File #2716: "2019_Book_Science-BasedLawmaking.pdf"
Testo
1|Preface|5
1|Acknowledgments|7
1|Contents|9
1|Abbreviations|15
1|Chapter 1: Introduction: Is Contemporary International Environmental Law Based on Science?|21
2|1.1 Arbitrary Adoption of Laws Before the Eyes of an Environmentalist|26
2|1.2 Case Study: The Regulations of the International Seabed Authority|26
2|1.3 Definitions of the Main Terms-of-Art|29
3|1.3.1 Composition of and Role Distinction Between Political and Expert Bodies|29
3|1.3.2 Experts as Natural and Social Scientists|31
3|1.3.3 Science-Based Policy Making, Science-Based Decision-Making and Science-Based Lawmaking|35
4|1.3.3.1 The Relationship Between Decision-Making and Lawmaking|39
2|1.4 First Attempt to Define Science-Based Lawmaking|41
1|Chapter 2: Historical Background: What Are the Lessons Learnt from the Past and What Remains To Be Answered|42
2|2.1 From Plato´s Philosopher-King to Enlightment, Noocracy, Expert Technocracy and Eco-technocracy|42
2|2.2 Milestone Instruments Calling for Effective Integration of Science in International Environmental Law|54
3|2.2.1 Early Bilateral and Multilateral Environmental Conventions|56
3|2.2.2 Acknowledgment of the Importance of Science in Treaty-Making|60
3|2.2.3 The Road to Stockholm|66
3|2.2.4 The 1972 Stockholm Conference on the Human Environment|68
3|2.2.5 The 1992 UN Conference on Environment and Development|75
3|2.2.6 The State of International Environmental Law at the 2002 UN World Conference on Sustainable Development|79
4|2.2.6.1 ``Shall Be Based upon Scientific Findings´´|79
4|2.2.6.2 The Requirement for the Scientific Basis of the Conventions|80
4|2.2.6.3 The Requirement for the Best Scientific Evidence Available|80
3|2.2.7 Deployment of New Environmental Tools: Risk Assessments and Environmental Impact Assessments|83
4|2.2.7.1 Environmental Impact Assessments|85
4|2.2.7.2 Unresolved Environmental Issues, Such As Overpopulation, Forest Protection, River Dead Zones and Thermohaline Circulat...|87
4|2.2.7.3 New Approaches Are Necessary: The ``Cocktail Effect´´ and the Biology Approach|88
1|Part I: Pathology of International Environmental Law|91
2|Chapter 3: Fragmentation of Science, International Environmental Law, and International Institutions|92
3|3.1 The Principle of Specialization in International Institutions|95
3|3.2 The Need for an Ecosystems Approach and an Integrated Approach|96
3|3.3 Integrated Approach and Institutional Cooperation|98
3|3.4 Delays in International Responses to New Environmental Problems Such as Climate Change|100
3|3.5 Impotence to Design Large-Scale Scientific Models|103
3|3.6 Efforts for the Promulgation of a Coherent Set of General Principles of International Environmental Law|105
4|3.6.1 Montevideo Program|105
4|3.6.2 The Case of the United Nations Forum on Forests|107
2|Chapter 4: Causes of Pathology|109
3|4.1 Vagueness of the Provisions in International Environmental Law|109
3|4.2 Legislative Inaction in the Face of Scientific Uncertainty|115
4|4.2.1 Chaos Theory and Certainty|115
3|4.3 Questioning Science|119
3|4.4 Green Critiques on the Power Structure of Science|121
3|4.5 Ecologic Illiteracy|124
3|4.6 Why Is It Now the Right Time for a Science-Based Lawmaking Model?|124
3|4.7 Acquisition of Lawmaking Competences by International Organizations|128
3|4.8 Integration of Science and Expertise in the Pyramid of International Environmental Law|130
3|4.9 The Principles of Sustainability as a First Overall Framework for the Adoption of Secondary Legislation|132
3|4.10 Second Attempt to Define Science-Based Lawmaking|133
1|Part II: Normative Powers of the International Institutions with Environmental Competence|135
2|Chapter 5: Contemporary Lawmaking Processes and Progressive Lawmaking Processes That Bind the States Without Unanimous Vote|136
