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Institutional Complexity and Interplay Management: Compatibility and Change in Global Governance

By Sebastian Oberthür1 and Olav Schram Stokke2

Paper submitted to the ISA Annual Convention in San Diego, USA, April 2012, and to the Earth System Governance conference in Lund, Sweden, April 212

Draft version; comments are welcome to sebastian.oberthuer@vub.ac.be; olav.s.stokke@fni.no

Introduction Institutional complexity is prevalent in international governance but does not necessarily indi-cate fragmentation or incoherence. An institutional complex consists of two or more interna-tional institutions that interact to co-govern a particular issue-area in international relations, often without any clear hierarchy. In this paper we counter the premise, underlying much re-search on regime interplay, that institutional complexity implies normative inconsistency that creates greater leeway for opportunistic behavior by states, thus undermining problem solv-ing. We argue that such fragmentation is only one of several possible implications of com-plexity and point out that relationships between the elemental regimes of institutional com-plexes are often marked by compatibility and division of labor. While previous contributions on institutional complexes have focused on either compatibility or fragmentation, the explana-tory model we develop here aims to account for variation in intra-complex coherence within and across complexes. Interplay management, or deliberate efforts within or across interna-tional institutions to maintain coherence within a complex, is a key part of that model.

Unlike those who invest heavily in the actor-ness of international institutions and portray in-stitutions as vying for dominance within a governance domain (Gehring and Faude 2011), we start out from the observation that the main actors in question, states, are often members of several or all of the institutions in a complex and typically prefer that advances in problem-solving under one does not undermine that of another. We show that far from being a sure sign of fragmentation, rising complexity is often better seen as a healthy result of pragmatic interplay management that has helped to arrange institutions in particular ways, often involv-ing divisions of labor along functional, sectoral, or spatial lines. Such cases contrast sharply

1 Academic Director, Institute for European Studies, Vrije Universiteit Brussel, Belgium

2 Research Professor, Fridtjof Nansen Institute, Norway

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with those in which complexity derives from deliberate attempts to achieve a new balance between competing concerns by introducing “strategic inconsistency” within the complex (Raustiala and Victor 2004). Pragmatic interplay management aims instead to maintain or even improve the quality of governance in situations when existing institutions have been found wanting and the necessary adaptation of them has been blocked by institutional inertia. Our attention to such pragmatic interplay management, alongside with its competitive coun-terpart, sets us apart from those who see normative fragmentation as inherent in institutional complexity (e.g. Alter and Meunier 2009; Drezner 2009) and from those who interpret norma-tive fragmentation largely in terms of shifts in inter-state configurations of interest or capa-bilities (e.g. Raustiala and Victor 2004; Keohane and Victor 2011).

First we discuss the key concepts of institutional complexity and interplay management and show how they may affect normative compatibility. Thereafter we pinpoint certain factors that previous contributions have indicated as important for whether or not complexity drives incoherence, notably the constellation of actor interests and power within the elemental insti-tutions and any normative hierarchy among the institutions. Drawing upon governance expe-riences in a range of issue areas, including air pollution, genetic resources, climate, and ship-ping, we then substantiate the significance of interplay management by showing how the ar-rangement of institutions along functional, sectoral, and spatial divisions can affect the scores on the three factor expected to drive or impede incoherence within institutional complexes. Finally, we summarize our argument and derive some implications of introducing interplay management in the explanation of coherence and fragmentation among institutions co-governing issue areas of international relations.

Institutional Complexes The thrust of international-governance studies has moved from exploring specific institutions to investigating institutional complexes or architectures. Traditional research on international institutions focused on the emergence, operation and consequences of individual ‘regimes’ as the core governance structure of each issue area in international affairs (e.g. Levy, Young, and Zürn1995). However, as institutional arrangements have proliferated in global governance and their density and scope have increased, scholars have increasingly acknowledged that the governance activities of individual institutional arrangements frequently overlap or comple-ment each other (e.g. Brown Weiss 1993; Young 1996; Stokke 2001; Oberthür and Gehring 2006). Under such circumstances, governance of a particular issue area is best understood as the result of the interplay of several relevant institutions in a more or less horizontally struc-tured system.

Consequently, scholars are increasingly turning to the exploration of “regime complexes” (Raustiala and Victor 2004), “institutional complexes” (Oberthür and Stokke 2011) and gov-ernance “architectures” (Biermann et al. 2009). This sharper focus on complexes of institu-tions reflects the reality that many, if not most, issue areas of global governance are now sig-nificantly influenced by more than one international institution. The number of institutional complexes identified and explored continues to grow in such diverse issue areas as the provi-

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sion and use of plant genetic resources (Jungcurt 2008, 2011; Raustiala and Victor 2004), resource exploitation and environmental protection in the Arctic (Stokke 2011), the trade and environment overlap (Gehring 2011), climate change (Bluemel 2007; Keohane and Victor 2011), refugee policies (Betts 2009), global food security (Margulis 2010), antipiracy policies (Struett, Nance, and Armstrong 2010), intellectual property rights (Barbosa, Chon, and von Hase 2007; Yu 2007), energy (Colgan, Keohane, and Van de Graaf 2011), and others.

As Orsini, Morin and Young (2011) point out, such a proliferation of institutional complexes begs clear criteria for identifying their boundaries. In a first step, we may define an institu-tional complex as a set of two or more international institutions that interact in co-governing a particular issue-area in international relations. This definition is compatible with the often cited definition by Raustiala and Victor (2004 279) as “partially overlapping and non-hierarchical institutions governing a particular issue-area” but it does not preclose the issue of hierarchy. International organizations and treaties are not usually hierarchically ordered but elements of formal verticality may nevertheless exist (Wolfke 1993; van Asselt 2011). More-over, inherent in the notion of an institutional complex is the interdependence and interaction of its elemental institutions. Only if they interact, by influencing each other’s emergence and development (institutional dynamics) or their consequences in various domains (including their effectiveness in addressing and resolving the problems that led to their creation in the first place), can we usefully say that they “overlap” and co-govern the issue area (see also Gehring and Oberthür 2009; Stokke and Oberthür 2011; Young, et al.1999/2005). These un-derlying interdependence relationships among the elemental institutions of a complex are not necessarily symmetrical, so an element of informal hierarchy should not be excluded a priori (Orsini et al. 2011).

