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Scientific Fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case

Published online by Cambridge University Press:  29 April 2016

MAKANE MOÏSE MBENGUE
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Abstract

The 2014 judgment of the International Court of Justice, regarding Whaling in the Antarctic, brought into focus scientific fact-finding in disputes before the Court. This article examines the Court's practice with respect to first, the mode of appointment and method of examining experts assisting the Court in fact-finding; and second, the standard of review employed in analysing a scientific fact to arrive at a judicial decision. In doing so, the article also refers to jurisprudence of the World Trade Organization to draw parallels and best practices therefrom. This analysis is aimed at structuring a coherent and predictable approach for scientific fact-finding before the International Court of Justice.

Keywords

Scientific fact-findingexpertsInternational Court of Justice Statute Article 50standard of reviewWorld Trade Organization
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 29 , Issue 2 , June 2016 , pp. 529 - 550
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31 March 2014 (not yet published).

2 1946 International Convention for the Regulation of Whaling, 161 UNTS 72 (ICRW).

3 ICRW, supra note 2, Art. VIII(1).

4 Whaling in the Antarctic, supra note 1, para. 49.

5 Whaling in the Antarctic, supra note 1, para. 247(2).

6 Scientific facts cover the broad array of facts pertaining to ‘the structure and behaviour

of the physical and natural world’: Concise Oxford English Dictionary (2008), 1287.

7 Whaling in the Antarctic, supra note 1, paras. 73–86.

8 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31 March 2014 (not yet published) (Judge Owada, Dissenting Opinion), para. 25; (Judge Abraham, Dissenting Opinion), para. 36; (Judge Yusuf, Dissenting Opinion), para. 44; (Judge Xue, Separate Opinion), para. 15; (Judge Sebutinde, Separate Opinion), para. 9.

9 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 108, at 109 (Judges Al-Khasawneh and Simma, Joint Dissenting Opinion).

10 See Section 3, infra.

11 Coutasse, J.G.S. and Sweeney-Samuelson, E., ‘Adjudicating Conflicts over Resources: The ICJ's Treatment of Technical Evidence in the Pulp Mills Case’, (2011) 3 Goettingen Journal of International Law 447Google Scholar, at 454.

12 1945 Statute of the International Court of Justice, 33 UNTS 993, Art. 38(1) (Statute of the Court).

13 On the idea of international courts and tribunals acting as ‘law-clarifiers’ and not as ‘law-makers’, see, for example, Appellate Report United States – Measures Affecting the Imports of Wool Shirts and Blouses From India, adopted 25 April 1997, WT/DS33/AB/R, at 19. See also South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, [1962] ICJ Rep. 465, at 540 (Judges Percy Spender and Gerald Fitzmaurice, Joint Dissenting Opinion).

14 See Lauterpacht, H., The Development of International Law by the International Court (1958)Google Scholar, xiii.

15 Lauterpacht, E., Aspects of the Administration of International Justice (1991), 18Google Scholar.

16 Fisheries Jurisdiction Case (Germany v. Iceland), Jurisdiction of the Court, Judgment of 2 February 1973, [1973] ICJ Rep. 49, at 56.

17 Terris, D., Romano, C.P., Swigart, L.et al., The International Judge: An Introduction to the Men and Women who decide the World's Cases (2007)Google Scholar, xi–xii.

18 See Foster, C., Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burdens Of Proof and Finality (2011), 5CrossRefGoogle Scholar.

19 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 25: ‘As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties’.

20 See, e.g., Legality of Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 236–7.

21 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 December 1988, [1988] ICJ Rep. 69, at 91.

22 Riddell, A. and Plant, B., Evidence Before the International Court of Justice (2009), 344Google Scholar.

23 Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award of 18 February 2013, www.pcacases.com/web/view/20, accessed 23 February 2016, para. 486.

24 Appellate Report European Communities – Measures Concerning Meat and Meat Products, adopted 16 January 1998, WT/DS26/AB/R, WT/DS48/AB/R, para. 135.

25 See Abyei Arbitration (Sudan/Sudan People's Liberation Movement/Army), Final Award of 22 July 2009, www.pcacases.com/web/view/92, accessed 23 February 2016, para. 477 (drawing a distinction between the task of ‘merely ascertain[ing] the facts’ and the task of ‘scientifically research[ing], select[ing] and weigh[ing] such facts’ with respect to the ‘complex constellation of historical, anthropological and geographic facts (many of which remain obscure to this day)’ that confronted the tribunal in that case). D'Aspremont, J. and Mbengue, M.M., ‘Strategies of Engagement with Scientific Fact-finding in International Adjudication’, (2014) 5 Journal of International Dispute Settlement 240CrossRefGoogle Scholar, at 244.

26 D'Aspremont and Mbengue, supra note 25, at 246.

27 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 14.

28 Pulp Mills, supra note 9, at 109; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep.135, at 191 (Judge Cançado Trindade, Separate Opinion); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 216, at 219 (Judge Yusuf, Declaration).

29 Perenco Ecuador Ltd v. Republic of Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015.

30 Ibid., para. 611(8).

31 Trans-Pacific Partnership, 5 November 2015, Chapter 9: Investment, www.mfat.govt.nz/downloads/trade-agreement/transpacific/TPP-text/9.%20Investment%20Chapter.pdf, accessed 17 November 2015 (TPP); EC Draft Text of Transatlantic Trade and Investment Partnership, 16 September 2015, Trade in Services, Investment and E-Commerce, Chapter II – Investment, trade.ec.europa.eu/doclib/press/index.cfm?id=1364, accessed 17 November 2015 (TTIP).

