The area of marine oil pollution is very interesting for the study of “smart mixes” since there are a number of combinations of instruments that are employed in this domain that are quite typical and certainly deserve further attention. There are for example interesting combinations of compensation of damage resulting from marine pollution. Such a combination consisted of a system whereby on the one hand compensation was paid via mechanisms sponsored by the private industry (CRISTAL and TOVALOP) and on the other hand compensation took place via international conventions. The just mentioned private mechanisms have meanwhile been replaced by others, but still private mechanisms intervene in the compensation of victims. Also the international conventions are at such an interesting mix in the sense that compensation is provided on the one hand via the (limited) liability of the tanker owner (based on the Civil Liability Convention – CLC) and on the other hand via the oil receivers (through the so-called Fund Convention). Without necessarily judging that this combination is “smart” it can it least generate relatively high amounts of compensation that do enable to compensate for oil pollution damage, also in relatively catastrophic cases. Other features of the compensation mechanisms which are interesting can to some extent be found in national legislation, more particularly in the US Oil Pollution Act (OPA) of 1990. An interesting feature is for example that in the OPA the limitations on liability are connected to the safety measures taken by tanker owners, which hence could provide better incentives for prevention. Moreover, differently than in the international conventions the OPA has more “mixes” between regulation and the liability regime. The financial limits on liability of the tanker owner are for example not unbreakable, but a tanker owner can no longer call on a financial cap if regulation was not followed. In the chapter these various mixes will be described and analysed and some attempts will be done to examine to what extent these combinations can be considered as “smart”. In order to do that of course particular benchmarks will be advanced. One such benchmark is whether the mechanism also contributes to prevention of accidents and hence reduces the pollution risk; another benchmark is whether the (compensation) mechanism is able to provide compensation for marine pollution damage in most cases. It will be argued that to a large extent the mixes described can indeed be qualified as “smart”. That raises obviously the question whether there are particular reasons that could be advanced for the relative success of the smart mix in this particular sector. We argue that on the one hand the fact that a variety of different states with different interests (maritime states versus coastal states) has led to a regime that balances the different interests to a reasonable extent. Moreover, we will equally argue that regional action (more particularly by the EU) has triggered further action at the international level and in that sense added to the “smartness” of the international regime. Finally it will be argued that, as the example of the US OPA shows, in some cases domestic legislation provides better solutions (in terms of smartness) than the international regime. At the policy level those interactions between the domestic, regional and international level hence provide scope for mutual learning and for policy improvement.

This chapter employs two contrasting theoretical frameworks for assessing the EU’s foreign forest ‘policy mix’. These are “Trading Up” and “Ecologically Unequal Exchange” (EUE) respectively. While Trading Up positions the EU as an environmental leader whose role is to bring the rest of the world up to its high environmental standards, EUE, in contrast, views the EU as a driver of global forest loss due to its unequal accumulation and consumption of global wealth and resources, and the resulting displacement of environmental harms. Each of these frameworks embodies different assumptions about the roles of policy and trade in shaping environmental and social outcomes, with conflicting implications for policy effectiveness. The findings of this chapter’s comparative analysis reveal that, while there is some variation among individual policy instruments, EU foreign forest policy places strong emphasis on law enforcement, standardization, measurement and enforcement. This is consistent with a Trading Up perspective, but inconsistent with an EUE perspective. Designing a ‘smart’ policy mix that better incorporates insights from EUE would require more emphasis on reducing EU consumption and supporting developing country initiatives that prioritize domestic and local access to forest resources, production and trade.

The certification of timber, fish, agricultural products, and other commodities has become a prominent form of nonstate governance. Although research has recognized that states enable or constrain nonstate regulatory efforts, we still know too little about the interactions between private and public authority in the governance of environmental problems. Through a careful examination of the role and influence of states in forest and fisheries certification programmes, this chapter demonstrates the close interconnections between private and public forms of regulation. The analysis shows how forest and fisheries certification programmes were influenced by the particular policy domains in which they emerged, via government efforts to regulate, support, or compete with these programmes, and through public procurement policies. From the empirical examination, the chapter identifies pathways and mechanisms of public–private governance interaction and generates hypotheses that can be examined across a larger number of cases.

