We started our analysis of smart mixes in governing common-pool resources in the introduction by stating that the two domains which were central to our analysis, forestry and fishery, are classic examples of Hardin’s tragedy of the commons. The starting point is that in the absence of any type of legal framework there may be incentives for a ‘race for trees or fish’ since no individual would receive any benefit from taking protective measures. That starting point has been the basis for advocating the allocation of property rights (either public, private or communal) to remedy the tragedy of the commons scenario. In order for those property rights to function effectively a variety of public and private regulations has been created which in turn also interact with the way in which the specific property rights are able to protect the specific resources.
That (some type of public or private) regulation is necessary to establish those property rights and to let them function in their protection of the common-pool resources has been well established. However, less is known of the way in which public and private regulation interact to address common-pool resources problems in relation to the establishment and functioning of property rights.
Precisely because there are few studies that have addressed specifically how, in particular legal systems public and private regulation do interact in their protection of common-pool resources, the goal of our study was to examine how this interaction is shaped in specific legal systems. The crucial question for our study was whether this interaction between public and private regulation can be qualified as a ‘smart’ mix in protecting this common-pool resource. To be clear: with our search for ‘smart’ interactions between public and private regulation we never implied that there would only be one optimal model of interaction which would constitute necessarily the ideal smart mix. The goal of this study has not been to propose just one specific mix of regulatory approaches which would fit all different types of scenarios. In fact, the case studies we undertook in this research show a wide diversity of governance structures for common-pool resources. It is precisely this wide variety, combined with the differences in the characteristics of resources in the national contexts, which have often shaped the particular institutions and the mixes of instruments in particular countries. Whereas the goal of our study was therefore not to determine one ideal smart mix (as this can be highly context-dependent and various combinations could under specific circumstances work well in a particular context and therefore be smart), we did notice as a result of the case studies that interactions between the different instruments do matter and that more particularly the relationship between public and private regulation may affect the way in which the property rights are able to provide an adequate protection to the common-pool resources. Whereas defining one single smart mix is therefore neither possible nor a goal to be achieved, the case studies have indicated that it is possible to show that some interactions may, under specific conditions, work better than others.
The goal of our study was to analyse this relationship, more particularly the interaction between public and private regulation and the influence of that interaction on the establishment and functioning of property rights, both theoretically as well as at a practical level. Based on the literature that addressed the way in which property rights, public and private regulation can protect common-pool resources, Chapter 2 started by providing a theoretical framework which guided the further research. Although commentators have indicated under which particular conditions property rights, public and private regulation can be expected to protect common-pool resources, the more challenging question is obviously how this interaction between public and private regulation and their influence on the functioning of property rights takes place in reality. In order to analyse the theoretical framework presented in Chapter 2, the two chapters which followed included case studies on forestry (Chapter 3) and case studies on fishery (Chapter 4). The obvious reason for limiting the analysis to these two domains was that on the one hand it kept the project manageable (addressing all potential common-pool resources problems that could emerge would of course be impossible), but on the other it focused on two important, yet different, typical common-pool resources problems. Given the differing natures of forests and fisheries it is equally interesting to examine how the structure of property rights and the interaction between public and private regulation in relation to the functioning of the property rights differ between those two areas.
In addition to providing a general sketch of how international law, domestic law and private regulation generally deal with forest governance on the one hand (Chapter 3) and fishery on the other hand (Chapter 4). Detailed case studies were provided focusing on the institutional regimes in specific legal systems. It is only through this more detailed analysis of the nature of the property rights, but more particularly the interaction between public and private regulation and the relationship to the functioning of the property rights that a better understanding can be obtained on how the different institutional regimes in specific countries function and affect the protection of the specific common-pool resources.
As explained in the specific chapters we purposely selected different countries for the cases of forest governance and fishery, not only because some countries may be more relevant for forest governance (like Sweden) whereas others may be more interesting for fishery (like New Zealand), but also because it allowed us to obtain a broad, yet relatively specific and detailed overview of the institutional regime (both public and private regulation as well as of the nature of the property rights) in nine legal systems. We deliberately selected in each case countries from the northern hemisphere, the developed world and countries from the southern hemisphere, representing the developing world.
