The Pursuit of Good Regulatory Design Principles in International Fisheries Law. What Possibility of Smarter International Regulation?

There is a growing body of literature that explores the effectiveness of different regulatory approaches and tools. This is sometimes referred to as smart regulation, responsive regulation, risk-based regulation or instrument choice theory. Much of this literature is focused on articulating and evaluating the design of regulatory principles and it is focused at local or national regulation. According to this literature, it is generally accepted that a mix of complementary regulatory techniques is desirable and that these should be adapted to specific contexts. It is often asserted that regulation should be effective and efficient. There is infrequent consideration of how smart regulation could be applied to regulatory issues at the level of international law. Elements of this appear in literature on corporate social responsibility. Smart regulation is implicit in areas where ‘regulatory toolkits’ are advocated such as in the Food and Agriculture Organization of the United Nations (FAO) Code of Conduct for Responsible Fisheries. Typically, this involves combinations of rights-based measures (private property rights and market-based controls) with traditional ‘command and control’ type rules, and the use of both soft and hard law instruments. More generally, the development of cross-cutting regulatory agendas, such as the use of trade measures to secure environmental goals, is synonymous with smart regulatory approaches. If such approaches are to succeed, then we need to consider the effectiveness of different instrument combinations. Drawing on key regulatory design principles, this chapter considers the extent to which international fisheries law satisfies key design principles (including coherence, complementarity, efficiency, and scalability). It finds that whilst many are satisfied, this is hampered by the range of actors engaged in international regulatory activities, the limited tools available to regulators and the absence of strong reflective and adaptive governance structures. The latter in particular present challenges for effectiveness because they limit possibilities for change and improvement. Of course, this may simply be a matter of perspective, and if we look ‘inside’ international fisheries regulation, and it view regulation as cutting across international and domestic fora, then possibilities for more sophisticated and reflective regulation exist. Here a smart regulatory agenda is likely to strengthen the interface between domestic and international dimensions of fisheries regulation