Introduction

In the previous chapter we saw how science and processes of expert risk assessment have become increasingly central to the workings of contemporary international law concerned with the regulation of risk. Requirements for science-based decision-making are now found in many treaties in the health and environmental field, from the SPS Agreement to international regimes dealing with hazardous chemicals, marine resources, industrial pollution and threats to biodiversity (such as those potentially posed by biotechnology and GMOs). In treaty language, a number of different formulae have been used to specify a requirement for scientific involvement in decision-making; for example, that regulations must consider ‘the best scientific evidence available’, ‘not [be] maintained without sufficient scientific evidence’, take into account ‘relevant scientific and technical considerations’, or be based on risk assessment.

As Chapter 3 highlighted, however, scientific evidence – even the best available – often goes hand-in-hand with problems of uncertainty, and the conclusions of expert risk evaluations may be dependent upon the way in which assessments are framed in light of differing sensitivities to uncertainty, the influence of socio-cultural values and institutional assumptions. Thus an important question in evaluating requirements for science-based decision-making in international law concerns the breadth of notions of science and risk intended by such provisions. Is what is contemplated restricted (as some SPS dispute settlement panels have suggested) to evidence ‘gathered through scientific methods’ with the result that only ‘a complete, self-contained, scientific evaluation’ will be considered an adequate risk assessment?