Whereas the specific chapters on forest governance and fisheries provided comparative conclusions in which the governance structures in the legal regimes examined were compared, Chapter 5 also provided a comparative chapter in which the results of the case studies (presented in Chapters 3 and 4) were critically reviewed, more particularly in the light of the theoretical framework presented in Chapter 2.
The background for the analysis in the case studies was the theoretical framework that we presented in Chapter 2. We basically introduced the various instruments that may affect the effectiveness of various institutions in addressing the tragedy of the commons. We explained that the tragedy of the commons can, according to commentators, be remedied via different types of property rights, the most important distinction being made between public, private or communal property. However, in order to create those property rights the literature has indicated that specific preconditions (sometimes referred to as transaction costs) affect the way in which private and public regulation may enable property rights to protect the common-pool resources. We used those preconditions, identified in Chapter 2 (more particularly the definition of the property rights, enforcement, coordination, information and scale) to examine how the different institutional arrangements affect the property rights function. In that respect we stressed that property rights are of course de jure created through public regulation, but in many legal systems one can now increasingly notice that the functioning of the property rights (more particularly in their protection of common-pool resources) is no longer only affected by public regulation, but increasingly by private regulation (such as certification schemes) as well. We, however, hypothesized that public and private regulation do not function independently of each other, but interact and that, moreover, this interaction between public and private regulation will affect the functioning of the various property rights in the way they protect the common-pool resources.
Those were the starting points which constituted the basis for the subsequent case studies presented in Chapters 3 and 4.
One issue guiding our analysis was, as our title suggests, that we wished to analyse to what extent specific interactions could be considered as ‘smart mixes’. Although we already indicated that there is not one single smart mix, but that this study should rather be considered as a search for (various possible) smart mixes, the preconditions for a proper functioning of the property rights were used as criteria to judge the ‘smartness’ of the interaction between public and private regulation in the way that they affected the functioning of the specific property rights.
In order to answer the question whether one particular instrument mix can be considered smarter than another, we have used the five preconditions for the proper functioning of property rights as benchmarks. Broadly this means that we have examined to what extent a specific mix of legal and policy instruments (in our specific case more particularly the interaction between public and private regulation in their relationship to the functioning of property rights) would be able to increase the protection of particular common-pool resources. It is more particularly these preconditions (definition, enforcement, coordination, information and scale) that allow to indicate to what extent a particular interaction between public and private regulation is better or less able to provide an adequate protection of the specific common-pool resource. Of course we have on purpose refrained from referring to this analysis explicitly as an effectiveness analysis. The reason for that caution is that within the scope of our study it was not possible (and also not the goal of our study) to analyse for example whether a particular mix directly led to a specific outcome in terms of improving the quality of the protected common-pool resources. That would require research into causal relationships in which we have not engaged. That does not, however, mean that we have not, within the scope of the case studies, provided an assessment of the desirability of particular mixes. We have, however, done so on the basis of a review of literature and policy documents indicating for example whether as a result of changes in the interaction between public and private regulation in relation to the functioning of property rights the situation of a particular resource (like a specific fish stock) improved or not. Within that restricted framework it was therefore possible, within the scope of the case studies, to indicate under which particular conditions specific interactions between private and public regulation were better or less able to protect specific common-pool resources. It is therefore possible, on the basis of the study of this documentation, as we did in Chapters 3, 4 and 5 to provide some indications of which interactions may have worked better and which combinations or interactions could certainly not be qualified as ‘smart mixes’. An important conclusion from those case studies is that the effectiveness of either public or private regulation in its protection of common-pool resources cannot be examined in isolation, precisely because public and private regulation interact and are therefore mutually dependent.
In addition we will now formulate a few more general conclusions based both on the theoretical framework, but mostly on the case study research.