To avoid arbitrary delineation of institutional complexes we may furthermore employ as a criterion issue-area delimitations that are widely shared by policy-makers and other research-ers. The various possibilities for defining the borders of an institutional complex are reminis-cent of past discussions on how best to delimit the issue areas inherent in the concept of indi-vidual international regimes (see Haas1975; Potter1980). Since issue areas are, eventually, socially constructed, it may be advisable to employ definitions in use among policy-makers and researchers. True, unlike international regimes the complexes we study are rarely “nego-tiated” and policymakers do thus not regularly define the boundaries of institutional complex-es by “political linkages” (Young 2002, 8, 64; Young, et al.1999/2005, 62-65) or “clustering” (von Moltke 2005). Yet, regime members increasingly develop explicit shared understandings of which other institutions are relevant for their governance efforts, which can serve as a use-ful point of reference, as may, as a second-best criterion, the delimitations applied by other researchers (see also discussion by Orsini et al. 2011).

Institutional complexity, to summarize, refers to two or more distinctive institutions that in-teract in their governance of the same activity, or aspects of the same activity, usually in a non-hierarchical manner. The rising significance of this phenomenon in global governance, not least in the environmental area, reflects the steady emergence of new or stronger govern-ance arrangements and instruments, frequently focusing on a specific policy domain but also

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being attentive to cross-sectoral concerns arising from connections within ecosystems or among activities. Among the potential drivers of such norm-building exercises are technolog-ical or other developments that have rendered existing institutions inadequate for problem-solving purposes, as when advances in echosounder technologies and large-scale investment in highly efficient stern trawlers undermined the commons regime for high-seas fisheries and triggered the formation of numerous regional management regimes (Stokke 2001; Alcock 2011). Since technological advances are usually asymmetrically available, such dynamics can also engender strategically motivated regime creation or change, fuelled for instance by dis-satisfaction among influential industries in powerful states who perceive existing institutions as unduly constraining on their access to resources or markets (Raustiala and Victor 2004; see also Colgan et al. 2011).

Many authors move quickly from observing institutional complexity to assuming fragmenta-tion and incoherence, providing actors with greater leeway to engage in “forum shopping” or “forum shifting” (e.g. Alter and Meunier 2009) and undermining the normative pull that in-ternational institutions may exercise on states and other actors (Franck 1990; Drezner 2009). However, although early exploration of institutional interplay often highlighted normative inconsistencies, duplication of work, or institutional competition, recent empirical studies indicate that cross-regime inefficiency and discord do not seem to predominate in internation-al environmental governance and that instances of supportive or neutral interplay are also frequent (Stokke 2001; Oberthür and Gehring 2006; Oberthür and Stokke 2011). To examine factors that can help to explain why institutional complexity sometimes leads to normative ambiguity and disruptive interplay, but sometimes not, is the business of the next section.

Managing Institutional Interplay Interplay management is pervasive in international governance and frequently prevents insti-tutional complexity from generating normative ambiguity and other kinds of disruptive inter-play. The term denotes conscious efforts by any relevant actor, or group of actors, to address and improve institutional interaction and its effects (see also Oberthür 2009; Stokke 2001; Stokke and Oberthür 2011). It usually involves the pursuit of collective objectives as en-shrined in the institutions in question and aims to move the inter-institutional division of labor towards the synergistic, complementary side.

Whereas institutional interaction as such may occur even without the awareness of the actors concerned, interplay management requires reflection upon the interplay. This phenomenon differs from other closely related notions such as “political linkage” (Young, et al.1999/2005, 62), “clustering” (von Moltke 2005; Young1996) and “policy responses” (Gehring and Ober-thür 2006, 314-316) in that it neither connotes a predilection for institutional aggregation nor conceptualizes relevant policy action as necessarily additional to an underlying institutional interplay. Rather, relevant actors may well and frequently do strive to improve inter-institutional relationships and their effects in the processes that constitute the original institu-tional interaction (for further detail, see Stokke and Oberthür 2011). In essence, analysing interplay management is to narrow in on the scope that actors have within the source or the

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target institution to collectively shape the arrangement of institutions within a complex, nota-bly any division of labor between the institutions.

We focus here on three important ways those operating the elemental institutions of a com-plex may differentiate among them, creating specific divisions of labor. First, institutions within a complex may specialize on the supply of certain governance functions such as the creation of knowledge, regulation, capacity building, or enforcement across sectors, as is ap-parent in Arctic environmental governance (Stokke 2011; see below). Second, elemental insti-tutions may narrow in on regulatory subsets or sectors of the overall issue area. In climate governance, for example, the International Maritime Organization (IMO) and the Internation-al Civil Aviation Organization focus on emissions from international transport while the Montreal Protocol for the protection of the ozone layer is the main vehicle for addressing cer-tain industrial greenhouse gases used as substitutes for ozone-depleting substances (Keohane and Victor 2011; Oberthür 2006; Oberthür et al. 2011). Third, elemental institutions my spa-tially specialize on certain geographic regions. In the governance of access and benefit shar-ing from the provision and use of genetic resources, for example, distinct arrangements have been elaborated, or are under consideration, for areas under national jurisdiction (under the Convention of Biological Diversity – CBD), the high seas (under the UN Convention on the Law of the Sea – UNCLOS), and for Antarctica (under the Antarctic Treaty System – ATS). Whereas spatial differentiation may be combined with each of the others, functional and sec-toral specializations are mutually exclusive except if the sectoral specialization focuses on particular governance functions and leaves others to cross-sectoral institutions.

Thus, the concept of interplay management highlights collective governance of institutional complexes rather than their mere “evolution”. Relevant actors may pursue interplay manage-ment at various levels of coordination among those involved. At the first and highest level, interplay management could rely on overarching institutional frameworks, such as the 1969 Vienna Convention on the Law of Treaties, relevant overarching sector-specific international organizations or the UN Security Council, which implies decision-making beyond the inter-acting institutions. At the second level, joint interplay management of the institutions con-cerned involves targeted efforts to coordinate the activities of interacting institutions (for ex-ample, through an exchange of information between the relevant secretariats, representation at each other’s meetings, or the creation of special joint scientific, administrative, or political bodies), possibly even to create joint rules governing the interaction. At a third level, unilat-eral management by individual institutions involves collective decision-making and action within one or more of the interacting institutions, without any coordination between them. By not involving cross-regime coordination of decision-making, unilateral management employs the existing repertoire of international governance and is therefore the least demanding and the most likely to occur. At the fourth and lowest level of coordination, governments and oth-er actors like civil society organizations and business may engage in autonomous manage-ment efforts. Individual actors constantly have to take decisions on the implementation of international rules and norms. Some of them are also involved in the decision-making pro-cesses in international institutions, including about collective interplay management. In this

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regard, individual actors face obvious choices that affect the overall interaction situation (Oberthür 2009, 375–377; Stokke and Oberthür 2011, 6-10).

