Abstract
Are contemporary international environmental laws based on science? Do international lawmakers give due consideration to the latest findings of environmental and related sciences before promulgating environmental legislation? Do new international rule-making procedures promote what this Book calls as “Science-Based Lawmaking”? Would it be possible to delegate lawmaking powers from the so-called “political bodies” of the international institutions to the “expert bodies” of these institutions? If so, could such delegations lead to more protective regulations for our natural environment? Assuming that it would be possible to give expert bodies lawmaking powers, what would be the appropriate lawmaking procedures on the international level that would allow experts to promulgate regulations, while respecting the democratic governance requirements?
Science and technology… must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.
—Principle 18, Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972.
[States should] improve policy and decision-making at all levels through, inter alia improved collaboration between natural and social scientists, and between scientists and policy makers, including through urgent actions at all levels to: … (c) Continue to support and collaborate with international scientific assessments supporting decision-making, … (e) Establish partnerships between scientific, public and private institutions, including by integrating the advice of scientists into decision-making bodies to ensure a greater role for science, technology development and engineering sectors; (f) Promote and improve science-based decision-making.
—Plan of Implementation, Part X, art. 109, World Summit for Sustainable Development, Johannesburg, South Africa, 2002.
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Notes
- 1.
Science is “a logically organized body of knowledge that attempts to achieve practical purposes through replicable processes.” See EMMANUEL G. MESTHENE, TECHNOLOGICAL CHANGE: ITS IMPACT ON MAN AND SOCIETY 25 (1970); Joseph W. Dellapenna, The History of Abortion: Technology, Morality and Law, 40 U. PITT. L. REV. 359, 362 (1979). By a more detailed definition, “science” is abstract knowledge that, when combined with proper tools, becomes the technology that changes how we do things and ultimately how we live. A tool might exist for a considerable time before its applicability to a particular problem is realized, or a problem and its solution might be known theoretically for some time before the necessary tools are developed to allow for its resolution. See, e.g., Joseph W. Dellapenna, Law in a Shrinking World: The Interaction of Science and Technology with International Law, 88 KY. L.J. 809, 823 (1999-2000), with reference to LEWIS MUMFORD, TECHNICS AND CIVILIZATION 4, 107 and 139 (1934). The same text continues to define “technology” as follows: “Only when the tools and necessary knowledge co-exist in an organized way can we say that a particular technology has come into being” Dellappenna adds. This is a working definition for the purposes of the present Book and is not a final or perfect definition.
There is further a need for a distinction between the terms: “science” and “scientific knowledge”: According to Black’s Law Dictionary, “scientific knowledge” is knowledge that is to say grounded on scientific methods that have been supported by adequate validation. Four primary factors are used to determine whether evidence amounts to scientific knowledge: (1) whether it has been tested; (2) whether it has been subject to peer review and publication; (3) the known or potential rate of error; and (4) the degree of acceptance within the scientific community. I alternatively use the terms “scientific” knowledge and “science”, since in English the word “science” means also “scientific knowledge”. Whereas in other languages, such as in Greek, one should discern between “επιστήμη” meaning science under an abstract approach or the level of science and refers also to a discipline and “επιστημονική γνώση” meaning “scientific knowledge”. What needs to be integrated in law is science under the meaning of the state-of-art knowledge or existing scientific knowledge. In a larger sense, where social sciences can apply, by “scientific knowledge” or “science” I also mean expert advice or expertise.
- 2.
See the use of the term by ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS (Oxford University Press, Royal Institute of International Affairs, London, New York, Toronto, 1963).
- 3.
See, e.g. W. E. Wagner, Choosing Ignorance in the Manufacture of Toxic Products, 82 Cornell L.Rev. 773, 777 (1997).
- 4.
See Nicholas A. Robinson, Legal Systems, Decisionmaking, and the Science of Earth’s Systems: Procedural Missing Links, 27 ECOLOGY L.Q. 1077 (2001), who fully upholds my assumption. Specifically, Robinson sees a disjunction that exists today between how scientists and government leaders view global changes in Earth's natural systems, such as the rapid loss of biodiversity accompanying species extinction or the modification of Earth's climate through global warming. According to the author, this fault line extends between the institutionalized perceptions of each nation’s governmental decision -makers and the findings of scientists studying the Earth’s natural systems. Thus, it needs to be better understood and bridged, and Robinson proposes revising decision-making procedures to this end.