3|5.1 Theoretical Framework of the Lawmaking Competences of the International Institutions|136
4|5.1.1 From Functionalism to Neoinstitutionalism|139
3|5.2 Do International Institutions Make Law?|142
4|5.2.1 Article 38 of the Statute of the International Court of Justices and the Sources of Public International Law|143
2|Chapter 6: Progressive Lawmaking Procedures in the Framework of International Institutions with Environmental Competence|147
3|6.1 Evolution of the Voting Procedures and Their Influence on the Normative Powers of the International Institutions|149
4|6.1.1 The Traditional Rule of Unanimity|149
4|6.1.2 The Departure from Unanimity and Forms of Consensus|150
4|6.1.3 Beyond Consensus: Stepping into the Realm of Legislation|153
4|6.1.4 Three-Quarters or Three-Fourths Majority|158
4|6.1.5 Two-Thirds Majority|161
4|6.1.6 Simple Majority|167
3|6.2 Quasi-Legislative Competences: The Opting-Out Procedure|168
4|6.2.1 ``Tacit Acceptance´´ Under the International Maritime Organization|178
4|6.2.2 International Legislation ``Par Excellence´´|184
4|6.2.3 Lawmaking Processes in Cases of Urgency|187
5|6.2.3.1 The Urgency Procedure of Article 290 TFEU|195
4|6.2.4 Provisional Effect of Rules|196
3|6.3 Processes for the Generation of Soft Law Regarding Environmental Protection|199
3|6.4 Third Attempt to Define Science-Based Lawmaking|203
2|Chapter 7: Normative Powers of Expert Bodies as Variables for Effective Environmental Governance|205
3|7.1 Typology of Expert Bodies in International Institutions|207
3|7.2 Differentiated Roles of the Expert Bodies in the Lawmaking Process|210
4|7.2.1 Participation of Expert Bodies in the Preparatory Stage of the International Environmental Law|210
5|7.2.1.1 Role of the Secretariats in the Context of the Multilateral Environmental Agreements|214
4|7.2.2 Expert Bodies with Competencies for Information and Advice|216
5|7.2.2.1 Expert Bodies Within the Framework of an MEA|217
5|7.2.2.2 Expert Bodies That Are Part of an Inter-Governmental Organization|228
5|7.2.2.3 Recommendation and Advice from External Expert Bodies|230
5|7.2.2.4 Additional Subsidiary Institutional Frameworks for the Protection of the Environment|235
4|7.2.3 Expert Bodies with Competence for Review, Assessment and Updating|240
5|7.2.3.1 The Methyl Bromide Case|242
5|7.2.3.2 Lawmaking by Experts in Cases of Urgency|256
4|7.2.4 Expert Bodies with Competences Regarding the Review of Implementation|258
4|7.2.5 Expert Bodies with Competence in Review of Compliance|266
4|7.2.6 Expert Bodies in Dispute Settlement and Institutional Interpretation|274
5|7.2.6.1 Legislative Fact-Finding or Factual Findings|275
4|7.2.7 Participation of Expert Bodies of International Institutions in Dispute Settlement and Judicial Interpretation|279
2|Chapter 8: Additional Theoretical Legal Bases for the Integration of Science in International Environmental Law Without Any Co...|283
3|8.1 Implied Powers|284
3|8.2 ``Action Required to Achieve the Purpose of the Agreement´´|289
3|8.3 Indirect Legislation by Reference|291
3|8.4 Interpretation Under the Lenses of Intertemporal Law|291
3|8.5 Customary Institutional Law|292
3|8.6 Forth Attempt to Define Science-Based Lawmaking|293
1|Part III: Democratic Governance and Public Accountability as Limitations to the Science-Based Lawmaking Model|295
2|Chapter 9: The Inherent Limits of the Science-Based Lawmaking Model|296
3|9.1 Ethos and Deep Environmentalism Countervail Science|300
3|9.2 The Case of Commercial Whaling|301
3|9.3 The EC Hormones Case|307
2|Chapter 10: Criticism Against the Delegation of Lawmaking Powers to Experts Based Upon Democratic Considerations|311
3|10.1 Experts Are Not Elected Representatives by the People|312
