Judging ‘Best Available Science’: Emerging Issues and the Role of Experts

Judging ‘Best Available Science’: Emerging Issues and the Role of Experts Abstract This article considers the implications, for future disputes, of the adoption of the best available science (BAS) standard in a number of international (and national) regimes, including the 2015 Paris Agreement on Climate Change. The three strands of BAS: ‘best’, ‘available’, ‘science’ raise distinct but related issues on which expert evidence may be presented before courts and tribunals. This article considers these three aspects of BAS, both in relation to the evidence which states and others may need to present to demonstrate substantive conformity with BAS, and in relation to the way in which expert evidence is appraised by tribunals in such disputes. In adopting the 2015 Paris Agreement (PA) as a strengthened response to the global threat of climate change,1 Parties emphasized the importance of acting on the basis of the best available science (BAS). This standard also appears in UNCLOS2 as well as in many national regulatory regimes. In view of the emphasis placed on BAS in the PA and its potential adoption in other regimes, this article examines the scope of this standard which is likely to be the subject of expert evidence in future disputes. This article highlights specific aspects of BAS which experts may be asked to address. I argue that developments in a number of international scientific fora and decisions of the International Court of Justice (ICJ), indicate the types of issues which may arise in future disputes before international tribunals. THE CONTEXT FOR DISPUTES In the Preamble to the PA, Parties recognized: the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge. The importance of BAS is then restated with reference to specific elements of the PA. In relation to mitigation,3 Parties aim to undertake rapid reductions of greenhouse gas emissions ‘in accordance with [BAS]’ so as to achieve a balance between anthropogenic emissions by sources and removals by sinks in the second half of the century.4 In relation to adaptation,5 Parties have acknowledged that action should be ‘based on and guided by’ BAS, together with a range of other factors and standards.6 In conducting the Global Stocktake, a comprehensive review of collective progress towards achieving the PA’s long-term goals, Parties shall consider progress in the light of ‘equity and [BAS]’.7 Although the PA is partly framed in fairly general terms, the science which underpins it (and the evolution of the climate change regime as a whole) is carefully calibrated in terms of emission pathways, likely degrees of warming and corresponding impacts, as set out in the detailed Assessment Reports (ARs) published by the International Panel on Climate Change (IPCC). The requirements to act on the basis of BAS are relevant to the interpretation of the more general language, for example in relation to peaking of emissions ‘as soon as possible’8 and in determining what will be required to achieve the ‘balance’ sought by the second half of the century.9 The broad scope of the PA, which not only encompasses mitigation and adaptation but also addresses other areas of climate change policy, means that there is a wide range of national implementing decisions which may come under future judicial scrutiny. The PA combines requirements for ‘bottom up’ national action on mitigation, as set out in Nationally Determined Contributions (NDCs), and on adaptation, set out in National Adaptation Plans (NAPs) with ‘top down’ international support and review, including in the form of the Global Stocktake. This ‘hybrid’ structure is likely to mean that the national action on which the collective response depends comes under increased legal scrutiny at both the national and international levels. The precise status, under national law, of Parties’ NDCs will depend on that Party’s domestic legal system, including relevant principles of public law such as legitimate expectation, albeit that the PA lays down a number of binding international obligations in relation to NDCs.10 At the international level, while the provisions for review under the PA do not in themselves provide a binding framework for delivery of the NDCs, inadequate action by one Party clearly has implications for the collective burden born by others as they seek to prevent dangerous climate change by limiting the average temperature rise to ‘well below 2 degrees’ and pursuing efforts to limit it to 1.5 degrees.11 The legal implications of this relationship remain to be explored in the light of the general principle of good faith as well as other relevant principles of customary international law. National implementation of both NDCs and NAPs may therefore come under legal scrutiny, including scrutiny as to whether national action is based on BAS. This could arise in the context of decisions in the energy sector, decisions on infrastructure, on access to natural resources or disaster risk reduction (DRR) for reasons related to mitigation, adaptation or both. States may be challenged for not acting in accordance with BAS, perhaps by not being ambitious enough in their mitigation and adaptation plans to put them on track to supporting PA goals. Alternatively, states may face challenges from investors and others dissatisfied with decisions that are seen to interfere with their rights. States may then invoke the BAS standard defensively, to justify their climate actions. Some of these disputes may be brought before international fora. Disputes will turn on the particular legal context under national or international law but it is possible to identify some common issues which may arise in adjudicating BAS and a number are examined below. A TRIPARTITE REVIEW? Given the likelihood of disputes as to the extent to which states have, or have not, acted on the basis of BAS, it is worth examining the three elements of this standard and the relationship between them. Outlined below are some recent developments which may shed light on how tribunals will approach BAS. Science A comprehensive examination of the ways in which courts have approached the question of whether state action is based on ‘science’ is beyond the scope of this article. There are, however, a number of recent developments which offer useful insights. A key issue is the extent to which there are generally or internationally accepted criteria which courts may apply to determine whether or not conduct is based on ‘science’. This question arose in Whaling in the Antarctic (Australia v Japan: New Zealand intervening),12 in which the ICJ was asked to determine whether or not Japan’s JARPA II whaling programme fell within the scope of Article VIII(1) of the International Convention for the Regulation of Whaling (ICRW), authorizing state parties to issue ‘special permits’ to nationals to kill whales for the purposes of scientific research. Australia argued before the Court that JARPA II did not fall within Article VIII(1). In its submissions, Australia presented criteria which, it argued, could be used by the Court to assess whether JARPA II was in fact a programme for scientific research. Those criteria included having a testable or defined hypothesis and the production of peer-reviewed outputs. Although the context for the dispute was the ICRW regime and the evolution of non-lethal research standards relating to whales, the approach taken by the Court has wider relevance to disputes engaged with the issue of whether conduct is based on science so as to conform to BAS. The Court adopted a two-part review: When reviewing the grant of a special permit … the Court will assess, first, whether the programme under which these activities occur involves scientific research. Secondly, the Court will consider if the killing, taking and treating of whales is ‘for purposes of’ scientific research by examining whether … the programme’s design and implementation are reasonable in relation to achieving its stated objectives ….13 The Court considered the arguments put forward by Australia identifying specific aspects of scientific research that would need to be present for a programme to fall within Article VIII. In relation to peer review for example the Court observed: … even if peer review of proposals and results is common practice in the scientific community, it does not follow that a programme can be said to involve scientific research only if the proposals and the results are subjected to peer review. The Convention takes a different approach (while certainly not precluding peer review) …. Having considered the evidence relating to the proposed criteria, the Court was not persuaded: … that activities must satisfy the