Legal Techniques for Dealing with Scientific Uncertainty in Environmental Law

Beginning of article

ABSTRACT

This Article analyzes how scientific uncertainty is handled in international environmental law. It identifies ten legal techniques used for this purpose (i.e., precautionary reasoning," framework-protocol approach; advisory scientific bodies; lawmaking by treaty bodies; managerial approaches to compliance; prior informed consent; environmental impact assessment and monitoring; provisional measures; evidence; and facilitated liability) and links them to four different stages of development of environmental regimes (i.e., advocacy, design, implementation, and reparation). These techniques are illustrated by reference to some fifteen environmental treaties and other instruments as well as through a detailed case study focusing on the climate change regime.

TABLE OF CONTENTS
  I. INTRODUCTION
 II. REGIMES AND REGIME DEVELOPMENT
     A. The Theory of Regimes
     B. Regime Development
III. TACKLING SCIENTIFIC UNCERTAINTY IN THEORY:

     LEGAL TECHNIQUES USED IN IEL
     A. Overview of the Techniques
     B. Analysis of Individual Techniques
        1. Precautionary Reasoning
        2. Framework-protocol Approach
        3. Advisory Scientific Bodies
        4. Law-making by Treaty Bodies
        5. Managerial Approaches to Compliance
        6. Prior Informed Consent
        7. Environmental Impact Assessment
           and Monitoring
        8. Provisional Measures
        9. Evidence
       10. Facilitated Liability
III. TACKLING SCIENTIFIC UNCERTAINTY IN PRACTICE:

     THE CLIMATE CHANGE REGIME
     A. Introductory Observations
     B. Scientific Uncertainty in the Climate
        Change Regime
        1. Advocacy
        2. Design
        3. Implementation
        4. Reparation
 V. CONCLUSION

I. INTRODUCTION

Since the modern inception of international environmental law (IEL) in the late 1960s, proponents of international regulation of environmental issues have struggled against scientific uncertainty and economic hostility. From a political standpoint, these two obstacles often have been closely related, as economic hostility has heavily relied upon the considerable scientific uncertainty underlying most environmental challenges at different stages of their understanding and recognition to downplay the legitimacy of environmental regulation. The historical development of the climate change regime provides perhaps the most prominent illustration of this latter point. (1)

However, even when considered objectively, scientific uncertainty remains a major obstacle to the elaboration of efficient environmental regulation. Whether it is to gain momentum for the introduction of such regulation, to design a resilient regulatory system, or to ensure its effective implementation or the reparation of breaches, scientific uncertainty raises daunting challenges. One interesting avenue to addressing these challenges has been the development of a number of legal techniques that deal with scientific uncertainty. Such legal techniques include a broad array of rules, principles, and mechanisms grounded in IEL that provide guidance on the steps to be taken at different stages of the development of an international regime facing scientific uncertainty. In order to better understand the operation of such techniques, it is important to specify further the contours of the challenges scientific uncertainty raises.

In his seminal work, published in 1921, (2) the economist Frank Knight introduced an important distinction between uncertainty and risk. Knight famously noted that

   Uncertainty must be taken in a sense radically distinct from the
   familiar notion of Risk, from which it has never been properly
   separated.... The essential fact is that "risk" means in some cases
   a quantity susceptible of measurement, while at other times it is
   something distinctly not of this character; and there are
   far-reaching and crucial differences in the bearings of the
   phenomenon depending on which of the two is really present and
   operating.... It will appear that a measurable uncertainty, or
   "risk" proper, as we shall use the term, is so far different from
   an unmeasurable one that it is not in effect an uncertainty at all.
   (3)

Thus, Knight uses the term "uncertainty" to refer to cases in which the probability of alternative future scenarios cannot be determined, whereas the term "risk" is left for cases where the relative probabilities of alternative future scenarios can be determined (quantified) and at least one of those scenarios is undesirable. (4) In the context of environmental regulation, the term uncertainty normally applies to (1) the initial identification of a phenomenon; (2) the increasing understanding of the processes that govern it; (3) the forecast of its likely consequences, whether positive or negative; and, as the case may be, (4) the processes that can be triggered to manage it. It is unclear at which particular point the uncertainty surrounding a given phenomenon is sufficiently dissipated for that phenomenon to become a risk. Intuitively, one may consider that the more the predictability of a given phenomenon increases and its implications are understood (i.e., once step (3) is reached), the better one can circumscribe and address the potential risk arising from that phenomenon.

