II. FROM INTERNATIONAL ADJUDICATION TO GLOBAL GOVERNANCE

Much of the scholarship on science and international law to date has been driven by the WTO's jurisprudence on the treatment of scientific evidence and risk assessment in the Agreement on the Application of Sanitary and Phytosanitary Measures (‘SPS Agreement’). Although Foster and Peel both engage carefully with the SPS case law, for each such analysis only forms part of a more expansive project. Foster's book focuses on the challenges that scientific complexity and uncertainty pose for international adjudication, particularly in relation to the treatment of expert evidence, how to allocate the adjudicative burden of proof, and the principle of finality of adjudication. Much of her analysis is centred on nine international disputes in which scientific evidence played a central role. These disputes are described straightforwardly as providing ‘a representative selection’,Footnote ¹ although it is not clear what makes them so. Rather than targeting the jurisprudence of any one court, the cases are drawn from various international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea and the WTO dispute settlement organs. Other cases involving State responsibility (including investment arbitration cases) are introduced as the book progresses, but receive less attention.

An advantage of this diffuse approach is that it provides a broad snapshot of how various international adjudicative bodies have attempted to wrestle with the problems of scientific complexity and uncertainty. As a map of varied practice, Foster's book provides a useful insight into the commonalities and differences between these bodies. Foster's drawing together of the different methods for taking expert evidence in scientific disputes, from the parties hiring their own experts to having ‘neutral experts’Footnote ² determine disputes altogether, is a particular highlight. This elevated vantage point also helps to bring certain high-level trends into focus, such as the ‘unmistakable trend […] towards the use of procedures that bring greater judicial involvement in the scientific aspects of these cases’.Footnote ³ Furthermore, the book provides a welcome respite from the occasionally myopic focus on the WTO found elsewhere in the literature (although the WTO is far from neglected here).

Foster's chosen methodology nonetheless has some significant limitations. The breadth of her selection of cases leaves her with little space to consider why differences in practice have arisen between these international courts and tribunals. There is very little consideration of how the rationales for their varied approaches may have been shaped by distinctive institutional, jurisprudential, historical or sociological factors. For instance, in discussing how adjudicators have procured expert evidence through consulting with international organizations, there is no indication of the extent to which a pre-existing formal or institutional link to such organizations—as the WTO has with, among others, the International Monetary Fund and the Codex Alimentarius Commission—might affect how evidence is framed and understood.Footnote ⁴ This detached approach is not uncommon in international law, but does not make for rigorous comparative scholarship. Moreover, it undermines the persuasiveness of some of Foster's broader prescriptive claims. It is harder to make a convincing argument that certain practices should change when their reasons for existing in a given context have not been clearly articulated.

The primary focus of Peel's book is on processes of risk regulation and global governance, especially those relating to environmental and public health issues. In seeking to capture these diverse processes, Peel analyses science-related governance mechanisms ranging from the Biosafety Protocol to the Inter-governmental Panel on Climate Change. Much of the book, however, remains caught in the inexhaustible gravitational pull of the WTO's SPS jurisprudence.Footnote ⁵ Rather than deriving a common set of beneficial norms and practices from this survey, Peel instead notes that it is ‘not possible to generalise from this experience the ideal configuration for scientific and risk assessment procedures in international law’.Footnote ⁶ Rather, her selected case studies help provide inspiration for future ‘experimentation and institutional reform’.Footnote ⁷

Peel is particularly concerned with the ways in which ‘science is becoming a fundamental organising principle in international regimes concerned with risk’,Footnote ⁸ and how this affects multiple layers of regulatory decision-making. She takes the ‘becoming’ part seriously, tracing the emergence of two competing risk regulatory paradigms—‘sound science’ and the precautionary principle—from their origins in the US and EU risk regulatory systems.Footnote ⁹ She also draws on a rich social scientific literature to investigate ‘the reasons why science and expert risk assessment enjoy their current pre-eminence in international law’.Footnote ¹⁰ Her analysis of how these paradigms have come to dominate international debates is historically and sociologically grounded. Moreover, by focusing on the WTO as a central case study, she is able to highlight the essential interconnectedness of contemporary regulatory regimes. In particular, she draws attention to how the WTO's narrow and technical approach to science and risk in the SPS jurisprudence has influenced the workings of the Codex Alimentarius Commission, the Biosafety Protocol negotiations and national/regional food safety regimes. In the process, she transforms the book's somewhat lopsided focus on the WTO from a potential weakness into a strength. That said, further elaboration of the role played by non-adjudicative governance mechanisms such as the SPS CommitteeFootnote ¹¹ would have been welcome.

