Risk and the Regulation of Uncertainty in International Law

305 Pages·2017·2.341 MB·English

by  Monika Ambrus, Rosemary Rayfuse, Wouter Werner

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RISK AND THE REGULATION OF UNCERTAINTY
IN INTERNATIONAL LAW
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Risk and the Regulation
of Uncertainty
in International Law
Edited by
MÓNIKA AMBRUS
ROSEMARY RAYFUSE
WOUTER WERNER
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Preface
This book has its origins in a small ‘exploratory workshop’ which was held at the
Faculty of Law at Lund University in May 2011 on ‘Imagining the Future Climate
Regime’. At the time our interest revolved around the ‘clash of precautions’ evident
in the international climate regime where the precautionary approach demands,
on the one hand, that lack of scientific uncertainty as to the seriousness or irrevers-
ibility of damage from climate change should not prevent the taking of protective
or mitigation measures while, on the other hand, simultaneously demanding that
lack of seriousness or irreversibility of damage from these protective or mitigation
measures themselves should not be used as an excuse to prevent their introduction.
We foresaw, and wanted to explore, the problem of responding to climate change
by introducing mitigation measures despite uncertainty as to both their efficacy and
their potential to cause serious or irreversible damage. Although not sure where the
topic would take us, we particularly had in mind the then emerging debates relating
to global geoengineering as a mitigation strategy, as well as discussions relating to
scientific uncertainty in decision-m aking more generally.
It quickly became apparent that there was much more to the topic than a climate
change- centred focus would suggest. Indeed, ‘imagining the future’ has become an
important and influential part of international law in general, with international
legal arrangements across the multiple regimes and sub-r egimes of international law
increasingly imagining future worlds, or creating space for experts to articulate how
the future can be conceptualized and managed. In short, science and technology
have made it possible to imagine different possible futures in all areas of interna-
tional law, be they in the form of promises, or threats, or of radical uncertainty.
Examination of the various imageries, vocabularies, expert knowledge, and rules
developed within these different areas of international law seemed, at its core, a
worthy pursuit, and one which might lay the groundwork for future comparisons
between the values articulated and methodologies or practices developed in differ-
ent international legal regimes for anticipating future regime stress and allocating
preference for one imagined future over another.
In a second workshop held in 2013 at the Vrije Universiteit (VU) Amsterdam, a
group of scholars from a range of substantive areas across international law mapped
out the way forward for the more ambitious project which eventually became this
book. At a further workshop hosted by the Institute for Legal Studies at the Centre
for Social Sciences of the Hungarian Academy of Sciences in October 2014, partici-
pants exchanged papers and ideas on the theme, which have now been transformed
into the chapters of this book.
As is inevitable in a project of this breadth and ambition, not everyone who par-
ticipated in the workshops was able, ultimately, to contribute to this book and not
everyone who has contributed to this book was able to attend the workshops. Thus,
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in addition to thanking the authors represented here for their contributions and for
their forbearance with the project, we would also like to thank the numerous other
colleagues who, over the years, participated in and contributed to the project at
various stages and in various ways. Their contributions have been equally valuable
in shaping the direction, contours, and content of this book.
In terms of institutional and financial support we are extremely grateful to the
Law Faculty at Lund University for providing seed funding for this project and
hosting the exploratory workshop from which this book arose. Thanks are also
due to the Law Faculty at VU Amsterdam and the Hungarian Institute for Legal
Studies, and in particular, Dr Tamás Hoffmann, for kindly hosting our two main
workshops. We are also grateful for the financial support provided by the European
Cooperation in Science and Technology (COST) programme, an intergovernmen-
tal framework aimed at facilitating the collaboration and networking of scientists
and researchers at the European level. COST is supported by the European Union
Seventh Framework Programme (EUFP7) through a dedicated Coordination and
Support Action (CSA) and is funded by the European Commission. For more infor-
mation on COST, see <http:// www.cost.eu>. This volume was prepared within the
context of COST Action IS1003 (International Law between Constitutionalisation
and Fragmentation: The Role of Law in the Post- national Constellation).
Finally we are grateful to Oxford University Press, and in particular to Nicole
Leyland, for putting the publication of this book on track and to Emma Endean-
Mills for seeing the publication through to fruition.
Mónika Ambrus, Rosemary Rayfuse, and Wouter Werner
Groningen/B udapest, Sydney/ Lund, and Amsterdam
September 2016
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Contents
List of Tables  ix
Table of Cases  xi
Table of Treaties  xv
List of Abbreviations  xxi
List of Contributors  xxiii
PART I INTRODUCTION
1. Risk and International Law  3
Mónika Ambrus, Rosemary Rayfuse, and Wouter Werner
PART II RISK AND SECURITY
2. Risk and the Use of Force  13
Nicholas Tsagourias
3. ‘It Could Probably Just as Well Be Otherwise’: Imageries of Cyberwar  39
Wouter Werner and Lianne Boer
4. Maritime Security  57
Douglas Guilfoyle
5. International Law and the Exploration and Use of Outer Space  77
Steven Freeland
PART III RISK AND HUMAN PROTECTION
6. The European Court of Human Rights as Governor of Risk  99
Mónika Ambrus
7. Imagining Future People in Biomedical Law: From Technological
Utopias to Legal Dystopias within the Regulation of Human
Genetic Modification Technologies  117
Britta van Beers
PART IV RISK AND THE ENVIRONMENT
8. Prevention in International Environmental Law and the Anticipation
of Risk(s): A Multifaceted Norm  141
Leslie- Anne Duvic- Paoli
9. Conceptions of Risk in an Institutional Context: Deep Seabed
Mining and the International Seabed Authority  161
Aline Jaeckel and Rosemary Rayfuse
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10. Imagining Unimaginable Climate Futures in International Climate
Change Law  177
Jacqueline Peel
11. Catastrophic Climate Change, Precaution, and
the Risk/ Risk Dilemma  197
Floor M Fleurke
PART V RISK AND ECONOMIC PROSPERITY
12. The Assessment of Environmental Risks and the Regulation of Process
and Production Methods (PPMs) in International Trade Law  219
Andreas R Ziegler and David Sifonios
13. Risk, Responsibility, and Fairness in International Investment Law  237
Azernoosh Bazrafkan and Alexia Herwig
Author Index  257
Index  271
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List of Tables
6.1 Overview of the features of the Court’s risk dispositief relating to the
specific public values  111
6.2 Overview of the factors influencing risk governance relating
to the specific public values  111