It is not surprising that unilateral management has so far been the most prominent kind of collective governance of inter-institutional relations. To start with, autonomous management, even though important in shaping institutional interaction and complexes, does not provide for collective decision-making on the relationship and co-governance of different internation-al institutions. Overarching frameworks of interplay management have remained weak. Im-portantly, their development is beyond the remit of specific institutional complexes. Joint management structures are relatively costly because they require establishing inter-institutional communication processes, and have evolved to some extent, focusing on the fa-cilitation of cross-institutional flows of information. In contrast, most international institu-tions have procedures and bodies in place that regularly take ‘unilateral’ decisions which al-lows them to – explicitly or implicitly – shape relations with other institutions (Oberthür and Stokke 2011).

Factors Driving Coherence and Fragmentation States and other actors can have many reasons to engage in interplay management, aiming to prevent institutional complexity from generating incoherence, but counterforces also need attention. The inter-institutional divisions of labor that emerge within institutional complexes are not primarily the outcome of legalized processes: instead, they tend to reflect political struggle among those operating the institutions. Inter-institutional division of labor results from sometimes conflictive political processes based on the distribution of power among in-stitutional constituencies and the distribution of influence enshrined in the substantive norms and procedures of existing institutions.

Hierarchy, Interests, and Power

Even in cases where the elemental institutions differ in their main objectives, as they do for instance on the trade-environment axis of international governance, complete disregard for the concerns promoted by the other is the exception rather than the rule. Considerations revolving around obligation, incentives, and power relationships can explain efforts to maintain or im-prove intra-complex coherence but they can also enable actors who favor fragmentation.

We may consider first how certain “building blocks of due process”, including internal con-sistency and external coherence with broader norms on how to create and implement them, are important for the legitimacy or compliance pull of international rules and institutions (Franck 1990). Especially where regime membership overlaps significantly, as is frequently the case with universal institutions, the commitments enshrined in each elemental institution of a complex tend to motivate actors to maintain or enhance consistency and coherence. Thus, actors may differ in their preferences as to the accommodation of two or more institutions, but as members of them actors may be prepared to accept considerable adaptations within one regime to avoid normative fragmentation likely to undercut the authority of each and jeopard-ize related cooperation gains (Oberthür and Gehring 2006). Two elements of normative hier-

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archy, if present within an institutional complex, are likely to facilitate such accommodation. First, institutions may depend to a certain extent on others for their legitimacy or functioning. For example, regional fisheries regimes derive much of their internal and external legitimacy from the global regime codified in UNCLOS. Allocation of regulatory competence and for-mulation of general principles rests with the global institution whereas adoption and imple-mentation of discrete conservation and management measures occurs in “nested” regional regimes (Young 1996; Stokke 2001; 2011b; on nesting in general, see Aggarwal 1983). Se-cond, as noted, differences among governance institutions with respect to the levels of politi-cal support they can garner for their objectives may translate into differentiated levels of in-fluence of these institutions on the issue at hand.

A second broad factor influencing the likely success of interplay management efforts concern the constellation of actor interests with respect to the issue at hand. One illustration is the cen-trality of asymmetric and competitive interests in Stokke’s (2011) account of Arctic petrole-um governance. The stepwise extension of national jurisdiction over marine resource use has served Arctic coastal states well. It is not surprising, therefore, that the same states have been eager to fend off certain attempt to create one or more new international bodies endowed with environmental regulatory competence in the Arctic that might constrain their exercise of sov-ereign rights over oil, gas and living resources (see also Young 2010). In this case, vested parochial interests in status quo, reinforced by the nestedness of the continental-shelf water-column regimes in the globally applicable UNCLOS, have prevented those pursuing change through creation of new structures that may forward competing norms within the complex from having their way. Strong asymmetry or competition between the interests underlying the policy objectives of the elemental institutions will complicate efforts to maintain coherence within a complex.

However, calculation of costs and benefits is relevant not only for cases that are close to the “pole of politics” of institutional interplay (Orsini et al 2010), involving competitive or asymmetric interests. The Arctic air-pollution complex sketched below is closer to the oppo-site “pole of pragmatism”, since the elemental institutions possess complementary capacities and pursue the same or highly compatible goals. Generally, when examining interplay man-agement we find interest constellations that are more or less benign or malign (Underdal 2002) as regards arranging regulatory interfaces or shifting the balance among concerns evi-dent in the existing division of labor.

Such interests are contingent on the underlying understandings and perceptions states have, for instance as to whether or not free trade and environmental protection are reconcilable, and processes of interplay management may therefore involve communication and learning. Thus, formulas that succeed in balancing competing concerns in a mutually acceptable way fre-quently diffuse swiftly from one institutional context to another, especially if the challenges states face are similar and some overlap in membership is present (Evans and Davies 1999). Such learning is evident, for instance, in the rapid diffusion of the “cooperating state” concept under regional fisheries regimes, according to which non-members can avoid trade-related compliance measures by participating in the overall system for verification, review, and en-

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forcement, which raises the WTO compatibility of such compliance measures (Stokke 2009). Conversely, under malign conditions successful attempt to undermine the existing division of labor within one institutional complex by creating or strengthening competing decision-making for a may inspire others to do the same in another issue area.

An important part of understanding the dynamics of relevant interest constellations, finally, is the distribution of power among institutional constituencies in the “basic game” of the activity system addressed by a complex. Relatively high hurdles exist for changing the balance of concerns within a multilateral institution, which typically operate by consensus or strict quali-fied-majority rules. Therefore, changing the status quo requires that all or at least a large ma-jority of states are dissatisfied with it and prefer change, which is much easier to achieve for benign than for malign constellations. With high malignancy, the underlying institutional in-ertia may lead to a pattern of “punctuated equilibrium” in which changes are rare, requiring large shifts in interest or power constellations, and involve moving between relatively stable balances (Colgan, et al. 2011).

