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

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. I cannot examine in this post either the appearance and development of what has been called by Loughlin the functionalist style in public law and the neofunctionalism or the historical phenomena of increasing fields of public sphere being attributed to regulators, national and international alike will be outlined. For this I refer to my article [see here].

 Expanding Jurisdictions of IO’s through Regulatory Functions

 In modern international law the state’s right and, for that matter, the international organisation’s right under international law to regulate conduct in matters not exclusively of domestic concern might be regarded as the mark of their sovereign powers. Moreover, when international organisations started to be included as holders of rights to regulate conduct beyond the domestic sphere, the previously strictly unitary character of the sovereignty embodied in states underwent change. Sovereign powers held solely by states themselves in traditional international law over territories begin to be slowly relocated among different actors, most prominently, states and international organizations by means of regulatory strategies over conducts. In this regard, as one commentator put it more than twenty years ago, the activities under the ECOSOC were but a movement in the process of the expanding jurisdiction of the UN.

 Crucially, the growing interdependence of countries and of the world’s economic development gave GATT an increasingly central role, without requiring the driving force of the UN to achieve this. For example, as the economies of the developed countries were experiencing an increase in the values services (‘from about 80 billion dollars in 1967, to nearly 650 billions in 1980’), GATT had to follow up and expand its scope into services trade. The trends of expanding jurisdiction are reproduced in the global sphere constantly.

 When the UN took pains in the early seventies to encourage its members in the negotiations for creating an orderly world trade system, it had in mind a functionalist design for it: in other words, that the promotion of trade law should serve the purposes of the common (global) good in developing terms. That the WTO, as an independent international organisation, would soon find itself switching into the role of the active agent that forms plans itself for new functions was something to be expected, given the real power with which it was being endowed.

 The adaptive governance project seeking to use WTO law as a tool for improving governance in national member states bears significant traces of functionalism; a legal doctrine inaugurated more than a hundred years ago by Léon Duguit and other French social solidarists.[See Martin Loughlin, ‘The Functionalist Style in Public Law’, (2005), 55 University of Toronto Law Journal, 361-403.]  The basic assumption that such harmony of interests exists between the WTO, a trade organisation, and the country members as would allow the organisation to be a source of knowledge for the evolution of the regulatory capacity of the country members undoubtedly entails the same important a priori principle of the French functionalists: the a priori referring to an unproblematic harmony of interests between the actors in (global) society.

 Few could question, for instance, that it is necessary and desirable to gain continuous knowledge of complex biological systems in order to avoid inflicting irreversible harm on global ecological environments. But the question of whether this would be an important task (function) for the WTO to pursue is more doubtful. Institutional trade-specialization inevitably determines the particular structural bias for trade of the WTO over any other concern, which the organisation might face, be it of environmental or labour issues, human rights or development. Thus, conferring the WTO management over (national) environmental issues would imply giving this trade organisation a more prominent political role than it has now, indeed, a broad expansion of jurisdiction in global governance, in order to encourage and promote the interdependence of national and the WTO regulators. The WTO would also necessitate a stronger supranational secretariat. Such promotion constitutes in itself a political decision, or a political attitude in favour of an international intergovernmental trade organisation monitoring the national regulation on environmental issues. Patently it is one thing for the WTO to be obliged to make a decision when faced with an environmental issue on a dispute settlement, and a very different thing to endow it with permanent power to provide for regulation on this field. One feels the absence of this debate in the project presented by Cooney and Lang.

 Eroding Sovereignty: Continuous Learning as Experimentalist Governance

 In the national public law arena, the core conception of regulation is placed in the context of the privatisation of utilities, when the public interest passes into the domain of the market. According to Tony Prosser, regulation ‘consists of public interventions which affect the operation of markets through command and control’ [Law and the Regulators, Clarendon Press Oxford, 1997, 4]. In this regard it is useful to note that Cooney and Lang share with Duguit the rejection of ‘traditional command-and-control regulatory frameworks,'[at 533] and as an alternative propose the experimentalist governance of continuous learning. Learning is thus the core of adaptive governance.

 While the traditional ‘command and control’ manifestly pertain to the categories of power and submission, continuous learning seems to be free of those negative features. But what does continuous learning mean in practice? Observed as a means to improve environmental political decisions, resort to continuous learning amounts almost to a platitude since it is stating the evident: the need of learning from past failures and successes. However the project of adaptive governance goes manifestly beyond that. And it is in its condition of regulatory design that the option of continuous learning is a form of construction of reality. As such it also involves power and submission. Continuous learning aims to subject the national regulators to a WTO secretariat provided with the power of a centralized expertise. However, when the question of knowledge is at stake, one should reflect on the fact that lack of applicable technical knowledge is one of the main reasons that even prevent developing countries from participating in the dispute settlement mechanism of the WTO or influencing effectively in crucial negotiations of the WTO system. Therefore, in the context addressed by the adaptive governance project – that of the WTO – knowledge and learning are deeply politically loaded concepts. Unless continuous learning is used as a euphemism for political domestication, the proposal of sharing/imposing knowledge and expertise for creating regulation in the national environmental policy, should tackle the unequal access of country members to possibilities of producing and testing knowledge and technology which affects the WTO system.

 Moreover, this ‘continuous learning’ argument contains a scheme for the erosion of sovereignty, of this capacity to regulate, contained in the sovereign powers of the state.

 If we apply evolutionary, sociological theories to the decisions that are taken in the regulators’ networks, such as the theory of adaptive governance, there is no doubt that those decisions and regulations would very much resemble scientific products – though however they will hardly avoid political conflict. What is more doubtful is whether this process will transform decisions, such as those taken in the negotiating fora of the WTO, into objective truths, or, through learning,  into gradually becoming more true decisions. I am sceptical about this.

 A final suggestion is that the global public sphere might more easily trigger the type of political project that tries to appropriate political decisions in the name of science. This happens because the international realm is still in many respects virgin territory. When the Westphalian sovereigns fought against each other to conquer the virgin lands of America, Oceania and Africa, they did so chiefly to increase their sovereign powers by extending their jurisdiction over new territories. When in modern international law the powers of sovereignty are gradually turning into regulatory capacities, each regulatory field is a new conquest for the state or for the organisation in question, and each regulatory power a new extension of jurisdiction for the interested actor. As a result, global governance ends up being, after all, the gentle civilizer’s territory.