The ICJ’s Engagement with Science: To Interpret or not to Interpret?

(1)

Article

Reference

The ICJ's Engagement with Science: To Interpret or not to Interpret?

MBENGUE, Makane Moïse, DAS, Rukmini

Abstract

The treatment of scientific terms by the International Court of Justice has come into focus in the aftermath of its decision in the Whaling case. An analysis of this decision assesses first, the extent to which parties and the Court tackled scientific terms in the course of legal analysis. Further, this article attempts to draw inferences and lessons from the Court's scientific engagement, for future disputes of the same nature, and examines the importance of a judicial body such as the International Court of Justice in involving itself in scientific disputes. This article argues that the Court, in the Whaling case, has insufficiently engaged with scientific terms, and goes on to suggest efficient methods of addressing such future disputes. Notwithstanding the existence of technical and scientific administrative bodies, this article also emphasizes the importance of scientific adjudication by international judicial bodies.

MBENGUE, Makane Moïse, DAS, Rukmini. The ICJ's Engagement with Science: To Interpret or not to Interpret? Journal of International Dispute Settlement , 2015, vol. 6, no. 3, p. 1-10

DOI : 10.1093/jnlids/idv023

Available at:

http://archive-ouverte.unige.ch/unige:135658

Disclaimer: layout of this document may differ from the published version.

1 / 1

(2)

The ICJ’s Engagement with Science:

To Interpret or not to Interpret?

Makane Moı¨se Mbengue* and Rukmini Das**

A B S T R A C T

The treatment of scientific terms by the International Court of Justice has come into focus in the aftermath of its decision in theWhalingcase. An analysis of this decision assesses first, the extent to which parties and the Court tackled scientific terms in the course of legal analysis. Further, this article attempts to draw inferences and lessons from the Court’s scientific engagement, for future disputes of the same nature, and examines the importance of a judicial body such as the International Court of Justice in involving itself in scientific disputes. This article argues that the Court, in the Whalingcase, has insufficiently engaged with scientific terms, and goes on to suggest efficient methods of addressing such future disputes. Notwithstanding the existence of technical and scientific administrative bodies, this article also emphasizes the importance of scientific adjudication by international judicial bodies.

By my faith! For more than forty years I have been speaking prose without knowing anything about it, and I am much obliged to you for having taught me that.¹

1 . I N T R O D U C T I O N : S C I E N C E A N D T H E L A W

The law involves itself in all walks of life. It is unsurprising then, that individuals learned in the law, tasked with adjudicating a legal dispute, are often faced with issues that may require specialized knowledge of fields outside the law. The international legal plane has now developed to the extent that legal instruments such as treaties govern most aspects of human life, ranging from the sale of goods to outer space to the regulation of whaling. However, in the event of disputes over breach of several of these treaties, the sole legal recourse may be the International Court of Justice (ICJ or ‘the Court’), in the absence of specialized dispute settlement bodies. As a result,

* Associate Professor at the Faculty of Law and at the Institute of Environmental Sciences of the University of Geneva and Visiting Professor at Sciences Po Paris (School of Law).

** PhD Candidate and Research Assistant at the Faculty of Law of the University of Geneva. This article is published in the context of a Research project funded by the Swiss National Science Foundation (SNF) on ‘Experts before International Courts and Tribunals’.

1 Jean-Baptiste Poquelin Molie`re, The Middle Class Gentleman (Le Bourgeois Gentilhomme) (tr Philip Dwight Jones) (CreateSpace Independent Publishing Platform 2015).

VCThe Authors 2015. Published by Oxford University Press.

568

Journal of International Dispute Settlement, 2015, 6, 568–577 doi: 10.1093/jnlids/idv023

Advance Access Publication Date: 24 September 2015 Article

Downloaded from https://academic.oup.com/jids/article-abstract/6/3/568/2357907 by University de Geneve user on 08 May 2020

(3)

the ICJ is, at times, faced with disputes over the breach of a treaty dealing with a very specific subject matter, often a branch of science.