In summary, interplay management can be expected to influence the relationship between institutional complexity and the level of coherence but three other factors also merit attention. Those are the extent of hierarchy, if any, among the elemental institutions, the overall interest constellation, and the balance of power among relevant constituencies. In the remainder of this section, three mini-cases bring out how interplay management can enhance coherence because functional, spatial and sectoral differentiation may influence those drivers of coher-ence and fragmentation. Interplay management appears to be capable of maintaining or im-proving coherence, defined as normative compatibility and mutual supportive problem solv-ing, despite institutional complexity. That effect is evident also when the constellations of norms, interest and power are non-conducive to synergistic interplay (*check after finaliza-tion).

Case Studies

Functional Differentiation: Arctic Toxics

Functionally differentiated complexes avoid normative tension and make good use of differ-ences in institutional capacities. The case briefly reviewed here demonstrates that such inter-play management exploits rising complexity to improve coherence, which is the opposite of what many analysts assume. In focus are several institutions involved in combating discharg-es of environmental toxics that bioaccumulate in Arctic ecosystems, and the rise in complexi-ty is evident in the increasing significance of a relatively new soft-law institution, the Arctic Council. That body is the central high-level forum for dealing with a range of circumpolar matters, including certain aspects of environmental protection. Bi-annual ministerial declara-tions guide program activities within six working groups with follow-up overseen by regular meetings of Senior Arctic Officials of the member states (Stokke and Hønneland 2007).

The Pole-bound atmospheric and oceanic circulation systems and rivers draining into the Arc-tic waters transport a range of toxic substances that originate or volatilize further south, in-

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cluding such persistent organic pollutants (POPs) as organochlorine pesticides used in agri-culture, industrial chemicals, and a range of combustion products. Low temperatures create an Arctic “cold trap,” or sink, for some of these POPs, preventing further transport. The effects that POPs have on humans are more dramatic in the Arctic than those documented at lower latitudes because these substances bio-accumulate in the fatty tissue and blood of mammals and sea birds that are important in the diet of Arctic indigenous residents. This role of the Arctic as a sink for hazardous compounds means that regional states and institutions cannot seriously address the POPs problem without engaging broader international regimes – hence the centrality of regime interplay for effective problem solving. Several international institu-tions jointly affect the ability of Arctic states to combat this hazardous-compounds problem (Stokke, Hønneland and Schei 2007).

During the 1990s, interplay management within this institutional complex produced a func-tional division of labor that raised the coherence of these efforts. Thus, the eight states operat-ing the Arctic Council and its predecessor, the Arctic Environmental Protection Strategy (AEPS), carefully adapted their collaborative monitoring and assessment activities so as to maximize influence on several broader regulatory processes. Those activities were adapted in order to fit the requirements of ongoing negotiations under the UN Economic Commission of Europe on a possible POPs protocol to the Convention on Long-Range Transported Air Pollu-tion (CLRTAP), which covers Europe and North America, and later the UN Environmental Program’s facilitation of the global Stockholm POPs Convention (Selin 2000, 133). Arctic-Council based studies of transport pathways and health impact on mammals and humans glove-fitted the CLRTAP criteria, subsequently emulated by the Stockholm Convention, for chemical substances in particular need of regulation: transport range, persistency, toxicity, and bio-accumulation (Selin 2000142). In addition, some informal coordination occurred in the Arctic-CLRTAP dyad in that the co-chair of the latter’s POPs Task Force, which evaluat-ed the need for new regulations in the area, also chaired the Arctic Monitoring and Assess-ment Program, thus ensuring that Arctic findings were continuously fed into the broader pro-cess (Reiersen, Wilson, and Kimstach 2003, 68). The modest-level interplay management provided was largely in the form of unilateral adaptation within one institution aiming to in-fluence developments in two other institutions.

This functional differentiation ensured that the rising institutional complexity inherent in the Arctic-Council involvement increased rather than undermined the coherence of efforts to combat toxics in the Arctic. Rising coherence is evident in the improved provision of two governance tasks, knowledge building and norm development (Stokke 2011). Knowledge building improved because the Arctic Council was better placed than the two regulatory bod-ies in generating willingness among Arctic states to cover the costs of the long-term monitor-ing and research that were necessary for documenting the damage that toxics discharges make in this region. That greater willingness to pay derived in part from a perception that long-term security interests in the region would be well served by a stable, reasonably successful cir-cumpolar institution that crosses the old East-West divide in the Arctic. Environmental moni-toring is a benign cooperation area for achieving such success, since it does not impinge upon controversial issues of sovereignty and jurisdiction.

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In turn, this improvement in knowledge-building helped to advance norm-building within the institutional complex to further improve complex-coherence. It did so partly by exploiting the power leverage inherent in the Arctic-Council membership of two political heavyweights in world affairs. The northern territories of the USA and Russia are major importers of pollution that originates elsewhere and the prominent status of indigenous-peoples organizations as Permanent Participants in Council affairs had the effect of raising especially the USA’s atten-tion to this problem (Huntington and Sparck 2003 221–222). Following adoption of the AEPS, delegates from the eight Arctic states expressed to the CLRTAP Executive Body their deep concerns about the Arctic health effects of POPs (Reiersen, Wilson, and Kimstach 2003, 61). This joint pressure added substantially to previous unilateral calls for action by the most concerned state, Canada, and contributed to the Executive Body’s decision to strengthen the mandate of the new CLRTAP Task Force on POPs.

A second effect in support of regulatory advance in the broader regimes was that data and analyses provided by the Arctic Council carried greater political saliency than that generated previously under the CLRTAP, especially by substantiating health effects among indigenous residents. Today, the Inuit of Canada and Greenland have among the highest exposures to polychlorinated biphenyls (PCB) on the planet, and fetuses and small children relying on breast milk are especially vulnerable (Dewailly and Furgal 2003). A similar situation applies to some of the Arctic mega-fauna. Among the highest PCB levels ever measured in fat and blood are currently found in polar bears around Svalbard north of mainland Norway and the Russian archipelago of Franz Josef Land. Recent studies indicate negative impacts on im-mune systems and reproduction (Reiersen et al. 2003, 76). Proven damage to human health and large mammals attracts greater public attention than does more “diffuse” information on toxic concentrations in air and water masses.

