Between Scylla and Charybdis: the implications of the human right to science for regulating the harms and benefits of environmental science and technology

ABSTRACT

This article explores whether the integration of human rights approaches, in particular, the human right to science in Article 15(1)(b) of the International Covenant of Economic, Social and Cultural Rights, offers a basis for improving upon current approaches in international environmental law by widening democratic input and oversight in decisions involving environmental science and its applications. It examines a case study regarding the international regulation of marine geoengineering under an amendment to the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The analysis focuses on how the harms and benefits of marine geoengineering research are conceived of in the amendment, and the norms and processes adopted to address them. These same issues are then examined under the human right to science, focusing on the recent interpretation of the right by the Committee on Economic, Social and Cultural Rights in its General Comment No. 25. It seeks to show in a particular case how international environmental law and international human rights law each bring to bear different objectives, norms, and processes in how they treat issues of environmental science and technology, and explores the benefits of more integrated approach.

KEYWORDS:

• Human right to science
• international environmental law
• marine environment
• science and technology

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Homer, The Odyssey, trans. A.T. Murray in two volumes (Cambridge, MA: Harvard University Press, 1919).

2 Ulrich Beck, Risk Society: Towards a New Modernity (London: Sage, 1992).

3 Arild Underdal, ‘Complexity and Challenges of Long-Term Environmental Governance’, Global Environmental Change 20 (2010).

4 See, e.g. Sheila Jasanoff, ‘Technologies of Humility: Citizen Participation in Governing Science’, Minerva 41, no. 3 (2003); Brian Wynne, ‘May the Sheep Safely Graze? A Reflexive View of the Expert–Lay Knowledge Divide’ in Risk, Environment, and Modernity: Towards a New Ecology, eds. S. Lash, B. Szerszynski and B. Wynne (Thousand Oaks: Sage Publications, 1996).

5 D. Barben et al., “Anticipatory Governance of Nanotechnology: Foresight, Engagement, and Integration’, in The Handbook of Science and Technology Studies, eds. E. Hackett and O. Amsterdamska, 3rd. ed. (Cambridge, MA: MIT Press, 2008); S.O. Funtowicz and R. Strand, ‘Models of Science and Policy’, in Biosafety First: Holistic Approaches to Risk and Uncertainty in Genetic Engineering and Genetically Modified Organisms, eds. T. Traavik and L. C. Lim (Trondheim: Tapir Academic Press, 2007); D.H. Guston and D. Sarewitz, ‘Real-Time Technology Assessment’. Technology in Society 24, no. 1 (2002); J. Stilgoe, R. Owen, and P. Macnaghten, ‘Developing a Framework for Responsible Innovation’. Research Policy 42, no. 9 (2013).

6 S.O. Funtowicz and J.R. Ravetz, ‘Science for the Post-Normal Age’, Futures 25, no. 7 (1993).

7 S.O. Funtowicz and J.R. Ravetz, ‘The Emergence of Post-Normal Science’, in Science, Politics, and Morality, ed. R. von Schomberg (New York: Springer, 1993)

S.O. Funtowicz and R. Strand, ‘Models of Science and Policy’, in Biosafety First: Holistic Approaches to Risk and Uncertainty in Genetic Engineering and Genetically Modified Organisms, eds. T. Traavik and L.C. Lim (Trondheim: Tapir Academic Press, 2007).

8 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, 993 UNTS 3.

9 UN General Assembly, Resolution 76/300, The human right to a clean, healthy and sustainable environment, UN Doc. A/RES/76/300, 1 August 2022.

10 Elsa Morgera, ‘The Relevance of the Human Right to Science for the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction: A New Legally Binding Instrument to Support Co-Production of Ocean Knowledge across Scales’, in International Law and Marine Areas Beyond National Jurisdiction: Current Status and Future Trends, eds. V. De Luca, L. Nguyen and A. G. Oude Elferink (Leiden: Brill, 2022); Anna-Maria Hubert, ‘The Human Right to Science and its Relationship to International Environmental Law’, The European Journal of International Law 31, no. 2 (2020); Jacqueline Peel, ‘The “Rights” Way to Democratize the Science–Policy Interface in International Environmental Law? A Reply to Anna-Maria Hubert’, The European Journal of International Law 31, no. 2 (2020).