3|10.2 Dependency of Experts as Further Counterargument to Delegation of Lawmaking Competences|312
3|10.3 Arguments for Science-Based Lawmaking in Parallel with Democratic Lawmaking|314
4|10.3.1 Participation of Scientists at the International Lawmaking Processes Enhances the Democratic Rule|314
4|10.3.2 Risk Perception, Public Choice and Defects of Democracy in Environmental Lawmaking|318
5|10.3.2.1 Reframing Old Topics as New Topics to Avoid ``Issue Fatigue´´|320
5|10.3.2.2 Social Constructivism and the Sociology of Scientific Knowledge|321
5|10.3.2.3 Environmental Education as a Key Solution|322
5|10.3.2.4 Environmentalism in a Risk Society|324
4|10.3.3 Empowering Civil Society and Addressing the Inequality of Weapons|324
4|10.3.4 Revision of the Notion of Law as a Purely Social Enterprise: Nature as an Indispensable Actor in International Environm...|326
4|10.3.5 Distortion of Science and the Corrective Rule for the Support of Democracy|328
4|10.3.6 A Science-Based Lawmaking Model Supported by Radical Democratic Concepts|329
3|10.4 Fifth Attempt to Define Science-Based Lawmaking|331
1|Part IV: ``To Unite the Political Power with the Wisdom´´: The Decision-Making Model That Accepts Expertise as a Basis of Legi...|333
2|Chapter 11: Why Would States Obey Rules Issued by Expert Bodies?|334
3|11.1 Reasons for State Obedience to Public International Law|334
3|11.2 Building the Science-Based Lawmaking Paradigm|341
2|Chapter 12: Science Expertise as a Legitimacy Basis for Lawmaking and Additional Bases of Legitimacy|344
3|12.1 In the Quest for Effectiveness|344
4|12.1.1 Delegation of Powers and Democratic Control Within the European Union|345
4|12.1.2 Participation of the Commission as an Expert Organ at the Lawmaking Process of the European Union|346
4|12.1.3 The Previous Committee System of the European Union (Comitology)|350
4|12.1.4 Criticism to the Committee Procedure|352
4|12.1.5 The Comitology Procedure After the Lisbon Treaty|353
4|12.1.6 Independent Regulatory Agencies of the European Union|354
5|12.1.6.1 Conditions for the Establishment of Regulatory Agencies at the EU Level|355
3|12.2 Visions of Legitimacy of the Lawmaking Process in International Environmental Law|356
2|Chapter 13: A New Modus Operandi for the International Institutions with Environmental Competence|363
3|13.1 Rousseaunian, Democratic Legitimacy: Representativeness and Accountability|364
4|13.1.1 Forms of Accountability|364
5|13.1.1.1 Responsibility of International Organizations|365
5|13.1.1.2 External Review Bodies|366
5|13.1.1.3 Post-Legislative Scientific Review|367
5|13.1.1.4 Oversight|367
5|13.1.1.5 The Duty to Give Reasons|368
5|13.1.1.6 Accountability Through Dispute Settlement|369
3|13.2 Weberian, Expertise-Based Legitimacy: Rationality, Efficacy, Efficiency and Neutrality|370
4|13.2.1 Appointment of Independent Experts|371
5|13.2.1.1 Independence|371
5|13.2.1.2 Permanence and Stability|371
5|13.2.1.3 Institutional Liaison with External Expert Bodies|374
4|13.2.2 The Right of Initiative|374
4|13.2.3 Review of Implementation and Compliance and the Openness Question|376
4|13.2.4 Legislation by Expert Bodies Followed by the Right of the States to Opt-out|378
4|13.2.5 The Time Dimension|379
4|13.2.6 Remedies Against Regulatory Inaction (Failure to Act)|380
3|13.3 Madisonian, Systemic Legitimacy: Power Sharing, Legality, and Fairness|381
3|13.4 Habermasian, Procedural Legitimacy: Deliberation, Transparency, Participation and Due Process|383
4|13.4.1 Transparency|383
4|13.4.2 Participation and Openness of the Meetings|384
4|13.4.3 The Right to Know as a Human Right|384
4|13.4.4 Due Process|386
1|Part V: Towards a Comprehensive Science-Based Lawmaking Model|388
2|Chapter 14: Conclusion|389
1|Appendix: Main Functions and Features of Expert Bodies|392
1|Selected Bibliography|394