To take again the example of climate change, the research on climate change was initially intended to explain prehistoric ice ages (or climate modification for military purposes) rather than future global warming, (5) and, for a long time, it was unable to determine with any accuracy the relative probability of alternative future scenarios. (6) It was only with the advent and subsequent refinement of computer models that global warming technically became a risk. (7) The policy actions accompanying the move from scientific uncertainty to the recognition of risk followed a recognizable pattern that shifted from the increasing allocation of research funds to the actual adoption of mitigation and adaptation measures. As this Article will discuss, most of the legal techniques that have been developed in IEL focus on risks (i.e., partial scientific uncertainty) rather than on uncertainty--even those that come into play at early stages of regime development.

The purpose of this Article is to survey several examples from IEL in order to map the techniques currently available, link them to each stage of regime development, and then discuss their operation in practice. After a brief discussion of the concept of international regimes and their dynamics (Part II), this Article analyzes a number of legal techniques used to deal with scientific uncertainty at different stages of development of international environmental regimes (Part III) and then explores the operation of some of the techniques surveyed in the context of the climate change regime (CCR) (Part IV).

II. REGIMES AND REGIME DEVELOPMENT

A. The Theory of Regimes

Both political scientists and international lawyers know well the theory of regimes. (8) This survey therefore is limited to only those concepts that provide the basic structure underlying the analysis conducted in the following Parts.

The context in which regime theory emerged considerably influenced its theoretical premises. In the aftermath of the Second World War, a controversy arose between international legal scholars and political scientists regarding the effectiveness and even the very existence of international law. (9) This controversy lasted three decades. (10) In this context, the theory of regimes appeared as an attempt to provide political grounding to international law or, as noted by one commentator, as an attempt to "[r]einvent[] international law in rational choice language." (11)

A classical work on regime theory by Stephen Krasner defines a regime as "[a set] of implicit or explicit principles, norms, rules, and decision making procedures around which actors' expectations converge in a given area of international relations." (12) This characterization certainly raises further questions about the definition of its main components. Krasner explains the meaning of those components as follows:

   Principles are beliefs of fact, causation, and rectitude. Norms are
   standards of behavior defined in terms of rights and obligations.
   Rules are specific prescriptions or proscriptions for action.
   Decision-making procedures are prevailing practices for making and
   implementing collective choice. (13)

A more detailed understanding of these concepts calls for some additional comments. First, "regimes must be understood as something more than temporary arrangements" or agreements that govern particular ad hoc questions based on short-term calculations of interest. (14) Regimes are only relevant if there exists "some sense of general obligation," (15) which could be compared (although not simply equated) to the legal concept of opinio juris. (16)

A second observation concerns the basic distinction between principles and norms on the one hand, and rules and procedures on the other. The normative dimension or "sense of general obligation" is found above all in principles and norms. (17) Only principles and norms provide the basic defining characteristics of a regime. Rules and procedures also enjoy some degree of normativity, but they have a hierarchically lower position in that "[t]here may be many rules and decision-making procedures that are consistent with the same principles and norms." (18) That said, it is often difficult to distinguish rules from norms, and it seems more realistic to think of a regime as a set of "injunctions of greater or lesser specificity." (19)

Third, the manner in which international regimes influence state behavior is not entirely clear. There are three basic views on the issue of regime significance. One view is that no pattern of behavior can last without generating a congruent regime. (20) Another view is that only political and economic power relations are relevant to understand international politics, so the concept of regimes is a mere facade. (21) A third (intermediate) position holds that international regimes can play a considerable role in structuring state behavior but only under certain restrictive conditions. (22)

