If you wish to participate in this (remote) seminar, RSVP is necessary. Please complete the form*  by noon Wednesday 11 November and prior to the seminar, you will be sent a link to join. *Anyone registering after the deadline will be unable to participate.

Jaye Ellis is Associate Professor in the Faculty of Law and School of Environment, McGill University. She is a lead researcher in the McGill Sustainability Systems Initiative Transitions initiative, studying interactions between metrics such as indicators and legal normativity in the context of sustainability governance. Current research projects address authority and legitimacy in transnational regimes, notably certification organisations, and interactions between public and private law relevant to environmental risk. Collaborative projects include domestic, international, and transnational regulation of endocrine disrupting substances, and the promotion of sustainability policies by private regulatory authorities seeking to alter economic and other incentive structures through standards and indicators.

Recent publications include ‘“Social Nature:” Political Economy, Science, and Law in the Anthropocene’ in Poul F. Kjaer, ed, The Law of Political Economy: Transformation in the Function of Law (Cambridge, UK: Cambridge University Press, 2020) 181; “Crisis, Resilience, and the Time of Law” (2019) 32(2) Canadian Journal of Law and Jurisprudence 305-20; “The Role of Translation in Transnational Governance” (2017) 22(2) Tilburg Law Review 165-184; “Scientific Expertise and Transnational Standards: Authority, Legitimacy, Validity” (2017) 8(2) Transnational Legal Theory 181-201; “Form meets Function: The Culture of Formalism and International Environmental Regimes,” Wouter Werner, Marieke de Hoon & Alexis Galán (eds), The Law of International Lawyers. Reading Martti Koskenniemi. (Cambridge University Press, 2017); and “Political Economy and Environmental Law: A Cost-Benefit Analysis” in Ugo Mattei and John D. Haskell, eds, Research Handbook on Political Economy and Law (2015) 496-516.

Abstract:

International environmental and sustainable governance regimes and institutions are investing heavily in metrics – goals, targets, indicators, benchmarks, and other data-driven means to measure performance and progress towards goals, and to make comparisons across time and space. The adoption of the United Nations Sustainable Development Goals is the most recent and visible example of this trend. Among the factors influencing this turn to metrics are the following: a growing sense that law is failing to move the needle on environmental and sustainability problems; the structure of international society, which creates obstacles to the validation and legitimation of political and legal authority; the allure of objective, expert-driven inputs that ostensibly reduce reliance on subjective professional and political judgment; and the very nature of environmental and sustainability issues: wicked problems whose causal pathways are rhizomatic rather than linear. This contribution raises the question whether law still has a meaningful contribution to make to global sustainability, and if so, whether the structure and function of law needs to be rethought and reorganised in order for such a contribution to be realised. I conclude that international law conceived of as mainly material and instrumental is likely to be eclipsed by cognitive approaches such as performance metrics. However, I argue that a broader and richer conception of law, one that takes into account its formal, and particularly procedural and constitutive, dimensions, is not only capable of making a contribution to sustainability governance but is essential.

When an instrumental approach to law is taken, there is a strong tendency to assume that new problems or issues should be met with new substantive rules such that law will not be outstripped by changes on the ground (notably rapid ecosystemic changes) and evolving scientific understandings. A body of law whose substantive content appears to stand still must, on this understanding, be a law that possesses insufficient dynamism. I will critique this assumption of a pathological lack of dynamism by considering the range of ends served by legal systems, including establishing a modicum of order, stability, and predictability. In a rapidly changing, complex environment, law and other governance institutions ought to possess flexibility, the capacity to learn, and adaptability. However, we must look beyond the substantive content of legal norms in this respect: adaptation does not only mean ongoing substantive change. In a changing landscape in which responses to environmental degradation must evolve rapidly, law’s implication in structuring decision-making procedures and disciplining the exercise of authority, and its role in buffering vulnerable actors from the unintended consequences of both environmental degradation and interventions to prevent it, deserve greater attention.

What would a response by law to the challenges posed by the proponents of metrics look like? First, law would not be regarded as nothing more than a policy tool to translate scientific insights and political decisions into legal obligations. Legal rules and standards that take the form of instruction rules shaping the behaviour of legal subjects comprise important components of any legal system, but they are not necessarily the most important. The rapid rate of ecosystemic change, combined with scientific uncertainty, could best be accommodated by a networked structure of governance that encompasses a wide range of actors and that permits the rapid transmission of information to places where it can be acted upon. This creates important points of vulnerability. First, actors need to know that they can trust the information that is flowing through networks. Second, rapid reactions to changing information can be destabilising,

The apparent ineffectiveness of international law in a material sense, that is, its failure to bring about significant progress on sustainability objectives, is often viewed as causally related to the profound difficulties of grounding the authority and legitimacy of law in a decentralised, pluralistic, highly unequal international society. Metrics can seem attractive because they are regarded as objective, possessing universal validity, and thus obviating or reducing reliance on subjective professional and political judgment. For this reason, they seem better suited than legal normativity to address sustainability in a heterogeneous, decentralised international society. Grounding the authority of decision-making agents and fora is a perennial problem at the international level, as is the validity and legitimacy of legal and political norms and decisions. Yet metrics are highly normative as well. Decisions about appropriate descriptions and categorisations of phenomena, identification of proxies to measure in a reasonably simple way a complex underlying phenomenon, identifying drivers of outcomes and more generally tracing causal links, and producing diagnoses of and prescriptions for problems are all normative exercises. When their normativity is foregrounded, the need for their validation becomes apparent.

Law remains a vital component of international sustainability governance precisely because of its normative orientation. Sustainability is, after all, a deeply normative project, heavily reliant on scientific and technical inputs but not exclusively defined by them. When the hybrid nature of metrics is squarely acknowledged, the need for processes of validation and legitimation becomes clear. The procedural and constitutive dimensions of legal normativity therefore make essential contributions to the project of sustainability.

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The speaker will commence at 12:45 and should conclude before 2:00 pm. All are welcome. Convenors of the Oxford Public International Law Discussion Group: Tsvetelina van Benthem and  Xiaotian (Kris) Yu.

The discussion group’s meetings are part of the programme of the British Branch of the International Law Association and are supported by the Law Faculty and Oxford University Press.

The PIL Discussion Group hosts a weekly speaker event and is a key focal point for PIL@Oxford. Please note that for Michaelmas Term, this series will be held remotely. Topics involve contemporary and challenging issues in international law. Speakers include distinguished international law practitioners, academics, and legal advisers from around the world. The group typically meets each Thursday during Oxford terms. The speaker will commence at 12:45 and speak for about forty minutes, allowing about twenty-five minutes for questions and discussion. The meeting should conclude before 2:00. Practitioners, academics and students from within and outside the University of Oxford are all welcome.

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