The question arising in such situations is whether the ICJ has the capability and capacity to adjudicate on scientific issues, in the process providing legal definitions to scientific terms. The dispute between Australia and Japan with New Zealand intervening, concerningWhaling in the Antarctic²is an interesting case study on this point.

A reading of the judgment in this case raises the question whether the term ‘scientific research’ is susceptible to legal interpretation and definition. This leads to a broader question regarding the interpretation of terms that are neither part of legal parlance nor in ordinary usage by laypersons. Although the term ‘scientific research’ is a term in a treaty, it belongs to a category of terms that merit special attention due to the difficulty in readily assigning dictionary meanings to them. This category of terms could be considered a component of ‘scientific and technical evidence’, which are terms used in disputes that involve elements requiring explanations from specialized individuals or organizations in the wide-ranging fields of modern science and technology.³

Thus, while proceeding with the interpretation of ‘scientific research’ and similar terms, two considerations need to be kept in mind. On the one hand, this is clearly an exercise in treaty interpretation, which, this article argues, is within the domain of the Court’s power. On the other hand, as explained above, this special category of terms constitutes scientific evidence and thus inevitably triggers judicial review of parties’ contentions on the meaning of these terms. The standard of review employed by the Court in such contexts thus also becomes important.

Therefore, while proceeding to understand the power of the ICJ to interpret the expression ‘scientific research’ it is important to consider the two factors of treaty interpretation and standard of review.

The purpose of this article is to examine, in the backdrop of theWhalingdecision, the ICJ’s engagement with science and scientific issues. The aim is to first assess how and to what extent the parties to the dispute addressed and the Court tackled scientific terms, second, to draw inferences and lessons from the Court’s scientific engagement for future disputes of the same nature, and third, to examine the importance of a judicial body such as the ICJ for involving in scientific disputes.

This article first examines in-depth, the perspectives of parties to the dispute, the majority opinion of the Court and various separate and dissenting opinions on the definition of the term ‘scientific research’ and how the same was used in arriving at a decision in the case (Section 2). Thereafter, the article attempts to understand the reasoning adopted by the Court and to analyse its insufficient engagement with scientific terms (Section 3). Finally, the article draws inferences from the preceding sections as well as drawing on other international jurisprudence to provide suggestions on an efficient way for the Court to address such future disputes (Section 4). In

2 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment), 31 March 2014,<www.

icj-cij.org/docket/files/148/18136.pdf>accessed 20 August 2015 (Hereafter ‘Whaling in the Antarctic’).

3 Anna Riddell and Brendan Plant, Evidence Before the International Court of Justice(British Institute of International and Comparative Law 2009) 344.

(4)

conclusion, the article emphasizes the importance of such scientific adjudication by international judicial bodies (Section 5).

2 . T H E I C J ’ S W R E S T L I N G W I T H S C I E N C E I N T H EW H A L I N G C A S E

In theWhalingdispute, Australia requested the Court to determine that the Japanese Whale Research Programme under Special Permit in the Antarctic, Phase II (JARPA II) was in violation of the International Convention for the Regulation of Whaling⁴(ICRW). Conversely, Japan countered that JARPA II was saved by the exception carved into Article VIII of the ICRW⁵ that authorizes Contracting Governments to issue special permits to its nationals to kill whales ‘for purposes of scientific research’.⁶Thus, the decision of the Court turned on the meaning attrib- uted to the phrase ‘for purposes of scientific research’.

This section of the article examines (sub-Section A) submissions of parties, and (sub- Sections B, C) analysis by the Court, with respect to the term ‘scientific research’, and (sub-Section D) subsequent stages of analysis, in light of the Court’s initial conclusions.

