Legal Techniques for Dealing with Scientific Uncertainty in Environmental Law
Vinuales, Jorge E., Vanderbilt Journal of Transnational Law
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
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. …