A first, seemingly obvious but still relevant conclusion is that the nature of the resource to be protected will to an important extent affect the optimal design of the specific property rights. That became clear, as was also indicated in the comparative chapter1 when regarding the difference between the way in which forests can be protected in comparison to the governance of fish stocks. The mere fact that forests and more particularly trees do not have the tendency to move shows that the type of property rights and also the regulations affecting the functioning of the property rights will be different from fisheries where mobility is obviously substantially larger. Note, moreover, that some rights, such as for example fishery rights, are not pure property rights in the sense that the fishers do not ‘own’ the fish in the ocean; they are, as was extensively discussed, user rights. That played an important role as was established for example in the way in which fishery territorial user rights were considered suitable in the case of the Baja California lobster and the Seris’ rights over crab in Mexico, whereas the same territorial user rights, based on a specific geographical scope, would be less significant when regulating migratory species. It is the first important point to be taken into account, meaning that the institutional arrangement should obviously reflect the nature of the specific common-pool resource to be regulated.
Early literature often regarded public property rights or private property rights as ‘the’ solution for common-pool resources problems.2 During the post WWII period, state ownership of natural resources was dominant in many countries. Recent decades have shown more support for a shift towards private property rights. The case studies show, however, that none of the three types of property rights has absolute advantages over the other. Canada is dominated by public forest ownership while private ownership is more popular in the US and Sweden. In all these three countries, forests have been protected comparatively well. The lobster fishery in Mexico and the coastal fisheries in Japan provide examples of well-functioning communal property rights regimes. At the same time, the case studies of fisheries in South Africa and forestry in Bolivia and Indonesia showed suboptimal management of common-pool resources based subsequently on a private and public property rights regime. This means we have found examples of comparatively good and poor management of common-pool resources under all three types of property rights regimes. The case studies thus show that none of these types of property rights dominates the others in resource management.
At the same time, the absence of priority among the three types of property rights does not mean that all types of property rights can apply in all contexts. The choice of property rights needs to be based on the fit between them and the characteristics of the resources and the resource users. The blind shift from communal property rights towards public property rights (as in Indonesia and Bolivia) or privatization (e.g. Mexico) has had devastating effects. The policy of changing property rights and replacing the existing way of control needs to be made cautiously. The fishing rights in coastal fisheries in Japan, for instance, have their roots in the Edo era. The self-governing institutions are developed based on the earlier fishermen’s associations. This does not mean that historical arrangements should always be kept and that property rights shifts cannot be successful. New Zealand provides an example where open-access regimes have been successfully replaced by individual transferable quota systems. The compensation for fishing-industry leavers and the exposure of Maori communities to commercial fishing have prepared them for this market-based instrument.3
What these shifts in property rights regimes also show is that the creation or existence of property rights as such does not necessarily guarantee the proper management of common-pool resources. The establishment of communal property rights in the Seris’ fishery and the Baja California Rock Lobster Fishery provide examples. The reason for this was that under the previous property rights regime, there was a deteriorating environmental status and external pressure created by poaching. That precisely provided incentives for local communities to organize, develop and implement self-governing rules. So our case studies suggest that neither the presence, nor the type of property rights is decisive for the management of common-pool resources problems. However, this does not imply that we draw the conclusion that property rights’ role in resource management all depends on the circumstances. Rather, we suggest that the way in which these property rights function depends on the specific earlier mentioned preconditions (definition, enforcement, coordination, information and scale).
Our study suggests that certainty of tenure is important for the quality of the protection awarded to common-pool resources, irrespective of whether this is allocated via public, private or common property rights. It is not surprising that more particularly in the developing countries that were examined in the case studies it was shown that the certainty of tenure was often lacking as a result of which environmental degradation took place. The case of Indonesia is illustrative: formally the state has control over the natural resources, including the forests, but de facto there is considerable uncertainty concerning tenure, with devastating effects on forest governance. The case of fishing rights in Mexico also underscores this point: the shift from the permit system to exclusive fishing rights for the Seris worked well since the access rules developed by the Seris defined relatively clear property rights.