A. Submissions of Parties

According to the intervening state New Zealand, the interpretation of ‘for purposes of scientific research’ was simply the elucidation of a treaty provision, a task well within the ambit of the Court’s power.⁷Moreover, the written observations of New Zealand revealed its opinion that the question of ‘scientific research’ is a ‘matter for objective determination, taking account of the programme’s methodology, design and characteristics, including: the scale of the programme; its structure; the manner in which it is conducted; and its results’.⁸

Japan disagreed, arguing that this interpretation would substitute the Court’s judgment for that of Japan, in assessing the character of permits granted by the sovereign State.⁹Japan emphasized that matters of scientific policy could not be prop- erly assessed by the ICJ and the Court’s power of review in this instance is limited to reviewing the ground for Japan’s granting of permits under JARPA II, not reviewing the decision to grant permits itself. Thus the Court’s role, Japan argued, was restricted to determining whether the assignment of special permits under JARPA II was ‘arbitrary or capricious’, ‘manifestly unreasonable’ or made in bad faith.¹⁰

Australia submitted that the Court’s power of review should not be restricted to a good faith assessment, as was implied by Japan’s submission. Australia, too, urged a consideration of objective elements in deciding whether JARPA II was ‘for purposes of scientific research’.¹¹

4 International Convention for the Regulation of Whaling (adopted 2 December ‘946, entered into force 10 November 1948) 161 UNTS 72 (‘ICRW’).

5 ibid art VIII(1).

6 Whaling in the Antarctic(n 2) para 49.

7 ibid para 64.

8 ibid para 26(c).

9 ibid para 27.

10 ibid para 65.

11 ibid para 63.

570 The ICJ’s Engagement with Science

(5)

Finally, however, Japan agreed with Australia and New Zealand to the extent that the Court’s standard of review was an objective one, to determine whether a state’s decision under the ICRW is ‘supported by coherent reasoning and respectable scientific evidence and. . ., in this sense, objectively justifiable’.¹²

B. Steps in the Court’s Analysis

The ICJ in its majority judgment divided its analysis of the legality of special permits granted under JARPA II into a two-step test.¹³First, it would examine whether the programme itself involved ‘scientific research’; and secondly, whether the lethal methods employed by the programme were ‘for purposes of’ scientific research’, or, in other words, whether, in the use of lethal methods, the programme’s design and implementation were reasonable in relation to achieving its stated objectives.¹⁴ Dissenting Judge Yusuf disagreed with this artificial division into two stages—he considered it paradoxical to conclude that something constituting scientific research may not be for purposes thereof.¹⁵

The Court acknowledged at the outset that its standard of review was an objective one, relying first on the objective basis of the State authorizing the permits.¹⁶ In undertaking this review, the Court in its opinion was not resolving matters of scientific policy; instead it was performing a legal task of treaty interpretation.¹⁷

C. Defining Scientific Research

Since the term ‘scientific research’ is not defined in the ICRW,¹⁸Australia presented a scientific expert who stated that in the context of the ICRW, the term had four essential characteristics:

defined and achievable objectives (questions or hypotheses) that aim to con- tribute to knowledge important to the conservation and management of stocks; “appropriate methods”, including the use of lethal methods only where the objectives of the research cannot be achieved by any other means; peer review; and the avoidance of adverse effects on stock.¹⁹

Resolutions of the Whaling Commission and Guidelines related to the review of special permits by the Scientific Committee were also presented in support of this definition.²⁰The opinion of Japan’s expert did not entirely coincide with that of Australia, and Japan contended that the views of an expert could not determine the

12 ibid para 66.

13 ibid paras 67, 71.

14 ibid para 67.

15 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Dissenting Opinion of Judge Yusuf), 31 March 2014,<www.icj-cij.org/docket/files/148/18148.pdf>accessed 20 August 2015, para 5.

17 ibid para 69.

18 ibid para 73.

19 ibid para 74.

20 ibid para 74.

(6)

interpretation of a treaty provision.²¹Japan refuted the relevance of the resolutions of the Commission, since they were recommendatory in nature and since the resolutions in question were adopted without Japan’s support.²²

The Court noted that notwithstanding scientific opinion (as well as the opinion of parties’ experts), lethal methods can have a place in scientific research. However, it agreed with Japan that the conclusions of these scientists must be distinguished from the interpretation of the treaty, the ICRW, which was the task of the Court.²³ The Court also agreed with Japan that resolutions of the Whaling Commission could not constitute subsequent agreement to interpretation of the ICRW, being adopted without the concurrence of Japan.²⁴

With respect to peer review, the Court was of the opinion that the mere fact that peer review of proposals and results is common practice in the scientific community did not indicate that a programme could be said to involve scientific research only if the proposals and the results were subjected to peer review. The Court based this opinion on the approach taken in the ICRW (which nonetheless does not preclude peer review) requiring prior review of proposed permits²⁵and of ongoing and com- pleted programmes by the Scientific Committee.²⁶

In conclusion, the Court did not deem the criteria forwarded by Australia’s expert to be constitutive of ‘scientific research’ in context of Article VIII of the ICRW.

