Science and the Precautionary Principle in International Courts and Tribunals

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.

'Citation of this book in the ICJ's Pulp Mills decision is testament to the text's importance as a secondary resource for international jurists. The book's discussion on the precautionary principle is enlightening for all legal practitioners. It is notable in this respect that it is also cited in the New Zealand Law Society's submission on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill 2011 (EEZ Bill) … [It] is a timely addition to the existing body of international literature … a welcome addition … given ongoing debate concerning the application of the precautionary principle. It is relevant in this respect to legal practice within both domestic and international jurisdictions.' Robert Makgill and Nicola de Wit, NZ Lawyer, 'This meticulously researched book successfully addresses many … challenging questions and provides a number of innovative, yet carefully developed, recommendations for reform. It is scholarly yet highly readable, and carefully balances discussion of the theoretical, technical, contextual and practical … [it] makes a significant contribution to both the literature and, more importantly, to the understanding of the role played by science and scientific experts in international adjudicatory proceedings. As such, it is recommended as essential reading for judges, lawyers working in academia, government and private practice engaged in issues relating to international adjudication as well as to higher-level students. Moreover, scientists regularly engaged in dispute resolution processes and the provision of expert evidence should also read this book in order to understand how their role relates to, and substantively impacts upon, the broader international adjudicatory process.' Karen Scott, Journal of the Royal Society of New Zealand, '[This book] is truly in the spirit of the times. It is a great and unique contribution to the debate on scientific fact-finding by international courts and tribunals … [its] balanced approach … will impassion both academics and practitioners, and … will rank Foster's book among the greatest scholarly contributions ever written on the topic of scientific disputes.' Makane Moïse Mbengue, Review of European Community and International Environmental Law, '… Caroline Foster provides a very informative and enriching book. She devotes herself to a thorough analysis of numerous cases - an analysis that is as impressive as it is useful - including written and oral proceeding materials. But the book is also forward-looking and informs an ongoing debate.' Sandrine Maljean-Dubois, The Law and Practice of International Courts and Tribunals, 'Caroline Foster's book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle.' Oren Perez, European Journal of International Law

Caroline E. Foster is a senior lecturer in the Faculty of Law at the University of Auckland, New Zealand. She also advises governments and NGOs on matters relating to disputes before international courts and tribunals and issues arising in public international law more generally.