11 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1996) 36 ILM 1 (‘London Protocol’).

12 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) 11 ILM 1358 (‘London Convention’).

13 London Convention and London Protocol, ‘Report of the Thirty-Fifth Consultative Meeting and the Eight Meeting of the Contracting Parties’, UN Doc LC 35/15, 21 October 2021, Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities (adopted on 18 October 2013), (‘Resolution LP.4(8)’).

14 Committee on Economic Social and Cultural Rights (CESCR), ‘General comment No. 25 (2020) on science and economic, social and cultural rights (article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, UN Doc. E/C.12/GC/25, 20 April 2020 (‘General Comment No. 25’).

15 This analysis focuses narrowly on the LP amendment on marine geoengineering. However, it should be noted that this topic has been addressed by other environmental treaties, including through a series of COP decisions under the Convention on Biological Diversity (CBD). These provide a different normative basis for addressing these issues, which may be more compatible with the human right to science. For example, the CBD’s scientific and technical cooperation in this area includes consideration of ‘the views and experiences of indigenous and local communities and other stakeholders, on the possible impacts of geoengineering techniques on biodiversity and associated social, economic and cultural considerations, and options on definitions and understandings of climate-related geo-engineering relevant to the Convention on Biological Diversity’. See further CBD, ‘Climate-related Geoengineering and Biodiversity’, https://www.cbd.int/climate/geoengineering/.

16 See Doug Wallace et al., Ocean Fertilisation: A Scientific Summary for Policy Makers (IOC/BRO/2010/2, 2010). https://unesdoc.unesco.org/ark:/48223/pf0000190674; Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of Ocean Fertilization on Marine Biodiversity, Technical Series No. 45, 2009.

17 London Protocol, Article 4.1.1. See also United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (‘LOSC’), Article 237 which allows for the conclusion of further agreements which related to the protection and preservation of the marine environment, which ‘should be carried out in a manner consistent with the general principles and objectives of [the] Convention’.

18 Rosemary Refuse, Mark G. Lawrence, and Kristina M. Gjerde, ‘Ocean Fertilization and Climate Change: The Need to Regulate Emerging High Seas Uses’, 23, no. 2 (2008).

19 London Protocol, Article 4.2.2.

20 See London Protocol, Article 2, which states: ‘Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonize their policies in this regard’. Confirmation of this interpretation can be found in the language of the London Protocol amendment on marine geoengineering itself. For example, London Protocol, Article 6bis states that ‘Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geoengineering activities listed in annex 4, unless the listing provides that the activity or the subcategory of an activity may be authorized under a permit’.

21 Resolution LP.4(8), preamble. This phrasing echoes previous legally non-binding decisions taken by States Parties to the Convention on Biological Diversity. See CBD, Decision X/33, ‘Biodiversity and Climate Change’ (19 December 2010) UN Doc UNEP/CBD/COP/10/27.

22 Resolution LP.4(8), Article 5bis. This definition incorporates the essential elements of The Royal Society’s definition of geoengineering: namely, the intentional nature of the activity, the scale of the intervention, and, relatedly, the potential to cause deleterious effects on the marine environment. See John Shepherd et al., Geoengineering the Climate: Science, Governance and Uncertainty (London: Report 10/09, The Royal Society, 2009) (The Royal Society Report on Geoengineering) 1.

23 Resolution LP.4(8), Art 6bis(1). In addition, in order to be considered for a listing in Annex 4, the technique must also fall within the scope of the London Protocol as the introduction of matter into the sea with the potential to cause harm to the marine environment. See London Protocol, Articles 4.1 and 4.2.