- 5.
I must distinguish my position from one that does not acknowledge the challenges that uncertainty poses to environmental policy and lawmaking. On the contrary, scientific uncertainty has to be acknowledged. JOHN LEMONS & DONALD A. BROWN, SUSTAINABLE DEVELOPMENT: SCIENCE, ETHICS, AND PUBLIC POLICY 18–19 (1995).
- 6.
See Lee A. Kimball, Institutional Linkages Between the Convention on Biological Diversity and Other International Conventions, 6 REV. EUR. CMTY. & INT’L ENVTL. L. 239, 242 (1997) “[O]f all the institutional relationships, the ability to tap into worldwide knowledge and translate it effectively for decision-making is the least well developed.”
- 7.
Even authors that embrace the opinion that science is only uncertain still recognize the need for adopting further protective environmental legislation, if only by incorporating socially-constructed science. These authors would also not accept the invocation of scientific uncertainty as a reason for the not adopting regulation. See, e.g., GIORGOS BALIAS, ΠΕΡΙΒΑΛΛΟΝΤΙΚΟΙ ΚΙΝΔΥΝΟΙ– ΔΙΑΠΛΟΚΗ ΕΠΙΣΤΗΜΗΣ, ΔΙΚΑΙΟΥ ΚΑΙ ΠΟΛΙΤΙΚΗΣ, [ENVIRONMENTAL RISKS: INTERACTION BETWEEN SCIENCE, LAW AND POLITICS] 122 (Ant. N. Sakkoulas Publications, Athens, Greece 2009); Wendy E. Wagner, Congress, Science, and Environmental Policy, U. ILL. L. REV. 181, 221 (1999).
- 8.
The Persistent Organic Pollutants (POPs) are chemical substances that are persistent and toxic, that bioaccumulate in fatty tissue, achieving higher concentrations as they move up a particular food chain, and that are prone to long-range environmental transport. Additional information about science and law regarding POPs is available at the official UNEP’s POPs website https://www.unenvironment.org/explore-topics/chemicals-waste/what-we-do/persistent-organic-pollutants/why-do-persistent-organic (last accessed December 2018). Studies have found that POPs are of particular concern. In combination with the features of persistence, long-rand transport, and bioaccumulation, data show that POPs can disrupt endocrine systems and are linked with cancer, reproductive disorders, birth defects and immune-system deficiencies. See, e.g., World Resources Institute, World Resources, 1998-1999: Environmental Change and Human Health (1998); THEO COLBORN, DIANNE DUMANOSKI & JOHN PETERSON MYERS, OUR STOLEN FUTURE (1996); Bruce Rodan, Noelle Eckley & Robert S. Boethling, International Action on Persistent Organic Pollutants (POPs): Developing Science-Based Screening Criteria, in Proceedings of the Subregional Awareness Raising Workshop on Persistent Organic Pollutants (POPs), Cartagena, Colombia 70 (1998).
- 9.
See, e.g., John C. Coffee Jr., The End of an Era, N.Y. TIMES (Jan. 29, 2009), available at: https://roomfordebate.blogs.nytimes.com/2009/01/29/bonuses-for-bad-performance/ (last accessed December 2018). Peter Lallas, The Stockholm Convention on Persistent Organic Pollutants, 95 AM. J. INT’L L. 692, 694 (2001).
- 10.
For example, in Environmental Law and Policy, Richard L. Revesz and Robert Stavins identify the “historical dominance of command-and-control” approach and further develop the prevalence in new proposals of tradable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments”. Richard L. Revesz & Robert Stavins, Environmental Law and Policy 2 (November 2007) (working paper 13575) (National Bureau of Economic Research). Furthermore, in assessing the validity of the command-and-control approach, Revesz and Stavins argue that for entire genres of environmental policy, command-and-control is ineffective and should be replaced with market- based instruments. Richard L. Revesz & Robert Stavins, Environmental Law and Policy 2 (November 2007) (working paper 13575) (National Bureau of Economic Research) at 34.
- 11.
See the official site of the International Seabed Authority, https://www.isa.org.jm/ (last accessed December 2018).
- 12.
The precautionary principle emerged in the mid ‘80s. Article 15 of the 1992 Rio Declaration states that: “Where there are threats of serious and irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” See also Science for environment policy, The precautionary principle: decision-making under uncertainty, future brief (2017).