Credible substantiation of threats to human health would have been far more difficult without the Arctic Council, since research and monitoring under CLRTAP rely on direct funding by interested states – and in the early 1990s, no such activities concerned POPs (Selin 2000, 126). The sixteen substances that were selected from an initial list of more than a hundred included those of greatest relevance to Arctic ecosystems, which indicates that AMAP inputs have been taken seriously. The combination of a powerful membership and politically salient outputs placed political pressure on those negotiating the CLRTAP protocol and the Stock-holm Convention, thus contributing to the adoption of legally binding rules that commit states to eliminate, or in some cases restrict, the production, use, and trade of certain particularly harmful substances (Stokke et al. 2007).

Underlying this successful interplay management were highly conducive interest and power constellations, since the elemental institutions could bring complementary capacities to bear on problem solving. The Arctic institution was better placed to mobilize the sensitivity of Arctic great powers to the problem at hand and the willingness to fund necessary monitoring and research. The broader institutions had more relevant membership in regulatory terms, because most of the Arctic toxics originate outside the region. Under such favorable condi-tions, greater complexity translated to better coherence within the institutional complex.

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Sectoral Differentiation: ABS in Genetic Resources

An important part of the institutional complex of the governance of access to and benefit-sharing from genetic resources (ABS) has been managed relatively successfully by means of an increasing sectoral differentiation. ABS governance is about the twofold question of (1) how interested public and private actors, especially biotech industry from developed coun-tries, can get access to genetic resources (plants, animals, microorganisms) concentrated in developing countries and (2) how a fair and equitable sharing of the benefits derived from the utilization of such genetic resources with the original providers can be ensured (see for this whole section Oberthür and Pozarowska 2011a and b). The sectoral differentiation has result-ed in the elaboration of sector-specific ABS arrangements for health (viruses) and agriculture (plant genetic resources) that are adapted to the particular needs and requirements of these sectors.

The overall institutional complex of ABS governance consists of about a dozen international institutions and processes, as acknowledged in negotiations under the Convention on Biologi-cal Diversity (CBD). The CBD regime (as elaborated in 2010 through its Nagoya Protocol on ABS) forms the centre of the institutional complex as the only institution that regulates the full ABS issue area, including both aspects of access and benefit sharing comprehensively. In focus here is a sub-section of the overall institutional complex for which interplay manage-ment efforts in the relevant institutions (unilateral management) has led to an increasingly recognised sectoral differentiation, in particular between the CBD and the World Health Or-ganization (WHO) as well as the Food and Agriculture Organisation of the United Nations (FAO) and its 2001 International Treaty on Plant Genetic Resources of Food and Agriculture (ITPGR).3 The WHO coordinates the sharing of viruses and other pathogens. The FAO pos-sesses competences as regards regulating plant and animal genetic resources (including seeds). As further elaborated below, the pre-existing sectoral differentiation has been further deepened in the wake of the 2010 Nagoya Protocol.

Against this backdrop, conditions for elaborating a sectoral differentiation and specialisation were relatively benign. First of all, there is no fundamental conflict between sustainable-development interests channelled through the CBD, on one side, and health and food-security interests, on the other. Taking the objectives of the relevant international institutions as a point of reference, a fair and equitable sharing of the benefits arising out of the utilisation of genetic resources (CBD), on the face of it, is not incompatible with advancing world health (WHO) and a secure food production (FAO). The missing element of benefit-sharing can in principle be brought on board in both areas. However, health and food are two sensitive areas that may require or benefit from special arrangements. From a health perspective, for exam-ple, speedy access to pathogens can be of the essence, and for food security unhampered ac-cess to genetic material is also essential. Already in the 1990s, members to the FAO had

3 Other less central institutions of this sub-complex not further discussed here include the International Union for the Protection of New Varieties of Plants (UPOV), the International Plant Protection Convention (IPPC), and the World Organization for Animal Health (OIE); see for more detail Oberthür and Pozarowska 2011a and b.

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therefore elaborated the ITPGR as a special ABS arrangement for seeds to be operated “in harmony” with the CBD (Jungcurt 2008).

The distribution of power between major players was also relatively favourable for a further deepening of the pre-existing sectoral specialisation. First of all, such a deepening essentially meant a continuation (and reinforcement) of the existing path. In contrast, it was changing course (e.g. by centralising everything fully or partially under the CBD) that would have re-quired a significant departure from the status quo and thus an extra-effort (i.e. strong support from major players. However such a change was unacceptable to major actors (most notably, the EU and other industrialised countries). Even though support for a further sectoral differen-tiation was not unequivocal either (with many developing countries favouring a centralisa-tion), the distribution of power meant that the status quo could hardly be modified. In the elaboration of the ABS regime under the CBD, insisting on such change would have endan-gered the adoption of the Nagoya Protocol as a whole.

Under these circumstances, states further consolidated the pre-existing sectoral differentiation by means of the 2010 Nagoya Protocol to the CBD on ABS and subsequent decision-making in the WHO and the FAO. The Nagoya Protocol provides for important clarifications regard-ing the relationship between the central CBD regime and specialised ABS regimes (Buck and Hamilton, 2011). Overall, the Protocol assumes a guiding function in defining the general objectives while leaving the initiative for the development of any complementary specialised rules to the respective sectoral institutions. According to Article 4 of the Protocol, specialised regimes can be elaborated and will be recognised if “they are supportive of and do not run counter to the objectives of the Convention and this Protocol”. They may even overrule the Nagoya Protocol for their membership and for their specific purpose (para. 4). While agricul-ture and health are recognised as sectors, Article 8 – even though framed in non-mandatory, hortatory language – specifically acknowledges a possible need for and justification of special arrangements for human, but also animal and plant health, especially as regards emergency situations. In this way, the Protocol paved the way for potential further sectoral specialisation in line with the general guidance of the central regime especially as regards fair and equitable benefit sharing Accordingly, the World Health Assembly of the WHO – after several years of negotiation – was finally able to adopt a “Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits” in May 2011. The Framework contains templates for Standard Material Transfer Agreements and deter-mines benefit-sharing arrangements specific to the sector (including making available vac-cines and anti-virals for use in developing countries, financing of the Global Influenza Sur-veillance Network). As a further development, the FAO Commission, in July 2011, estab-lished an Ad Hoc Technical Working Group on Access and Benefit Sharing in order to ex-plore which further sectors related to food and agriculture (beyond seeds covered by the IT-PGR) may require the elaboration of distinctive solutions, possibly including legal instru-ments, in line with and implementing the Nagoya Protocol.

