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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.
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