four criteria advanced by Australia in order to constitute ‘scientific research’ in the context of Article VIII. As formulated by Australia, these criteria appear largely to reflect what one of the experts that it called regards as well-conceived scientific research, rather than serving as an interpretation of the term as used in the Convention. Nor does the Court consider it necessary to devise alternative criteria or to offer a general definition of ‘scientific research’.14 Thus the Court did not set down a definition of ‘scientific research’, or of science: … JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’. There is no need therefore, in the context of this case, to examine generally the concept of ‘scientific research’.15 However aspects of its enquiry into whether JARPA II was ‘for the purposes of’ scientific research such as to fall within Article VIII(1) ICRW, including its review of whether the design and implementation of the programme were ‘reasonable in relation to achieving the programme’s stated research objectives’ could be said to reflect elements which could be considered determinative of the prior question, as to whether this was a scientific research programme: the presence of research objectives and the extent of scientific output.16 The Court’s main focus, however, was on the use of lethal methods and the sample sizes and size of the actual take of JARPA II. This may serve to indicate, albeit in a different legal context, the difficulties which may arise in future disputes concerned with BAS, in distinguishing, in at least some cases, between the elements of ‘best’ and ‘science’. It may be that there will not always be a clear red line between the two and that tribunals will assess the two elements together. In future cases involving consideration of the BAS standard, the assessment of criteria for ‘well-conceived scientific research’ is likely to be highly relevant. This would presumably include some of the more generally applicable criteria presented by Australia such as the presence of a testable hypothesis and peer review. Whether courts approach BAS primarily through an examination of whether a programme is ‘science’ or whether it is the ‘best’ science remains to be seen and is likely to depend on the specific facts of the case and the precise legal context. The BAS standard does, however, appear likely to require an exploration of the design, methodology and outputs of the scientific basis for state action, as well as conformity to relevant best practice. The approach taken by the ICJ in Antarctic Whaling, suggests that, in relation to BAS, courts may feel more comfortable determining whether activity conforms to the ‘best’ science rather than whether it is ‘science’ as such, indeed that is what the BAS standard arguably requires. In the context of climate change, the work of the IPCC in collecting, reviewing and presenting a comprehensive body of scientific research has been of central importance in the evolution of the international regime, including the assessment of what is likely to constitute ‘dangerous anthropogenic interference with the climate system’.17 As is well documented, there is overwhelming scientific consensus on the central scientific issues: whether global warming is occurring and whether it is anthropogenic in origin.18 It is more likely that any dispute as to the application of BAS in the context of the PA will focus on whether state action conforms to the findings presented by the IPCC or, where specific issues are not addressed by the IPCC, BAS generally. There may be disputes where the implications of uncertainty are the key issue. In such cases, the tribunal is likely to move the debate towards a determination of what is ‘best’ rather than what is science, together with an evaluation of the legal implications, in a specific context, of precaution.19 In its 2011 Advisory Opinion, the ITLOS Seabed Disputes Chamber, in exploring the relationship between an obligation of due diligence and precaution, held that the obligation: applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach.20 In its 2015 Advisory Opinion, ITLOS noted that, in the context of a regional fisheries convention, conservation and management measures should be based on BAS and, when such evidence is insufficient, the precautionary approach should apply.21 Crucially, the absence of BAS was held by ITLOS to trigger the application of the precautionary principle, rather than the freedom to carry on regardless. A further issue that may arise in the context of climate change related disputes is the scope of the reference to ‘science’, given that neither the UNFCCC nor the PA define the term. It is however increasingly clear that socio-economic analysis plays an important part in the formulation of climate action and policy, including in areas such as adaptation and mitigation. The Parties to the PA have established a Global Goal on Adaptation, which aims to strengthen resilience and reduce vulnerability to climate change. Although the term resilience is not defined in the UNFCCC or the PA,22 the IPCC has defined resilience as: The ability of a social or ecological system to absorb disturbances while retaining the same basic structure and ways of functioning, the capacity for self-organization and the capacity to adapt to stress and change.23 Article 7(9)(e) PA refers to the resilience of socio-economic and ecological systems, picking up the scope of the IPCC definition. The question may arise as to whether the BAS standard includes assessments of the likely socio-economic impacts of a measure on resilience and whether this in turn brings in the elements of ‘best’ and ‘available’ to socio-economic analysis, given the deference with which many jurisdictions treat state assessments of socio-economic welfare. The IPCC explicitly addresses in its assessments, alongside scientific and technical information: ‘socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.’24 The IPCC appears to distinguish such information from purely scientific information but in some contexts, such as assessing resilience, it may be difficult to disentangle the two. The importance of this lies partly in whether, post Paris, socio-economic information relied on as a basis for state action should also be the ‘best available’ to provide a legitimate basis for state action on climate change. This could arise in relation to decisions as to how best to address adaptation needs including in relation to impacts on food security or DRR, on the basis that the social dimension of these impacts should be considered according to the same evidential rigour as the scientific dimension under BAS. Best In determining what is the best available science, tribunals are likely to be directed to best practice within the scientific communities concerned. Evidence which does not adhere to such best practice may be considered to fall outside BAS, absent some compelling explanation from the party offering the evidence in question. Increasingly, scientific bodies advising international environmental regimes have adopted best practice guidelines and principles and these are likely to inform any assessment of what scientific advice is the ‘best’ and therefore meets the BAS standard. A number of Regional Fisheries Management Organisations (RFMOs) have subjected themselves to performance reviews as to the approach taken to securing scientific advice. The concerns expressed range from ensuring an inclusive approach to obtaining such advice,25 to independence,26 transparency27 and peer review.28 The Indian Ocean Tuna Commission (IOTC) is one of those to have undertaken a comprehensive review of this kind.29 By IOTC Recommendation 12/15 on Best Available Science, Parties undertook to: … preserve and promote the professional independence and excellence of the IOTC Scientific Committee and its Working Parties, and the relevance of their work to the information needs of the Commission. The Resolution highlighted areas which future rules needed to address, including those ensuring the ‘quality, relevance and professional independence of scientific activities’. Such rules should also ensure that: relevant, professionally independent and objective scientific advice, based on the best available and peer-reviewed scientific analysis, is presented by the IOTC Scientific Committee to the Commission ….30 Further areas to be addressed included the strengthening of peer review mechanisms31 and supporting the publication of findings in the peer-reviewed academic literature.32 The emergence of more transparent discussion of the governance aspect of scientific input into international treaty regimes is likely to inform the application of BAS. This is because the adoption of