As a result, coherence within the sub-complex has further increased. While the ITPGR was largely acknowledged as being in harmony with the CBD already, the aforementioned devel-

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opment (in particular the Nagoya Protocol) move the institutions involved towards enhanced normative compatibility and an accepted balancing of different objectives taking into account sector-specific circumstances. All sides seem to work along the agreement that sector-specific solutions are possible as long as appropriate benefit-sharing arrangements are included. Con-cerns about specific sectors and their needs may otherwise have precluded overall progress. At the same time, agreement within sector-specific institutions is required in order to exempt them from the general CBD framework.

Differentiating Specificity: Fisheries and Trade

The institutional system for governing regional fisheries in the Northeast Atlantic became more complex with the introduction of multilateral trade-related compliance measures in 2007, but overall coherence increased since measures raising problem-solving capacities were designed to avoid normative tension with international trade rules. Those operating the fisher-ies regimes tailored their trade restrictions to the “environmental window” of the global trade regime, thereby accepting guidance from its general criteria for WTO compatibility while claiming competence to hammer out specific compliance measures capable of raising the costs of rule violation.

The expanding institutional complex for managing the world’s biggest cod stock (and several others) is centered on the Norwegian–Russian Joint Fisheries Commission, which meets an-nually to adopt and allocate total quotas and other binding regulations (Stokke 2012). Such a narrow regional regime can manage this stock legitimately because it occurs predominantly within the 200-mile exclusive economic zones (EEZs) of those coastal states. This regional institution is nested within the global fisheries regime codified primarily in the UNCLOS. During the 1990s, increasing coastal-state use of trade-related measures to combat harvesting activities by non-members of the regional regime implied that trade regimes, including global rules under the WTO, became part of the relevant institutional complex, as did the North-East Atlantic Fisheries Commission (NEAFC) through the 2007 extension of its Scheme of Con-trol and Enforcement beyond its regulatory area (the high seas) to comprise also frozen fish taken in the regional EEZs (Stokke 2009).

The force driving this rise in the complexity of the governance system was a dramatic change in the production and marketing strategies of Russian fisheries companies. Previously, these actors landed their produce in the ports of Norway and Russia, allowing the catch reports of fishers to be cross-checked against the landings received by processors to complement at-sea inspection in the monitoring of rule compliance. When around 2000 Russian vessels shifted their direct landings from Norwegian to various European ports, those regime-based compli-ance measures proved inadequate. Estimates of unreported catches of Northeast Arctic cod indicated Russian quota overfishing rising from 20 percent in 2002 to nearly 40 percent in 2005, with potentially severe impacts on stock sustainability, distribution of gains, corruption, and quota responsibility among managers and fishers.

Measures taken within the regional regimes aiming to counter these problems brought them into potential conflict with international trade rules. In particular, the extension of the NEAFC

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Control Scheme committed the NEAFC membership, which includes all the major port states in the region, to prohibit any NEAFC vessel from landing or transhipping frozen fish in its port except under certain conditions. The flag state of the vessel that caught the fish must con-firm that the vessel has sufficient quota, has reported the catch and is authorized to fish in the area, and that satellite tracking information data administered by the NEAFC Secretariat cor-respond with vessel reports (Stokke 2009). If the flag state of the vessel landing the fish is a WTO member, those provisions may involve tension with several principles and rules in WTO agreements, including the GATT principles of national treatment (Article III) and of most-favored nations treatment (Article I), the general ban on quantitative restrictions (Article XI), and the freedom of transit (Article V).

The conditions for managing this potential normative conflict were relatively malign since protection of free-trade objectives could only occur by ceding on the resource-management goals pursued under the fisheries regime. Non-trade related compliance measures like at-sea inspections were not only costly but had proven wanting. In contrast, the power relationships within both sets of regimes among those interested in accommodating trade and conservation concerns and those single-mindedly pursuing one objective only, favored coherence. On the trade-regime side of this equation, interplay management began already when drawing up the GATT with the insertion of its “environmental window”: a set of general exceptions laid out in its Article XX and repeated in subsequent WTO agreements (e.g. Stokke 2004; Gehring 2011). Subject to the chapeau requirement that trade restrictions ‘are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination…or a disguised restriction on international trade’, such measures may be compatible with the global trade regime if they are ‘necessary to protect human, animal or plant life or health’ (paragraph b) or ‘relating to the conservation of exhaustible natural resources if such measures are made effec-tive in conjunction with restrictions on domestic production and consumption’ (paragraph g). Subsequent decisions by dispute settlement bodies have clarified and developed the ramifica-tions of these exceptions, which received even higher prominence by the 1994 Preamble in-clusion of sustainable development among the WTO’s objectives (Schoenbaum 1997). Key compatibility tests are whether states have exhausted less restrictive measures, have mini-mized and justified any remaining discrimination, and have developed criteria for avoiding trade restrictions that are clear, transparent and neither suspiciously well-adapted to domestic-industry needs nor intruding excessively into the jurisdictional autonomy of the target state (Stokke 2004).

Interplay management efforts on the fisheries side of this relationship began in the early 1990s, with various tuna-fishing commissions implementing import bans on states whose ves-sels have been found to engage in IUU fishing (Palmer et al. 2006), before developing a less trade-restrictive measure subsequently used by NEAFC: multilateral documentation schemes that allow differential treatment of vessels flying the same flag but differing in rule adherence. The NEAFC scheme was modeled in part on corresponding measures under the Commission for Conservation of Antarctic Marine Living Resources (CCAMLR), which had evolved with keen attention to the possibility of target states challenging restrictions under global trade rules (Agnew 2000: 369). The CCAMLR Secretariat had presented and discussed its catch

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documentation scheme with the WTO Committee on Trade and the Environment, to minimize tension (WTO 2000). Thus, the glove-fitting of the NEAFC Scheme to the environmental window of the global trade regime resulted from a decade-long effort within a string of re-gional fisheries regimes (Stokke 2009). Compared to the bilateral Joint Fisheries Commis-sion, the NEAFC was much better placed to meet the chapeau requirements since developing trade-related compliance measures within a multilateral framework makes it more difficult to tailor provisions opportunistically so as to hit foreigners harder than domestic players. Fur-ther, the documentation scheme and other port states controls were introduced only after a string of less- or non-trade restrictive measures based on international ocean law had proved ineffective. The NEAFC scheme has also refrained from employing certain more trade-restrictive measures used by some other commissions, including ‘white lists’ whereby only explicitly named vessels are allowed to land or transship their catches in member-state ports. Openness to states that are not contracting parties is yet another feature enhancing the WTO-compatibility of the NEAFC Scheme: Non-parties can achieve the status as ‘co-operating non-Contracting Party’ and thus avoid trade restrictions if they agree to play by the same rules as NEAFC parties do. The notion of non-party states ‘cooperating’ with a regime’s documen-tation system emerged within CCAMLR and was aimed precisely at avoiding conflict with WTO non-discrimination commitments (Agnew 2000: 370).