III. ALTERNATIVE VISIONS OF SCIENCE

Foster and Peel's differences in approach also extend to how they envision the role of science in international law debates. Foster's book suggests a strong faith in scientific endeavour as a means of discerning truth, as well as in adjudicative processes for recognizing such truth and cloaking it with legal authority. In this vein, she claims that international adjudicators have historically been given a relatively free hand in dealing with evidence as ‘[a]n overarching emphasis has been placed on finding the “truth” lying at the heart of an international dispute’.Footnote ¹² This focus on science as a source of truth is reflected in Foster's articulation of ‘the rationalist tradition’, which requires a strict separation of fact and law and understands rules of evidence and procedure as directed towards bringing about the ‘rectitude of the decision through correct application of valid law to true facts’.Footnote ¹³

Foster argues, however, that the rationalist tradition in adjudication is threatened by the scientific uncertainty central to many contemporary disputes, as ‘international courts and tribunals are called upon to make judicial decisions in circumstances where potentially decisive facts about future events cannot be obtained at the time of adjudication’.Footnote ¹⁴ Moreover, international norms are often drafted in forms where questions of fact and questions of law cannot be easily separated. For Foster, however, scientific fallibility and a blurred fact/law distinction do not threaten to topple the rationalist tradition altogether. Rather, they become problems to be managed by adjusting adjudicative procedure to ‘facilitate satisfactory dispute resolution in scientific cases and help ensure the integrity and authority of international adjudication’.Footnote ¹⁵ Thus problems associated with scientific error in completed cases can at least be managed by allowing for revision or reassessment when significant new scientific evidence has come to light. Most such problems can be addressed with the right set of procedures, sufficient time and sufficient research. Similarly, although Foster recognizes that normative elements may shape expert evidence and advice, she seeks to mitigate their capacity to distort adjudicative decision-making by calling for greater transparency and informal interaction between experts and adjudicators.Footnote ¹⁶

Peel too acknowledges the value of science in providing a ‘credible’ basis for risk regulation. However she is much more sceptical about the likelihood that scientific uncertainty and error may be managed with the passage of time. She considers that the risks associated with the types of scientific uncertainty that can be identified for technical resolution are ‘often dwarfed by more pervasive issues of ignorance and indeterminacy that are not readily amendable [sic] to resolution through further research of the application of uncertainty management techniques’.Footnote ¹⁷ Scientific uncertainty and error are here not just problems to be contained and managed—they are pervasive and inescapable aspects of regulatory life with deep implications for the legitimacy of excessively science-centred approaches to risk regulation.

Beyond its empirical and analytical utility, Peel also views science as providing a powerful vocabulary of legitimation for those seeking to advance or impede particular regulatory projects. Indeed, this vocabulary is increasingly invoked by international organizations seeking to justify their authority in matters of risk regulation. Such organizations may seek to accumulate expert legitimacy by framing issues as ‘merely technical’, thereby artificially separating these issues from the arena of values and politics. Peel argues that these organizations are then able to draw on a well-established symbolic universe to strengthen their claims, in which the concepts of ‘science’ and ‘expertise’ are associated with progress, universality and objectivity.Footnote ¹⁸ Those working towards opposite goals can draw on a set of counter-associations, by appealing to notions of scientific uncertainty and contingency.

Nonetheless, Peel recognizes ‘that expert knowledge is limited in its capacity to legitimise public authority, even in areas treated as scientific and technical in nature’.Footnote ¹⁹ Science and expertise may provide powerful tools for more reliably determining the probability of risks, but they also tend to undermine opportunities for political participation and contestation in risk-related decision-making. When combined with conspicuous examples of scientific fallibility ranging from mad cow disease to Chernobyl, public confidence in science and expertise is already fragile. As such, expertise provides ‘a necessary but not sufficient rationale’ for the legitimacy of global risk governance.Footnote ²⁰ She thus recognizes the need ‘for the expertise deployed in international risk regulation to be bolstered by other mechanisms in order to be legitimate’, in particular ‘democratic mechanisms and values’.Footnote ²¹ As globalization leads to increasingly complex forms of global administration and the world is mapped in ever greater scientific detail, acknowledging these limits of expert legitimacy becomes all the more important.

IV. NORMATIVE PROPOSALS

To contain the threat posed to the rationalist structure of international adjudication by scientific uncertainty and error, Foster turns to the precautionary principle. She claims that, subject to ensuring such views are made sufficiently transparent, ‘the injection of precautionary considerations by well-informed experts should be welcomed’.Footnote ²² More contentiously, she also argues that adjudicators should reverse the burden of proof to give effect to the precautionary principle in cases of significant scientific uncertainty where doing so would ‘ensure the sound administration of justice’.Footnote ²³ The precautionary principle also informs her proposal to institutionalize reassessment proceedings for disputes involving scientific uncertainty.