These criteria could rather reflect ‘well-conceived’ scientific research, as posited by Australia.²⁷After spending considerable space ascertaining whether different criteria put forth by Australia amounted to a definition of ‘scientific research’ in the context of the ICRW, the majority of the Court concluded, first, that despite their merits, these criteria could not constitute an interpretation of the treaty term. Subsequently, the Court did not go on to provide its own definition or criteria for interpreting ‘scientific research’ in the treaty. In fact, it did not consider it necessary to do so.²⁸

D. Subsequent Stages of Analysis

Interestingly, after refusing to define ‘scientific research’ generally or in the context of the ICRW, the Court proceeded thereafter to ascertain the meaning of the term

‘for purposes of scientific research’. At this stage, without much ado, the Court stated that in order to ascertain whether a programme’s use of lethal methods was for purposes of scientific research, it would consider whether the elements of a programme’s design and implementation are reasonable in relation to its stated scientific objectives.²⁹

21 ibid para 75.

22 ibid para 75.

23 ibid para 82.

24 ibid para 83.

25 ICRW (n 4) Schedule, para 30.

27 ibid para 86.

28 ibid para 86. See also, para 127: ‘Based on the information before it, the Court thus finds that the JARPA II activities involving the lethal sampling of whales can broadly be characterized as “scientific research”.

There is no need therefore, in the context of this case, to examine generally the concept of “scientific research”.’

(7)

Thus, the majority opinion proceeded briskly to the second step of its analysis without arriving at a conclusion at the first step. It therefore appears that the Court hesitated to clearly spell out its interpretation of ‘scientific research’, even after lengthy discussions on submissions of parties in this respect and its own analysis of the separate arguments put forth by parties. Nonetheless, the Court undoubtedly had assigned a certain meaning to this term, since further analysis of the issues before it were not possible without assigning some meaning to these words.

In sum, the Court considered it unnecessary to define the term ‘scientific research’, yet effectively proceeded to give meaning to it all the same.

3 . N O N - E N G A G E M E N T W I T H S C I E N T I F I C T E R M S

In such a situation, the question then arises as to why the Court did not proceed to clarify the meaning of ‘scientific research’, a term gaining increasing importance in the international legal plane today. Could it have shied away from a task it considered too arduous, or impossible to perform within a legal framework? Some issues become clearer after reference to certain separate opinions and declarations ap- pended to the majority decision of the Court.

Judge Xue was of the opinion that the question whether activities under JARPA II involved scientific research was a matter of fact rather than a matter of law, and thus should be subject to scientific, not judicial review.³⁰Following from this presump- tion, she maintained that since permits are granted under the ICRW ‘for purposes of scientific research’, it should be presumed that activities under such programmes involve scientific research.³¹ The burden of proof was then on Australia to establish otherwise.

On the other hand, Judge Keith’s declaration emphasizes the Court’s power to judicially review a state’s granting of special permits under the ICRW. As explained by Judge Keith, the phrasing in Article VIII(1) of the ICRW is not that a Contracting Government may grant a special permit for ‘what it considers to be’ scientific research.³² Furthermore, the state’s subjective opinion steps in at the end of the sentence, with the phrase ‘as the Contracting Government thinks fit’. This careful wording implies that

‘scientific research’ is an objective term that is not subject to interpretation by each party to the treaty, thus opening the gates to interpretation by the Court.

Judge Sebutinde, in agreement with Judge Xue, accepted that an objective definition of ‘scientific research’ was more within the domain of scientists than lawyers.³³ However, she went a step further reminding the Court of the first step in treaty interpretation—considering the ‘ordinary meaning’ of a term,³⁴‘the ordinary grammatical

30 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Separate Opinion of Judge Xue), 31 March 2014,<www.icj-cij.org/docket/files/148/18152.pdf>accessed 20 August 2015, para 15.

