Compliance mechanisms in MEA, International Courts, and the "best-available-science" standard: discussing the pros and cons against the backdrop of the Paris Agreement

Research output: Contribution to conferencePaperpeer-review

Abstract

Environmental laws, policies and governance structures across the globe are increasingly reflective of ever more complex science. Inter-governmental scientific institutions, such as the IPCC and the IPBES, harness global scientific efforts and influence international environmental negotiations. In turn, MEA at global and regional levels promote regulatory approaches of risk-management based on the principles of prevention and, increasingly, on the basis also of the principle of precaution, as well as ecosystem-based approaches and human rights-based approaches. As part of their underlying “managerial” rationale, MEA also feature a host of subsidiary bodies of scientific and technical advice in order to inform deliberations and decision-making processes in the implementation of each treaty-regime.
The complexity and contingency of global scientific knowledge production and its connection with global governance and international environmental law is thus relevant for the implementation and promotion of compliance in MEA, such as the Paris Agreement (PA). Its regulatory strategy relies significantly on the “best-available-science” standard (BAS). This regulatory feature begs the question whether the new managerial compliance mechanism under the PA will be capable not only of managing the implementation of and promoting compliance with the treaty, but also to contribute to dispute-avoidance regarding the interpretation of the BAS standard. Put differently, this paper seeks to discuss and compare the respective pros and cons of the PA compliance mechanism and potential resort to adjudicative dispute settlement under article 24 PA for the implementation of the BAS. International courts and tribunals (ICT) have long been perceived as too rigid avenues of ex post dispute settlement of little use for MEA enforcement. When faced with complex scientific facts, moreover, ICT are confronted with the need to accommodate the distinct rationales of law and science with the aim of rendering justice under conditions of uncertainty and ignorance. This task often poses the hardest challenge in environmental litigation and especially in climate change litigation. Yet, the so-called “attribution science” is making significant advances and provides courts with new modes of engagement with
scientific fact-finding. However, as part of the PAs complex institutional architecture, the compliance mechanism is more likely to fare better in accommodating the demands of the BAS standard through collectively agreed and politically feasible action plans to steer noncompliant parties towards acceptable levels of implementation of their treaty obligations.
In contrast to inter-state litigation, it also seems flexible enough for allowing some degree of contribution of non-governmental actors to this process, strengthening its epistemic legitimacy. It follows that the PA compliance mechanism is expected to perform effectively in avoiding the emergence of inter-state litigation on the interpretation of the BAS before international courts. Rather, BAS-related litigation is expected to remain primarily within the remit of international human rights courts and domestic courts. However, the paper also concludes that, while unlikely, inter-state litigation of the BAS standard under the PA cannot be excluded entirely. Should this happen, ICT seem better placed than the compliance mechanism to contribute to a principled development of international climate change law in the broader context of public international law.
Original languageEnglish
Publication statusPublished - 27 Oct 2021
EventPluriCourts Research Conference on Compliance Mechanisms - Domus Juridica, University of Oslo, Oslo, Norway
Duration: 27 Oct 202128 Oct 2021

Conference

ConferencePluriCourts Research Conference on Compliance Mechanisms
Country/TerritoryNorway
CityOslo
Period27/10/2128/10/21

Keywords

  • best-available-science
  • compliance mechanisms
  • international courts and tribunals
  • managerialism
  • constitutionalism

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