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The Inherent Limits of the Science-Based Lawmaking Model

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Science-Based Lawmaking

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Abstract

The science-based lawmaking model is an optimized model aiming at advanced environmental protection. However, this has its own inherent limits. On grounds of popular demand based on ethics or other factors that shape public choice, the political bodies or individual States may require the adoption of higher environmental standards than the standards that experts may recommend by strictly following scientific criteria. There are cases in which States and other international actors are willing to adopt more protective measures for the natural environment than the measures that experts advocate as necessary to effectively protect the environment based on science. The Book acknowledges this fact, explores some representative cases, but still advocates the adoption of processes that tend to further integrate science into law, rather than the traditional processes that are solely based on politics.

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Notes

  1. 1.

    Jonathan W. Moore et al., Towards linking environmental law and science, 3 Facets 375–391 (2018).

  2. 2.

    See, e.g., an article from an environmental NGO about Obama’s campaign, available at http://www.ens-newswire.com/ens/nov2008/2008-11-05-091.html (last visited May 20, 2017). About the Green promises at the PASOK and G. Papandreou’s campaign, see George Pagulatos, The Greek Economy and the Potential for Green Development, International Policy Analysis, Friedrich Ebert Stifung, available at http://library.fes.de/pdf-files/id/ipa/07097.pdf (last accessed January 2018).

  3. 3.

    These are the cases, e.g., of global climate change and ocean acidification.

  4. 4.

    Regarding the accountability mechanisms, see below at Chap. 13.1.

  5. 5.

    Ronald Brickman, Science and the Politics of Toxic Chemical Regulation: U.S. and European Contracts, in 9 SCIENCE, TECHNOLOGY AND HUMAN VALUES 107 (1984).

  6. 6.

    DAVID COLLINGRIDGE & COLIN REEVE, SCIENCE SPEAKS TO POWER (New York, St Martin’s Press 1986).

  7. 7.

    Connie P. Ozawa, Science in Environmental Conflicts, in ENVIRONMENTAL SOCIOLOGY – FROM ANALYSIS TO ACTION 332 (Leslie King & Deborah McCarthy eds., Rowman & Littlefield Publishers, Inc., Oxford, New York 2005); See THOMAS O. MCGARITY & WENDY E. WANGER, BENDING SCIENCE: HOW SPECIAL INTERESTS CORRUPT PUBLIC HEALTH RESEARCH (Harvard University Press, Cambridge, Mass. 2008).

  8. 8.

    See, e.g., ROB CUNNINGHAM, SMOKE AND MIRRORS: THE CANADIAN TOBACCO WAR 373 (1996). For older reports: WORLD HEALTH ORGANIZATION, FACTS AND FIGURES: WORLD NO-TOBACCO DAY 1 (1994) (information on May 31, 1994). See generally RICHARD PETO ET AL., MORTALITY FROM SMOKING IN DEVELOPED COUNTRIES 1950–2000 (1994); U.S. DEPT. OF HEALTH, EDUC. & WELFARE, SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (1964). Periodic reports of the U.S. Surgeon General have documented the health risks of tobacco. E.g., U.S. DEPARTMENT OF HEALTH, EDUC. & WELFARE, SMOKING AND HEALTH: A REPORT OF THE SURGEON GENERAL (1979); U.S. DEPT. OF HEALTH & HUMAN SERV., THE HEALTH CONSEQUENCES OF SMOKING FOR WOMEN (1980); U.S. DEPT. OF HEALTH & HUMAN SERV., REDUCING THE HEALTH CONSEQUENCES OF SMOKING: 25 YEARS OF PROGRESS: A REPORT OF THE SURGEON GENERAL EXECUTIVE SUMMARY 8 (1989). The World Health Organization estimates that in populations in which smoking is widespread, tobacco smoking is responsible for 90–95% of lung cancers, 80–85% of cases of chronic bronchitis, and 20–25% of deaths from heart disease. In the United States, cigarettes are responsible for 87% of all lung cancer deaths and 30% of all cancer deaths. AMERICAN CANCER SOC., CANCER FACTS & FIGURES-1994, at 19 (1994).

  9. 9.

    In May 1995, the World Health Assembly (WHA), the legislative organ of WHO, in resolution WHA48.11, requested the Director-General of WHO to report on the “feasibility of developing an international instrument such as guidelines, a declaration, or an International Convention on Tobacco Control: An International Strategy for Tobacco Control, WHA Res. 48.11, 48th Ass., 12th plen. mtg., Annex 1, Agenda Item 19, WHO Doc. A48/VR/12 (1995)”.

  10. 10.

    For information on the history of the negotiations of the Tobacco Control Treaty, see, e.g., Allyn L. Taylor, An International Regulatory Strategy for Global Tobacco Control, 21 YALE J. INT’L L. 257 (1996).

  11. 11.

    WHA, Resolution WHA52.18.