Thus, the differentiation between the trade and the fisheries regimes that retains coherence in the institutional complex for governing fisheries in the Northeast Atlantic concerns the speci-ficity of the norms enshrined in the institutional measures. General criteria articulated in the trade regime have guided rather than deterred the development of specific trade-restrictive measures. Trade-law experts operating the environmental window of the WTO have little or no knowledge on how to design effective fisheries compliance measures but are well placed to articulate general criteria applicable across sectors. Those operating the fisheries institu-tions do not refrain from trade-related compliance measures but accept the guidance by adapt-ing measures in order to minimize conflict with global and regional trade rules.

Dysfunctional differentiation: Regulating GHG Emissions from Aviation

The management of the interplay between the international regime on climate change and the International Civil Aviation Organization (ICAO) regarding the regulation of greenhouse gas (GHG) emissions of aviation can be considered as “dysfunctional differentiation”. Differenti-ation of the sectoral type is rooted in the climate regime’s delegation of regulating aviation’s GHG emissions to ICAO. This delegation has – so far – proved dysfunctional in that ICAO has failed to act on the mandate it received from the climate regime.

The relationship in focus here between the international regime on climate change and ICAO forms part of a broader regime complex on climate change that includes several multilateral institutions and processes (Bluemel 2007; Keohane and Victor 2011). Most prominently, the international regime on climate change itself comprises the 1992 UN Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol. One dimension of the ongoing differentiation between the elemental institutions of this complex is sectoral specialization. Such sectoral differentiation is particularly apparent in the (implicit) request of the Kyoto

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Protocol to the International Maritime Organisation (IMO) and ICAO to address the growing GHG emissions from international maritime and air transport, respectively. This request was itself the result of the inability of parties to the UNFCCC to agree on how to deal with GHG emissions from international transport during the negotiations on the Kyoto Protocol (Ober-thür 2006).

The conditions for developing a sectoral specialization as envisaged by the Kyoto Protocol can be said to have been relatively malign. On the one side, climate change does not only not belong to the core concerns of (IMO and) ICAO. Mitigating climate change may even be con-sidered incompatible with these organizations’ main objectives of furthering their respective sectors of international transport; at a minimum, it is not easily mapped onto these organiza-tions’ core objectives. On the other side, the Kyoto Protocol and the UNFCCC have failed to provide any further guidance to (IMO and) ICAO. Neither did the international climate re-gime specify what kind of action it expected ICAO to take; nor did it specify what level of effort it would consider appropriate. It also did not provide for any guidance or approval re-garding action to the elaborated by ICAO.

The politics surrounding the issue of regulating GHG emissions from aviation within ICAO were also far from favorable. In a North-South dimension, developed countries have insisted that measures (if any) should apply to the aviation industry worldwide since companies oper-ate and compete globally. Developing countries, however, have insisted that their airlines should be exempted on the basis of the principle of “common but differentiated responsibili-ties” as enshrined in Article 3 of the UNFCCC. Apart from that, the sector overall – including companies and responsible transport ministries – has proven rather reluctant to engage with climate mitigation and to consider GHG emission limitation as compatible with its interest in developing air transport. Finally, the request of the climate regime to ICAO incorporated hardly any pressure or incentive that could have addressed this reluctance. The delegation to ICAO had not least been the result of a political stalemate on how to deal with emissions from international aviation under the climate regime. Since this political stalemate persisted, the threat of regulatory competition by the climate regime in case of insufficient progress in ICAO has remained weak (Oberthür 2006).

Under the circumstances, ICAO has so far not taken much more than “symbolic action”. ICAO did respond to the request by the climate regime by initiating discussions on how to address GHG emissions from aviation. Over the years, it has undertaken a number of studies and has discussed the possibility of various policy measures, in particular including an emis-sions-trading system. However, after more than a decade it still has not passed any of the measures discussed so that GHG emissions from international aviation remain unmitigated (Oberthür 2006; Liu 2011).

ICAO activity on GHG emissions from aviation appears to have increased more recently not in response to the sectoral differentiation in the aftermath of the Kyoto Protocol, but as a re-sult of EU unilateral action. The EU had decided already in 2008, not least in response to the lack of progress in ICAO, to include international aviation in its own emissions-trading sys-tem from 2012. This move has provoked forceful reactions from most other countries, includ-

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ing the US, Russia, India and China, including the threat of retaliatory measures. As a result of these growing international tensions, negotiations within ICAO on a global system that may allow the EU to withdraw its unilateral measure have intensified in 2011 and 2012 (with uncertain outcome).

Overall, the sectoral differentiation of authority for regulating GHG emission from interna-tional aviation has thus so far proven largely dysfunctional. It has essentially resulted in a shift of forum from a regime that was unable to resolve the regulatory challenge the sector poses to a regime that has been unwilling to elaborate and implement effective measures (which its core stakeholders consider not to be in their interest). The differentiation initiated with the Kyoto Protocol has thus not led to increased coherence and problem-solving but ra-ther to enhanced questioning of normative compatibility, as not least visible from the unilat-eral action of the EU as one of the major players.

Conclusions and Implications Quite often, institutional complexity within an issue-area of international governance does not imply incoherence but the opposite: normative compatibility and supportive effect on overall problem-solving. An important explanation, we argue in this paper, is interplay management of a particular kind – deliberate efforts by states to arrange, or differentiate, the elemental institutions in ways that enable deeper cooperation within parts of the complex without dis-rupting other parts. Successful differentiation is not a guaranteed outcome, however, and we explore certain conditions that merit attention in order to distinguish among likely successes and likely failures.

Differentiation within complexes supports coherence when the elemental institutions have problem-solving potential that would go untapped if integrated within a single centralized structure. In the cases we have briefly explored in this paper, such potential derives from the allocation of one or more of three institutional capacities among the elemental institutions: the fit between the institutional membership and the activity system; the expertise and domestic-agency representation needed for designing specific regulatory or compliance measures; and the fusion of institutional concerns with broader interests pursued by the participant states, motivating them to invest materially and politically in advancing problem-solving within the elemental institution.

