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From Chaos to Consilience: the Need for Science-Based Policy to Prevent Marine Degradation from Land-Based Activities

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From Chaos to Consilience: the Need for Science-Based Policy to Prevent Marine Degradation from Land-Based Activities FROM CHAOS TO CONSILIENCE: THE NEED FOR SCIENCE-BASED POLICY TO PREVENT MARINE DEGRADATION FROM LAND-BASED ACTIVITIES SHELLEY MARGOT LEXMOND B.Sc. (Acadia), LL.B. (Dalhousie) A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY FACULTY OF LAW NATIONAL UNIVERSITY OF SINGAPORE 2002 1 Acknowledgements I would like to thank my two supervisors, Douglas Johnston and Bob Beckman, for their guidance and advice in charting my course. I am especially indebted to Douglas, a “master mariner”, in my opinion, for his many hours in the wheelhouse, helping to navigate the numerous shoals and bearing with me through black water and calm seas, and the occasional storm. David VanderZwaag of Dalhousie Law School, Canada, and Mike Bewers formerly of GESAMP and the Department of Fisheries and Oceans, Canada, each undertook the dual role of mentor and friend, for which I am deeply grateful. To Mike, my express thanks for providing access to the international scientific community. My gratitude extends to the numerous scientists who gave so generously of their time. Individuals too numerous to list, from diverse disciplines, countries, and agencies are thanked for comments, insight, time, information, inspiration, and opening portholes that would have otherwise remained closed. In particular, Ambassador Hasjim Djalal of Indonesia and Ian Townsend-Gault of the University of British Columbia kindly provided a crow’s nest from which to observe the roiling currents of international law and science through invitations to attend many meetings of the Technical Working Groups on Legal Matters, Marine Scientific Research, and Marine Environmental Protection and the Annual Workshops, all of which were components of the CIDA-funded initiative, Managing Potential Conflicts in the South China Sea. Cynthia Barlow Marrs has been a terrific friend and compass rose, logging hours of editorial input. Glen Hearns, and Dr. Marie Mater are saluted for being stalwart shipmates and fielding SOS calls. On a personal level, I wish to thank my husband, Bill; my parents, Joy and Elfed Evans: and Judith Johnston for their support and encouragement; and finally, my children, Kyle, Drew, and Sian for being good sailors when the waters got rough. 2 Contents Acknowledgements i Contents ii Acronyms viii Summary x Introduction Marine Degradation from Land-based Activities: Navigating Chaos and Complexity 1 Part I Regime Chaos and MDLBA 1 A. Natural Sciences 2 B. MDLBA: More Chaos 4 C. Rescuing Common Sense 6 D. Navigating the Chaos: "Consilience" 8 1) Consilience and the Legal Concept of Integration 8 2) Consilience as a Concept for Unification 10 Part II Objectives and Overview 12 A. Objectives 12 B. Overview 14 Chapter 1 Caught in a Whirlpool: Intractability of Land-based Activities 20 Part I Conceptual Intractability: A Whirlpool of Issues 20 A. Defining MDLBA: The Vortex of the Whirlpool 22 B. Ecological Inter-connectivity 24 1) Marine and Inter-related Habitats 26 2) MDLBA and Ecological Inter-connectivity 34 C. The Maelstrom of Land-based Activities and Their Impacts 45 1) Marine Degradation 46 2) Ecological and Health Impacts and Hazards 51 3) From Whirlpools to Eddies: Investigative Difficulties. 64 4) MDLBA: Local Issues with Global Impacts 69 D. Participatory Intractability 70 3 1) Insider Roles 74 2) Outsider Roles 82 Part II Summary: A Whirlpool of Complexity 94 Chapter 2 Encountering a Rip-tide: Evidence, Ignorance, Proof, and Policy in the Scientific and Legal Domains 96 A. Introduction: Science for Effective Law and Policy 96 B. The Rip-tide at the Interface of Science and Law 97 C. Society and Science 99 1) Today's Science Paradox and Loss of Faith 100 2) The Blind Paradox 102 3) The Roots of Mistrust 103 D. Science and the Scientific Method 106 1) What is Science? 106 2) Scientific Proof 107 3) Scientific Evidence 107 4) Scientific Thinking 109 5) The Scientific Method 112 E. Scientists and Lawyers 115 1) Parallels between Science and Law 115 2) Differences between Science and Law 117 3) The Nature of Laws and the Laws of Nature 120 4) Cross-fertilisation within the Domains of Science and Law 121 F. The Precautionary Concept and Scientific Caution 122 1) Philosophy of the Precautionary Concept 122 2) Scientific Uncertainty 125 3) Assimilative Capacity and Policy Divergence from Sound Science 135 4) The Interpretation of the Precautionary Concept 148 5) The Debate 152 6) Proceeding with Caution 154 G. Summary 155 4 Chapter 3 From Sailing with the Current to Tacking into the Wind: The Emerging Global Regime for MDLBA 157 Part I Introduction 157 Part II Breezing up: An Evolving Environmental Ethic 158 A. The Imperial Ethos and Scientism 158 B. Evolution of an Environmental Ethic 163 1) Confounding Ecology as Science and Ethic 164 2) The Deepening Schism