Epistemic Institutions and Epistemic Cooperation in International Environmental Governance

Abstract

Much recent scholarship in international law on the relationship between science and policy argues that the expert bodies that generate policy-relevant scientific advice (“epistemic institutions”) should be autonomous from the institutions which use that advice as an input to make international legal rules (“legal institutions”). In this article, I argue that legal institutions’ acquisition of policy-relevant scientific advice is akin to the make-or-buy decision faced by firms: legal institutions can either acquire such advice from independent epistemic institutions or they can seek such advice from an internal and hierarchically subordinate epistemic institution. I then apply the theory of the firm to show that the conventional wisdom about the benefits of scientific autonomy is incorrect.

Scientific advice must be credible in the eyes of non-expert regulators in order to support the widespread adoption of legal rules to address transnational environmental problems. Where states individually lack the incentive to regulate an environmental problem absent a collective decision, states that lack the capacity to directly assess the credibility of the scientific record may block the adoption of legal rules in international institutions out of fear that the scientific assessment process is biased to produce particular policy outcomes. Hierarchical control of epistemic institution can overcome this problem by giving such states direct oversight of the scientific assessment process, thereby reassuring them of the credibility of the scientific record.

By contrast, where states internalize a sufficient amount of the benefit from regulating an international problem unilaterally, fragmenting legal and epistemic institutions is optimal. Where a collective decision is not necessary to coordinate state behavior, the decentralized adoption of policy-relevant scientific recommendations signals to scientifically-disadvantaged states that the scientific record is credible, thereby eliminating the need for hierarchical controls to perform the same function. Fragmentation is thus the ideal mode of organization because it best facilities the development and diffusion of policy-relevant science.

This framework explains much of the variation we observe in the independence of international scientific bodies from legal institutions. Legal institutions governing commons issues, such as the International Whaling Commission or a variety of fisheries regimes, have integrated scientific bodies to deal with the opportunism issues created by the need for collective decision-making. By contrast, organizations such as the International Renewable Energy Agency – an independent epistemic institution that produces and disseminates information about renewable energy technologies and their economic viability – do not create the same kinds of opportunism issues because states have an incentive to act individually on the basis of the epistemic institution’s recommendations. More generally, the application of new institutional economics to explain vertical integration decisions within international institutions opens a field of inquiry that might be expanded to explain a variety of regime design puzzles in international law, such as for example the variation in the extent to which international legal institutions create institution-specific courts (such as the International Tribunal for the Law of the Sea) or outsource disputes to standing bodies (such as the International Court of Justice).

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