- 13.
See, International Seabed Authority (ISA), Mining Code, https://www.isa.org.jm/mining-code (last accessed December 2018).
- 14.
This abstract is part of a previous publication of mine: Dionysia-Theodora Avgerinopoulou, The Lawmaking Process at the International Seabed Authority as a Limitation on Effective Environmental Management, 30 COLUM. J. ENVTL. L. 565 (2005).
- 15.
International Seabed Authority, Standard Clauses for Exploration Contract, § 5, para. 5.1, at https://www.isa.org.jm/document/isba6a18 (last accessed December 2018).
- 16.
International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules, art. 31, para. 2 (July 13, 2000), available at https://www.isa.org.jm/documents/isba19c17 (last accessed December 2018).
- 17.
The precautionary principle emerged in the mid ‘80s. Article 15 of the 1992 Rio Declaration states that: “Where there are threats of serious and irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
- 18.
See Eyal Benvenisti, The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions, 68 LAW & CONTEMP. PROBS. 319, 325 (2005).
- 19.
See, e.g., Theodor Meron, Reform of Lawmaking in the United Nations: The Human Rights Instance, 79 AM. J. INT’L L. 664 (1985). Meron supports active involvement in the preparation of legislative drafts for the UN purposes by experts, even in the case of human rights.
- 20.
See, e.g., Jochen von Bernstorff, Procedures of Decision-Making and the Role of Law in International Organizations, 9 GERMAN. L. J. 1939 (2008), available at: http://www.germanlawjournal.com/volume-09-no-11/ (last accessed December 2018).
- 21.
For example, many of the state representatives that participate in the meetings of the United Nations Forum of Forests (UNFF) are foresters/forestry experts.
- 22.
Fed. F. Evid. 702. According to the Black’s Law Review (Deluxe, 7th ed., A. Garner, Editor in Chief, West Group, St. Paul, Minn. 1999).
- 23.
Plan of Implementation, part X, art. 109, World Summit for Sustainable Development, Johannesburg, South Africa, 2002.
- 24.
See, a report issued by the European Commission: “Strengthening Evidence Based Policy Making through Scientific Advice Reviewing existing practice and setting up a European Science Advice Mechanism”, May 2015, https://ec.europa.eu/research/sam/pdf/strengthening_evidence_based_policy_making.pdf (last accessed December 2018).
- 25.
The term “epistemic communities” appears in John G. Ruggie writings: “Institulationalization involves not only the institutional grid of the state, but also the epistemes through which political relationships are visualized. I have borrowed this term from Michael Foucault, The Order of Things (Vintage Books, New York 1973), to refer to a dominant way of looking at social reality, a set of shared symbols and references, mutual expectations and a mutual predictability of intention. Epistemic communities may be said to consist of interrelated roles which grow up around an episteme: they delimit, for their members, the proper construction of social reality. The epistemic community that derives from the role of representing a national public authority internationally suggests behavior rules for the determination of collective responses to new situations…” John G. Ruggie, International Responses to Technology: Concepts and Trends, 29 Int’l Org. 557, 569 (1975). See further reference in Robert Howse, From Politics to Technocracy – Back Again: The Fate of the Multilateral Trading Regime, 96 Am. J. Int’l L. 94 (2002) speaking, for example, about the impact of the elite of trade experts on the WTO; Jose E. Alvarez, International Organizations as Law-Makers, Oxford Monographs in International Law 344 (Oxford University Press 2005), including free traders and international lawyers in the expert communities. “Expert bodies are, most obviously, repositories of specialized knowledge grouped among distinct epistemic communities, such as general public international lawyers, experts in lex mercatoria and commercial law, or specialists in labor or aviation law.”; Peter M. Haas, Knowledge, Power and International Policy Coordination, 46 INT’L ORG. 1, 3 (Special Issue 1992); See also for general theory of international organizations ANTONIO AUGUSTO CANCADO TRINDADE, DIREITO DAS ORGANIZAÇÕES INTERNACIONAIS (3a Ediçăo Revista, atualizada e ampliada, DelRey 2003).
- 26.
For relevant information, visit the website of the ILC, http://legal.un.org/ilc/ (last assessed December 2018).
- 27.
Peter M. Haas, Knowledge, Power and International Policy Coordination, 46 INT’L ORG. 1, 3 (Special Issue 1992).