24 Resolution LP.4(8), Article 6bis.

25 Resolution LP.4(8), Annex 5.

26 Annex 5, Resolution LP.4(8), Annex 5, paras. 7–9, of the general assessment framework set out special considerations for assessing marine scientific research related to marine geoengineering.

27 London Convention and London Protocol, ‘Marine Geoengineering: Updated advice from GESAMP Working Group 41 to the London Protocol Parties to assist them in identifying marine geoengineering techniques that it might be prudent to consider for listing in the new annex 4 of the Protocol, Note by the Secretariat’ UN Doc LC/SG 45/3 (7 January 2022).

28 London Convention and London Protocol, ‘Resolution LC-LP.1(2008) on the Regulation of Ocean Fertilization’ (31 October 2008).

29 London Convention and London Protocol, ‘Resolution LC-LP.2(2010) Assessment Framework for Scientific Research Involving Ocean Fertilization’(11–15 October 2010).

30 Resolution LP.4(8), Article 6bis.

31 Ibid.

32 London Protocol, Article 2 states that ‘Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonise their policies in this regard’.

33 GESAMP has established a working group whose mandate includes to study the potential social and economic impacts of different marine geoengineering approaches on the marine environment. In addition to marine scientists and engineers, the working group is comprised of social science experts, including those in environmental economics. See GESAMP, High Level Review of a Wide Range of Proposed Marine Geoengineering Techniques (IMO/FAO/UNESCO-IOC/UNIDO/WMO/IAEA/UN/UN Environment UNDP/ISA Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection, Rep. Stud. GESAMP No. 98, 2019), http://www.gesamp.org/publications/high-level-review-of-a-wide-range-of-proposed-marine-geoengineering-techniques. See also National Academies of Sciences, Engineering, and Medicine, A Research Strategy for Ocean-based Carbon Dioxide Removal and Sequestration (The National Academies Press, 2022) https://doi.org/10.17226/26278.

34 See also LOSC, Art. 4(1)(1).

35 Resolution LP.4(8), Annex 5, para. 17.

36 Resolution LP.4(8), Annex 5, para. 26.7.

37 Resolution LP.4(8), Annex 5, para. 7–8.

38 Hubert, ‘Marine Scientific Research and the Protection of the Seas and Oceans’.

39 Resolution LP.4(8), Annex 5, para. 8.

40 Ibid.

41 Hubert, ‘Marine Scientific Research and the Protection of the Seas and Oceans’.

42 Strong, Cullen and Chisholm, ‘Ocean Fertilization: Science, Policy and Commerce’, Oceanography 22 (2009): 253; Strong, Cullen and Chisholm, ‘Ocean Fertilization: Time to Move On’, Nature 461 (2009); Williamson et al., ‘Ocean Fertilization for Geoengineering: A Review of Effectiveness, Environmental Impacts and Emerging Governance’ Process Safety and Environmental Protection 90 (2012).

43 Resolution LP.4(8), Annex 5, para. 7.

44 Ibid.

45 Ibid., para. 8.

46 Hubert, ‘Marine Scientific Research and the Protection of the Seas and Oceans’.

47 The amendment of annexes to the London Protocol is regulated under London Protocol, Article 22.

48 London Convention and London Protocol, ‘Report of the Thirty-Sixth Consultative Meeting and the Ninth Meeting of the Contracting Parties’, UN Doc. LC 36/16, 7 November 2014, Annex 5 ‘Guidance for Consideration of Marine Geoengineering Activities’.

49 Ibid., para. 5.2.

50 London Convention and London Protocol, ‘Report of the Thirty-Sixth Consultative Meeting and the Ninth Meeting of the Contracting Parties’, UN Doc. LC 36/16, 7 November 2014, Annex 4, ‘Description of Arrangements for a Roster of Experts on Marine Geoengineering in the Consultation Process’ (with regard to paragraph 12 of Annex 5 to the London Protocol).