31 ibid.

32 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Declaration of Judge Keith), 31 March 2014,<www.icj-cij.org/docket/files/148/18142.pdf>accessed 20 August 2015, para 7.

33 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Separate Opinion of Judge Sebutinde), 31 March 2014, online:<www.icj-cij.org/docket/files/148/18154.pdf>accessed 20 August 2015, para 9 (hereafter ‘Whaling(Sep Op Sebutinde)’).

34 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31(1) (‘VCLT’).

(8)

(dictionary) meaning of the phrase, as a basis for the reasoning and analysis that fol- lows in the Judgment’³⁵. As demonstrated by Judge Sebutinde, a dictionary definition of the term³⁶indeed provides a workable definition as a basis for the Court’s subsequent analysis.

Judge Bennouna raised the issue that perhaps instead of the ICJ sitting in judgment over such matters of science, these issues could best be left to the Whaling Commission and the Scientific Committee to determine at the appropriate times, as determined by the ICRW.³⁷ In Judge Bennouna’s opinion the Court had usurped the powers of these treaty-based bodies. Judge Owada agreed with this proposition,³⁸ though he further argued that certain aspects of these issues were subject to legal scrutiny—such as whether procedural requirements were followed, or whether the activities in question met the ‘general accepted notion of scientific research’.³⁹

The primary inference from a reading of the majority opinion in theWhalingcase is that the Court failed to provide a coherent explanation for a term crucial to resolving the dispute at hand. That this term is of technical import may bring additional questions to the table. This is further bolstered by comments from other judges of the Court in their separate and dissenting opinions. Was the Court reluctant to define this phrase specifically because of the word ‘science’ in it? Was it considered to be beyond the competence of a judicial body such as the ICJ?

4 . L E S S O N S F R O M T H E C O U R T ’ S A P P R O A C H I N T H E W H A L I N G C A S E

The vehement opposition to defining ‘scientific research’ not only by the majority but also in a few separate opinions begs the question why this category of terms re- quires special deference or exception. As mentioned earlier, interpreting technical terms in a treaty invariably comprise the dual tasks of treaty interpretation and judicial review of scientific evidence.

This section of the article argues that (sub-Section A) the ICJ can make a judicial determination on any term in a treaty, employing rules of international law, and (sub-Section B) drawing inspiration from trade law jurisprudence, by establishing a certain standard of review, it is possible to clearly define scientific terms in a legal context.

A. Interpretation of a Scientific Term in a Treaty

The question of lack of judicial competence to define a scientific term could be an- swered in the negative, especially in light of Judge Sebutinde’s separate opinion,

35 Whaling(Sep Op Sebutinde) (n 33) para 9.

36 ibid para 9: ‘a systematic pursuit of knowledge concerning the structure and behaviour of the physical and natural world through observation and experiment’ (Oxford Dictionary).

37 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Dissenting Opinion of Judge Bennouna), 31 March 2014,<www.icj-cij.org/docket/files/148/18144.pdf>accessed 20 August 2015, 6: ‘In engaging in an evaluation of the programme, the Court has, in a sense, substituted itself for these two bodies.’ (hereafter ‘Whaling(Dis Op Bennouna)’).

38 Whaling in the Antarctic(Australia v Japan: New Zealand Intervening) (Judgment) (Dissenting Opinion of Judge Owada), 31 March 2014,<www.icj-cij.org/docket/files/148/18138.pdf> accessed 20 February 2015, para 28 (hereafter ‘Whaling(Dis Op Owada)’).

39 ibid.

(9)

which reminded the Court of the basic principles of treaty interpretation. Any word or phrase could be interpreted in terms of the ordinary meaning given to it in the context in which it appears.⁴⁰

It is useful to refer to another judgment of the Court, rendered only three years prior to theWhalingdecision, the dispute regardingNavigational and Related Rights between Nicaragua and Costa Rica.⁴¹In this judgment, the Court did not shy away from interpreting terms such as ‘objects of commerce’⁴² and ‘commerce’⁴³ itself as appearing in a treaty. These are certainly not legal terms, and not materially different from the term ‘scientific research’, appearing in another treaty, the ICRW. In Nicaragua v Costa Ricathe Court adhered to rules of treaty interpretation in ascertaining the meaning of these terms, essential to resolving the dispute.