between Humans and Nature 166 3) Ecology: Ethicists and Scientists 167 C. The Evolving Mindset 169 Part III Sailing with the Current: Classical Pollution Regulation 174 A. History of Reactive Regulation 174 B. Public Health and Pollution 176 C. Industrial Waste Control - Air and Water Pollution 185 1) Industrial Water Pollution 185 2) Air Pollution 189 3) Agri-chemical Waste 193 D. Fresh Winds 195 Part IV Tacking into the Wind: Addressing Ecological Degradation 199 A. From Classical Pollution to Risk Management 199 B. International Environmental Law (IEL) and Law of the Sea (LOS) 200 1) Law of the Sea 200 2) International Environmental Law 203 3) Convergence of IEL and LOS 206 4) MDLBA and International Law 206 C. Evolution of Ecocentric Policy-making Processes 210 1) United Nations Conference on the Human Environment 1972 210 2) United Nations Third Law of the Sea Conference 1973-82 215 3) Regional Initiatives regarding Land-based Activities 219 4) 1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources (MGs) 221 5) Our Common Future, 1987 224 5 6) The 1990 State of the Marine Environment Report 226 7) The 1992 United Nations Conference on Environment and Development 227 8) UNEP Intergovernmental Conference on Protection of the Marine Environment from Land-based Activities, Washington 1995 233 9) Stockholm Convention on Persistent Organic Pollutants ("POPs Convention") 240 10) GESAMP's Report on Protecting the Oceans from Land-based Activities, 2001 241 Part V Summary: Gusts and Gales 244 Chapter 4 Red Sky in the Morning: Weathering Ecologically Unsound Policy 247 A. Red Sky in the Morning 247 B. The Scientifically Unsound Principles of IEL 248 C. A Chronicle of Scientifically Unsound Policy 253 1) Weakening the Scientific Basis of Policy through Lack of Scientific and Ecological Understanding 254 2) Science Ignored or Disregarded 281 3) Misplaced Blame for Continuing Ecological Degradation 286 4) Non-science Issues Hindering the Effective Infusion of Science into the Policy-making Process 296 5) Mindset Contributing to Unsound Policies 306 D. Insights from the Use of Science in Policy-making Processes 311 E. Summary 312 Chapter 5 Red Sky at Night: Prospects for Consilience of Law and Science for Effective Policy-making 313 Part I Introduction 313 A. Red Sky at Night 313 B. Winds of Change 314 Part II Crewing the Vessel 315 A. Swabbing the Decks: Education for Scientific Literacy 316 1) Ecological Literacy 318 2) Scientific Literacy 321 3) Hazard and Risk Assessments and Risk Management 328 6 4) Educating the Actors in the MDLBA Policy-making Process 333 B. Caulking the Seams: Building Confidence in Scientific Capacity 341 1) Superior Scientific Capacity 342 2) Scientific Uncertainty is a Certainty 350 3) Responsibility of Scientists 351 4) Responsible Reporting by the Media 352 Part III Sailing on Open Water 353 A. Ballast: A Role for Science 354 1) Stage 1: Issue Identification and Assessment 356 2) Stage 2: Planning (Programme Preparation in GESAMP's Terms) 356 3) Stage 3: Adoption and Funding 358 4) Stage 4: Implementation 359 5) Stage 5: Review/Evaluation and Adjustment/Adaptation 361 B. All Hands on Deck: Institutional Transformation 362 1) Epistemic Communities 363 2) Post-normal Science 366 3) Independent International Scientific Advisory Body 369 4) International Bodies to Oversee MDLBA 372 5) Emergence of a New Discipline at the Interface of Law and Science 374 C. "And a Star to Steer Her By": The Precautionary Concept 376 1) The Precautionary Concept 376 2) New Mindset: A Global Experiment 378 Part IV Becoming Master Mariners 378 A. GESAMP: Assuming a Navigational Role 380 B. Regime Development: A Port of Call 390 1) Assessing Regime Effectiveness 390 2) Regime development and the GPA 396 3) Diplomatic Strategy 398 Part V Summary 402 7 Chapter 6 Conclusions: Land Ahoy! 403 A. View from the Crow's Nest 403 B. Prospects for Consilience 403 C. The Role for Science 408 D. Constraints on Attaining Consilience 409 E. Conclusions: Points on the Compass Rose 411 F. Land Ahoy! 419 Appendices 421 Appendix 1: The Paradox of Science 421 Appendix 2: The Precautionary Concept 425 Appendix 3: Towards Consilience 428 Appendix 4: Heidelberg Appeal to the Heads of States and Governments 431 Appendix 5: The GPA: Integrative Assessment 432 Appendix 6: Becoming a Sophisticated Consumer of Science 434 Bibliography 435 8 Introduction Marine Degradation from Land-based Activities: Navigating Chaos and Complexity Part I Regime Chaos and MDLBA Marine degradation from land-based activities (“MDLBA”) is an issue that has been on the international agenda in one form or another for several decades, and its management is now recognised as imperative for sustainable development. Acknowledgement of this comes in the form of the 109 nation states’ endorsement of the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (“GPA”).1 The fact that there is no legally binding global treaty, but only the morally binding GPA is suggestive of, at the very least, the perceived intractability of issues associated with MDLBA.
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