what might be termed ‘good governance standards’ in international environmental fora provide a way of assessing whether the science presented by Parties in support of their actions is indeed the ‘best’ available. Common approaches to issues such as independence, transparency and peer review are likely to emerge as generally accepted principles which it will become increasingly difficult to depart from, or at least to justify departing from, in a court of law called upon to determine compliance with BAS. Where issues are raised as to the independent functioning of specific bodies, they can be held to account against governance standards that they have adopted or that have emerged as agreed good practice. In the context of climate change, the IPCC has adopted a set of principles governing its work,33 which state that: The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies. … Review is an essential part of the IPCC process ….34 Procedures for the preparation, approval and adoption of IPCC reports are given in Appendix A to the Principles: … First, the best possible scientific and technical advice should be included so that the IPCC Reports represent the latest scientific, technical and socio-economic findings and are as comprehensive as possible. Secondly, a wide circulation process, ensuring representation of independent experts … from developing and developed countries and countries with economies in transition should aim to involve as many experts as possible in the IPCC process. Thirdly, the review process should be objective, open and transparent …. Adherence to these procedures would appear likely to fulfil BAS and establish a standard by which to measure scientific input that is derived outside the IPCC process. In future disputes, tribunals may wish to examine whether scientific evidence adduced by parties has been produced according to these standards and may require experts to explain any departure from them, for example as to a lack of engagement with the latest evidence on a particular issue, or a lack of transparency. In ICJ Argentina v Uruguay (Pulp Mills), the Parties disagreed as to the comparative ‘authority and reliability’ of scientific evidence prepared by a Party’s experts, as compared to that prepared by experts of the International Finance Corporation.35 The ICJ however declined to rule generally on the respective merits or independence of the scientific evidence presented by the Parties: … the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that … it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate.36 The Court held that both Parties were under an obligation of due diligence, a duty of conduct not of result, in protecting the environment of the river.37 The Court found that Argentina had not demonstrated that Uruguay had not complied with its duties of due diligence.38 The Court did not make specific findings on the respective merits of all the scientific evidence presented, focussing instead on compliance with existing regulatory standards.39 On some issues, the Court found the points raised by Argentina to be unproven.40 The Court also indicated that those providing scientific or technical evidence should in future appear as experts, witnesses, or both, before the Court so that they are made available for cross examination and questioning.41 It is likely that in future cases where BAS is directly at issue, tribunals will have to address the ‘relative merits, reliability and authority’ of the science underpinning the decision or action under review, even looking beyond regulatory compliance. Tribunals may need to address closely disputes between parties as to which set of evidence constituted the ‘best available’ basis on which to take or defend action. The need for cross examination of experts in such cases, as directed by the ICJ for cases following Pulp Mills, appears clear. As discussed above, the assessment of what science is ‘best’ is likely to necessitate an examination of conformity to best practice and may even go beyond compliance with existing regulatory standards if the evidence as to what is ‘best’ and ‘available’ indicates that more is required. In future cases involving the BAS standard it may be that an assessment of what is ‘best’ simply takes the form of examining whether agreed international best practice has been adhered to. However, the precise scope and content of a requirement to base a decision on BAS will depend on the wording of the provision concerned, as interpreted in accordance with the general rule of interpretation under Article 31 of the Vienna Convention on the Law of Treaties (VCLT),42 including in the context and in the light of the instrument’s object and purpose. To the extent that relevant best practice has emerged by way of subsequent agreement or subsequent practice, tribunals may be required to take it into account in accordance with Article 31(3) VCLT. The types of best practice adopted by the IPCC and many RFMOs may emerge as generally accepted governance principles in international fora, as well as in national courts. A full survey of national decisions which have addressed these issues is beyond the scope of this article; however, an interesting recent example is the decision of the UK High Court in Tobacco Packaging.43 Proceedings for judicial review were brought in the UK by manufacturers of tobacco products challenging the Standardised Packaging of Tobacco Products Regulations 2015 as unlawful under the international law, EU law and domestic common law. As noted by the Court, the decision to introduce the UK Regulations was largely in furtherance of the policy laid down by the World Health Organization (WHO) in the 2004 Framework Convention on Tobacco Control (FCTC). One of the grounds of challenge concerned the treatment of expert evidence served by the Claimant manufacturers during the consultation process leading up to the adoption of the Regulations. The Claimants argued that the Government acted unlawfully because it attributed only limited weight to this evidence on the basis that it lacked independence and otherwise failed to meet best practice standards for the preparation of evidence. As noted in the judgment, the Government’s position was that the generality of the evidence of the tobacco companies was not in compliance with methodological best practice accepted worldwide by the scientific and technical research communities, including by reference to the importance of peer review of research results; the independence of researchers and experts from vested interests and the practice of the tobacco company experts of ignoring or dismissing the pre-existing and adverse literature. The Claimants criticized the best practice standards which the Secretary of State relied upon to evaluate evidence. The Judge observed that this ground of challenge engaged, inter alia, with ordinary common law principles of evidence and how a Court, in the context of a judicial review, should evaluate expert and other evidence.44 He held that the UK Government was entitled to conclude that the tobacco companies’ evidence did fall below acceptable standards during the consultation. He referred in this regard to findings of the US courts and conclusions reached by the WHO. He commented: The requirement that experts should act with transparency and accountability is hardly surprising. It is in fact the cornerstone of the ‘best practice’ regimes applied by regulators worldwide when they seek to evaluate empirical evidence advanced by companies … under investigation … one of the Claimants’ own experts described the principles of transparency and openness as the ‘foundational tablets of the scientific enterprise’. The approach now adopted by the international research community and by regulators represents common sense rules of evaluation which resonate strongly in a case such as the present. Further these principles are consistent with the obligations which experts and parties owe to the Court and which are required under the [rules] … which govern civil litigation in this jurisdiction …. I have accordingly sought to apply these principles to all of the evidence before me, from whatever source. I have applied the sorts of methodological standards that in my judgment are world-wide norms and which make sense to apply to the present facts ….45 In my judgment the best practice principles are just that - ‘best’ practice. They are tried and tested across the international scientific, medical, social science, legal and economic communities. These principles fall, neatly, under the broad heading of ‘transparency’ referred to in the FCTC; and they are logical forensic tools to be applied by a Court to evaluate evidence. Applying these standards I have rejected the