- 28.
Peter M. Haas, Knowledge, Power and International Policy Coordination, 46 INT’L ORG. 1, 3 (Special Issue 1992), p. 3.
- 29.
LUDWIK FLECK, GENESIS AND DEVELOPMENT OF A SCIENTIFIC FACT (Chicago: University of Chicago Press 1979). For similar notions, see among others: BURKART HOLZNER & JOHN H. MARX, KNOWLEDGE APPLICATION: THE KNOWLEDGE SYSTEM IN SOCIETY 107-11 (Boston: Allyn & Bacon 1979); THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 174-210 (2d ed. Chicago: University of Chicago Press 1970); Michael Polanyi, The Republic of Science: Its Political and Economic Theory, 1 MINERVA 54-73 (1962).
- 30.
JOSE E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS, OXFORD MONOGRAPHS IN INTERNATIONAL LAW 344 (OXFORD UNIVERSITY PRESS 2005), with reference to Martti Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT’L L. 455 (1996) (discussing the role of lawyers in the Security Council), or more generally, Oscar Schachter, The Invisible College of International Lawyers, 72 NW. U. L. REV. 217 (1977). Cf. Anne-Marie Slaughter, International Law and International Relations, 285 RECUEIL DES COURS 12, 234-5.
- 31.
For a discussion of expertise in shaping domestic U.S. laws and expert participation in litigation proceedings, see, e.g., DAVID L. FAIGMAN, LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW (New York: W. H. Freeman & Co. 1999).
- 32.
There is only rare reference to this term. For instance, William Fisher uses this term in his article: Scientists Hail Return to Fact-based Policies, in THE ENVIRONMENT IN THE NEWS, United Nations Environment Programme (UNEP) (December 24, 2008). Fisher refers to a comment by Dr. Michael Stebbins, director of Biology for the Federation of American Scientists commenting on the Bush’ Administration during which: “The White House and members of Congress under its control have moved in lockstep to block science-based lawmaking.”
- 33.
See also to this direction: Patrick Regoniel, What is Science-Based Policy-Making, http://factoidz.com/what-is-sciencebased-policy-making/ (last accessed December 2018); however, this article confuses policy and lawmaking.
- 34.
See, e.g., Erik Millstone, Can Food Safety Policy-Making Be Both Scientifically and Democratically Legitimated? If so, How?, 20 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS 483 (2007).
- 35.
See, e.g., Maarten A. Hajer, Discourse Coalitions and the Institutionalization of Practice: The Case of Acid Rain in Great Britain, in The ARGUMENTATIVE TURN IN POLICY ANALYSIS AND PLANNING 43-76 (Frank Fischer & John Forester eds., Durham, NC: Duke University Press 1993). Also see the opposite view by ALAN IRWIN, CITIZEN SCIENCE: A STUDY OF PEOPLE, EXPERTISE AND SUSTAINABLE DEVELOPMENT (London: Routledge 1995).
- 36.
For a comprehensive analysis of the afore-mentioned terms, see GIORGOS BALIAS, ΠΕΡΙΒΑΛΛΟΝΤΙΚΟΙ ΚΙΝΔΥΝΟΙ– ΔΙΑΠΛΟΚΗ ΕΠΙΣΤΗΜΗΣ, ΔΙΚΑΙΟΥ ΚΑΙ ΠΟΛΙΤΙΚΗΣ, [ENVIRONMENTAL RISKS: INTERACTION BETWEEN SCIENCE, LAW AND POLITICS] 122 (Ant. N. Sakkoulas Publications, Athens, Greece 2009).
- 37.
Popper followed a falsification process in his attempt to explain the paths of the discovery of scientific truth and the improvement of human knowledge. See KARL POPPER, ALL LIFE IS PROBLEM SOLVING (Routledge 2001). Regarding his opinion about institutional development, Popper held that only liberal democracy is the proper form of government allowing institutional improvements without violence and bloodshed. Within the same framework, however, Popper was in direct opposition with Plato, Marx and Hegel, and accused them of promoting totalitarianism. See KARL POPPER, THE OPEN SOCIETY AND ITS ENEMIES (Routledge 1945). However, there was much criticism against Popper’s interpretation of Plato, Marx and Hegel’s writings. See, e.g., Sidney Hook, From Plato to Hegel to Marx, N.Y. TIMES (July 22, 1951); Leo Strauss, Plato, in HISTORY OF POLITICAL PHILOSOPHY 33, 68 (Leo Strauss & Joseph Cropsey ed., 3d ed., Chicago: University of Chicago Press 1987); and Rajeev Bhargava, Karl Popper: Reason without Revolution, ECONOMIC AND POLITICAL WEEKLY (1994).