In the same vein, a phrase such as ‘scientific research’ could be just as easily interpreted employing legal methods—the rules of treaty interpretation.

B. Judicial Review of Scientific Terms

It may also be useful for the ICJ to draw inspiration from the dispute settlement panels and Appellate Body of the World Trade Organisation (WTO), which have, on several occasions, been faced with the issue of judicial review of sovereign decisions of WTO Members over scientifically controversial issues.⁴⁴ The Appellate Body developed an objective standard of review in an attempt to distinguish between law and science and delineate a dispute settlement panel’s role when scientific opinions do not provide a single clear answer.⁴⁵This standard is betweende novoreview and an approach of total deference and is based on the objective assessment of facts.⁴⁶ Thus, when a WTO panel is tasked with reviewing the risk assessment conducted by a WTO Member under the Agreement on Sanitary and Phytosanitary Measures (‘SPS Agreement’), the panel’s duty is ‘to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable’.⁴⁷

The question then arises as to how a judicial body can ascertain whether a certain scientific assessment by a party is objectively justifiable. Drawing from the WTO

40 VCLT (n 34) art 31(1).

41 Dispute Regarding Navigational and Related Rights(Costa Rica v Nicaragua) (Judgment), [2009] ICJ Rep 213 (hereafter ‘Navigational and Related Rights’).

42 ibid 235–44.

43 ibid 240–44.

44 See, egUnited States – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body (29 April 1996) WT/DS2/AB/R;European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body (13 February 1998) WT/DS26/AB/R, WT/DS48/

AB/R (hereafter ‘EC – Hormones(AB)’);United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body (12 October 1998) WT/DS58/AB/R;European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Report of the Appellate Body (22 May 2014) WT/DS401/AB/R; India – Measures Concerning the Importation of Certain Agricultural Products from the United States, Report of the Appellate Body (4 June 2015) WT/DS430/AB/R (hereafter

‘India – Agricultural Products(AB)’).

45 Whaling(Dis Op Owada) (n 38) para 34;United States – Continued Suspension of Obligations in the EC – Hormones Dispute, Report of the Appellate Body (16 October 2008) WT/DS320/AB/R (hereafter ‘US – Continued Suspension(AB)’).

46 EC – Hormones(AB) (n 44) para 117.

47 US – Continued Suspension(AB) (n 45) para 590.

(10)

Appellate Body’s observations, the scientific basis for the party’s argument ‘need not reflect the majority view within the scientific community but may reflect divergent or minority views’.⁴⁸Instead, what is important is that the scientific theory must eman- ate from a respected and qualified source and must ‘have the necessary scientific and methodological rigour to be considered reputable science’.⁴⁹Moreover, though ‘the correctness of the views need not have been accepted by the broader scientific community, the views must be considered to be legitimate science according to the standards of the relevant scientific community’⁵⁰. Thus, the task of the experts assist- ing in the case is not to put forth their own theories on the scientific issue in dispute, but to help the Court in understanding whether the theory put forth by a State party is justifiable, objective and coherent, according to respected members of the same scientific community.⁵¹ In other words, the standard of proof in proving scientific issues should be only to establish whether the reasons put forward by the scientific theory ‘sufficiently warrant’⁵²the actions taken by the party.

This reasoning adopted by the WTO Appellate Body on the ‘objective standard of review’, in spite of being in the specific context of the SPS Agreement, may well be adopted and implemented in the domain of the ICJ as well.