Claimants’ challenge to the manner in which their evidence has been treated.46 He also stated that: It is an almost impossible task for a Court … to assess the accuracy of the entirety of a vast body of evidence … this case serves to highlight the importance of the Court having available to it methodological tools, such as research best practice guidelines and principles, with which to assess the evidence.47 In the light of the emergence of explicit best practice guidelines in a number of international scientific fora and of the potential need to review what is the ‘best’ available science in future disputes, it seems likely that tribunals will increasingly be directed to these standards. States, public authorities, or other entities, which have based decisions or positions on science which does not conform to such standards will, at the very least, be called upon to explain why not. Available Availability may suggest simply that for a decision-maker to ignore an existing body of scientific evidence in favour of another, without proper consideration of their respective merits breaches the BAS standard. It may accordingly imply a due diligence standard in reaching decisions to which BAS is applied. It may also imply a more proactive element in the development of the science on which key decisions, such as those arising under the PA, depend. The element of ‘availability’ may import a duty on the part of international scientific bodies, and the states which participate in them, to ensure that scientific advice is achieved in an inclusive way and to addresses issues comprehensively, including, for example, conducting research on localized environmental impacts in countries with limited access to relevant scientific expertise. The IOTC has highlighted these issues as part of its performance review: Aware that the availability of adequate scientific information is fundamental to carrying out the objectives of the IOTC Agreement … Recognising the limited financial resources of developing coastal States and wishing to assist in building their scientific capacity … Acknowledging the need to improve the availability and quality of data and analysis used for the provision of scientific advice ….48 The 2013 IOTC Performance Review took this issue up, noting that: At present, some IOTC CPCs have much greater scientific capacity and engagement than others, which can lead to a real or perceived loss of objectivity in the advice produced. … fostering more engagement by developing coastal state scientists into the science process through the activities instituted in the past few years is likely to improve the scientific process and outcomes.49 The IPCC Principles also address inclusion and availability.50 Human rights law is also relevant in this regard, as noted by the Office of the United Nations High Commissioner for Human Rights: The International Covenant on Economic, Social and Cultural Rights states that everyone has the right to enjoy the benefits of science and its applications. All States should actively support the development and dissemination of new climate mitigation and adaptation technologies including technologies for sustainable production and consumption.51 The PA emphasizes the need to integrate human rights standards into the implementation of the PA: Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights ….52 This could imply that human rights relevant to application of BAS should be applied by states in implementing the PA. The BAS standard may also entail a duty of cooperation through competent international organizations, expressed as a duty to make sure that the best science is ‘available’ in such a way as to support the goals of the regime concerned. The relationship between what is ‘best’ and what is ‘available’ therefore appears to be one of mutual reinforcement. Scientific processes which do not address disparities in resources risk inadequate coverage and input, undermining fulfilment of other aspects of best practice such as objectivity and thus undermining consistency with BAS. CONCLUSION Tribunals may increasingly follow a forensic trail of the process by which the scientific advice on which states base decisions has been derived, including scrutiny of: the reasons for any lack of peer reviewed output or of transparency, and any failure to cooperate with relevant international bodies or engage with their findings. Gaps in the available science, for example in respect of localized or regional environmental impacts, may also come under increased scrutiny, particularly in the light of an increased focus on inclusive participation in international scientific fora. Experts are likely to be asked to address these issues in giving evidence before tribunals. Footnotes 1 Paris, 12 December 2015, in force 4 November 2016. 2 See UNCLOS A61(2) and A119. Other formulations referring to scientific standards include variations on ‘sound science’, see for example A15 of the Cartagena Protocol on Biosafety. 3 The IPCC defines mitigation as: ‘An anthropogenic intervention to reduce the sources or enhance the sinks of greenhouse gases’ IPCC 2001 Synthesis Report Annex B. The term is not defined in the UNFCCC or the PA. 4 A4(1) PA. 5 The IPCC defines adaptation as ‘adjustments in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’ (IPCC, 2008: 869). 6 A7(5) PA. 7 A14(1) PA. 8 A4(1) PA. 9 A4(1) PA. 10 A4(2) requires Parties to ‘prepare, communicate and maintain successive NDCs that it intends to achieve’ and also to ‘pursue domestic mitigation measures’ with the aim of achieving the objectives of the NDC. 11 A2 PA. 12 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment), 31 March 2014. The author acted as Counsel to Australia in this case before the ICJ. Any views expressed here are purely personal and should not be taken as representing the position of Australia. 13 Para 67 of the Judgment. 14 Para 86 of the Judgment. 15 Judgment at para 88. 16 As to the latter see para 219 of the judgment. 17 For an extensive analysis see DH Rashed, ‘The IPCC: Holding Science and Policy to Account’ (2014) Yearbook Int Environ L 24(1): 3–36. 18 <https://climate.nasa.gov/scientific-consensus/ Scientific consensus: Earth’s Climate is Warming> accessed 9 April 2018. 19 UNFCCC A3(3). 20 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request For Advisory Opinion Submitted To The Seabed Disputes Chamber) List Of Cases: No 17 Advisory Opinion of 1 February 2011, para 131. 21 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), 2 April 2015, para 208 (ii). 22 As 2(1)(b), 7, 8 and 10 and A1 UNFCCC. 23 IPCC AR4, 2007. 24 See IPCC Principles adopted in 1998 and last amended in 2013, para 2 cited below. 25 International Commission for the Conservation of Atlantic Tunas Resolution 11/17 on Best Available Science, para 1. 26 Inter-American Tropical Tuna Commission Recommendation C-12-10 of June 2012 on Best Available Science, para 2. 27 Western and Central Pacific Fisheries Commission Resolution 12-01, para 2. 28 ICCAT Resolution 11/17 on Best Available Science, para 3. 29 The UN Food and Agriculture Organization (FAO) Committee agreed in March 2007, on the need for all RFMOs to undertake performance reviews. The IOTC recommendations arose from such a performance review. 30 See para 2 of IOTC Resolution 12/15. 31 See para 3 of IOTC Recommendation 12/15. 32 Among the 2013 recommendations was that an independent peer review process for stock assessments be implemented if IOTC science ‘is to be considered to be in line with best practice and to maintain a high standard of quality assurance’. 33 https://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf 34 Principles Governing IPCC Work, approved at the Fourteenth Session in October 1998, last amended at the Thirty-Seventh Session, October 2013. 35 Merits, Judgment of 20 April 2010, ICJ Reports 2010, para 167. 36 Pulp Mills, judgment ibid, para 168. 37 Pulp Mills, judgment, paras 187–89, 197. 38 Pulp Mills, judgment, paras 180, 189. 39 Pulp Mills, judgment, paras 212–14. 40 Pulp Mills, judgment, para 250. 41 Pulp Mills, judgment, para 167. 42 Vienna, 23 May 1969; in force 27 January 1980. 43 The Queen on the Application of British American Tobacco (UK) Limited and Others v Secretary of State for Health [2016] EWHC 1169 (Admin) Judgment of Mr Justice Green 19 May 2016 (upheld on appeal). 44 Tobacco Packaging, para 281. 45 Tobacco Packaging, paras 22–23. 46 Tobacco Packaging, para 28. 47 Tobacco Packaging, para 288. 48 IOTC Resolution 12/15 on Best Available Science. 49 IOTC 2013 Performance Review, paras 109–10. 50 Appendix A paras 4.3.1 and 4.6.2. 51 OHCHR Submission to COP 21, p 4. 52 Preamble to the PA. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Judging ‘Best Available Science’: Emerging Issues and the Role of Experts