51 Ibid., para. 7.

52 Ibid., Annex 1.

53 ICESCR, Art. 15(2).

54 ICESCR, Art. 15(3).

55 ICESCR, Art. 15(4).

56 According to General Comment No. 25, para. 7, ‘applications’ refers to ‘the particular implementation of science to the specific concerns and needs of the population. Applied science also includes the technology deriving from scientific knowledge … ’.

57 General Comment No. 25, at para. 8.

58 Faik Kurtulmuş, ‘The Democratization of Science’, in Global Epistemologies and Philosophies of Science, eds. David Ludwig et al. (London: Routledge, 2021).

59 European Commission, ‘Global Governance of Science: Report of the Expert Group on Global Governance of Science to the Science, Economy and Society Directorate, Directorate-General for Research, European Commission’ EUR 236161 (2009), https://op.europa.eu/en/publication-detail/-/publication/74f6f66b-d6f0-4100-b052-89d1c1265871.

60 General Comment No. 25, para. 18.

61 Ibid.

62 Ibid.

63 Resolution LP.4(8), Annex 5, para. 8. Issues related to the quality of the scientific evidence and advice may also overlap with concerns of environmental harm since research that is not conducted according to high scientific standards may cause environmental damage. Research that does not meet the standards of the scientific community may also not produce the same degree of benefits, since the data and results may be in question.

64 Committee on Economic Social and Cultural Rights (CESCR), ‘General comment No. 21 (2009) Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/21, 21 December 2009 (‘General Comment No. 21’).

65 Ibid., para. 1.

66 Ibid., para. 2.

67 General Comment No. 25, para. 9.

68 GA Res. 217A(III), 10 December 1948.

69 See further General Comment No. 25, para. 10; General Comment No. 21, para. 3.

70 Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and Its Applications (‘Venice Statement’), July 2009, Art. 13(a). www.aaas.org/sites/default/files/VeniceStatement_July2009.pdf.

71 Ibid., Art. 16(e).

72 General Comment No. 25, paras. 17 & 56.

73 See United Nations Environment Programme (UNEP), ‘Putting Rio Principle 10 into Action: An Implementation Guide’ (2015), https://wedocs.unep.org/handle/20.500.11822/11201.

74 General Comment No. 25, paras. 56 and 57.

75 General Comment No. 25, para. 52.

76 Declaration of the UN Conference on the Environment and Development, (12 August 1992) UN Doc. A/CONF.151/26/Rev.1 (Rio Declaration).

77 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention).

78 UNEP, ‘Guidelines for the Development of National Legislation on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’, adopted by the Governing Council of the United Nations Environment Programme in decision SS.XI/5, part A, 26 February 2010 https://wedocs.unep.org/handle/20.500.11822/11182.

79 United Nations Environment Programme (UNEP), ‘Putting Rio Principle 10 into Action: An Implementation Guide’ (2015), https://wedocs.unep.org/handle/20.500.11822/11201.

80 See also Samantha Besson, ‘Science without Borders and the Boundaries of Human Rights – Who Owes the Human Right to Science?’, Special issue on the Human Right to Science, European Journal of Human Rights, 4 (2015): 462–85.

81 Philip Kitcher, Science, Truth, and Democracy (Oxford: Oxford University Press, 2001), 117–8.

82 Faik Kurtulmuş, ‘The Democratization of Science’ in David Ludwig et al., eds., Global Epistemologies and Philosophies of Science (London: Routledge, 2021), 154.

83 General Comment No. 25, para. 81.

84 General Comment No. 25, para. 81.

85 See Mülller, in this edition.

86 See Jutta Brunnée and Ellen Hey, ‘Transparency and International Environmental Institutions’, in Transparency in International Law, eds. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013) explaining, ‘Instruments generally require NGOs to show that they have expertise or an interest in the subject matter of the body concerned, and subject NGO participation to the approval of its member States’. For a more in depth examination of democratic representation and participation in international organizations and international lawmaking, see Samatha Besson, ‘Democratic Representation within International Organizations: From International Good Governance to International Good Government’, International Organizations Law Review 19 (2022), 489–527; Samantha Besson and José Luis Marti, ‘Legitimate Actors of International Law-Making – Towards a Theory of International Democratic Representation’ 9(2018): 3 Jurisprudence, 9, no. 3 (2018).

