Science and Judicial Reasoning: The Legitimacy of International Environmental Adjudication
Abstract
Science, which inevitably underlies environmental disputes, poses significant challenges for the scientifically untrained judges who decide such cases. In addition to disrupting ordinary fact-finding and causal inquiry, science can impact the framing of disputes and the standard of review. Judges must therefore adopt various tools to adjust the level of science allowed to enter their deliberations, which may fundamentally impact the legitimacy of their reasoning. While neglecting or replacing scientific authority can erode the convincing nature of judicial reasoning, the same authority, when treated properly, may lend persuasive force to adjudicatory findings, and buttress the legitimacy of judgments. In this work, Katalin Sulyok surveys the environmental case law of seven major jurisdictions and analyzes framing techniques, evidentiary procedures, causal inquiries and standards of review, offering valuable insight into how judges justify their choices between rival scientific claims in a convincing and legitimate manner.
... These shortcomings, if left unaddressed, could undermine the Court's reputation of being a leading advocate of environmental protection based on human rights."); see further,Sulyok (2020).32 Avgerinopoulou (2019, p. 345) (providing that "[i]n the [] wake of the twenty-first century, it has become clear that environmental issues require multilateral answers and that science and policy should play a more central role to the policy-making and lawmaking model. ...
Science has become a tool for taking decisions in international (as well as domestic) disputes and acts to ensure the relevance of global ecological responsibility. This role of science has become particularly relevant as the sustainable development narrative has grown into a predominant form of global cooperation. The following contribution looks specifically at the role of decision-makers, including judges and arbitrators, and their interaction with scientific knowledge during the decision-making process in international (economic) disputes. Beginning with early cross-border environmental disputes and tracing the increasing inclusion of scientific inputs over the past decades, the contribution critically examines the role of judges in integrating expert inputs into legal decisions and its impact on achieving a more ecologically aware application of the law.
This book uses environmental disputes as a focus to develop a novel comparative analysis of the functions of international adjudication. Paine focuses on three challenges confronting international tribunals: managing change in applicable legal norms or relevant facts, determining the appropriate standard and method of review when scrutinising State conduct for compliance with international obligations, and contributing to wider processes of dispute settlement. The book compares how tribunals manage these challenges across four key sites of international adjudication: adjudication in the World Trade Organization and under the United Nations Convention on the Law of the Sea, International Court of Justice litigation, and investment treaty arbitration. It shows that while international tribunals perform several key functions in the contemporary international legal order, they are subject to significant constraints. Paine makes a genuine addition to literature on the role of international adjudication in international law which will benefit academics, practitioners, and policymakers.
While there is scientific consensus on the causes and consequences of climate change, also reflected in international agreements and EU norms obliging states to reduce GHG emissions, domestic legislation has been slow or imperfect in implementing reduction duties. Although climate litigation is not a new phenomenon, a specific strand of climate litigation is now gaining impetus owing to the success garnered in Urgenda and the Klimabeschluss : litigation focusing on states’ omitting to lawfully regulate emission targets. This paper presents the context of novel climate litigation in the face of Russian aggression and the ensuing disincentives to promote ambitious reduction goals, proceeding to describe the arguments and findings in the two landmark cases and their effects on future climate litigation as seen in the example of the climate petition pending before the Hungarian Constitutional Court.
This chapter explores, in a concretized and systematized manner, how the projected additional protocol to the ECHR on the right to a healthy environment would likely affect the existing normative framework regarding the ECtHR’s territorial, subject-matter, and personal jurisdiction. It is concluded that institutionalizing a separate specialized regime for the right to a healthy environment would release tensions generated by environmental claims based on the expansive interpretations of the current doctrine of indirect rights-based protection of the environment. The proposed right would further fill in several normative gaps and bring uniformity to standards concerning participatory rights. The chapter intends to contribute to the ongoing legislative deliberation within the Council of Europe and, indirectly, to the similar process within the United Nations.
Conflicts between environmental protection laws and human rights present delicate trade-offs when concerns for social and ecological justice are increasingly intertwined. This book retraces how the legal ordering of environmental protection evolved over time and progressively merged with human rights concerns, thereby leading to a synergistic framing of their relation. It explores the world-making effects this framing performed by establishing how 'human' ought to relate to 'nature', and examines the role played by legislators, experts and adjudicators in (re)producing it. While it questions, contextualises and problematises how and why this dominant framing was construed, it also reveals how the conflicts that underpin this relationship - and the victims they affect - mainly remained unseen. The analysis critically evaluates the argumentative tropes and adjudicative strategies used in the environmental case-law of regional courts to understand how these conflicts are judicially mediated, thereby opening space for new modes of politics, legal imagination and representation.
This chapter examines questions concerning access to and participation in proceedings before international courts and tribunals, with an emphasis on disputes that raise issues relevant to the environment. It compares the relevant legal framework and practice of international courts and tribunals which deal exclusively with inter-State disputes to those that primarily examine disputes between private parties and States. It argues that there are significant differences in the approach taken by these two categories of international courts and tribunals. While inter-State mechanisms can be said to have generally resisted broader access and participation of non-parties (with the limited exception of the WTO), regional human rights mechanisms and investor-State tribunals have adopted a more liberal approach. Although there may be benefits to a system which is open to non-party participation, there may also be significant risks from the standpoint of the administration of justice and the need to avoid any unnecessary burden on both the parties and the court or tribunal itself. This chapter seeks to distil and analyse why inter-State mechanisms on the one hand, and mechanisms involving private parties on the other hand, have adopted different approaches to the access to and participation in proceedings by non-parties.KeywordsAccessparticipationnon-parties
amicus curiae
international courts and tribunals
The issues of climate change and the need to shape a new model of sustainable development strongly rely on the exercise of administrative functions by public authorities. The application of public powers in food and agriculture, energy, transportation, urban planning, construction, public procurement, landscape, and cultural heritage shapes the human activities that are capable of affecting the environment, both in everyday lives and in the production and consumption of materials.Undoubtedly, the public–private dynamic that is generated by the execution of the described administrative functions provokes hard conflicts of interests, given that it implies the application of unilateral powers in economically and ethically sensitive matters. This being the case, juridical disputes aimed at assessing the legitimacy of administrative decisions with environmental consequences are an almost unavoidable character of the legal system transitioning toward a greener and healthier dimension.Detecting the transversal features of this dynamic by analyzing the case law drawn from the US, the EU, Italy, and the UK, the chapter conceptualizes judicial review as a fundamental instrument to guarantee a balanced application of a national model of growth.
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