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Abstract

Abstract This article considers the implications, for future disputes, of the adoption of the best available science (BAS) standard in a number of international (and national) regimes, including the 2015 Paris Agreement on Climate Change. The three strands of BAS: ‘best’, ‘available’, ‘science’ raise distinct but related issues on which expert evidence may be presented before courts and tribunals. This article considers these three aspects of BAS, both in relation to the evidence which states and others may need to present to demonstrate substantive conformity with BAS, and in relation to the way in which expert evidence is appraised by tribunals in such disputes. In adopting the 2015 Paris Agreement (PA) as a strengthened response to the global threat of climate change,1 Parties emphasized the importance of acting on the basis of the best available science (BAS). This standard also appears in UNCLOS2 as well as in many national regulatory regimes. In view of the emphasis placed on BAS in the PA and its potential adoption in other regimes, this article examines the scope of this standard which is likely to be the subject of expert evidence in future disputes. This article highlights specific aspects of BAS which experts may be asked to address. I argue that developments in a number of international scientific fora and decisions of the International Court of Justice (ICJ), indicate the types of issues which may arise in future disputes before international tribunals. THE CONTEXT FOR DISPUTES In the Preamble to the PA, Parties recognized: the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge. The importance of BAS is then restated with reference to specific elements of the PA. In relation to mitigation,3 Parties aim to undertake rapid reductions of greenhouse gas emissions ‘in accordance with [BAS]’ so as to achieve a balance between anthropogenic emissions by sources and removals by sinks in the second half of the century.4 In relation to adaptation,5 Parties have acknowledged that action should be ‘based on and guided by’ BAS, together with a range of other factors and standards.6 In conducting the Global Stocktake, a comprehensive review of collective progress towards achieving the PA’s long-term goals, Parties shall consider progress in the light of ‘equity and [BAS]’.7 Although the PA is partly framed in fairly general terms, the science which underpins it (and the evolution of the climate change regime as a whole) is carefully calibrated in terms of emission pathways, likely degrees of warming and corresponding impacts, as set out in the detailed Assessment Reports (ARs) published by the International Panel on Climate Change (IPCC). The requirements to act on the basis of BAS are relevant to the interpretation of the more general language, for example in relation to peaking of emissions ‘as soon as possible’8 and in determining what will be required to achieve the ‘balance’ sought by the second half of the century.9 The broad scope of the PA, which not only encompasses mitigation and adaptation but also addresses other areas of climate change policy, means that there is a wide range of national implementing decisions which may come under future judicial scrutiny. The PA combines requirements for ‘bottom up’ national action on mitigation, as set out in Nationally Determined Contributions (NDCs), and on adaptation, set out in National Adaptation Plans (NAPs) with ‘top down’ international support and review, including in the form of the Global Stocktake. This ‘hybrid’ structure is likely to mean that the national action on which the collective response depends comes under increased legal scrutiny at both the national and international levels. The precise status, under national law, of Parties’ NDCs will depend on that Party’s domestic legal system, including relevant principles of public law such as legitimate expectation, albeit that the PA lays down a number of binding international obligations in relation to NDCs.10 At the international level, while the provisions for review under the PA do not in themselves provide a binding framework for delivery of the NDCs, inadequate action by one Party clearly has implications for the collective burden born by others as they seek to prevent dangerous climate change by limiting the average temperature rise to ‘well below 2 degrees’ and pursuing efforts to limit it to 1.5 degrees.11 The legal implications of this relationship remain to be explored in the light of the general principle of good faith as well as other relevant principles of customary international law. National implementation of both NDCs and NAPs may therefore come under legal scrutiny, including scrutiny as to whether national action is based on BAS. This could arise in the context of decisions in the energy sector, decisions on infrastructure, on access to natural resources or disaster risk reduction (DRR) for reasons related to mitigation, adaptation or both. States may be challenged for not acting in accordance with BAS, perhaps by not being ambitious enough in their mitigation and adaptation plans to put them on track to supporting PA goals. Alternatively, states may face challenges from investors and others dissatisfied with decisions that are seen to interfere with their rights. States may then invoke the BAS standard defensively, to justify their climate actions. Some of these disputes may be brought before international fora. Disputes will turn on the particular legal context under national or international law but it is possible to identify some common issues which may arise in adjudicating BAS and a number are examined below. A TRIPARTITE REVIEW? Given the likelihood of disputes as to the extent to which states have, or have not, acted on the basis of BAS, it is worth examining the three elements of this standard and the relationship between them. Outlined below are some recent developments which may shed light on how tribunals will approach BAS. Science A comprehensive examination of the ways in which courts have approached the question of whether state action is based on ‘science’ is beyond the scope of this article. There are, however, a number of recent developments which offer useful insights. A key issue is the extent to which there are generally or internationally accepted criteria which courts may apply to determine whether or not conduct is based on ‘science’. This question arose in Whaling in the Antarctic (Australia v Japan: New Zealand intervening),12 in which the ICJ was asked to determine whether or not Japan’s JARPA II whaling programme fell within the scope of Article VIII(1) of the International Convention for the Regulation of Whaling (ICRW), authorizing state parties to issue ‘special permits’ to nationals to kill whales for the purposes of scientific research. Australia argued before the Court that JARPA II did not fall within Article VIII(1). In its submissions, Australia presented criteria which, it argued, could be used by the Court to assess whether JARPA II was in fact a programme for scientific research. Those criteria included having a testable or defined hypothesis and the production of peer-reviewed outputs. Although the context for the dispute was the ICRW regime and the evolution of non-lethal research standards relating to whales, the approach taken by the Court has wider relevance to disputes engaged with the issue of whether conduct is based on science so as to conform to BAS. The Court adopted a two-part review: When reviewing the grant of a special permit … the Court will assess, first, whether the programme under which these activities occur involves scientific research. Secondly, the Court will consider if the killing, taking and treating of whales is ‘for purposes of’ scientific research by examining whether … the programme’s design and implementation are reasonable in relation to achieving its stated objectives ….13 The Court considered the arguments put forward by Australia identifying specific aspects of scientific research that would need to be present for a programme to fall within Article VIII. In relation to peer review for example the Court observed: … even if peer review of proposals and results is common practice in the scientific community, it does not follow that a programme can be said to involve scientific research only if the proposals and the results are subjected to peer review. The Convention takes a different approach (while certainly not precluding peer review) …. Having considered the evidence relating to the proposed criteria, the Court was not persuaded: … that activities must satisfy the four criteria advanced by Australia in