  12. 12.

    WHO Framework Convention on Tobacco Control, WHA56.1, May 21, 2003 (Health Assembly Resolution and Annex) [hereinafter Tobacco Framework Convention], available at http://apps.who.int/iris/bitstream/handle/10665/42811/9241591013.pdf;jsessionid=EAF98CF7978B36797E4C24C1D58FACE3?sequence=1 (last accessed January 2019).

  13. 13.

    The conservation movement, also known as nature conservation, is a political, environmental and a social movement that seeks to protect natural resources including plant and animal species as well as their habitat for the future. The early conservation movement included fisheries and wildlife management, water, soil conservation and sustainable forestry. The contemporary conservation movement has broadened from the early movement’s emphasis on use of sustainable yield of natural resources and preservation of wilderness areas to include preservation of biodiversity. Some say the conservation movement is part of the broader and more far-reaching environmental movement, while others argue that they differ both in ideology and practice. Chiefly in the United States, conservation is seen as differing from environmentalism in that it aims to preserve natural resources expressly for their continued sustainable use by humans. See, e.g., JOHN C. GIFFORD, LIVING BY THE LAND, CORAL GABLES (Florida: Glade House 1945); SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT 1890–1920 (1959); Eric L. Jones, The History of Natural Resource Exploitation in the Western World, 6 RESEARCH IN ECONOMIC HISTORY 235–252 (1991); MCNEILL, JOHN R. SOMETHING NEW UNDER THE SUN: AN ENVIRONMENTAL HISTORY OF THE TWENTIETH CENTURY (2000).

  14. 14.

    The first resolution was from the Economic and Social Council, E.S.C. Res. 1346, U.N. ESCOR, 45th Sess., Supp. No. 1, at 8, (1968). The second resolution came from the General Assembly, G.A. Res. 2389, U.N. GAOR, 23r Sess., Supp. No 18, at 2, U.N. Doc. A/7218 (1968). See PATRICIA BIRNIE, International Regulation of Whaling 365, n. 4 (1985).

  15. 15.

    PATRICIA BIRNIE, International Regulation of Whaling 365, n. 4 (1985), at 365. See also Anthony D’Amato & Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 AM. J. INT’L. L. 21, 39 (1991).

  16. 16.

    Recommendation 33, 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), UNCHE, 1972, U.N. Doc. A/CONF.48/14/Rev.1/Chapt.1, at 12. See PATRICIA BIRNIE, International Regulation of Whaling 365, n. 4 (1985), at 368.

  17. 17.

    See Chairman’s Report of the Twenty-Fourth Meeting, 24 REP. INT’L WHALING COMM’N 24–25 (1973).

  18. 18.

    Chairman’s Report of the Twenty-Fourth Meeting, 24 REP. INT’L WHALING COMM’N 24–25 (1973), p. 24.

  19. 19.

    Chairman’s Report of the Twenty-Fourth Meeting, 24 REP. INT’L WHALING COMM’N 24–25 (1973).

  20. 20.

    Howard S. Schiffman, The Protection of Whales in International Law: A Perspective for the Next Century, 22 BROOK. J. INT’L L. 303, 315 (1996).

  21. 21.

    See Anthony D’Amato & Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 AM. J. INT’L. L. 21, 39 (1991), at 42 and n. 139.

  22. 22.

    Howard S. Schiffman, The Protection of Whales in International Law: A Perspective for the Next Century, 22 BROOK. J. INT’L L. 303, 315 (1996), at 318 and n. 69, citing President’s Message to the International Whaling Commission, 1981 PUB. PAPERS 634 (July 17, 1981).

  23. 23.

    A. W. Harris, The Best Scientific Evidence Available: The Whaling Moratorium and Divergent Interpretations of Science, 29 WM. & MARY ENVTL. L. & POL’Y 375 (2005).

  24. 24.

    International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72 [hereinafter ICRW].

  25. 25.

    The Secretariat was established with Article 3(3) of the Convention.

  26. 26.

    ICRW, Article 5.

  27. 27.

    For the current composition of the IWC, visit the official site of the IWC, https://iwc.int/members (last accessed January 2019).

  28. 28.

    EPL 22 (1992), 332.

  29. 29.

    About minority rights, see ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY – COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 27 (Harvard University Press, Cambridge, Massachusetts, London, England 1995), p. 150.

  30. 30.

    Ian Lowe & Jouni Paavola, Environmental Values in a Globalized World, in ENVIRONMENTAL VALUES IN A GLOBALIZED WORLD – NATURE, JUSTICE AND GOVERNANCE 7 (Jouni Paavola & Ian Lowe eds., Routledge Taylor & Francis Group, London and New York 2005).

  31. 31.