Thus characterized, the concept of regime has been a powerful analytical tool in both political science and international law literature. Although international lawyers are somewhat reluctant to use the concept in its technical meaning, their writings often refer to regimes in a broader sense (such as a treaty framework or a sub-field) that largely overlaps with the technical meaning. (23)

B. Regime Development

One important contribution of the literature on regimes has been to provide a conceptual framework for the analysis of international institutions as they emerge and evolve over time. Currently, the concept of dynamic regimes--or in the words of Thomas Gehring, "dynamic environmental treaty systems"--is well established in both legal and political science literature focusing on IEL. (24) The origins of the current understanding can be traced back to the seminal works of Oran Young.

In an article published in 1982, which he later refined in a subsequent work, Young noted that "It]he fact that international regimes are complex social institutions makes it tempting to approach them in static terms, abstracting them from the impact of time and social change." (25) But if a regime is to operate as intended, its dynamics cannot be overlooked. Young, therefore, presented an orderly analysis of two aspects of these dynamics, namely the patterns of "regime formation" (emergence of social institutions) and the variables explaining "regime transformation" ("significant alterations in a regime's structures of rights and rules, the character of its social choice mechanisms, and the nature of its compliance mechanisms"). (26) Regarding the former, Young argued that there are three types of orders, according to their different formation paths: spontaneous orders, negotiated orders, and imposed orders. (27) As to the forces guiding regime transformation, the author referred to three: internal contradictions, shifts in underlying power structures, and exogenous forces. (28)

The distinction between regime formation and transformation, as well as some of the more specific concepts attached to these stages of a regime's life, are particularly relevant for our purpose, as they provide a set of basic categories to structure the analysis in the following sections. In this regard, each of the two stages Young identified can be further subdivided into two additional stages.

Thus, in the formation of negotiated regimes--namely those characterized "by conscious efforts to agree on their major provisions, explicit consent on the part of individual participants, and formal expression of the results" (29)--this Article further distinguishes between an advocacy stage (Stage One) and a design stage (Stage Two). Stage One covers efforts aimed at advocating for a regime despite the uncertainties or (at best) the insufficiently understood risks relating to a given issue. Stage Two encompasses efforts at designing an international regime that can deal with scientific and technological changes. For Young, those changes can be viewed as exogenous forces or, in other words, as "societal developments external to a specific regime (treated as one among many social institutions) [which] may lead to alterations in human behavior that undermine the essential elements of the regime." (30) In order to avoid those forces rendering an international regime partially or totally obsolete, regimes that are developed to tackle issues characterized by considerable uncertainty can incorporate mechanisms to avoid obsolescence.

Regarding regime transformation, the focus here will be on how international regimes can subsist without becoming scientifically or technologically obsolete. This Article will therefore use the expression "regime implementation," which is more adapted to refer to those techniques that help manage regime stress from scientific and technological changes. It will further distinguish between two additional stages, one focusing on how uncertainties are managed in the implementation of a regime (Stage Three) and the other on how they are retrospectively handled in case a risk materializes (Stage Four). In simpler terms, Stage Three covers activities such as monitoring, updating and compliance, whereas Stage Four focuses on reparation for damages.

The foregoing considerations are summarized in Table I:

TABLE I: STAGES OF REGIME DEVELOPMENT

Regime           Stage 1: Advocating the need for a regime despite
formation                 uncertainty
                 Stage 2: Designing a regime dealing with uncertainty
Regime           Stage 3: Dealing with uncertainty in regime
implementation            implementation
                 Stage 4: Dealing with uncertainty in reparation

The following Parts provide a survey of a number of legal techniques that have been developed in ILL to tackle risk and uncertainty at different stages of the development of an international regime.