order to constitute ‘scientific research’ in the context of Article VIII. As formulated by Australia, these criteria appear largely to reflect what one of the experts that it called regards as well-conceived scientific research, rather than serving as an interpretation of the term as used in the Convention. Nor does the Court consider it necessary to devise alternative criteria or to offer a general definition of ‘scientific research’.14 Thus the Court did not set down a definition of ‘scientific research’, or of science: … JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’. There is no need therefore, in the context of this case, to examine generally the concept of ‘scientific research’.15 However aspects of its enquiry into whether JARPA II was ‘for the purposes of’ scientific research such as to fall within Article VIII(1) ICRW, including its review of whether the design and implementation of the programme were ‘reasonable in relation to achieving the programme’s stated research objectives’ could be said to reflect elements which could be considered determinative of the prior question, as to whether this was a scientific research programme: the presence of research objectives and the extent of scientific output.16 The Court’s main focus, however, was on the use of lethal methods and the sample sizes and size of the actual take of JARPA II. This may serve to indicate, albeit in a different legal context, the difficulties which may arise in future disputes concerned with BAS, in distinguishing, in at least some cases, between the elements of ‘best’ and ‘science’. It may be that there will not always be a clear red line between the two and that tribunals will assess the two elements together. In future cases involving consideration of the BAS standard, the assessment of criteria for ‘well-conceived scientific research’ is likely to be highly relevant. This would presumably include some of the more generally applicable criteria presented by Australia such as the presence of a testable hypothesis and peer review. Whether courts approach BAS primarily through an examination of whether a programme is ‘science’ or whether it is the ‘best’ science remains to be seen and is likely to depend on the specific facts of the case and the precise legal context. The BAS standard does, however, appear likely to require an exploration of the design, methodology and outputs of the scientific basis for state action, as well as conformity to relevant best practice. The approach taken by the ICJ in Antarctic Whaling, suggests that, in relation to BAS, courts may feel more comfortable determining whether activity conforms to the ‘best’ science rather than whether it is ‘science’ as such, indeed that is what the BAS standard arguably requires. In the context of climate change, the work of the IPCC in collecting, reviewing and presenting a comprehensive body of scientific research has been of central importance in the evolution of the international regime, including the assessment of what is likely to constitute ‘dangerous anthropogenic interference with the climate system’.17 As is well documented, there is overwhelming scientific consensus on the central scientific issues: whether global warming is occurring and whether it is anthropogenic in origin.18 It is more likely that any dispute as to the application of BAS in the context of the PA will focus on whether state action conforms to the findings presented by the IPCC or, where specific issues are not addressed by the IPCC, BAS generally. There may be disputes where the implications of uncertainty are the key issue. In such cases, the tribunal is likely to move the debate towards a determination of what is ‘best’ rather than what is science, together with an evaluation of the legal implications, in a specific context, of precaution.19 In its 2011 Advisory Opinion, the ITLOS Seabed Disputes Chamber, in exploring the relationship between an obligation of due diligence and precaution, held that the obligation: applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach.20 In its 2015 Advisory Opinion, ITLOS noted that, in the context of a regional fisheries convention, conservation and management measures should be based on BAS and, when such evidence is insufficient, the precautionary approach should apply.21 Crucially, the absence of BAS was held by ITLOS to trigger the application of the precautionary principle, rather than the freedom to carry on regardless. A further issue that may arise in the context of climate change related disputes is the scope of the reference to ‘science’, given that neither the UNFCCC nor the PA define the term. It is however increasingly clear that socio-economic analysis plays an important part in the formulation of climate action and policy, including in areas such as adaptation and mitigation. The Parties to the PA have established a Global Goal on Adaptation, which aims to strengthen resilience and reduce vulnerability to climate change. Although the term resilience is not defined in the UNFCCC or the PA,22 the IPCC has defined resilience as: The ability of a social or ecological system to absorb disturbances while retaining the same basic structure and ways of functioning, the capacity for self-organization and the capacity to adapt to stress and change.23 Article 7(9)(e) PA refers to the resilience of socio-economic and ecological systems, picking up the scope of the IPCC definition. The question may arise as to whether the BAS standard includes assessments of the likely socio-economic impacts of a measure on resilience and whether this in turn brings in the elements of ‘best’ and ‘available’ to socio-economic analysis, given the deference with which many jurisdictions treat state assessments of socio-economic welfare. The IPCC explicitly addresses in its assessments, alongside scientific and technical information: ‘socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.’24 The IPCC appears to distinguish such information from purely scientific information but in some contexts, such as assessing resilience, it may be difficult to disentangle the two. The importance of this lies partly in whether, post Paris, socio-economic information relied on as a basis for state action should also be the ‘best available’ to provide a legitimate basis for state action on climate change. This could arise in relation to decisions as to how best to address adaptation needs including in relation to impacts on food security or DRR, on the basis that the social dimension of these impacts should be considered according to the same evidential rigour as the scientific dimension under BAS. Best In determining what is the best available science, tribunals are likely to be directed to best practice within the scientific communities concerned. Evidence which does not adhere to such best practice may be considered to fall outside BAS, absent some compelling explanation from the party offering the evidence in question. Increasingly, scientific bodies advising international environmental regimes have adopted best practice guidelines and principles and these are likely to inform any assessment of what scientific advice is the ‘best’ and therefore meets the BAS standard. A number of Regional Fisheries Management Organisations (RFMOs) have subjected themselves to performance reviews as to the approach taken to securing scientific advice. The concerns expressed range from ensuring an inclusive approach to obtaining such advice,25 to independence,26 transparency27 and peer review.28 The Indian Ocean Tuna Commission (IOTC) is one of those to have undertaken a comprehensive review of this kind.29 By IOTC Recommendation 12/15 on Best Available Science, Parties undertook to: … preserve and promote the professional independence and excellence of the IOTC Scientific Committee and its Working Parties, and the relevance of their work to the information needs of the Commission. The Resolution highlighted areas which future rules needed to address, including those ensuring the ‘quality, relevance and professional independence of scientific activities’. Such rules should also ensure that: relevant, professionally independent and objective scientific advice, based on the best available and peer-reviewed scientific analysis, is presented by the IOTC Scientific Committee to the Commission ….30 Further areas to be addressed included the strengthening of peer review mechanisms31 and supporting the publication of findings in the peer-reviewed academic literature.32 The emergence of more transparent discussion of the governance aspect of scientific input into international treaty regimes is likely to inform the application of BAS. This is because the adoption of what might be termed ‘good governance