Although there is an initial appeal to Foster's proposals, they lack a rigorous theoretical basis and are thus not as persuasive as they could be. Foster's normative claims are essentially built around the relation between three concepts: precaution, scientific uncertainty and the administration of justice. Unfortunately, each of these concepts is heavily under-specified. First, notwithstanding its presence in the book's title, the precautionary principle itself is given relatively little attention. Foster claims that it need not be applied here as a legally binding rule, but rather as a guiding principle ‘to be applied as part of the decision-making process’.Footnote ²⁴ This is a rather meagre basis for applying something as contested as the precautionary principle. It also provides little guidance as to how to operationalize such a ‘guiding principle’ in specific circumstances. Second, Foster mainly treats scientific uncertainty as identifiable and resolvable—the type of uncertainty that rule-makers may already ‘have in mind’, and which can be ‘accommodated’ by legal rules.Footnote ²⁵ This tends to ignore risks associated with scientific ignorance and irresolvable uncertainty, even though such risks are central to contemporary challenges such as climate change. Third, Foster frequently invokes ‘the administration of justice’ as a self-evident basis for the inherent powers of international courts and tribunals to reverse the burden of proof; without further explication this concept seems dangerously malleable. When combined with the vagueness of the precautionary principle as guiding principle, this would grant adjudicators a large degree of discretionFootnote ²⁶ in making procedural decisions which can have a profound effect on the substantive outcomes of disputes. This requires a lot of faith in the adjudicators; particularly those who, as is the case with some WTO panel members, lack any legal training.

More specifically, Foster's suggestion that the WTO make more use of expert review groups to advise on legal questions—such as whether or not a measure may be considered ‘necessary’Footnote ²⁷—is also problematic. Even with the caveat that the expert group ‘be given no discrete mandate or jurisdiction to determine such issues’,Footnote ²⁸ this would seem to invite trouble. This is especially so given WTO panels’ previous struggles to delineate the expert and adjudicative roles in EC—Biotech Footnote ²⁹ and Canada/US—Hormones Suspension.Footnote ³⁰ Moreover, when it comes to SPS matters, the WTO seems to have moved decisively away from this approach. Article 14.9 of the old Tokyo Round Standards Code provided for the convening of a technical expert group that could be tasked with making ‘such findings as will assist the Committee in making recommendations or giving rulings on the matter, including […] whether the measure was necessary for the protection of human, animal or plant life or health’. Not only was this provision never put into use, it was altogether abandoned in the Standards Code's successor agreements, namely the SPS Agreement and the Agreement on Technical Barriers to Trade.

Peel, like Foster, acknowledges the ‘normative that lurks within the technical’.Footnote ³¹ Peel's emphasis, however, is more on how law can be used to channel this inherent normativity in a more ‘democratized’ fashion. Her aim is to incorporate ‘a broader array of perspectives or values’Footnote ³² in decision-making to improve the legitimacy of international risk governance. Drawing on a range of interdisciplinary sources, while again focusing on WTO SPS disputes, Peel canvasses various proposals to apply to risk governance at both the domestic and international levels. These include, for instance, extending the types of expert advice that the WTO dispute settlement organs take into account in cases involving risk regulation; deferring to national risk preferences; and encouraging greater transparency through normalizing open hearings and providing for real-time release of dispute settlement documents. She notes that these are all ‘imperfect alternatives’,Footnote ³³ which require us to make institutional choices. Overall, however, Peel indicates a normative affinity with more localized regulatory processes, suggesting that ‘the drive for science-based global risk regulation may need to slow its pace’Footnote ³⁴ to allow time for the development of trust and legitimacy in relation to international risk governance.

V. SCIENCE, EXPERTISE AND THE POLITICS OF INEQUALITY

As a final point, a more explicit engagement with the politics of inequality associated with access to scientific knowledge and expertise is conspicuously absent from both books. Foster acknowledges that science may be politicized or enlisted in favour of particular causes. However, she then frames this as a problem of expert neutrality for judicial management.Footnote ³⁵ Foster also discusses the problem of asymmetrical access to relevant information, but only in the sense that governments are more likely to have better access to their own documents.Footnote ³⁶ This does not address the broader problem faced by less wealthy States which may struggle to access the legal and scientific expertise needed to effectively advance their claims and counter those of their opponents in international disputes. Indeed, relaxing the finality of adjudication by encouraging further revision or reassessment proceedings has the potential to compound this problem.

Peel does make a few references to the problems raised by such differential access to expertise. For instance, she cites Kal Raustiala to note how regulatory convergence has been ‘premised on the adoption of the environmental and other standards of “advanced” nations by “weaker states”’.Footnote ³⁷ She also notes that a lack of technological and institutional capacity may undermine developing countries’ ability to participate effectively in the mechanisms governing the importation of living modified organisms under the Biosafety Protocol.Footnote ³⁸ Overall, however, her primary focus remains on the regulatory competition between the US and the EU arising from their contending approaches to risk regulation, and on the WTO Members that have made extensive use of the dispute settlement system. Even her review of proposals for democratizing risk governance does not deal expressly with how less wealthy States may be affected specifically. It would have been intriguing to consider whether these proposals could also be used to serve the interests of such States more effectively than current arrangements.