Scienza, diritto e giustizia internazionale (Science, Law and International Adjudication). By Chiara Ragni

Abstract

Often, international adjudication needs to confront science. This is particularly so within international legal disputes that concern environmental and/or health matters. Almost a century ago a panel of arbitrators in Trail Smelter was asked to determine the amount of compensation for the reduction in value of land which had been affected by sulphur dioxide gases. The Tribunal, to be able to award damages, had to rely on a ‘just and reasonable inference’, aware that ‘the result [could] be only approximate.’1 In time, these types of assessments have become more frequent, more complex, and more sophisticated. One could refer, for example, to the difficulty in fully understanding the various implications of the presence of certain substances in a river for the health of the organisms present therein. International adjudicators are asked to digest very technical information upon which to base their judicial reasoning or, as it was put by Judges Al-Khasawneh and Simma in their joint dissenting opinion in Pulp Mills, ‘to arrive at a basis for the application of the law to the facts as scientifically certain as is possible in a judicial proceeding.’2 But are adjudicators equipped to do so? How do they conduct such assessments?