The increasingly complex nature of transboundary environmental problems, and the risks associated with such problems, present policy makers worldwide with the challenge of designing an effective environmental governance system with a global reach. Environmental governance today consists of a mix of international and domestic law and regulations and private standards, with traditional forms of direct regulation operating in parallel with market-based and suasive instruments. The synergies between states and private actors on the international and domestic plane, and their resulting impact on global environmental governance, have resulted in a great deal of academic literature, but less attention has been paid to the interaction of different regulatory and private instruments at international and domestic levels. This book addresses the crucial question of whether “smart” combinations of instruments at different levels of governance can be found that can more effectively fight against transboundary environmental harm. This book analyzes the concept of smart mixes by discussing the various types and mixes of policy instruments and by addressing how and why particular mixes emerge. In addition, the book identifies what makes a particular mix of instruments “smart” and uses specific case studies relating to the sectors of climate change, forestry, fisheries and oil pollution.

To what extent or in what circumstances might ‘smart policy mixes’ be invoked in transnational governance rather than just as an approach to instrument and policy design at a domestic level? In the environmental context, policy mixes have been examined within the spheres of private standards and public-private partnerships (and their interactions with other instruments and actors), but there has been no comparable work on equally important “deep green” initiatives that emphasize confrontation and conflict rather than partnerships and cooperation. This Chapter is concerned with one ‘deep green’ transnational initiative that has had a remarkable impact within a relatively short period and provides insights into the potential for ‘smart mixes’ in the transnational context: the global fossil fuel divestment movement. It examines the transnational dimensions of climate governance through the lens of the divestment movement, with a focus on the movement’s interactions with and impact on a cluster of other climate change actors. It also asks the normative question of what smart mixes should be invoked in this context, as well as whether, to what extent and in what ways the insights of smart regulation in the domestic context are capable of extrapolation to transnational governance.

The conservation and management of fisheries on an international level is no longer a task shared by States and international organizations. The ongoing degradation in the health of the world’s fish stocks has rallied private actors to the cause. One of the more significant facets of contemporary global fisheries governance is the emergence of private fisheries certification initiatives, the most prominent of which in terms of uptake is the Marine Stewardship Council (MSC). Whereas the impact of private fisheries certification on domestic regulation has been documented in literature, there has been little research into the interactions between the MSC and inter-governmental Regional Fisheries Bodies (RFOs). The chapter will address two MSC certified fisheries, namely South Georgia Patagonian toothfish longline and Maldives pole and line fishery, which are situated within the area of competence of the Commission for the Conservation of Antarctic Marine Living Resources and the Indian Ocean Tuna Commission respectively. The chapter aims at unpacking the reciprocal interactions between the MSC and the aforementioned RFOs in terms of standard setting. Indeed, it will be argued that private certification by the MSC presupposes and grafts onto pre-existing international legal rules on fisheries. At the same time, the operation of the MSC has evolved into a template upon which international legal rules may be modelled. The chapter also seeks to measure the extent to which the operation of the MSC within RFO areas impacts on the effectiveness of international law. The dual hypothesis is put forth that the operation of private certification may prompt or lock in compliance with international fisheries law by States, who want to guarantee the benefits of certification for their industry.

