Science and Judicial Reasoning: The Legitimacy of International Environmental Adjudication

Cover
Half-title page
Series page
Title page
Copyright page
Dedication
Contents
List of
Tables
Foreword
Acknowledgements
Author Note
Table of Cases
List of
Abbreviations
Part I The Three-Fold Challenge of Engaging with Science in International Environmental Adjudication
	1 Introduction to a Comparative Study on Judicial Engagement with Science
		I Science Enters International Environmental Adjudication
		II The Three-Fold Challenge of Using Science in Adjudication: The Context
		III Judicial Engagement with Science: The Framework
		IV Science and the Legitimacy of Judicial Reasoning: The Focus
		V International Environmental Adjudication: The Scope of This Study
		VI Structure of the Book
	2 The Rules of Judicial Engagement with Science: A Three-Fold Challenge
		I The Three-Fold Challenge of Using Science in an Adjudicatory Setting
			1 Epistemic Challenge: Clash of Cognitive Authorities
			2 Doctrinal Challenges: Structural Differences between Law and Natural Sciences
			3 Legitimacy Challenges of Relying on Science by Legal Adjudicators
			4 Implications for Judicial Engagement with Science
		II Adjudicatory Techniques for Scientific Engagement: The Framework of this Study
			1 Framing of Disputes: Adjusting the Level of Science Entering the Judicial Inquiry
			2 Scientific Fact-Finding: The Use of Experts and Expert Opinions
			3 Causal Inquiry
			4 Standard and Extent of Judicial Review
		III The Impact of Science on Judicial Reasoning
			1 Low Level of Science Allowed to Enter Adjudicatory Deliberations in Environmental Disputes
			2 Science and the Legitimacy of Adjudicatory Reasoning
Part II Techniques for Judicial Engagement with Science in the Practice of International Courts and Tribunals
	3 Judicial Engagement with Science in the Environmental Case Law of the International Court of Justice
		I Environmental Disputes Appear on the Court’s Docket
			1 Science Becomes Legally Relevant before the Court
		II Framing Science-Intensive Disputes: Carving out Science from Legally Relevant Aspects of Disputes
			1 The Parties’ Approach Towards Science: Settling Science-Heavy Claims Out of Court
			2 Judicial Framing Techniques Downplaying Science
		III Scientific Fact-Finding Techniques of the ICJ
			1 The Beginnings: Declining to Consider Scientific Evidence
			2 Using Expertise: From Counsels to Witnesses and Beyond
			3 Expert Evidence: Mathematical Models, Ecological Damage Valuation, and the Use of New Technologies
			4 The Standard and Burden of Proof
			5 Proposals for Future Developments in Scientific Fact-Finding
		IV Causal Inquiry
			1 Relevance of Causal Links in Environmental Responsibility
			2 The Court’s Approach to Assessing Uncertain Causal Links: Reluctance to Deal with Science
		V Standard and Extent of Judicial Review
			1 The Extent of Review: Justiciability of the Term Scientific Research
			2 Standard of Review: The Reasonableness Test
			3 Doctrinal Implications of the Reasonableness Test for the Judicial Purview
	4 Science in the Practice of Inter-State Arbitral Tribunals
		I Science Enters Environmental Adjudication
		II Framing of Disputes: Carving Out Science or Harnessing its Authority
			1 Marginalizing Science by Adjudicators
			2 Marginalizing Science by the Plaintiff
			3 Including Science in the Legally Relevant Aspects of Disputes
		III Scientific Fact-Finding in International Arbitration
			1 Setting a High Bar: Surprisingly Thorough Fact-Finding
			2 Appointing Expert Arbitrators
			3 Appointing Ex Tribunal Experts
		IV Causal Inquiry
	5 Science in the Environmental Jurisprudence of Regional Human Rights Courts
		I Science before Human Rights Courts in Environmental Complaints
			1 Environmental Claims in the European System
			2 Environmental Claims in the Inter-American System
			3 Environmental Claims in the African System
		II Framing the Judicial Inquiry
		III Causal Inquiries to Handle Science in Human Rights Claims
			1 Sources of Causal Uncertainty Inherent in Cases of Toxic Exposure
			2 Role of Science-Based Causality in the European System
			3 Causal Inquiry in the European System: A Proxy-Based Assessment
			4 Science-Intensive Causal Links in the Inter-American System
			5 Causal Links in the African System
		IV Scientific Fact-Finding Techniques
			1 The Fact-Finding Powers of the Strasbourg Court
			2 Fact-Finding of the Inter-American Court in Cases Involving Environmental Damage and Pollution
			3 Fact-Finding Powers of African Human Rights Courts
		V Standard of Review in Human Rights Adjudication