    The main regulatory instrument of the EU regulation on cosmetics is the Council Directive 76/768 of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (“Cosmetics Directive”). The Cosmetics Directive adopted in 1976 in order to ensure the free circulation of cosmetic products in the internal market and to ensure the safety of cosmetic products placed on it. Since its adoption, the Cosmetics Directive has been amended seven times in order to reflect new trends and challenges concerning cosmetic products. For example, the “sixth amendment” led to the adoption of the inventory of ingredients used in cosmetic products and introduced the principle of marketing ban in relation to tests on animals. The seventh amendment provided, inter alia, for more detailed provisions on the phasing out of animal testing. Apart from these so-called ‘amendments’, the Commission has adopted more than fifty ‘adaptations’ in order to adapt to technical progress. See, the provisions in the annexes to the Cosmetics Directive that refer to technical progress. In order to provide guidance to Member State authorities, industry, and other stakeholders on the interpretation of various provisions of the Cosmetics Directive, a number of guidance documents, for example on borderline-products, have been adopted in close cooperation with the Member State authorities. The Cosmetics Directive has been rewritten into a Regulation.

  32. 32.

    See, e.g., standards related to nutrition imposed by the US Food and Drug Administration (US FDA). Visit the official website, http://www.fda.gov/ (last accessed January 2019).

  33. 33.

    See Charan Devereaux, Robert Z. Lawrence & Michael D. Watkins, Case Studies, in 2 US TRADE NEGOTIATION: RESOLVING DISPUTES 37–38 (Washington, D.C.: Institute for International Economics 2006).

  34. 34.

    Charan Devereaux, Robert Z. Lawrence & Michael D. Watkins, Case Studies, in 2 US TRADE NEGOTIATION: RESOLVING DISPUTES 37–38 (Washington, D.C.: Institute for International Economics 2006); Peter Ward, Sanitary and Phytosanitary Measures at the WTO: Balancing Biological Risk and Commercial Interest, 7 ASPER REV. INT’L BUS. & TRADE L. 101 (2007).

  35. 35.

    Council Directive 88/146/EEC of 7 March 1988.

  36. 36.

    Panel Report, EC Measures Concerning Meat and Meat Products, Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998.

  37. 37.

    European Communities -- Measures Concerning Meat and Meat Products (Hormones), WTO Doc WT/DS26/AB/R, WT/DS48/AB/R, AB-1997-4 (1998) (Report of the Appellate Body).

  38. 38.

    Paragraph 179 of the Report of the AB.

  39. 39.

    See also Reinhard Quick & Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling of the WTO Hormones Case, 2 JIEL 603 (1999).

  40. 40.

    Report of the Panel, European Communities-Measures Affecting the Approval and Marketing of Biotech Products, para. 7.68, WT/DS291-3/R, at 333 (Sept. 29, 2006), available at https://www.wto.org/english/tratop_e/dispu_e/291r_3_e.pdf (last accessed January 2019) [hereinafter Biotech]. See also Jacqueline Peel, A GMO by any other name… Might be an SPS Risk! Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreements, 17 EUR. J. INT’L L. 1009 (2006); Daniel Kalderimis, Problems of WTO Harmonization and the Virtues of Shields over Swords, 13 MINN. J. GLOBAL TRADE 305 (2004).

  41. 41.

    Visit the official website of the Center, http://www.law.nyu.edu/centers/elc/index.htm (last accessed January 2019).

  42. 42.

    For literature commenting on the Biotech Panel Report, see, e.g., Mitsuo Matsushita, Human Health Issues in Major WTO Dispute Cases, 4 ASIAN J. WTO & INT’L HEALTH L. & POL’Y 1, 1.

  43. 43.

    Robert Howse & Petros C. Mavroidis, Europe’s Evolving Regulatory Strategy for GMOs – The Issue of Consistency with WTO Law: of Kine and Brine, 24 FORDHAM INT’L L. J. 317 (2000). See also Steve Charnovitz, The Supervision of Health and Biosafety Regulation World Trade Rules, 13 TUL. ENVTL. L. J. 271 (2000).

  44. 44.

    Other important cases on trade and environment include, for instance, the Salmon case and the Retreated Tires case. See Daniel Kalderimis, Problems of WTO Harmonization and the Virtues of Shields over Swords, 13 MINN. J. GLOBAL TRADE 305 (2004). About the pro-environment Retreated Tires case, see, e.g., Jonathan Skinner, A Green Road to Development: Environmental Regulations and Developing Countries in the WTO, 20 DUKE ENVTL. L. & POL’Y F. 245 (2010); Mark S. Blodgett & Richard J. Hunter, The Environment and Trade Agreements: Should the WTO Become More Actively Involved?, 3 HASTINGS INT’L & COMP. L. REV. 1 (2010).

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    Dionysia-Theodora Avgerinopoulou

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Avgerinopoulou, DT. (2019). The Inherent Limits of the Science-Based Lawmaking Model. In: Science-Based Lawmaking . Springer, Cham. https://doi.org/10.1007/978-3-030-21417-3_9

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