standards’ in international environmental fora provide a way of assessing whether the science presented by Parties in support of their actions is indeed the ‘best’ available. Common approaches to issues such as independence, transparency and peer review are likely to emerge as generally accepted principles which it will become increasingly difficult to depart from, or at least to justify departing from, in a court of law called upon to determine compliance with BAS. Where issues are raised as to the independent functioning of specific bodies, they can be held to account against governance standards that they have adopted or that have emerged as agreed good practice. In the context of climate change, the IPCC has adopted a set of principles governing its work,33 which state that: The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies. … Review is an essential part of the IPCC process ….34 Procedures for the preparation, approval and adoption of IPCC reports are given in Appendix A to the Principles: … First, the best possible scientific and technical advice should be included so that the IPCC Reports represent the latest scientific, technical and socio-economic findings and are as comprehensive as possible. Secondly, a wide circulation process, ensuring representation of independent experts … from developing and developed countries and countries with economies in transition should aim to involve as many experts as possible in the IPCC process. Thirdly, the review process should be objective, open and transparent …. Adherence to these procedures would appear likely to fulfil BAS and establish a standard by which to measure scientific input that is derived outside the IPCC process. In future disputes, tribunals may wish to examine whether scientific evidence adduced by parties has been produced according to these standards and may require experts to explain any departure from them, for example as to a lack of engagement with the latest evidence on a particular issue, or a lack of transparency. In ICJ Argentina v Uruguay (Pulp Mills), the Parties disagreed as to the comparative ‘authority and reliability’ of scientific evidence prepared by a Party’s experts, as compared to that prepared by experts of the International Finance Corporation.35 The ICJ however declined to rule generally on the respective merits or independence of the scientific evidence presented by the Parties: … the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that … it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate.36 The Court held that both Parties were under an obligation of due diligence, a duty of conduct not of result, in protecting the environment of the river.37 The Court found that Argentina had not demonstrated that Uruguay had not complied with its duties of due diligence.38 The Court did not make specific findings on the respective merits of all the scientific evidence presented, focussing instead on compliance with existing regulatory standards.39 On some issues, the Court found the points raised by Argentina to be unproven.40 The Court also indicated that those providing scientific or technical evidence should in future appear as experts, witnesses, or both, before the Court so that they are made available for cross examination and questioning.41 It is likely that in future cases where BAS is directly at issue, tribunals will have to address the ‘relative merits, reliability and authority’ of the science underpinning the decision or action under review, even looking beyond regulatory compliance. Tribunals may need to address closely disputes between parties as to which set of evidence constituted the ‘best available’ basis on which to take or defend action. The need for cross examination of experts in such cases, as directed by the ICJ for cases following Pulp Mills, appears clear. As discussed above, the assessment of what science is ‘best’ is likely to necessitate an examination of conformity to best practice and may even go beyond compliance with existing regulatory standards if the evidence as to what is ‘best’ and ‘available’ indicates that more is required. In future cases involving the BAS standard it may be that an assessment of what is ‘best’ simply takes the form of examining whether agreed international best practice has been adhered to. However, the precise scope and content of a requirement to base a decision on BAS will depend on the wording of the provision concerned, as interpreted in accordance with the general rule of interpretation under Article 31 of the Vienna Convention on the Law of Treaties (VCLT),42 including in the context and in the light of the instrument’s object and purpose. To the extent that relevant best practice has emerged by way of subsequent agreement or subsequent practice, tribunals may be required to take it into account in accordance with Article 31(3) VCLT. The types of best practice adopted by the IPCC and many RFMOs may emerge as generally accepted governance principles in international fora, as well as in national courts. A full survey of national decisions which have addressed these issues is beyond the scope of this article; however, an interesting recent example is the decision of the UK High Court in Tobacco Packaging.43 Proceedings for judicial review were brought in the UK by manufacturers of tobacco products challenging the Standardised Packaging of Tobacco Products Regulations 2015 as unlawful under the international law, EU law and domestic common law. As noted by the Court, the decision to introduce the UK Regulations was largely in furtherance of the policy laid down by the World Health Organization (WHO) in the 2004 Framework Convention on Tobacco Control (FCTC). One of the grounds of challenge concerned the treatment of expert evidence served by the Claimant manufacturers during the consultation process leading up to the adoption of the Regulations. The Claimants argued that the Government acted unlawfully because it attributed only limited weight to this evidence on the basis that it lacked independence and otherwise failed to meet best practice standards for the preparation of evidence. As noted in the judgment, the Government’s position was that the generality of the evidence of the tobacco companies was not in compliance with methodological best practice accepted worldwide by the scientific and technical research communities, including by reference to the importance of peer review of research results; the independence of researchers and experts from vested interests and the practice of the tobacco company experts of ignoring or dismissing the pre-existing and adverse literature. The Claimants criticized the best practice standards which the Secretary of State relied upon to evaluate evidence. The Judge observed that this ground of challenge engaged, inter alia, with ordinary common law principles of evidence and how a Court, in the context of a judicial review, should evaluate expert and other evidence.44 He held that the UK Government was entitled to conclude that the tobacco companies’ evidence did fall below acceptable standards during the consultation. He referred in this regard to findings of the US courts and conclusions reached by the WHO. He commented: The requirement that experts should act with transparency and accountability is hardly surprising. It is in fact the cornerstone of the ‘best practice’ regimes applied by regulators worldwide when they seek to evaluate empirical evidence advanced by companies … under investigation … one of the Claimants’ own experts described the principles of transparency and openness as the ‘foundational tablets of the scientific enterprise’. The approach now adopted by the international research community and by regulators represents common sense rules of evaluation which resonate strongly in a case such as the present. Further these principles are consistent with the obligations which experts and parties owe to the Court and which are required under the [rules] … which govern civil litigation in this jurisdiction …. I have accordingly sought to apply these principles to all of the evidence before me, from whatever source. I have applied the sorts of methodological standards that in my judgment are world-wide norms and which make sense to apply to the present facts ….45 In my judgment the best practice principles are just that - ‘best’ practice. They are tried and tested across the international scientific, medical, social science, legal and economic communities. These principles fall, neatly, under the broad heading of ‘transparency’ referred to in the FCTC; and they are logical forensic tools to be applied by a Court to evaluate evidence. Applying these standards I have rejected the Claimants’ challenge to the manner in