In addition to the establishment/recognition of property rights, the content of property rights is also important. Case studies show that many regulatory instruments influence the content of property rights. For example, spatial planning and logging/fishing permits help to define the boundaries of property rights. In other words, the plan determines who has rights to exploit which resources in which geographical areas under which conditions. The coherence of those instruments is crucial to demarcate property rights. Indonesia provides an example that conflicting permits lead to overlapping forest rights and so many land conflicts. The coherence between public and private regulation is also crucial in defining property rights. In Indonesia, public and private regulation include conflicting standards concerning the protection of communal forest rights (customary rights). The conflicts make certification standards concerning property rights difficult to satisfy, and become a barrier for forest certification. In addition, public and private regulation also include standards regarding fishery and forest management. The standards often tend to be more agreeable to the large-scale commercial forestry/fishing industry, but more difficult for small-scale loggers/fishermen to comply with. Such performance standards hence weaken the status of smaller actors and their property rights.
A point which clearly came out of the case studies is that one important aspect of the clear definition of property rights obviously also consists of the enforcement of those rights. It does not suffice to allocate particular property rights (such as, for example, exclusive fishing rights); the de jure property rights should also correspond with the de facto situation. If that is not the case a lack of enforcement will de facto lead to open access. This could, for example, be noticed in Mexico where a lack of public enforcement created incentives for illegal fishing, but also in South Africa where the loss of opportunities for small-scale fishers resulted in a large informal sector and again a de facto open access, unavoidably leading to a deterioration of the resource. Those examples also show that it may not suffice to remove property rights from existing groups without giving them the opportunity to secure alternative sources of income; that may unavoidably lead to open access and hence to resource depletion.
In enforcement, a positive interaction between public and private regulation in relation to the protection of the property rights of the common-pool resource can be identified. The fact that private certification agencies equally monitor compliance with public regulations can in principle lead to additional enforcement and also save on enforcement costs. There is evidence in some of the case studies, for example concerning forest governance in the US, that private certification institutions step into monitor compliance, especially in cases where the public monitoring system fails. Also in Canada there is evidence of synergies in the monitoring and enforcement of compliance, thus leading to a reduction in the duplication of monitoring efforts. It is precisely that, given the limited resources to monitor public authorities, private certification is held as an instrument to complement public enforcement.
Notwithstanding these positive interactions (smart mixes), as far as enforcement is concerned, it should also be recalled that private certification can, also as far as enforcement is concerned, merely complement public enforcement, but not replace it; even in the instance where private certification institutions discover non-compliance with the standards, a revocation or suspension of the certification will rarely be applied.4
This leads to the conclusion that in the domain of enforcement, private certification may play an important complementary role in addition to public enforcement, but it will not be able to substitute it.
Since many different actors are involved in exploiting the forests or fish resources, coordination between the various parties is important for resource management. Particularly when multiple parties are allowed to exploit the same resources it can be important to install incentives that help overcome the reluctance of resource users to coordinate their actions by sharing information or adopting more efficient and environmental friendly methods. In New Zealand, for example, a co-management system has been implemented wherein quotas are still granted to individuals but organizations play an important role in pooling resources and coordinating the behaviour of individual quota owners.
Both public and private regulation can influence the coordination of forest and fishery management. Governmental institutions are sometimes established to promote coordination, such as the coordination committees that have been established in Japan at prefectural, cross-prefectural and national levels. However, departmentalism and contested decentralization processes can impede coordination among governmental agencies as the case studies of Indonesia, Bolivia and Mexico have shown. Moreover, spatial planning is often used as an instrument to demarcate the areas used for forestry and fishery and to coordinate activities. Besides, certification can provide a platform for multiple stakeholders to collaborate in standard setting and learning and improvement activities, although public involvement in certification is sometimes perceived as insufficient. However, the co-existence of public and private regulation may also complicate coordination by adding complexity. The example of Sweden shows that the multiple layers of regulation often lead to confusion among forest owners in deciding their forest management activities.
