major public node at the centre of the regime complex. It required developed countries to
meet specific reduction targets, which they could achieve through domestic measures as well as international
market mechanisms. Although it has waned in political importance, the Protocol casts a long shadow over the
78
We gratefully acknowledge the input of an anonymous reviewer in this discussion.
79
E. Bremer, ‘Incorporation by Reference in an Open-‐Government Age’ (2013) 36(1) Harvard Journal of Law Public
Policy, 133-‐210 at p. 131.
80
New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int.
81
Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto (Japan), 11 Dec.
1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php.
current and future climate regime. The recent Paris Agreement82 has broken down the longstanding division
between developed and developing countries, though the main provisions of the UNFCCC still hold.
The critiques of the Kyoto Protocol are numerous: the required reductions were too small to have any measurable
effect on climate change, the compliance mechanism was arcane and counterintuitive, and the Clean Development
Mechanism (CDM) fundamentally unworkable.83 In short, the Protocol failed to achieve even its own modest
goals.
The recent Paris Agreement has been hailed as a breakthrough in climate politics.84 It has erased the longstanding
division between the developed and developing world. It has adopted a weak legal form, which counter-‐intuitively
has allowed for more ambitious goals. Indeed, collectively, states have pledged to limit temperature increase to
well below 2 degrees Celsius. It has also institutionalized a platform for ongoing non-‐state actor involvement.
Pessimists maintain that despite state commitments to reduce GHG emissions and adopt other climate-‐friendly
policies, the gap between proposed national actions (as set out in Nationally Determined Contributions (NDCs))
and the 2-‐degree goal is considerable—and rising.85
Tropical Commodities. The set of institutions arising to deal with terms of trade for basic commodities is more
fragmented than in the case of climate change, though it centres around the UN Conference on Trade and
Development (UNCTAD). UNCTAD supplanted the earlier Interim Coordination Committee for International
Commodity Agreements, and focuses on promoting development by emphasizing market regulations to control
commodity supplies and prices to enhance export earnings for developing countries.86 This approach was
reinforced in 1976 when UNCTAD established the Integrated Programme for Commodities (IPC) charged with
overseeing the negotiation of commodity agreements for 18 goods, including tropical timber.87
Efforts to negotiate and maintain commodity agreements met with varied success. Sugar and tin agreements were
adopted in 1954. A coffee agreement was adopted in 1962, and cocoa and natural rubber agreements were
adopted in 1980 and 1981 respectively. Tropical timber followed in 1983.88 But just as the International Tropical
Timber Agreement (ITTA)89 emerged, the other agreements diminished in scope or broke down completely. By
1999, all major commodities agreements had either collapsed or they had been redirected away from regulating
commodity markets through quotas to focusing on ...
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