Although it could be said that the ICJ adopted the very same standard in the Whalingcase, the debate surrounds the precise scope of this standard, which, it could be argued, the Court did not elaborate in sufficient detail in its judgment. The clear and cogent criteria for assessing the facts based on an ‘objective standard of review’

could well be borrowed from the WTO Appellate Body, and could integrate well into the ICJ’s own stance on the standard of review, as laid down in theWhaling case. These cogent and coherent elements forming the basis to understanding any scientific evidence put forth in a legal dispute would assist in a well-reasoned judgment. A well-reasoned judgment would lend greater legitimacy to the decision and better serve the cause of transparency and justice.

5 . C O N C L U S I O N : T H E I M P O R T A N C E O F J U D I C I A L L Y E N G A G I N G W I T H S C I E N C E

Weighing and adjudicating upon complex technical issues is increasingly becoming an unavoidable reality of international disputes. The past few decades have seen a proliferation of treaties governing subject matters that involve specialized knowledge of scientific or technical issues—treaties governing the environment, health, outer space and nuclear weapons to name a few.⁵³ Thus present international practice

48 ibid para 591;India – Agricultural Products(AB) (n 44) para 5.28.

49 ibid.

50 US – Continued Suspension(AB) (n 45) para 591. See alsoIndia – Agricultural Products(AB) (n 44) para 5.28;Australia – Measures Affecting the Importation of Apples from New Zealand, Report of the Appellate Body (29 November 2010) WT/DS367/AB/R, para 215.

51 US – Continued Suspension(AB) (n 45) para 592.

52 EC – Hormones(AB) (n 44) para 193;US – Continued Suspension(AB) (n 45) para 591.

53 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; Charter On Cooperation To Achieve The Coordinated Use Of Space Facilities In The Event Of Natural Or Technological Disasters Rev.3 (25/4/2000).2, <www.disas- terscharter.org/web/guest/text-of-the-charter>accessed 21 August 2015; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 576 The ICJ’s Engagement with Science

(11)

shows that science can be the subject of regulation and constitutes a considerable segment of potential international legal disputes. This is reason enough for the ICJ to focus on the best legal tools to tackle scientific issues, beginning with issues as basic as defining terms in treaties.

It may well be argued⁵⁴that most treaties having such subject matters also provide for constitution of specialized bodies to decide on technical matters and these may be better suited to decide on technical disputes, having expertise in such matters. For example, in case of the ICRW, the International Commission on Whaling and the Scientific Committee has been constituted. However, notwithstanding the existence of non-judicial bodies to provide guidelines or make scientific assessment of certain issues, the very same issues can be subject to legal scrutiny and may be resolved using the tools of reasoning at the disposal of international lawyers.

Moreover, it has been seen that an international judicial decision has considerable weight even before these scientific or administrative bodies. For example, the International Whaling Commission, by resolution, recognized theWhaling decision of the ICJ as ‘a highly authoritative guide on how Article VIII of the International Convention for the Regulation of Whaling should be interpreted and applied’.⁵⁵The Commission even proposed and took further action under the ICRW based on the findings in the ICJ judgment.⁵⁶

Such an example demonstrates the importance accorded to international decisions of this kind, notwithstanding the limited binding character of ICJ decisions.⁵⁷ In light of this heightened significance it is incumbent on the ICJ to embrace its pro- gressively more important role as arbiter of increasingly specialized disputes.

Although determining the scope of phrases such as ‘scientific research’ bring up complex questions of standard of review that provide no straightforward answer, this article has attempted to demonstrate that at its core, determining the content of terms in treaties laden with scientific or technical meaning, is, ultimately, an exercise in treaty interpretation. While sifting through evidence and discussing the appropriate standard of judicial review in such matters, one must not lose sight of the under- lying legal exercise in play here, that of treaty interpretation, an exercise the Court did undertake in theWhalingcase, even when stating that it did not need to.

(adopted 3 September 1992, entered into force 29 April 1997) 1974 UNTS 45; Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79;

World Health Organization Framework Convention on Tobacco Control (adopted 21 May 2003, entered into force 27 February 2005) 2302 UNTS 166.

54 SeeWhaling(Dis Op Bennouna) (n 37);Whaling(Dis Op Owada) (n 38).

55 International Whaling Commission, 65th mtg, Resolution 2014–15 ‘Resolution on Whaling under Special Permit’ (September 2014).

56 International ibid.

57 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993, art 59.