Limits of Law/Limits of Science?

The previous post (http://fletcherfila.wordpress.com/2008/10/30/international-law-science-broadly-speaking-and-technology/) discusses international law’s relationship with science. It was considered that science plays (and has the potential to play) a significant role in helping lawyers decide if international law has been complied with. One example provided was the SPS Agreement in the WTO. The recent WTO Appellate Body Report in EC-Hormones II (http://www.worldtradelaw.net/reports/wtoab/us-hormonessuspension(ab).pdf) sheds some insight on how this plays out. 

In cowardly fashion, I had resisted from blogging about this case until the experts at the International Economic Law and Policy Blog (http://worldtradelaw.typepad.com/ielpblog/) had provided their views.

 

In this case, the EC claimed that it had removed its illegal measures pursuant to the DSB finding in EC-Hormones I. Accordingly, it alleged that continued suspension of concessions and other obligations by the US and Canada without further recourse to a “compliance panel” pursuant to Article 21.5 of the DSU violated the DSU. Prof. Pauwelyn summarizes the findings at http://worldtradelaw.typepad.com/ielpblog/2008/10/is-the-bloodbat.html. In particular, the Appellant Body held that commencement of proceedings pursuant to Article 21.5 is the duty of all parties to the dispute and that all parties had violated the DSU by failing to do so. The end result: an Article 21.5 “compliance panel” is to be requested and the entire affair re-heard. So far, most commentators have viewed the decision favorably.

 

What is most indicative is the amount of reliance placed on scientific evidence as a result of the deal struck in the SPS Agreement. Accordingly, adjudication of compliance will turn on expert evidence adduced by litigants. What happens then if the experts disagree (as was the case here)? In order to address this issue, the Appellate Body has placed a distinction between “scientific uncertainty” and “insufficiency of evidence”. Joanne Scott notes the difficulty in making this distinction in her post. (Followed by some discussion on whether this distinction is procedural or substantive) “Is the idea here that scientists can reasonably disagree about how to interpret the results of risk assessment, even when they recognise that the risk assessment is valid?” (http://worldtradelaw.typepad.com/ielpblog/2008/10/2-quick-points.html)

 

So, to recap, the SPS Agreement embodies a political compromise which allows international law to defer to scientific findings. In a way, science becomes a secondary escape valve for political pressure. (Law being the primary one.) However, a cynic may say that these scientific findings may become politicized where conflicting and opposing experts are relied upon by litigants. Regardless, the Appellate Body tries to reconcile possible conflicting scientific evidence by recourse to legal language.

This begs an institutional question about the SPS Agreement’s place in the WTO DS system then? If science was meant to be the tiebreaker in the SPS Agreement? Why the additional loop back to law? I suppose the DSU and Article 21.5 were intended to cater to broader (less-scientific) disputes. However, if increased litigation over the SPS Agreement is contemplated, would a “carve out” which places final adjudication in the hands of a panel of purely scientific arbitrators be feasible? That way, the DS System may be saved the trouble of distinguishing what is evidentially insufficient and what is scientifically uncertain and can merely defer to this scientific panel.

International Law, Science (Broadly Speaking) and Technology

So far, posts here have been limited to international law’s relationship with mainly the social sciences (e.g. economics, sociology, political science, etc). Regretfully, we have neglected to mention international law’s relationship with other fields of science such as the natural sciences and applied sciences such as physics, mathematics.

 

It is regrettable because science and technology has to a large extent permeated international law creation. They have also affected abilities to comply as well as change preferences for compliance or commitment to international law. There have been plenty of occasions where international law has been rendered irrelevant by scientific discovery and technological advancement and there are plenty of occasions where scientific discovery and technological advancement have provided sufficient incentives for states to cooperate in creating new international law.

 

Space law is one example. The first human was sent into space in 1961. Thereafter, the short period from 1965 to 1979 saw a proliferation of treaties relating to delimiting property in outer space; rescuing astronauts; registration of satellites; liability for damage caused by space objects; and regulating activities on the moon. Another example relating to compliance to international obligations can be found in the EC-Computer Equipment case in the WTO where a dispute essentially arose over the tariff classification of LAN equipment before and after the “Internet boom”. Science’s integration into international law is very clear from the WTO SPS Agreement that provides that scientific basis is necessary before a state can invoke the provisions of the SPS Agreement to carry out prima facie WTO-inconsistent measures to protect plant, animal and human health. See generally, http://www.microsoft.com/Presspass/exec/bradsmith/11-03-06InternationalLaw.mspx for an interesting speech by a SVP of Microsoft to ASIL on the relevance of technology to international law.

 

The interaction continues to this day. Contemporary issues like climate change, nuclear non-proliferation and the law on use of force are affected by technological advancements and scientific discoveries in the fields of clean energy, nuclear physics and military science. It seems the international law, at times, struggles to keep pace with the science.

 

Maybe a leaf can be taken from domestic law such as patent law and information technology law. Patent lawyers and information technology lawyers have embraced technology as part of their trade. (Just as international trade lawyers and competition lawyers have embraced economics are part of the same.)

 

I also look forward to more work on how technological methodologies permeate into international law. The “Science Studies” movement has already started to look at science from broader sociological/economic and philosophical context. See e.g. http://www.compilerpress.atfreeweb.com/Anno%20Ben%20David%20&%20Sullivan%20Sociology%20of%20Science%20ARS%201975.htm. I suspect that an examination which integrates law’s place in this may soon follow. This article I chanced upon entitled, “Law in a Shrinking World: The Interaction of Science and Technology on International Law” (http://works.bepress.com/joseph_w_dellapenna/11/) may be a good start.

 

Would love to hear the views of any technologists and scientists out there.