This chapter examines the extent to which public and private regulations interact in facilitating the necessary preconditions for effectively addressing common pool resources through clearly defining property rights, enhancing enforcement capacity, smoothing coordination, generating and sharing information and operating the right scale of governance. Existing studies identify three types of property rights that address common pool resource problems relating to forestry: public property rights, private property rights and communal property rights. Substantial transaction costs can, however, be involved in the establishment and maintenance of property rights; these costs are influenced by many factors, including especially public and private regulation. Moreover, clearly established property rights may still fail to address common pool resource problems due to the existence of externalities, which justify the intervention of regulation. Rather than working separately, public and private regulation often interact with each other. This chapter uses forest governance in Bolivia, Canada, Indonesia, Sweden and the US as models to explore how public and private regulations interact to facilitate the establishment and maintenance of property rights on the one hand, and to overcome the failures of the government and market on the other.

Regional Fisheries Management Organisations (RFMOs) facilitate international cooperation for the management of shared transboundary fish resources like tuna. However, RFMOs are challenged with dynamic interests which have slowed progress towards collective decisions on establishing key management measures such as harvest control rules and target and limit reference points. Private institutions like the Marine Stewardship Council (MSC), a third-party certification standard, have been introduced to incentivise the adoption of these and more measures. The role of MSC as a private institution is thought to work in a linear way – providing economic incentives for meeting its standards. However, based on a comparison of three RFMOs in the Indian, Pacific and Atlantic Ocean, this chapter shows how the MSC influences decision making in very different ways. In doing so we demonstrate different ‘pathways’ through which MSC has been used to create change at the RMFO level. The findings hold relevance for a wider understanding of how third-party certification contributes to change beyond market incentives alone.

This contribution discusses from a legal perspective the role of private actors for controlling compliance with public law greenhouse emission reduction obligations. Compliance is generally the Achilles heel of environmental law. Traditionally, the governments set standards and control compliance. Within the EU, however, the EU legislator is experimenting with involving self-control and verification procedures in view of determining compliance by industries with public law regulations. It does so by introducing in its regulation a mix of governmental and private action in view of effectively reducing greenhouse gas emissions. Moreover, in EU law, the public is given wide access to environmental information held by the government, which may also be beneficial, or at least to some extent helpful, for controlling compliance with set rules. In other words, civil society has some means to control governmental action, and, in this vein, the question arises to what extent these rules also apply to information held by the verifier. The contribution focuses on one specific but important case: it will discuss this regulatory mix of governmental and private action by delving into a key measure in EU climate law: the EU emissions trading scheme, thereby particularly investigating the role that private actors may play in checking compliance. In this respect, two categories of private actors will be distinguished: • On the one hand, the so-called verifiers that are tasked with controlling the emission reports of industries covered by the EU emissions trading scheme. In fact, the EU chose to apply a “double” market based approach: firstly, the industries are covered by emissions trading, and, secondly, the private sector (the verifiers) has to compete with each other for winning contracts with industries for conducting the control of the emission reports. • On the other hand, attention will be paid to the actors in civil society who want to check whether industries comply with EU law, in the sense of not emitting more than legally allowed. The role of civil society for strengthening (compliance with) environmental law, and hence contributing to the effectiveness of regulation, is stressed by the Aarhus Convention, giving important procedural rights like particularly the right to have access to environmental information held by the government. This procedural right may be helpful, to some extent, for checking compliant behaviour. However, how and to what extent can civil society check whether duties of industries with regard to controlling emissions are complied with? Can the private verifiers be covered by this access to information laws? In other words, can civil society use the procedural rights for checking the performance of the private verifiers? The ultimate aim of the contribution is to answer the question of how this (experimental) mix of governmental and private action for regulating the reduction of greenhouse gas emissions is designed in view of enabling transparency that is seen as a crucial element for reaching effectiveness: to what extent can civil society know about how industries are regulated and controlled, also in view of the fact that private actors (verifiers) have got the task to check compliance? This issue of transparency is chosen since, generally, public control (particularly action by Environmental NGOs) is seen as an effective tool to stimulate ambitious environmental regulatory action (although in this respect, also more research needs to be done on the effectiveness and legitimacy of ENGO action). The concluding section will summarize the findings by pointing at potential problems with transparency caused by the choice of using private actors for checking compliance with public standards.