III. TACKLING SCIENTIFIC UNCERTAINTY IN THEORY: LEGAL TECHNIQUES USED IN ILL

A. Overview of the Techniques

The legal techniques that have been mobilized to deal with scientific uncertainty in the field of ILL differ considerably as to their nature, legal grounding and stage of intervention. Regarding their nature, some of these techniques, such as precautionary reasoning or the provisions on State or civil liability, could be understood as principles, norms, or rules in the meaning specified above. Others, such as the establishment of scientific and monitoring bodies or the framework-protocol approach, are better described as decision making processes or architectural features. Still others, such as the international mechanisms on prior informed consent and prior impact assessment, are somewhat between the two, as they impose both an international obligation and a process.

These techniques also differ with respect to their legal grounding. Whereas, for instance, the international rules on civil liability of private operators (31) can be linked to formal sources of international law (treaty law), the legal grounding of precautionary reasoning or of the rules on the international "liability" of the state remains uncertain. (32)

As to the stage of intervention of these techniques, whereas some, such as precautionary reasoning, are likely to be mobilized early in the process of regime development, others intervene later, respectively at the design stage (such as the framework-protocol or the establishment of advisory scientific bodies), the implementation stage (law-making by treaty bodies, managerial approaches to compliance, including monitoring and financial mechanisms, prior informed consent, and prior impact assessment), or the reparation stage (provisional measures, evidenciary techniques, and facilitated liability). Of course, some techniques may have a broader scope of relevance. For instance, precautionary reasoning operates not only to gather momentum for the negotiation of a regime but also as an argument guiding decisions at later stages of regime development, including when it comes to evaluating state responsibility for preventing environmental damage. Similarly, where advisory bodies are design features, they deploy their activity at the implementation stage. For these reasons, it seems useful for the sake of clarity to discuss each technique at the stage where it is most characteristic.

Table II provides an overview of the main legal techniques operating at each stage of regime development:

TABLE II: LEGAL TECHNIQUES FOR DEALING WITH
SCIENTIFIC UNCERTAINTY

Stage 1: Advocacy         Precautionary reasoning

Stage 2: Design           Framework-protocol approach
                          Advisory scientific bodies

Stage 3: Implementation   Law-making by treaty bodies
                          Managerial approaches to compliance
                          Prior informed consent (PIC)
                          Environmental impact assessment and
                            monitoring

Stage 4: Reparation       Provisional measures
                          Evidence
                          Facilitated liability

What follows is an analysis of both these techniques and the manner in which they operate at their corresponding stage of regime development.

B. Analysis of Individual Techniques

1. Precautionary Reasoning (33)

Precautionary reasoning can intervene in different forms, from a mere adage ("better safe than sorry") to a general approach (as advocated by the United States) to a principle or even a rule shifting the burden of proof. (34) Such diversity of forms stems from the fact that precaution is a multi-layered concept, involving both a broad consensual meaning and more specific controversial ones. It is hard to disagree with the adage that it is better to prevent the occurrence of disaster than to deal with it once it has occurred. But when one tries to move beyond this broad meaning to more operational characterizations of precaution, controversy becomes the rule. (35)

This is not to say that operational characterizations of precaution have not been accepted in international law or in international decisions. In fact, it appears in many national and international instruments, although in different forms, (36) and in a number of decisions from adjudicatory bodies. (37) Commentators have identified a number of "legal functions" deployed by precaution and, more specifically, by the precautionary principle. Bodansky refers to the following three functions: (1) to exclude certain justifications (such as scientific uncertainty) for inaction; (2) to justify otherwise questionable action; and (3) to require action. (38) He also offers several illustrations of these functions. Function (1) is embodied in the broad injunction made in Principle 15 of the Rio Declaration on Environment and Development, which states that "lack of scientific certainty shall not be used as a reason for postponing cost-effective measures." (39) This idea also appears in a number of international instruments, including the United Nations Framework Convention on Climate Change (UNFCCC) (Article 3.3), (40) the Stockholm Convention on Persistent Organic Pollutants (POP Convention) (Article 8.7(a)) (41) or the Convention on Biological Diversity (CBD) (Preamble). (42) The Biosafety Protocol to this latter convention goes a step further and provides an illustration of function (2). Indeed, Article 11.8 of this protocol states:

   Lack of scientific certainty due to insufficient relevant
   scientific information and knowledge regarding the extent of the
   potential adverse effects of a living modified organism on the
   conservation and sustainable use of biological diversity in the
   Party of import, taking also into account risks to human health,
   shall not prevent that Party from taking a decision, as
   appropriate, with regard to the import of that living modified
   organism intended for direct use as food or feed, or for
   processing, in order to avoid or minimize such potential adverse
   effects. (43)

This provision echoes the trade dispute between the United States and the European Community, usually referred to as Beef Hormones, where the latter unsuccessfully sought to justify import restrictions of US beef on the basis of the precautionary principle. (44) The same problem may arise in the area of foreign investment, when the activities of a foreign investor are restricted by the host state on precautionary environmental grounds. (45) An even stricter version of the precautionary principle, illustrating function (3), is found in Article 3(2) of the 1992 Baltic Sea Convention, pursuant to which states

   shall apply the precautionary principle, i.e., to take preventive
   measures when there is reason to assume that substances or energy
   introduced, directly or indirectly, into the marine environment may
   create hazards to human health, harm living resources and marine
   ecosystems, damage amenities or interfere with other legitimate
   uses of the sea even when there is no conclusive evidence of a
   causal relationship between inputs and their alleged effects. (46)

The functions Bodansky identified and the examples reviewed tend to focus on already existing international regimes. They nevertheless remain relevant for the analysis of how precautionary reasoning may intervene before a regime has emerged. Indeed, in many cases, precautionary reasoning appears in framework conventions, which need to be supplemented by more specific regulations to actually become a regime. In these cases, precautionary reasoning will help gather momentum for such more specific rules and processes to develop--or at least for increasing research efforts which, in turn, will catalyze the development of such rules and processes. The example of the climate change regime will be discussed later in this Article. Here, the focus is on the issue of biosafety within the more general framework of the biodiversity regime.

Throughout the 1970s, with the advances in bioengineering technologies, the economic potential of biodiversity as a natural resource (later called "biological resources") became increasingly clear. (47) Developing countries, far richer in biodiversity than industrialized states, soon came to realize the importance of taking control of these resources. Within the context of the efforts undertaken since the early 1980s to elaborate an umbrella convention to provide coherence to several wildlife and habitat conventions already in existence, developing countries started to advocate for the regulation of the uses of biodiversity and biotechnology. (48) This view, initially embodied in a project elaborated under the aegis of the United Nations Environmental Program (UNEP) in the late 1980s, eventually prevailed in the negotiations towards the adoption in 1992 of the CBD, which reflects a rather utilitarian view of biodiversity somewhat between protection and exploitation. (49) Throughout the 1990s, the use of genetically modified organisms (GMOs) led to increasing economic tensions between the United States, the largest user of GMO crops, and a number of European States that imported U.S. products, in a context of scientific uncertainty as to the potential risks entailed by GMOs. (50) Although, to date, such risks have yet to be proved, (51) the European Community and a number of developing countries prompted the adoption of a protocol to the CBD on a precautionary basis, namely the Biosafety Protocol (also known as the Cartagena Protocol). (52) Article 1 of the Protocol stresses this fact by making an express reference to the precautionary principle as formulated in Principle 15 of the Rio Declaration. (53) The relations between the Biosafety Protocol and international trade law have come under close scrutiny, specifically with respect to the status of the precautionary principle in international law, as a result of a case decided in 2006 by a WTO panel regarding measures taken by the European Community against biotechnology products. (54)

2. Framework-protocol Approach (55)

The need for the progressive completion of international environmental regimes discussed in the foregoing subpart has been recognized since the early days of environmental regulation. (56) The pace of such completion and refinement is given by the evolving political consensus of member states, which is in turn considerably influenced by progress in the scientific understanding of the relevant environmental issues. (57)

A recurrent legal technique in this regard is the use of a framework--protocol approach. This approach clearly illustrates the different levels at which operate the components of a regime. Framework conventions provide for broad principles and norms and for an institutional architecture for the subsequent development of the regime, while protocols (as well as decisions by Conferences of the Parties (COP), discussed below) embody the more specific rules and decision making procedures necessary for the implementation of the regime.

