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

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.  For example, Cooney and Lang raise concerns about requirements for specificity in risk assessment under Article 5.1 of the SPS Agreement (page 540).  However, the specificity requirement is intended as a reasonably clear-cut legal gauge of the rigour of a risk assessment, which is important if Article 5.1 is to function properly as a legal requirement and protect the balance of interests in the Agreement.  More analysis of the different ways in which the specificity criterion can be employed could prove a useful avenue of enquiry.  Taking a second example, Cooney and Lang query the Appellate Body’s indication that “theoretical uncertainty” provides an insufficient basis for SPS measures (page 541).  However, the Appellate Body’s intention seems to be to require that in all cases where barriers to trade are maintained under the SPS Agreement there is actually an ascertainable SPS risk. Thirdly, Cooney and Lang discuss the idea of a considerably more relaxed application of Article 5.7 of the SPS Agreement (pages 545-546).  However, it is important that Article 5.7 be construed as containing certain implementable standards, so that consistency with the disciplines in the Agreement can be determined.

 We need to remember here that we are talking about trade in products rather than trade in potentially invasive species per se (cf Cooney and Lang page 541). The purpose of the legal rules in the SPS Agreement is to reconcile a reciprocal concession of trade benefits with the vital need for strong quarantine and ecological protection in all countries.  As observed by Cooney and Lang, a balance is needed. Adherence to adaptive governance principles at the international level will help improve this reconciliation, but the need for a hard edge will always remain.  We are also talking about a trade system in which the incentive for abuse of biosecurity rules is high, and this needs to be taken into account in the design of the applicable legal rules.

 A further distinction between the roles of law and of “governance” in international law is called for, too. Cooney and Lang and García-Salmones put forward various contentions on the question of promoting increased international centralization of regulatory and related activity within an overall framework focused on “governance”.  However, the whole issue of centralization versus national autonomy should be recognized as having distinct dimensions when it comes to the interpretation and application of existing law in the adjudicatory context.  The concept of deference to national level regulatory decision-making has an ongoing currency in WTO dispute settlement that is arguably questionable from a legal point of view.

 Cooney and Lang express a carefully analysed ambivalence about deference in WTO dispute settlement (page 543), but their general acceptance of a degree of deference within WTO dispute settlement seems implicit in their use of the term “WTO review” rather than “WTO dispute settlement” or “adjudication”.  It is also implicit in their listing of proceduralisation of “review” among subheadings indicating other desiderata, such as “enabling precaution”. However, a perspective from the hard edge of international law would probably regard attempts to institutionalise a concept of deference within WTO dispute settlement processes as misguided and unhelpful.  Arguments of deference invite WTO dispute settlement organs to disregard their role and devalue international law.  The ICJ and the ITLOS increasingly find they must engage in assessments of compliance with legal rules that have scientific and other difficult regulatory dimensions.  Nevertheless, their role remains to decide the dispute in question according to the applicable legal rules.  WTO dispute settlement bodies should continue to do likewise.

 In general terms, the Appellate Body dealt effectively with calls for deference in its recent reports in the Canada – Continued Suspension of Obligations in the EC – Hormones Dispute (WT/DS321/R, 31 March 2008) and United States – Continued Suspension of Obligations in the EC – Hormones Dispute (WT/DS320/R, 31 March 2008) cases.  Essentially the Appellate Body took the view that its task was not to accord deference to national level decision making but to identify and apply the legal requirements of Article 5.1 more closely than has been required in previous reports.  Article 5.1 was found to require a risk assessment that “is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable”.  (Canada – Continued Suspension, Appellate Body Report, para 590).  This is an articulation of the substantive legal standard for a risk assessment. Naturally, the new test is fairly procedural in character, but to apply the test it will still be necessary for a dispute settlement panel to engage in some concrete assessment of the scientific support within a risk assessment.  The Appellate Body’s presentation of the new test under a heading and within a rubric or rhetoric oriented around the concept of standard of review could be considered unfortunate from the legal perspective.

 Recognising the hard edge of public international law, and shedding the camouflage provided by the concept of deference within WTO dispute settlement, inevitably places an acute pressure on the moment of decision making encapsulated in a Panel or Appellate Body report in a case involving scientific uncertainty, whether an SPS dispute or a case arising under Article XX(b) or (g) of the GATT.  To the extent that adaptive governance can be facilitated institutionally at an international level or through WTO law and its interpretation, decisions involving uncertainty may be less likely to harden into situations calling for dispute settlement.  Even then, though, the potential availability of adjudicatory processes is an important factor that cannot be disregarded.  “Governance” will always be informed by the content of the law, the interpretations of the law likely to be adopted in dispute settlement, and the authority accorded to adjudicatory awards.

 Significant change in dealing appropriately with a problem such as invasive alien species may come incrementally through institutional development, well informed interpretation of the law, day to day politics and academic debate – but we cannot discount the need for drawing a bottom line from time to time.  International law as law serves as a fixed reference point, providing stability to the overall system.  Ultimately, incrementally induced change will usually require a concrete alteration in the terms of law if a genuine rebalancing of interests is to be bedded down.

 A couple of closing points… Returning to the theme of “governance”, I note that all the authors tend to assume the availability of resources at national and international level for a new international institutionalization of adaptive management within the WTO, and also assume that the best approach to instituting “adaptive governance” internationally is a multilateral approach.  There is scope, too, for more discussion on the existing role of international standard-setting bodies as regulators and as agencies within which approaches such as adaptive governance may have an important part to play.  Finally, it is worth noting that Cooney and Lang’s presentation of biological complexity makes it clear that international trade will most certainly result in unexpected ecosystem interference, sometimes on a major scale, regardless of the measures put in place at or within the border to try and counter such risks.