Managing Uncertainty: The International Court of Justice, ‘Objective Reasonableness’ and the Judicial Function

Abstract

As a standard of review, ‘objective reasonableness’ has been in the academic spotlight after the Whaling in the Antarctic judgment of the International Court of Justice (ICJ or the Court). The Court's approach was conceptually innovative and seemed to have operated a partial reversal of the burden of proof in favour of the applicant. In response to certain criticisms addressed to that decision, this article makes two claims. First, ‘reasonableness’, while being inherently vague, gives a justifiable degree of discretion to judges, thereby enabling them to make difficult adjudicatory choices without departing from the applicable legal framework. Second, the term finds sufficient support in the Court's case law dealing with state discretion in the implementation of treaties. Both claims relate to the very same core idea: that even if one remains sceptical as to the capacity of the term to enhance certainty, ‘reasonableness’ is a basic conceptual tool that facilitates judicial review in complex cases, including those of a scientific nature.

Science, epistemology and legitimacy in environmental disputes – The epistemically legitimate judicial argumentative space

“…Uncertainty, although it is by no means alien to law, 110 seems to be a disruptive force in environmental adjudication. 111 Scientifically untrained adjudicators often deem uncertain and probabilistic evidence as unfit to meet evidentiary requirements and may find it hard to become ascertained of the facts of the case based on uncertain and probabilistic data.…”

A Fairer Governance of High Sea Fishing through a Systemic Interpretation Approach

“…Japan's withdrawal was stimulated by its failure in the whaling case before the International Court of Justice (ICJ), in which the court was accused of improperly interpreted the ICRW by giving priority to whale conservation and consequently, ignoring sustainable whaling. Although the ICJ's ecosystem approach is inspiring and was welcomed by some lawyers [24], a recent study has illustrated that its method of interpretation is inappropriate, and its interpretation of the exception clause under the ICRW has intruded on the discretionary power of the states [25]. This example indicates that undue burden on the states may frustrate cooperation regarding fishery governance.…”

Scientific Engagement of International Courts and Tribunals in Environmental Disputes

“…163 Nevertheless, uncertainty is not alien to law, partly because it "exists to regulate uncertainty in social relations". 164 Importantly, law resembles science in as much as it "never requires absolute certainty", 165 though neither it is comfortable with accepting the possibility of error and that of erroneous factual claims. 166 The seminal book of Jörg Kammerhoffer provides a detailed account of the many respects in which international law to some extent will always remain uncertain.…”