Science and the Precautionary Principle in International Courts and Tribunals
Expert Evidence, Burden of Proof and Finality

How should uncertainties implicit in scientific evidence be dealt with in international legal disputes relating to health and the environment?

Caroline E. Foster (Author)

9781107669031, Cambridge University Press

Paperback / softback, published 10 October 2013

400 pages
23 x 15.2 x 2 cm, 0.6 kg

'Caroline Foster provides a highly informative account of the role of expert evidence in the peaceful settlement of international disputes where science is challenged, uncertain, or even contestable. The use and application of scientific knowledge by international courts and arbitrators is examined via careful analysis of a wide range of subjects, including fish stock conservation, radioactive pollution of water and air, global warming, coastal erosion, nuclear weapons, release of carcinogens in pulp and paper processing, white asbestos, use of growth hormones in beef production, and the safety of genetically modified organisms in the food chain and biosphere.' Mihalis Kritikos, Transnational Environmental Law

By canvassing a range of international scientific disputes, including the EC-Biotech and EC-Hormones disputes in the WTO, the case concerning Pulp Mills and the Gabcíkovo–Nagymaros case in the International Court of Justice, and the Mox Plant and Land Reclamation cases dealt with under the United Nations Convention on the Law of the Sea, Caroline Foster examines how the precautionary principle can be accommodated within the rules about proof and evidence and advises on the boundary emerging between the roles of experts and tribunals. A new form of reassessment proceedings for use in exceptional cases is proposed. Breaking new ground, this book seeks to advance international adjudicatory practice by contextualising developments in the taking of expert evidence and analysing the justification of and potential techniques for a precautionary reversal of the burden of proof, as well as methods for dealing with important scientific discoveries subsequent to judgements and awards.

Part I. Context and Theory: 1. Introduction
2. Cooperation between disputing parties
Part II. Expert Evidence: 3. Methods for taking expert evidence in scientific disputes
4. The role of adjudicators and the role of experts
Part III. Burden of Proof: 5. Getting to the heart of the rules on burden of proof
6. Reversing the burden of proof to give effect to the precautionary principle
Part IV. The Finality of Adjudication: 7. Finality, revision and nullity in scientific cases
8. Reassessment proceedings and res judicata
9. Conclusion.

Subject Areas: Criminal law & procedure [LNF], Civil procedure: law of evidence [LNAC3], International organisations & institutions [LBBU], Public international law [LBB], International relations [JPS]