			1 The Strasbourg System: The Margin of Appreciation Doctrine
			2 The Inter-American and African Systems: Measure of Deference
	6 Scientific Claims before the WTO
		I Science in the Context of WTO Law
		II Scientific Fact-Finding in the WTO: Practices of Using Scientific Expertise
			1 Party-Appointed Experts
			2 Independent Experts: Panel-Appointed Experts and In-House Expertise
			3 Novel Ways of Expert Consultation
			4 Standards Issued by International Organizations
		III Changing Canons of Deference: Standard of Review of Scientific Claims
			1 Policy Dilemmas in Setting the Standard of Review
			2 Bordering De Novo Review in Early SPS Cases: From Hormones to the Panel Report in Continued Suspension of Obligations
			3 Turning Towards a More Deferential and Nuanced Approach: A Two-Stage Standard of Review
			4 Appraisal of the Changing Standards of Review
			5 Reasoning Techniques: With or Without Scientific Rationality
	7 Science in the Practice of Investment Arbitral Tribunals
		I Science in Investor-State Environmental Arbitration
			1 Environmental Disputes Brought before Investment Arbitral Tribunals
			2 Entry Points for Science in Environmental Investment Disputes
		II Framing of Disputes: Strategically Managing the Science-Intensity of the Legal Inquiry
			1 Framing Techniques of Litigants
			2 Adjudicatory Framing Techniques
		III Scientific Fact-Finding Techniques in Investment Arbitration
			1 Party-Appointed Experts
			2 Tribunal-Appointed Experts
			3 Engagement with Expertise: Appraisal from a Legitimacy Point of View
		IV Causal Inquiry
		V Standard and Extent of Adjudicatory Review of Scientific Claims
			1 Affording Deference to Host States’ Scientific Claims
			2 Standards of Review: Indicia of Credible Scientific Positions
	8 Science Appears before the International Tribunal for the Law of the Sea
		I Science Enters Environmental Disputes Brought before ITLOS
			1 Remarks on the Institutional Set-Up
			2 Entry Points for Science in Legal Disputes
		II Framing Environmental Disputes
			1 Science-Intensive Disputes Are Deemed Justiciable
			2 Response to Uncertain Risks: Issuing Precautionary Measures
			3 Science as Both a ‘Progressive Ceiling’ and a ‘Hard Floor’ for State Obligations
			4 Referring Disputes to Expert-Led Consultation of the Parties
		III Scientific Fact-Finding Techniques
			1 Ex Parte Scientific Experts
			2 Enhancing the Tribunal’s Internal Expertise
			3 Standard of Proof
		IV Causal Inquiry
Part III Engaging with Scientific Knowledge in the Judicial Reasoning
	9 Trends in Judicial Engagement with Science: A Comparative Assessment
		I Judicial Techniques Adjusting the Level of Science in Adjudicatory Inquiry
			1 Downplaying Science: And a Corresponding Need for Non-Scientific Justifications in the Reasoning
			2 Integrating Science in the Judicial Inquiry: And Harnessing Its Cognitive Authority
		II Framing Legal Disputes: Choosing Relevant Questions to Decide
			1 Adjudicatory Techniques Serving to Carve Out Science from the Judicial Inquiry
			2 Incorporating Science in the Judicial Inquiry: Framing Disputes to Harness Science’s Cognitive Authority
		III Comparative Analysis of International Scientific Fact-Finding Techniques
			1 Adjudicators Distancing Themselves from Scientific Expertise
			2 Avenues of Engaging with Scientific Expertise
		IV Causal Inquiry: The Role of Science in the Causal Assessments
			1 Causal Inquiry that Downplays the Role of Science
			2 Practices Facilitating Science-Based Causal Claims: Presumptions and Relaxed Causal Tests and Causal Proof Requirements
			3 Assessment: The Status of Science in the Causal Policy of International Courts
		V Trends in Setting the Standard of Judicial Review
			1 Balancing between Deferential and Intrusive Review
			2 Scrutinizing Scientific Claims: With or Without Reference to Scientific Rationality
		VI Concluding Remarks: Where do International Courts Stand with Science?
	10 Science and the Legitimacy of Judicial Reasoning
		I Science in the Judicial Reasoning: Implications for Legitimacy
		II How Can Courts Craft Legitimate Reasoning in Science-Intensive Cases?
			1 Appealing to Scientific Rationality
			2 Relying on Purely Legal Rationality in Judicial Reasoning
			3 Reasoning with Intuitive Rationality
			4 Hybrid Concepts in Adjudicatory Reasoning
		III Guidance for Selecting the Appropriate Reasoning Style: Some Recommendations
			1 On the Interdisciplinary Nature of the Judicial Function
			2 General Recommendations for Selecting the Appropriate Reasoning Style
Conclusion
Bibliography
Index