2|Primary Sources|394
2|Secondary Sources|401
1|Acknowledgments|7
1|Contents|9
1|Abbreviations|15
1|Chapter 1: Introduction: Is Contemporary International Environmental Law Based on Science?|21
2|1.1 Arbitrary Adoption of Laws Before the Eyes of an Environmentalist|26
2|1.2 Case Study: The Regulations of the International Seabed Authority|26
2|1.3 Definitions of the Main Terms-of-Art|29
3|1.3.1 Composition of and Role Distinction Between Political and Expert Bodies|29
3|1.3.2 Experts as Natural and Social Scientists|31
3|1.3.3 Science-Based Policy Making, Science-Based Decision-Making and Science-Based Lawmaking|35
4|1.3.3.1 The Relationship Between Decision-Making and Lawmaking|39
2|1.4 First Attempt to Define Science-Based Lawmaking|41
1|Chapter 2: Historical Background: What Are the Lessons Learnt from the Past and What Remains To Be Answered|42
2|2.1 From Plato´s Philosopher-King to Enlightment, Noocracy, Expert Technocracy and Eco-technocracy|42
2|2.2 Milestone Instruments Calling for Effective Integration of Science in International Environmental Law|54
3|2.2.1 Early Bilateral and Multilateral Environmental Conventions|56
3|2.2.2 Acknowledgment of the Importance of Science in Treaty-Making|60
3|2.2.3 The Road to Stockholm|66
3|2.2.4 The 1972 Stockholm Conference on the Human Environment|68
3|2.2.5 The 1992 UN Conference on Environment and Development|75
3|2.2.6 The State of International Environmental Law at the 2002 UN World Conference on Sustainable Development|79
4|2.2.6.1 ``Shall Be Based upon Scientific Findings´´|79
4|2.2.6.2 The Requirement for the Scientific Basis of the Conventions|80
4|2.2.6.3 The Requirement for the Best Scientific Evidence Available|80
3|2.2.7 Deployment of New Environmental Tools: Risk Assessments and Environmental Impact Assessments|83
4|2.2.7.1 Environmental Impact Assessments|85
4|2.2.7.2 Unresolved Environmental Issues, Such As Overpopulation, Forest Protection, River Dead Zones and Thermohaline Circulat...|87
4|2.2.7.3 New Approaches Are Necessary: The ``Cocktail Effect´´ and the Biology Approach|88
1|Part I: Pathology of International Environmental Law|91
2|Chapter 3: Fragmentation of Science, International Environmental Law, and International Institutions|92
3|3.1 The Principle of Specialization in International Institutions|95
3|3.2 The Need for an Ecosystems Approach and an Integrated Approach|96
3|3.3 Integrated Approach and Institutional Cooperation|98
3|3.4 Delays in International Responses to New Environmental Problems Such as Climate Change|100
3|3.5 Impotence to Design Large-Scale Scientific Models|103
3|3.6 Efforts for the Promulgation of a Coherent Set of General Principles of International Environmental Law|105
4|3.6.1 Montevideo Program|105
4|3.6.2 The Case of the United Nations Forum on Forests|107
2|Chapter 4: Causes of Pathology|109
3|4.1 Vagueness of the Provisions in International Environmental Law|109
3|4.2 Legislative Inaction in the Face of Scientific Uncertainty|115
4|4.2.1 Chaos Theory and Certainty|115
3|4.3 Questioning Science|119
3|4.4 Green Critiques on the Power Structure of Science|121
3|4.5 Ecologic Illiteracy|124
3|4.6 Why Is It Now the Right Time for a Science-Based Lawmaking Model?|124
3|4.7 Acquisition of Lawmaking Competences by International Organizations|128
3|4.8 Integration of Science and Expertise in the Pyramid of International Environmental Law|130
3|4.9 The Principles of Sustainability as a First Overall Framework for the Adoption of Secondary Legislation|132
3|4.10 Second Attempt to Define Science-Based Lawmaking|133
1|Part II: Normative Powers of the International Institutions with Environmental Competence|135
2|Chapter 5: Contemporary Lawmaking Processes and Progressive Lawmaking Processes That Bind the States Without Unanimous Vote|136
