The adjudication of international disputes involving scientific uncertainty

• Main Author: Foster, C. E.
• Published: University of Cambridge 2003
• Subjects: 327
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.599132

A challenge is posed to the institution of international adjudication by international disputes concerning physical risks to human beings and the environment. These cases are requiring international tribunals to exercise their powers of adjudication in circumstances of scientific uncertainty. This thesis posits that, by dint of the development and clarification of the law and through the revisitation of rules about proof, international adjudication is developing the capacity to deal with such international disputes. A growing emphasis on the importance of international procedural obligations, the harmonisation of international law, and a broadening acceptance of precautionary doctrines in substantive law help shape the legal issues coming before tribunals in disputes involving scientific uncertainty into more manageable form. International courts and tribunals are meanwhile attending to the problems that may be posed by the concept of a burden of proof in disputes involving scientific uncertainty. A move towards a more inquisitorial style of adjudication, relying on tribunals’ appointment of independent expert advisors, provides relief from pressures associated with the application of traditional rules on proof in such cases. At the same time, tribunals’ adjudicatory competence in such disputes is gradually being defined, using criteria by which respondents’ activities may practically be assessed, such as rationality and reasonableness.