Differences among the elemental institutions in terms of institutional fit between regime boundaries and the activity system explain part of the dynamics in the fisheries case, motivat-ing states to raise institutional complexity in the compliance part of the governance system while retaining simplicity in the regulatory part. Previously of scarce significance because vessels targeting Northeast Arctic cod largely landed their catch domestically, the broader membership of NEAFC became a prime institutional asset when Russian vessels turned in-creasingly towards numerous EU ports after 2000. That change in the activity system eroded the basis for cross-checking fisher reports with landing data and allowed widespread rule vio-lation to go unchecked. Closing that loophole required the mobilization of the NEAFC

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Scheme of Control and Enforcement, whose trade-related elements further compounded com-plexity by potentially interfering with free-trade rights under the WTO.

Any effort to pursue these concerns within a single centralized structure would have carried prohibitive costs, leaving untapped the problem-solving potential now achieved by differenti-ation. In the fisheries dyad, the common basis of the NEAFC and the Joint Fisheries Commis-sion in the broader UNCLOS placed regulatory competence over EEZ stocks unequivocally with the coastal states. The latter therefore had scarce incentive to consider a larger rule-making role for NEAFC, whose broader membership would also complicate regulatory deci-sion-making. Thus, the extension of the NEAFC Scheme to stocks beyond its regulatory am-bit was crucial to tapping the compliance-control potential inherent in its broader member-ship. It allowed the port states to collaborate on this relatively benign issue without disturbing the regulatory division of competence established through sometimes violent inter-state clash-es in the 1970s and codified in the UNCLOS.

A second factor, unequal access among the elemental institutions to sector-specific expertise needed for developing effective governance measures, explains in part why interplay man-agement succeeded in maintaining coherence in the fisheries–trade dyads. States have en-dowed the WTO with competence to determine, in part through its dispute settlement compo-nent, whether state measures inappropriately jeopardize free-trade rights. That organization has neither the specific legal competence nor the sector expertise required for actually design-ing measures capable of discouraging non-compliance in fisheries. Thus, the differentiation that states opted for helped them achieve a level of coherence within the complex that would have been out of political and practical reach within a centralized structure based in one of the elemental institutions. Availability of relevant expertise is no less relevant in the sectoral dif-ferentiation of regulation of access to and benefit-sharing from genetic resources. WHO and FAO possess the necessary knowledge and expertise to develop access and benefit-sharing arrangements that are adapted to the specific sectoral needs and requirements. Hence, the IT-PGR developed under the FAO attempts to ensure easy access to seeds that is essential for breeding agricultural plant species, and the access and benefit-sharing mechanism of the WHO aims to achieve quick access to viruses and targets benefit-sharing on the health sector. This specialized knowledge and expertise would not easily have been available within the CBD process led by environmental ministries, which could hardly have elaborated specialized sub-systems for agriculture and health. Thus, insistence among the negotiators of the Nagoya Protocol to include plant genetic resources and viruses/pathogens would not only have alien-ated those operating the relevant processes in the WHO and FAO; more importantly, it would have also failed to allow functional access and benefit-sharing arrangements serving the inter-ests of these sub-sectors.

As regards the (lack of) GHG mitigation measures in the aviation industry, in contrast, the sectoral differentiation also attempted to take advantage of the superior expertise of ICAO in this field of governance. It has failed to deliver so far, however, due to the insufficient incen-tive structure for ICAO and the aviation sector to engage in the development of an effective sectoral system of GHG emission controls. The Nagoya Protocol incentivizes sectoral institu-

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tions to elaborate adapted sectoral access and benefit-sharing arrangements, because such sector-specific arrangements will allow the sector to be exempted from the overarching sys-tem of the Nagoya Protocol. No such incentives existed for ICAO since, given the stalemate on the issue within the global climate regime, there was no threat of being covered by a gen-eral global system. Under these circumstances, the sectoral differentiation even had the coun-terproductive effect of insulating the aviation sector from policy signals deriving from cli-mate-change concerns and delaying effective action.

Thus, the pattern we observe in the fisheries and genetic-resources cases that states create divisions of labor between institutions whereby one provides guidance as regards the criteria that must be met to remain compatible, leaving the specific design of management measures to the body that holds issue-specific expertise and relevant domestic regulatory competence, can be expected elsewhere as well. Gehring (2011) argues that this pattern marks the relation-ship between WTO and multilateral environmental agreements more generally.

A third condition that may render differentiation conducive to coherence, clearly evident in the fisheries and toxics cases, is that institutions differ in their ability to mobilize broader concerns for specific problem-solving purposes. By raising the problem of EEZ overfishing within the multilateral, transparent NEAFC framework rather than bilaterally with each port state facilitated acceptance of stronger port-control measures by providing a focal point for transnational civil-society organizations active in the combat of IUU fishing in general. Simi-larly, when Canada and other Arctic states had concluded that broader regulatory action on toxics was required, since much of the discharges occurred in non-Arctic states, they might have coordinated their Arctic toxics monitoring and research activities solely within the con-text of the CLRTAP to which they were all parties. However, placing oversight of these activ-ities with their new circumpolar institution, the Arctic Council, implied that investments in monitoring would also contribute to that body’s success and longevity, thereby serving their broader and ultimately security-based interest in improving the political infrastructure that brings Russia and its seven Western neighbors together in addressing issues of common con-cern in the Arctic. This fusion with broader concerns meant that greater financial resources were available for such activities than would be likely within a simpler, less complex institu-tional setup. In turn, the prominence of indigenous peoples’ organizations in the Arctic Coun-cil played some role in the development of a common platform among the Arctic states, thus improving the power position of those pressing for more ambitious regulations within CLRTAP and, later on, during the negotiation of global rules on POPs.

Whether based on governance task, sector, spatial lines, or normative specificity, institutional differentiation can therefore help to realize problem-solving potential that would otherwise go untapped, by improving the fit with the activity system, utilizing available expertise more rationally, and by mobilizing broader concerns among those operating the institutions for spe-cific problem-solving purposes. In contrast, as evident in the aviation case, differentiation among institutions that lack incentives to fulfill the governance tasks assigned to them may easily prove dysfunctional.

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