3|5.1 Theoretical Framework of the Lawmaking Competences of the International Institutions|136
4|5.1.1 From Functionalism to Neoinstitutionalism|139
3|5.2 Do International Institutions Make Law?|142
4|5.2.1 Article 38 of the Statute of the International Court of Justices and the Sources of Public International Law|143
2|Chapter 6: Progressive Lawmaking Procedures in the Framework of International Institutions with Environmental Competence|147
3|6.1 Evolution of the Voting Procedures and Their Influence on the Normative Powers of the International Institutions|149
4|6.1.1 The Traditional Rule of Unanimity|149
4|6.1.2 The Departure from Unanimity and Forms of Consensus|150
4|6.1.3 Beyond Consensus: Stepping into the Realm of Legislation|153
4|6.1.4 Three-Quarters or Three-Fourths Majority|158
4|6.1.5 Two-Thirds Majority|161
4|6.1.6 Simple Majority|167
3|6.2 Quasi-Legislative Competences: The Opting-Out Procedure|168
4|6.2.1 ``Tacit Acceptance´´ Under the International Maritime Organization|178
4|6.2.2 International Legislation ``Par Excellence´´|184
4|6.2.3 Lawmaking Processes in Cases of Urgency|187
5|6.2.3.1 The Urgency Procedure of Article 290 TFEU|195
4|6.2.4 Provisional Effect of Rules|196
3|6.3 Processes for the Generation of Soft Law Regarding Environmental Protection|199
3|6.4 Third Attempt to Define Science-Based Lawmaking|203
2|Chapter 7: Normative Powers of Expert Bodies as Variables for Effective Environmental Governance|205
3|7.1 Typology of Expert Bodies in International Institutions|207
3|7.2 Differentiated Roles of the Expert Bodies in the Lawmaking Process|210
4|7.2.1 Participation of Expert Bodies in the Preparatory Stage of the International Environmental Law|210
5|7.2.1.1 Role of the Secretariats in the Context of the Multilateral Environmental Agreements|214
4|7.2.2 Expert Bodies with Competencies for Information and Advice|216
5|7.2.2.1 Expert Bodies Within the Framework of an MEA|217
5|7.2.2.2 Expert Bodies That Are Part of an Inter-Governmental Organization|228
5|7.2.2.3 Recommendation and Advice from External Expert Bodies|230
5|7.2.2.4 Additional Subsidiary Institutional Frameworks for the Protection of the Environment|235
4|7.2.3 Expert Bodies with Competence for Review, Assessment and Updating|240
5|7.2.3.1 The Methyl Bromide Case|242
5|7.2.3.2 Lawmaking by Experts in Cases of Urgency|256
4|7.2.4 Expert Bodies with Competences Regarding the Review of Implementation|258
4|7.2.5 Expert Bodies with Competence in Review of Compliance|266
4|7.2.6 Expert Bodies in Dispute Settlement and Institutional Interpretation|274
5|7.2.6.1 Legislative Fact-Finding or Factual Findings|275
4|7.2.7 Participation of Expert Bodies of International Institutions in Dispute Settlement and Judicial Interpretation|279
2|Chapter 8: Additional Theoretical Legal Bases for the Integration of Science in International Environmental Law Without Any Co...|283
3|8.1 Implied Powers|284
3|8.2 ``Action Required to Achieve the Purpose of the Agreement´´|289
3|8.3 Indirect Legislation by Reference|291
3|8.4 Interpretation Under the Lenses of Intertemporal Law|291
3|8.5 Customary Institutional Law|292
3|8.6 Forth Attempt to Define Science-Based Lawmaking|293
1|Part III: Democratic Governance and Public Accountability as Limitations to the Science-Based Lawmaking Model|295
2|Chapter 9: The Inherent Limits of the Science-Based Lawmaking Model|296
3|9.1 Ethos and Deep Environmentalism Countervail Science|300
3|9.2 The Case of Commercial Whaling|301
3|9.3 The EC Hormones Case|307
2|Chapter 10: Criticism Against the Delegation of Lawmaking Powers to Experts Based Upon Democratic Considerations|311
3|10.1 Experts Are Not Elected Representatives by the People|312
3|10.2 Dependency of Experts as Further Counterargument to Delegation of Lawmaking Competences|312