The availability of information regarding the resources status, forest/fishing activities and their interaction is crucial for resources management. Local users, government institutions and certification assessment can all act as information generators. Whereas local actors may be well informed about local issues, such as the status of the resources, local livelihood demands and behaviours, state actors can have the capacity to generate oversight at the system level. However, obtaining information about vast forest or marine areas remains a challenge, sometimes even in countries with comparatively strong governmental capacity such as New Zealand. Certification can also play an important role in information generation and spreading. Certification schemes have rules concerning the documentation of processes related to forest and fishery management. For resources management it can be beneficial to build a robust bridge between those complementary types of knowledge. For example, in North America public and private regulators coordinate in sharing information and rely on the information provided by each other.
Forest and fishery management require consideration on different scales. Whereas issues such as the protection of sedentary fish species and the retention of trees can be addressed at local level, issues like biodiversity protection and riparian forest protection require landscape considerations. Public regulation can address issues at both local level (such as the management of fishery in South Africa) or on a larger scale (e.g. fishing plans in New Zealand). However, the case studies of North America and Sweden show that even public regulation is often insufficient in incorporating landscape considerations. Certification is conducted at management-unit level and is therefore less suitable for upscaling.
Decentralization is often recommended to regulate natural resources on a proper scale. It is believed to enable decision-making close to local users and hence to contribute to resource management. However, the case studies show that when the system is captured and corrupt and lack of coordination among government agencies and different levels of government is aggravated by obscure and conflicting legislation, the decentralization process itself can be a driver of environmental problems. In Bolivia, for example, conflicting interests among different levels of governments and different departments exist, such as the reluctance of municipalities to support TCO application and the nesting of the land regularization process under the agricultural model.
It also became clear from the case studies that, differently from what may sometimes be considered, when private property rights are used, such as for example individual quota systems, there still is an important role for the government.5 Hence, the mere creation of a private property right (for example an individual quota system for fish) does not imply that government regulation would not be needed anymore. To the contrary, as both the forestry and the fishery chapters showed, there still is an important role for the government in deciding how the fishery would be managed. Also spatial planning, both with respect to forest governance as well as in fisheries, may be an important tool of public regulation that could accompany the establishment of a (private) property rights regime.
That is yet a second important conclusion: the case studies show that also in cases where (both in forestry and in fishery) property rights of a more private nature are created (for example an individual quota system), this does not eliminate the need for (public) regulation. The experience from the case studies rather underscores a point already made in Chapter 2, that the creation of (private) property rights requires a regulatory framework regarding the establishment and functioning of those property rights.
In many of the countries that were studied we could notice that private governance systems, more particularly private certification, are playing an important role. In fact, both with respect to fishery and forest governance, private certification played a role in the functioning of property rights in almost all of the legal systems that were examined.6
Although private actors therefore play an increasingly important role also in the governance of common-pool resources, the case studies equally showed a few limits of private governance systems which should also be taken into account:
Decentralization and privatization are processes which are assumed to increase public participation, strengthen private and communal property rights and hence to bring about desirable environmental outcomes. However, the case studies show that those theoretical advantages do not always materialize. A few conditions need to be satisfied for successful decentralization, such as population mobility, information and accounting systems, parallel decentralization in administrative functions and finance as well as technical and administrative capacity. This can be challenging in many developing countries. If institutions cannot be designed in a way to make such conditions available, decentralization may not lead to desirable outcomes. Privatization promotes the adoption of more flexible, diverse instruments and involves multiple actors in environmental governance. When more discretion is devolved to regulated actors, it is crucial to ensure sufficient protection incentives and to strengthen the capacity of private actors.
With the proliferation of private regulation, forest and fishery protection increasingly relies on the interaction between public and private regulation. Complementary interaction can strengthen their capacity in realizing protection goals and conflicting forms of regulation may counteract the effect of each other. North America provides examples with coherent public and private standards. The coherence promotes the spread of private certification and allows the public and private regulators to rely on each other’s work. The coordination between them helps to reduce enforcement costs. Indonesia, however, possesses conflicting standards regarding forest rights under public regulation and private regulation. It acts as a barrier to the spread of certification.
