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3 - Judicial Engagement with Science in the Environmental Case Law of the International Court of Justice

from Part II - Techniques for Judicial Engagement with Science in the Practice of International Courts and Tribunals

Published online by Cambridge University Press:  15 October 2020

Katalin Sulyok
Affiliation:
ELTE University, Budapest
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Summary

This chapter identifies an evolving trend in the ICJ’s engagement with science, which has started with the marginalization of scientific evidence, continued with making superficial evidentiary assessments, but ultimately demonstrated an increasing willingness to engage with science. As to framing techniques, mandating the parties’ negotiations in science-intensive questions, the prevalence of finding procedural breaches as well as decoupling the notion of ’risk’ from substantive, scientific criteria will be discussed. In terms of fact-finding, the chapter addresses evolving procedures for taking expert evidence, and applicable standards of proof. The causal analysis evidences the Court’s struggle with establishing the requisite proof in cases of uncertain causation. As to the standard and extent of review, the study examines the reasonableness test, and defends the majority's solution in the Whaling in the Antarctic case based on insights from Science and Technology Studies.

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Chapter
Information
Science and Judicial Reasoning
The Legitimacy of International Environmental Adjudication
, pp. 69 - 117
Publisher: Cambridge University Press
Print publication year: 2020

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