- 38.
Bryan Magee expresses a critique on both Plato and Popper’s work that is closer to the spirit of the present Book. In the book: “Philosophy and the Real World: An Introduction to Karl Popper”, Magee notes that the vital question is not “who should rule?” but rather “How can we minimize misrule?” BRYAN MAGEE, PHILOSOPHY AND THE REAL WORLD: AN INTRODUCTION TO KARL POPPER (Open Court Publishing 1985). Indeed, the real question regarding IEL is “How can we minimize misrule in IEL?” Part of the answer, however, can be given through the improvement of the actors participating in the decision -making processes. Thus, the “who” and “how” questions necessarily involve with each other.
- 39.
See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 147 (Chicago: University of Chicago Press, 3d ed. 1996) (1962); JAMES A. MARCUM, THOMAS KUHN’S REVOLUTION: A HISTORICAL PHILOSOPHY OF SCIENCE 74 (Continuum International Publishing Group 2005).
- 40.
THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 174-210 (2d ed. Chicago: University of Chicago Press 1970).
- 41.
Daniel Albritton, What Should be Done in a Science Assessment, in PROTECTING THE OZONE LAYER: LESSONS, MODELS, AND PROSPECTS 70 (Philippe G. Le Prestre et. al. eds., 1998).
- 42.
Walter J. Raymond, Dictionary of Politics: Selected American and Foreign Political and Legal Terms (Brunswick Publishing Company 1973).
- 43.
“Principle 18: Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.” See, http://www.un-documents.net/unchedec.htm (last accessed December 2018).
- 44.
“109. Improve policy and decision -making at all levels through, inter alia, improved collaboration between natural and social scientists, and between scientists and policy makers, including through urgent actions at all levels to: (a) Increase the use of scientific knowledge and technology and increase the beneficial use of local and indigenous knowledge in a manner respectful of the holders of that knowledge and consistent with national law; (b) Make greater use of integrated scientific assessments, risk assessments and interdisciplinary and intersectoral approaches; (c) Continue to support and collaborate with international scientific assessments supporting decision -making, including the Intergovernmental Panel on Climate Change, with the broad participation of developing country experts; (d) Assist developing countries in developing and implementing science and technology policies; (e) Establish partnerships between scientific, public and private institutions, including by integrating the advice of scientists into decision-making bodies to ensure a greater role for science, technology development and engineering sectors; (f) Promote and improve science -based decision -making and reaffirm the precautionary approach as set out in principle 15 of the Rio Declaration on Environment and Development, which states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” See, http://www.un-documents.net/aconf199-20.pdf (last accessed December 2018).
- 45.
Susan Rose – Ackerman, European Administrative and Regulatory Reform: Introduction to the Special Issue, 4 COLUM. J. EUR. L. 493, 493 (1998). See also ADMINISTRATIVE LAW AND REGULATORY POLICY, PROBLEMS, TEXT, AND CASES (Breyer, Stephen G., Richard B. Steward, Cass R. Sunstein & Matthew L. Spitzer, eds. 2002, 5th ed., New York, Gaithersburg: Aspen Law & Business, Rasmussen, Jens. 1996). Integrating Scientific Expertise into Regulatory Decision-Making. Risk Management Issues. (EUI Working Paper) RSC; no. 96/5. (Florence: European University Institute and Beck, U. 1996). World Risk Society as Cosmopolitan Society? Ecological Questions in a Framework of Manufactured Uncertainties. 13 (4) THEORY, CULTURE AND SOCIETY 1 - 32.
- 46.
See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 80-81 (New York: Wiley & Sons 1951).
- 47.
Instead of using the phrase “science-based lawmaking”, one could use the phrase “science-based regulatory decision-making.” Both terms are equal. For simplification purposes, I choose to use the shorter phrase of “science-based lawmaking.”
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Avgerinopoulou, DT. (2019). Introduction: Is Contemporary International Environmental Law Based on Science?. In: Science-Based Lawmaking . Springer, Cham. https://doi.org/10.1007/978-3-030-21417-3_1
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