Good public regulation often serves as a basis for private regulation to develop. The private certification process can also help to identify the insufficiencies in public regulation and lead to improvements in both public standard setting and implementation. Sometimes, when strong certification incentives exist (such as the demand to broaden access to the market), private certification can also help to bring public regulation into place.7
In addition, even when public and private regulation are operating in a complementary way, they cannot replace each other. Public regulation can apply at the national or regional level where certification only applies to certified forests/fisheries and operates at the management-unit level. In addition, certification control is based on available public and company documentation. Only selected site visits are conducted. Hence the inspection does not cover all certified areas. Moreover, both public and private regulation are subject to their own limitations. Many case studies have provided examples of positive interactions between public regulation and private certification. The comparative chapter already provided quite a few examples of complementarities between public and private regulation. In some cases compliance with public regulation is a condition for certification under the private scheme. In other cases the emergence of a private scheme stimulates the government to either issue new public regulations or to increase the level of existing standards.
Many examples of those types of positive interactions were provided in the case studies (and in Chapter 5). For example, in the case study on forest governance in North America it was found that certification made additional information available concerning forestry activities and reduced information costs. Certification also induced compliance with the riparian buffer-zone rules. Reference is also made to interactions whereby private certification mimics government policy approaches and in most cases requires at least compliance with public regulation and in many cases to go beyond the requirements under public regulation. The fishery example in Mexico moreover nicely showed how MSC certification induced the renewal of a concession, forcing the operator (FEDECOOP) also to comply with legal requirements. Many examples are thus provided where a positive interaction between public regulation and private certification takes place. However, the case studies equally provide examples of unsuccessful interactions. For example, the Indonesian case study showed contradictory norms regarding indigenous people’s property rights in public and private regulation. The case of Indonesia is a particularly challenging one since the existing customary law and communal property were replaced by state ownership of the forests, which was, however, not accompanied by effective enforcement, which may have contributed to a continuing deforestation in Indonesia. A similar problem of contradictory norms could also be observed in Sweden.
Finally, although the case studies mostly show positive interactions between public and private regulation and there is some evidence (like in the case of Indonesia) of negative interactions, it equally appears from the case studies that private certification has an important role to play to supplement public regulation, but it is not able to completely replace public regulation. Private certification cannot be expected to address all the limitations and shortcomings of public regulation. For example, in a case where public regulation would fail to determine clear forest tenure it cannot be expected that this would be solved via private certification. The reason is that the definition of property rights is always a matter of public regulation.
An important theoretical, as well as practical, point to recall, and already referred to in Chapter 2, is that the public and private regulation in their interaction and relationship with property rights may be able to solve Hardin’s tragedy of the commons. The smart interaction between public and private regulation may reduce the transaction costs in creating property rights and thus reduce the perverse incentives resulting from open access, the race for trees or the race for fish stocks. However, even in a system wherein private and public regulation optimally interact in their relationship with property rights to protect natural resources, externalities, namely costs for third parties, could still be created. As we indicated in Chapter 5, both the case studies concerning forest governance as well as fisheries indicate that the allocation of (public, private or common) property rights does not necessarily guarantee a sustainable use of the particular resource. To give an illustration from the domain of forest governance, a forest owner could still decide to use his forest in an unsustainable manner (for example via monoculture), thus reducing the ecosystem services provided by the forest. That shows that the interaction between public and private regulation in its relationship to property rights may be relevant to remedy the tragedy of the commons, but that in addition further instruments8 are needed in order to provide incentives to internalize external costs as well.
From the above conclusions it follows that it is difficult to provide generalizations. The adequacy of the protection of common-pool resources seems to depend on the certainty of the property rights (not so much on their nature) and on the way in which a smart interaction between public and private regulation is able to allow those property rights to be established and to provide adequate protection to the common-pool resource. A point not explicitly addressed, but probably the proverbial ‘elephant in the room’, is that the effectiveness of the interactions as well as the certainty of land tenure may to an important extent be related to good governance in a particular legal system. It is a point that we have not yet explored in detail, either in the comparative analysis, or in these concluding remarks. But it is precisely for that reason that in every case study, parameters of good governance were also provided. It is therefore equally not surprising that a rough generalization as far as good governance is concerned leads to a North–South divide, which is to some extent also paralleled with problems in land tenure. Of course the precise relationship between good governance, certainty of land tenure and the adequacy of the protection of the specific common-pool resources goes beyond the scope of this book and should be the subject of further study.
