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4 - Science in the Practice of Inter-State Arbitral Tribunals
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.
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The South China Sea arbitration was an unusual case involving many intricate legal and factual issues. The proceedings were both procedurally and substantively complex. In addition, the arbitration was marred from the beginning by China’s refusal to participate in the proceedings. Nevertheless, an arbitral tribunal was constituted in accordance with Annex vii to the UN Convention on the Law of the Sea. Once constituted, the Tribunal was able to conduct the proceedings expeditiously while assuring procedural fairness to both parties. The arbitral proceedings, which lasted three and half years since its initiation by the Philippines in January 2013, eventually produced two voluminous Awards. Both Awards were decided unanimously. The Awards marked an important milestone in terms of clarifying various provisions of the Convention. In particular, the Tribunal clarified the relationship between the Convention and prior historic rights that are at variance with its Convention. The Tribunal also undertook an unprecedented task in determining how Art. 121 (3) of the Convention should be interpreted and applied. The Tribunal took a broad and proactive approach towards the scope of the marine environment as well as that of the obligation of States to protect the marine environment. The Awards, however, are not free of controversy. Questions can be raised as to several aspects of the Awards. The Awards would have implications that go far beyond the immediate dispute. For the dispute between the Philippines and China, it remains to be seen whether the Awards, by addressing some of the most contentious legal issues, would help the Parties to find a constructive solution to their dispute in the South China Sea.
Marine Entitlements in the South China Sea: The Arbitration Between the Philippines and China - Volume 110 Issue 4 - Lucy Reed, Kenneth Wong
This article provides a summary of the Partial Award issued in the Indus Waters Kishenganga Arbitration between Pakistan and India. It also seeks to place the dispute in its historical and political context. Against this background, it discusses arbitration as an effective medium to resolve state-to-state disputes between two rival nations. The Indus Waters Kishenganga Arbitration demonstrates how arbitration can be an effective method to settle the most sensitive natural resource questions. Current disputes, such as those in the South China Sea and East China Sea, could explore arbitration as an option to resolve their differences.