87 Ibid.: ‘The regular mode of proceeding in most [international environmental institutions] is that all State parties and a large number of observers, including non-member States, inter-governmental organizations and non-State actors, such as NGOs, are permitted to participate in COPs and the meetings of subsidiary bodies, including bodies of limited composition. Instruments generally require NGOs to show that they have expertise or an interest in the subject matter of the body concerned, and subject NGO participation to the approval of its member States’.

88 See Alan Boyle and Casey McCall-Smith, ‘Transparency in International Lawmaking’ in Transparency in International Law, eds. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013) noting that 'despite the prevalence of NGOs in UN forums, it is difficult to talk in general terms about a “right” to participate’ in the process of international lawmaking.'

89 On the importance of international democratic representation for participation, see Samatha Besson, ‘Democratic Representation within International Organizations: From International Good Governance to International Good Government’, 19 International Organizations Law Review, 19 (2022), 489-527; Samantha Besson and José Luis Marti, ‘Legitimate Actors of International Law-Making – Towards a Theory of International Democratic Representation’, (2018) 9:3 Jurisprudence, 9, no. 3 (2018).

90 There has been some ambition to change the status quo. For example, states parties to the Aarhus Convention, decided to actively promote the application of the Convention’s principles in other international forums. They called for the further development of policies and procedures on access to environmental information and ‘transparent and clearly stated standards’ for public participation in ‘all relevant stages of the decision-making process’ in international environmental institutions. See Jonas Ebbesson, ‘Global or European Only? International Law on Transparency in Environmental Matters for Members of the Public’, in Transparency in International Law, eds. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013).

91 Massimiano Bucchi and Federico Neresini, ‘Science and Public Participation’, in The Handbook of Science and Technology Studies, eds. Edward J. Hackett et al., 3rd ed. (Cambridge, MA: MIT Press, 2008).

92 Jonas Ebbesson, ‘Global or European Only? International Law on Transparency in Environmental Matters for Members of the Public’, in Transparency in International Law, eds. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013). On democracy and efficiency in international lawmaking, see Samantha Besson and José Luis Martí, ‘From Equal State Consent to Equal Public Participation in International Organizations – Institutionalizing Multiple International Representation’, in Samantha Besson, ed., Consenting to International Law, ASIL International Legal Theory Series (Cambridge: Cambridge University Press, 2023), forthcoming.

93 Jacqueline C.K. Lam, Richard M. Walker, and Peter Hills, ‘Interdisciplinarity in Sustainability Studies: A Review’, Sustainable Development 22, no. 3 (2014).

94 General Comment No. 25, para. 5.

95 General Comment No. 25, paras. 52 and 54.

96 Jacqueline Peel, ‘The “Rights” Way to Democratize the Science–Policy Interface in International Environmental Law? A Reply to Anna-Maria Hubert’, The European Journal of International Law 33, no. 2 (2020): 361–61.

97 See General Comment No. 25, para. 79.

98 London Protocol, Article 13.

99 Bruno Latour, ‘Love your Monsters: Why We Must Care for Our Technologies as We Do Our Children’, Breakthrough Journal 2012. https://thebreakthrough.org/journal/issue-2/love-your-monsters.

100 Patric Brandt et al., ‘A Review of Transdisciplinary Research in Sustainability Science’ Ecological Economics 92, August (2013).

101 See General Comment No. 25, para. 79.

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Notes on contributors

Anna-Maria Hubert

Anna-Maria Hubert is an Assistant Professor in the Faculty of Law at the University of Calgary. Her research broadly examines the areas of international environmental law, the law of the sea, and international human rights law. The red thread through much of her work considers the regulation of emerging science and technologies in the international sphere and how existing approaches can be improved.