We have identified in the case studies some good practices, namely interactions between public and private regulation which, according to the literature studied, seemed to have positive effects on the way in which the property rights were able to protect the specific common-pool resource. We equally found in some cases examples of where the interactions were less successful but cannot lead to any generalizations beyond some of the tentative conclusions we formulated in the previous section. One has to be very careful with generalizations precisely since the case studies showed that the effectiveness of the institutional design with respect to the interaction between public and private regulation, affecting the way in which property rights protect the common-pool resource, is highly context specific. There is therefore not just one ‘smart mix’, but some interactions that, under the specific conditions depending upon the country context, may work better than others. It is important to take this context specificity into account also when drawing normative conclusions from the results of our study.
We already indicated ourselves a few obvious limits to our study. One limit inherent in our study is that we analysed public regulation in its interaction with private regulation and property rights. Many other instruments aiming at the protection of common-pool resources are available and some of those were discussed in the theoretical chapter. One could, for example, think of market-based instruments, such as financial incentives like taxes or subsidies but one could equally imagine the role of private law instruments, such as contracts or liability rules. It would have needlessly complicated our study, but might be interesting to be included in a further search for other ‘smart mixes’.
For the same reasons we also limited our study to two resources (forests and fishery) and nine legal systems. Although we do think that this already limited study leads to a few interesting observations, the studies undoubtedly have their limits as well and one should, as we already mentioned, therefore be careful with generalizations.
The indicated limits of our research at the same time also indicate that there is substantial scope for further research into this fascinating domain, examining smart mixes between legal and policy instruments in the fight against (transboundary) environmental harm.
Beyond a further examination of other common-pool resources and different legal systems it would be worthwhile to include other instruments in the analysis of smart mixes as well. Given the changing role of the state, whereby tasks that traditionally belonged to the regulator are increasingly allocated to private actors, the search for smart mixes in policy instruments could be enlarged by examining how smart public–private partnerships could be developed, both as far as standard setting, but also enforcement are concerned.
Mixing of policy instruments seems to be an important new development and will certainly be expanded to other policy areas as well. In this book we mostly adopted a positive analysis, describing the mixes between public and private regulation as well as the relationship with property rights. Another question would be how one can judge the desirability of particular interactions or mixes. This could for example ask the question of who designs specific mixes, in other words who is the orchestrator of specific interactions. But the question could also be asked whether criteria or conditions for specific interactions could also be developed. Adding more instruments to the policy agenda will as such not necessarily guarantee that social policy goals can be achieved better. Finally, the increasing intervention of private actors can equally lead to questions of legitimacy and accountability as public participation could be strongly reduced, more particularly in comparison to the design of public regulation.
The smart mixes will therefore undoubtedly still lead to an interesting research and policy agenda beyond the domains of forest and fishery governance which were the main subjects of this study.
1 See Chapter 5, section 5.2.1.
2 For a discussion of such literature, see Ostrom 1990, pp. 8–13.
3 These are problems often influencing the functioning of ITQ systems in other countries. The transferability leads to the concentration of quotas and the loss of fishing rights of some small-scale and less efficient fishermen. Without property compensation to help them leave and chose an alternative livelihood, the excluded parties may still engage in fishing activities, forming a large informal sector. Indigenous people usually have a long history of exploiting natural resources for subsistence use. But they are usually not prepared for market-based instruments. These problems have been solved in New Zealand, therefore promoting a successful shift of property rights.
4 Leading for example in Sweden to the withdrawal of an NGO from the private certification scheme.
5 As discussed earlier, some literature views private property rights as the only solution for ‘the tragedy of the commons’ problem. See Demsetz 1967; Johnson 1972.
6 With the exception of Japan as far as fisheries are concerned.
7 See the example of the swimming crab fishery in Mexico. Supra Chapter 4, section 4.5.5.2.
8 Not necessarily only public or private regulation, but eventually also financial incentives, subsidies, taxes or emission trading.