There are different approaches to the use of protocols. (58) Among these are approaches that are based on a framework convention and intended to spell out and implement the principles and norms set out in such convention or a section thereof. Examples of this approach in the field of IEL include, inter alia, the protocols to the 1979 Convention on Long-Range Transboundary Air Pollution, the 1987 Montreal Protocol (as subsequently adjusted/amended) to the Vienna Convention on the Ozone Layer, or the Kyoto Protocol to the UNFCCC. The scope of the relations between such protocols and the underlying convention varies from case to case, and may be specified in the convention, the protocol, or both. For instance, most provisions of the Vienna Convention on the Ozone Layer expressly refer to potential future protocols. The relations between the Convention and the protocols are based, in essence, on the lex specialis principle, as specified in several of the Convention's provisions. (59) This point is confirmed by Article 14 of the Montreal Protocol, which provides that "[e]xcept as otherwise provided in this Protocol, the provisions of the Convention relating to its protocols shall apply to this Protocol."

More importantly for the purpose of our discussion, protocols are expressly intended to incorporate new scientific and technological data. The Preamble of the Vienna Convention referred to "the need for further research and systematic observations to further develop scientific knowledge of the ozone layer and possible adverse effects resulting from its modification" and the general obligations appearing in Article 2 of the Convention (which in turn refers to obligations arising from protocols) are qualified by Article 2(4), pursuant to which "[t]he application of this article shall be based on relevant scientific and technical considerations." (60) The relationship between scientific progress and regulation underlying these provisions appears more clearly in light of the critical advances that occurred between the signature of the Vienna Convention and the adoption of the Montreal Protocol. (61) Since the mid-1970s there had been a controversy over the destruction of ozone in the stratosphere. A British team eventually discovered the existence of a "hole" in the ozone layer in 1985, and it was linked to emissions of chlorofluorocarbons (CFCs). (62) This link became controversial, as industrial groups sought to disprove that their products were harmful. (63) However, the controversy was short-lived, as within two years the scientific basis of the link between the emission of CFCs and ozone depletion became solidly established. (64) Faced with these scientific breakthroughs, States Party to the Vienna Convention had little choice but to react through the adoption of the Montreal Protocol, which specifically designated the substances to be subject to control. (65)

3. Advisory Scientific Bodies

Another design feature that focuses on the need for the progressive completion of international environmental regimes as scientific knowledge evolves is the establishment of advisory scientific bodies by multilateral environmental treaties. Of course, such treaty bodies also play an important role in the implementation of the regime, as will be discussed later in this Article. Here, however, the focus is on the inclusion of such a component in the design phase of an international regime.

Advisory scientific bodies have been established in the context of both older and more recent multilateral environmental treaties. Aside from the one established by the UNFCCC, (66) other examples include the committees established under the Ramsar Convention on Wetlands of 1971, (67) the regional Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) of 1979, (68) the CBD, (69) the Convention on Desertification, (70) the Convention on Migratory Species, (71) and the POP Convention. (72) Their function is as a rule limited to the evaluation of scientific research conducted outside of the treaty context and does not include the conduct of primary research. (73) They operate therefore both as an instrument for staying abreast with scientific and technological progress and as a sort of gatekeeper for the filtering of daunting amounts of information produced by interest groups and, more generally, by the so-called "epistemic communities." (74) The composition of such bodies is often politically sensitive in that members are either party representatives or party-nominated, (75) and they must be geographically representative.

4. Law-making by Treaty Bodies (76)

Another important technique that intervenes at the level of both regime completion and implementation is law-making by treaty bodies and specifically by the Conference of the Parties (COP). (77) As Thomas Gehring noted:

   Environmental treaty systems are designed to facilitate and speed
   up the dynamic development of substantive regulations. Frequently,
   obligations are tightened with growing scientific and technological
   knowledge about a given problem and the gradual emergence of
   suitable …