3|10.3 Arguments for Science-Based Lawmaking in Parallel with Democratic Lawmaking|314
4|10.3.1 Participation of Scientists at the International Lawmaking Processes Enhances the Democratic Rule|314
4|10.3.2 Risk Perception, Public Choice and Defects of Democracy in Environmental Lawmaking|318
5|10.3.2.1 Reframing Old Topics as New Topics to Avoid ``Issue Fatigue´´|320
5|10.3.2.2 Social Constructivism and the Sociology of Scientific Knowledge|321
5|10.3.2.3 Environmental Education as a Key Solution|322
5|10.3.2.4 Environmentalism in a Risk Society|324
4|10.3.3 Empowering Civil Society and Addressing the Inequality of Weapons|324
4|10.3.4 Revision of the Notion of Law as a Purely Social Enterprise: Nature as an Indispensable Actor in International Environm...|326
4|10.3.5 Distortion of Science and the Corrective Rule for the Support of Democracy|328
4|10.3.6 A Science-Based Lawmaking Model Supported by Radical Democratic Concepts|329
3|10.4 Fifth Attempt to Define Science-Based Lawmaking|331
1|Part IV: ``To Unite the Political Power with the Wisdom´´: The Decision-Making Model That Accepts Expertise as a Basis of Legi...|333
2|Chapter 11: Why Would States Obey Rules Issued by Expert Bodies?|334
3|11.1 Reasons for State Obedience to Public International Law|334
3|11.2 Building the Science-Based Lawmaking Paradigm|341
2|Chapter 12: Science Expertise as a Legitimacy Basis for Lawmaking and Additional Bases of Legitimacy|344
3|12.1 In the Quest for Effectiveness|344
4|12.1.1 Delegation of Powers and Democratic Control Within the European Union|345
4|12.1.2 Participation of the Commission as an Expert Organ at the Lawmaking Process of the European Union|346
4|12.1.3 The Previous Committee System of the European Union (Comitology)|350
4|12.1.4 Criticism to the Committee Procedure|352
4|12.1.5 The Comitology Procedure After the Lisbon Treaty|353
4|12.1.6 Independent Regulatory Agencies of the European Union|354
5|12.1.6.1 Conditions for the Establishment of Regulatory Agencies at the EU Level|355
3|12.2 Visions of Legitimacy of the Lawmaking Process in International Environmental Law|356
2|Chapter 13: A New Modus Operandi for the International Institutions with Environmental Competence|363
3|13.1 Rousseaunian, Democratic Legitimacy: Representativeness and Accountability|364
4|13.1.1 Forms of Accountability|364
5|13.1.1.1 Responsibility of International Organizations|365
5|13.1.1.2 External Review Bodies|366
5|13.1.1.3 Post-Legislative Scientific Review|367
5|13.1.1.4 Oversight|367
5|13.1.1.5 The Duty to Give Reasons|368
5|13.1.1.6 Accountability Through Dispute Settlement|369
3|13.2 Weberian, Expertise-Based Legitimacy: Rationality, Efficacy, Efficiency and Neutrality|370
4|13.2.1 Appointment of Independent Experts|371
5|13.2.1.1 Independence|371
5|13.2.1.2 Permanence and Stability|371
5|13.2.1.3 Institutional Liaison with External Expert Bodies|374
4|13.2.2 The Right of Initiative|374
4|13.2.3 Review of Implementation and Compliance and the Openness Question|376
4|13.2.4 Legislation by Expert Bodies Followed by the Right of the States to Opt-out|378
4|13.2.5 The Time Dimension|379
4|13.2.6 Remedies Against Regulatory Inaction (Failure to Act)|380
3|13.3 Madisonian, Systemic Legitimacy: Power Sharing, Legality, and Fairness|381
3|13.4 Habermasian, Procedural Legitimacy: Deliberation, Transparency, Participation and Due Process|383
4|13.4.1 Transparency|383
4|13.4.2 Participation and Openness of the Meetings|384
4|13.4.3 The Right to Know as a Human Right|384
4|13.4.4 Due Process|386
1|Part V: Towards a Comprehensive Science-Based Lawmaking Model|388
2|Chapter 14: Conclusion|389
1|Appendix: Main Functions and Features of Expert Bodies|392
1|Selected Bibliography|394
2|Primary Sources|394
2|Secondary Sources|401