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The Tension between International Law as ‘Law’ and International Governance: A Comment on the EJIL Debate between Mónica García-Salmones and Andrew Lang and Rosie Cooney

Published on April 17, 2009        Author: 

Dr Caroline Foster is a Senior Lecturer in Law at the University of Auckland, New Zealand and was a diplomat and legal adviser at the New Zealand Ministry of Foreign Affairs and Trade. She has a special interest in the nexus between trade, human rights and the environment and she has published several articles on the WTO Agreement on Sanitary and Phyto-Sanitary Measures. She is currently working on a monograph to be published by Cambridge University Press on Science, Proof and Precaution in International Courts and Tribunals.  The book focusses on expert evidence, burden of proof and finality of adjudication in international disputes involving science.   

My thanks to Dapo Akande for the invitation to submit this comment and to the respective authors for their papers. Cooney and Lang adopt a broad ambition: a development in the multilateral trade system and its institutional mechanisms towards “adaptive governance”.  García-Salmones sets out to prompt further exploration of the major implications of such a reform in “governance”, including the development dimension.   Reading the authors’ contributions, it occurs to me that together these contributions raise fundamental questions about the respective roles of law and of “governance” in international law – a distinction hinted at by García-Salmones but not taken up. What we require of international law as law, particularly when it comes to the application of the law through binding adjudicatory processes, is not always compatible with what we might ideally require from a system of international “governance”.

 The key point that needs to be added into the equation, I think, is to underline the usefulness of maintaining what could be called the “hard edge” of international law.  At the hard edge, law often requires the availability of authoritative decision-making at fixed points in time – something the WTO dispute settlement system does very well. In dispute settlement by adjudication, the law is interpreted and applied in order to give concrete effect to an agreed balance of interests.  Because of its very nature this aspect of law will tend to freeze the situation at hand.  Adjudicatory processes will generally respond much less flexibly to the dynamics of ongoing scientific research in fields of considerable uncertainty than may be possible within other processes of international “governance”. Cooney and Lang themselves refer to the “one-off nature of WTO dispute settlement.”  (As a practical matter, the result is a technically huge challenge for WTO panelists and Appellate Body members.)

 Certainly, WTO dispute settlement in SPS cases should be carried out with a high level of awareness of the extent of scientific uncertainty in the field in question.  Increasingly, this awareness is manifest. The appellate structure of WTO dispute settlement has been valuable in gradually advancing the interpretation of the Agreement along appropriate lines. And indeed we should continue to strive to improve the substantive international law on an ongoing basis so that the rules themselves will require, prompt and accommodate an allowance for uncertainty- as Cooney and Lang seek to do with their suggestions on the SPS Agreement’s future interpretation.  Success in this will produce better decisions that balance competing interests as well as possible.

 Yet we must remain aware of what it is we seek from international law as law. This is not always compatible with what we might ideally require from the overall system of international “governance”, where there is greater scope for adaptive management and learning.  Read the rest of this entry…