Under what conditions should epistemic institutions (institutions that provide policy-relevant scientific advice) be integrated into international legal institutions – for example, the Conference of the Parties to the United Nations Framework Convention on Climate Change? Following work in law and economics on the theory of the firm, this article argues that where states will not implement environmental policies absent a collective decision to do so, greater hierarchical control of epistemic institutions by legal institutions may be necessary to ensure the credibility and availability of a usable scientific record. Hierarchy creates credibility because it allows all states necessary for cooperation in the legal institution to oversee the production of the scientific record that provides the basis for international legal rules. Hierarchy thus enhances the effectiveness of international law as a coordination tool, even at the expense of the autonomy of the scientific process. By contrast, where collective action is not necessary because states will unilaterally regulate an environmental problem once scientific uncertainty has been reduced, epistemic and legal institutions should be fragmented to ensure the unbiased production and dissemination of scientific information. In such situations, the credibility of the scientific record is demonstrated by decentralized adoption of science-based regulation.

The main objective of this article is to develop a better understanding of the structure of transnational regulatory scientific institutions (RSIs). We will argue that the hybrid political-legal-epistemic nature of RSIs creates a continual tension between their hierarchical and policy-driven structure and the paradigms of objectivity, parallelism and non-centralism that characterize science. The article examines the way in which RSIs cope with the challenge of maintaining their epistemic/political authority against the tensions generated by their hybrid structure. The article focuses on three institutions: the Intergovernmental Panel on Climate Change (IPCC), the International Commission on Non-Ionizing Radiation Protection (ICNIRP), and the International Competition Network (ICN), and examines how this challenge manifests itself in the context of these three bodies. The article links the discussion of hybrid authority with the problem of scientific uncertainty. It concludes with a discussion of the optimal design of RSIs.

‘Nanotechnology’, the manipulation of matter on an atomic and molecular scale, is projected to profoundly alter manufacturing systems globally. However, along with the promise that these new technologies hold, there are concerns about the possibility of unknown latent risks to human health or the environment. Under current scientific uncertainties, regulators explore new strategies for overseeing the development and safe use of nanotechnologies. Information disclosure plays a prominent role among these strategies. Thus far, however, the informational strategies actually employed by governments have focused on means by which to collect information from industry, and the types of information requested do not allow for an adequate health risk assessment. Moreover, little effort has been made to make the information collected publicly available. The article addresses the question of what information is disclosed (or not disclosed) and why, highlighting the socio-political context within which these decisions are made, and their democratic implications. It argues that the current ‘light-touch’ disclosure-based approach may lie in technical, evidence-based, ‘risk’ conception, which is common to both the United States and the European Union. It further argues for a more democratic ‘governance-by-disclosure’ approach, which allows society to prioritize risks that it is willing to take to enjoy the benefit of technological progress.

In 2006, the EU adopted the REACH Regulation – the world’s most demanding chemicals regime so far. Even before it entered into force, the European Commission declared its ambition to make REACH a global standard, and several authors see a potential for far-reaching influence via the ‘California effect’, as conceptualized by David Vogel. Economic preconditions are indeed fulfilled with the chemicals industry being highly globalized, the EU as an attractive export market and REACH applying to imports. Following Vogel, firms exporting to the EU might have an incentive to lobby for similar requirements in their country. This article examines whether American chemical producers do, indeed, push for EU-like provisions in the debate on US policy reform. While there is some influence on the US, it is shown that REACH does not (yet) trigger a ‘California effect’. The business case does not seem to be strong enough.

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.

The Decision on Criteria and Methodological Standards on Good Environmental Status of Marine Waters provides the conceptual framework for the assessment and valuation of the marine waters of EU Member States. In particular, it provides concepts for defining what constitutes good marine environmental status – a status which Member States are obligated to achieve by the year 2020 under the 2008 Marine Strategy Framework Directive. This article aims to elucidate the epistemic and normative dimensions of scientific criteria and methodological standards, as well as their importance in the legal treatment of the marine environment of the EU. The article also assesses how and to what extent the transnational process leading up to the Decision was structured, surveying existing ideas and perspectives as to what exactly constitutes good environmental status, and examining whether the structure of the Decision ensures that those affected by it would want to accept it.

This article makes the case for the obligation to conserve plant biodiversity to be classified as a common concern of humankind, to justify and indeed prescribe limitations on private intellectual property rights over plants and related processes. Within the biodiversity regime, the notion of ‘common concern of humankind’ subjects the permanent sovereignty of states over natural resources to the interests of humanity. It shifts the obligations of states from managing their own plant biodiversity towards conserving it on behalf of humankind. In contrast, TRIPS requires states to protect private intellectual property rights with little discretion to adequately balance them with public interests. This creates a dichotomy. This article argues that rather than mobilizing state sovereignty as rhetoric to distract from addressing common concerns of humankind, it should be constructed as a concept capable of facilitating these very concerns.