which their evidence has been treated.46 He also stated that: It is an almost impossible task for a Court … to assess the accuracy of the entirety of a vast body of evidence … this case serves to highlight the importance of the Court having available to it methodological tools, such as research best practice guidelines and principles, with which to assess the evidence.47 In the light of the emergence of explicit best practice guidelines in a number of international scientific fora and of the potential need to review what is the ‘best’ available science in future disputes, it seems likely that tribunals will increasingly be directed to these standards. States, public authorities, or other entities, which have based decisions or positions on science which does not conform to such standards will, at the very least, be called upon to explain why not. Available Availability may suggest simply that for a decision-maker to ignore an existing body of scientific evidence in favour of another, without proper consideration of their respective merits breaches the BAS standard. It may accordingly imply a due diligence standard in reaching decisions to which BAS is applied. It may also imply a more proactive element in the development of the science on which key decisions, such as those arising under the PA, depend. The element of ‘availability’ may import a duty on the part of international scientific bodies, and the states which participate in them, to ensure that scientific advice is achieved in an inclusive way and to addresses issues comprehensively, including, for example, conducting research on localized environmental impacts in countries with limited access to relevant scientific expertise. The IOTC has highlighted these issues as part of its performance review: Aware that the availability of adequate scientific information is fundamental to carrying out the objectives of the IOTC Agreement … Recognising the limited financial resources of developing coastal States and wishing to assist in building their scientific capacity … Acknowledging the need to improve the availability and quality of data and analysis used for the provision of scientific advice ….48 The 2013 IOTC Performance Review took this issue up, noting that: At present, some IOTC CPCs have much greater scientific capacity and engagement than others, which can lead to a real or perceived loss of objectivity in the advice produced. … fostering more engagement by developing coastal state scientists into the science process through the activities instituted in the past few years is likely to improve the scientific process and outcomes.49 The IPCC Principles also address inclusion and availability.50 Human rights law is also relevant in this regard, as noted by the Office of the United Nations High Commissioner for Human Rights: The International Covenant on Economic, Social and Cultural Rights states that everyone has the right to enjoy the benefits of science and its applications. All States should actively support the development and dissemination of new climate mitigation and adaptation technologies including technologies for sustainable production and consumption.51 The PA emphasizes the need to integrate human rights standards into the implementation of the PA: Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights ….52 This could imply that human rights relevant to application of BAS should be applied by states in implementing the PA. The BAS standard may also entail a duty of cooperation through competent international organizations, expressed as a duty to make sure that the best science is ‘available’ in such a way as to support the goals of the regime concerned. The relationship between what is ‘best’ and what is ‘available’ therefore appears to be one of mutual reinforcement. Scientific processes which do not address disparities in resources risk inadequate coverage and input, undermining fulfilment of other aspects of best practice such as objectivity and thus undermining consistency with BAS. CONCLUSION Tribunals may increasingly follow a forensic trail of the process by which the scientific advice on which states base decisions has been derived, including scrutiny of: the reasons for any lack of peer reviewed output or of transparency, and any failure to cooperate with relevant international bodies or engage with their findings. Gaps in the available science, for example in respect of localized or regional environmental impacts, may also come under increased scrutiny, particularly in the light of an increased focus on inclusive participation in international scientific fora. Experts are likely to be asked to address these issues in giving evidence before tribunals. Footnotes 1 Paris, 12 December 2015, in force 4 November 2016. 2 See UNCLOS A61(2) and A119. Other formulations referring to scientific standards include variations on ‘sound science’, see for example A15 of the Cartagena Protocol on Biosafety. 3 The IPCC defines mitigation as: ‘An anthropogenic intervention to reduce the sources or enhance the sinks of greenhouse gases’ IPCC 2001 Synthesis Report Annex B. The term is not defined in the UNFCCC or the PA. 4 A4(1) PA. 5 The IPCC defines adaptation as ‘adjustments in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’ (IPCC, 2008: 869). 6 A7(5) PA. 7 A14(1) PA. 8 A4(1) PA. 9 A4(1) PA. 10 A4(2) requires Parties to ‘prepare, communicate and maintain successive NDCs that it intends to achieve’ and also to ‘pursue domestic mitigation measures’ with the aim of achieving the objectives of the NDC. 11 A2 PA. 12 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment), 31 March 2014. The author acted as Counsel to Australia in this case before the ICJ. Any views expressed here are purely personal and should not be taken as representing the position of Australia. 13 Para 67 of the Judgment. 14 Para 86 of the Judgment. 15 Judgment at para 88. 16 As to the latter see para 219 of the judgment. 17 For an extensive analysis see DH Rashed, ‘The IPCC: Holding Science and Policy to Account’ (2014) Yearbook Int Environ L 24(1): 3–36. 18 <https://climate.nasa.gov/scientific-consensus/ Scientific consensus: Earth’s Climate is Warming> accessed 9 April 2018. 19 UNFCCC A3(3). 20 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request For Advisory Opinion Submitted To The Seabed Disputes Chamber) List Of Cases: No 17 Advisory Opinion of 1 February 2011, para 131. 21 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), 2 April 2015, para 208 (ii). 22 As 2(1)(b), 7, 8 and 10 and A1 UNFCCC. 23 IPCC AR4, 2007. 24 See IPCC Principles adopted in 1998 and last amended in 2013, para 2 cited below. 25 International Commission for the Conservation of Atlantic Tunas Resolution 11/17 on Best Available Science, para 1. 26 Inter-American Tropical Tuna Commission Recommendation C-12-10 of June 2012 on Best Available Science, para 2. 27 Western and Central Pacific Fisheries Commission Resolution 12-01, para 2. 28 ICCAT Resolution 11/17 on Best Available Science, para 3. 29 The UN Food and Agriculture Organization (FAO) Committee agreed in March 2007, on the need for all RFMOs to undertake performance reviews. The IOTC recommendations arose from such a performance review. 30 See para 2 of IOTC Resolution 12/15. 31 See para 3 of IOTC Recommendation 12/15. 32 Among the 2013 recommendations was that an independent peer review process for stock assessments be implemented if IOTC science ‘is to be considered to be in line with best practice and to maintain a high standard of quality assurance’. 33 https://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf 34 Principles Governing IPCC Work, approved at the Fourteenth Session in October 1998, last amended at the Thirty-Seventh Session, October 2013. 35 Merits, Judgment of 20 April 2010, ICJ Reports 2010, para 167. 36 Pulp Mills, judgment ibid, para 168. 37 Pulp Mills, judgment, paras 187–89, 197. 38 Pulp Mills, judgment, paras 180, 189. 39 Pulp Mills, judgment, paras 212–14. 40 Pulp Mills, judgment, para 250. 41 Pulp Mills, judgment, para 167. 42 Vienna, 23 May 1969; in force 27 January 1980. 43 The Queen on the Application of British American Tobacco (UK) Limited and Others v Secretary of State for Health [2016] EWHC 1169 (Admin) Judgment of Mr Justice Green 19 May 2016 (upheld on appeal). 44 Tobacco Packaging, para 281. 45 Tobacco Packaging, paras 22–23. 46 Tobacco Packaging, para 28. 47 Tobacco Packaging, para 288. 48 IOTC Resolution 12/15 on Best Available Science. 49 IOTC 2013 Performance Review, paras 109–10. 50 Appendix A paras 4.3.1 and 4.6.2. 51 OHCHR Submission to COP 21, p 4. 52 Preamble to the PA. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Apr 23, 2018

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