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Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply

Published on April 15, 2009        Author: 

Mónica García-Salmones is an LLD student and Research Fellow at the Erik Castrén Institute for International Law and Human Rights at the University of Helsinki, Finland. The post below introduces and summarises her recent article in the EJIL, the full text of which is available at the EJIL website (see here)

The use of experts’ power in global networks is often concealed by describing it in the register of scientific truths. My intention in this post is to illustrate this phenomenon by reference to the recent article in the EJIL by Cooney and Lang, ‘Taking Uncertainty Seriously: Adaptive Governance and International Law’. The article provides a good introduction to that issue, to the extent that it offers a set of strong theoretical assumptions framing global governance as a field of knowledge to be conquered. Thus, Cooney and Lang advocate a leading role to scientific experts in global political decisions.

 As the authors state in the introduction, the aim of their project is to address the pervasive uncertainty that confronts decision-makers in international institutions. Focusing primarily on the uncertainty of environmental management, Cooney and Lang put forward the case of the invasive alien species (IAS). The international actor chosen is, predictably, the WTO in its capacity of distinguishing – as well as overseeing and reviewing – legitimate from illegitimate trade-restrictive environmental measures through the mechanism of the Sanitary and Phytosanitary Measures Agreement (SPS Agreement). This mechanism is ‘based (in part) on an appeal to scientific expertise as an arbiter of regulatory rationality’.

 The core question posed by the authors in the article concerns the implications for the WTO in respect of this task when it faces what they consider to be an unavoidable scientific uncertainty. In this regard a proposal is made for a new policy aimed at the regulators in global governance: adaptive management or adaptive governance. The approach used is borrowed in part from the literature of environmental management of the 1970s, combined with alternatives drawn from social sciences. Policymaking in the context of adaptive governance is considered a repetitive process, ‘continuous learning’, because scientific knowledge is seen as provisional and subject to review in the light of new information, and thus not definitive or final. The core message of the article is worth quoting for our purposes:

 ‘For us… the point of proceduralization is not primarily to ensure that the WTO interferes less substantively with democratic decisions at the national level, but rather to use the international trade regime in a more positive way to facilitate, and provide an impetus for the development of appropriate governance frameworks at the national level.’ [at 544]

 Cooney and Lang raise two highly provocative points. Firstly, the account they give of WTO law goes beyond a purely legitimacy-based structure focused on effectiveness. Instead, they propose to endow it with a functional aspect: the question is posed in terms of cognitive achievements for regulators in the member states through the influence of WTO law and WTO managerial tasks. Secondly, they describe national and international regulators as being naturally intertwined. Now, to me both these arguments are interesting and important in facilitating an approach, from a legal perspective, to the meaning of the elusive notion of global governance and – which some consider its leading characters – the regulators.

 Furthermore, critical understanding of these two claims made by the adaptive governance project will assist in evaluating global governance. I shall analyze whether the lack of central government that characterises global governance permits the justification of legal-political decisions as knowledgeable truths in the style of an enlightened ideology – and whether the scientific justification provides a means of avoiding the type of political accountability found in the public national sphere. In order to understand the origins of cognitive theories employed by adaptive governance and to the notion of regulators I will, in the same manner as Cooney and Lang, use the concrete example of the WTO, giving a brief description of its emergence in the international public sphere. Read the rest of this entry…

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