32 TTIP, supra note 31, Chapter II, Section 3, Art. 24; TPP, supra note 31, Art. 9.26.

33 D'Aspremont and Mbengue, supra note 25, at 246.

34 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Merits, Judgment of 24 February 1982, [1982] ICJ Rep. 18, at 53–4.

35 D'Aspremont and Mbengue, supra note 25, at 247.

36 Rules of the International Court of Justice, as amended on 14 April 2005, in: Acts and Documents No. 6 (2007), Art. 67 Rules of the Court.

37 Ibid., Arts. 57, 63.

38 Statute of the Court, supra note 12, Art. 43; Rules of the Court, supra note 36, Art. 62.

39 Statute of the Court, supra note 12, Art. 51; Rules of the Court, supra note 36, Art. 65.

40 Factory at Chorzów (Germany v. Poland), Merits, Judgment of 13 September 1928, PCIJ Rep. Series A No. 17.

41 Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 21.

42 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 6.

43 Ibid., at 7, 8.

44 Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 75, at 98 (Judge Wellington Koo, Dissenting Opinion).

45 Ibid., at 100.

46 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Merits, Judgment of 12 October 1984, [1984] ICJ Rep. 246, at 253 (Compromis, Art. II.3); Riddell and Plant, supra note 22, at 65.

47 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Appointment of Expert, Order of 30 March 1984, [1984] ICJ Rep 165.

48 Gulf of Maine, supra note 46, at 333.

49 Ibid., at 337.

50 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Merits, Judgment of 25 September 1997, [1997] ICJ Rep. 7.

51 Ibid., at 42.

52 Ibid.

53 Ibid.: ‘Hungary on several occasions expressed, in 1989, its “uncertainties” as to the ecological impact of putting in place the Gabčikovo-Nagymaros barrage system, which is why it asked insistently for new scientific studies to be carried out.’

54 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Merits, Judgment of 25 September 1997, [1997] ICJ Rep. 88, at 118 (Judge Weeramantry, Separate Opinion).

55 Riddell and Plant, supra note 22, at 348; L.G.J. Thompson, ‘The ICJ and the case concerning the Gabčíkovo-Nagymaros Project: The Implications for International Watercourses Law and International Environmental Law’, (1999) 3. Centre for Energy, Petroleum and Mineral Law and Policy Annual Review, www.dundee.ac.uk/cepmlp/gateway/?news=27951, accessed 12 April 2015, para. 3.2.

56 Kasikili/Sedudu Island (Botswana v. Namibia), Merits, Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1049.

57 Kasikili/Sedudu Island (Botswana v. Namibia), Merits, Judgment of 13 December 1999, [1999] ICJ Rep. 1116, at 1142 (Judge Oda, Separate Opinion).

58 Ibid., at 1119.

59 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, [2001] ICJ Rep. 40, at 97, 98. The questions related to, inter alia, the existence of a permanently navigable channel between an island and a low tide elevation, and whether another (separate) landmass was an island or a low-tide elevation.

60 Ibid.

61 Ibid., at 46–8.

62 Ibid., at 98, 99.

63 Ibid., at 109.

64 Ibid., at 275.

65 Ibid.

66 Pulp Mills, supra note 27.

67 See, e.g., the 2006 Cumulative Impact Study conducted by EcoMetrix on behalf of the International Finance

Corporation: Pulp Mills, supra note 27, at 25.

68 See, e.g., the 2005 Environmental impact assessment of the Orion Mill, conducted by National Directorate for the Environment of the Uruguayan Government (DINAMA): Pulp Mills, supra note 27, at 89.

69 Pulp Mills, supra note 27, at 23–5.

70 Ibid., at 72.

71 Ibid.

72 Ibid., at 93, 96–101.

73 Pulp Mills, supra note 9, at 111; Pulp Mills supra note 28.

74 Pulp Mills, supra note 9, at 109; Pulp Mills, supra note 28, at 216–20; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 266, at 291 (Judge Ad Hoc Vinuesa, Dissenting Opinion).

75 Pulp Mills, supra note 9, at 111.

76 Pulp Mills, supra note 28, at 216.

77 Pulp Mills, supra note 9, at 113.

78 Pulp Mills, supra note 9, at 114; see Coutasse and Sweeney-Samuelson, supra note 11, at 468–9; Jennings, R.Y., ‘International Lawyers and the Progressive Development of International Law’, in Makarczyk, J. (Ed.), Theory Of International Law At The Threshold Of The 21st Century: Essays In Honour Of Krzystof Skubiszewski (1996)Google Scholar, at 416.

79 Jennings, supra note 78, at 416.

80 Couvreur, P., ‘Le règlement juridictionnel’, in Pedone, A. (Ed.), Le processus de délimitation maritime: étude d'un cas fictif: Colloque international de Monaco du 27 au 29 mars 2003 (2004) 349Google Scholar, at 384.

81 Pulp Mills, supra note 9, at 114, relying on Tams, C., ‘Article 50’, in Zimmermann, A., Tomuschat, C. and Oellers-Frahm, K. (Eds.), The Statute of the International Court of Justice: A Commentary (2006) 1109Google Scholar, at 1118.

82 Pulp Mills, supra note 9, at 115–16.

83 Ibid., at 115.

84 Coutasse and Sweeney-Samuelson, supra note 11, at 464; Payne, C.R., ‘Pulp Mills on the River Uruguay (Argentina v. Uruguay)’, (2011) 105 AJIL 94CrossRefGoogle Scholar; D'Aspremont and Mbengue, supra note 25, at 254; see generally Foster, C., ‘New Clothes for the Emperor? Consultation of Experts by the International Court of Justice’ (2014) 5 JIDS 139Google Scholar.

85 Mbengue, M.M., ‘International Courts and Tribunals as Fact-Finders: The Case of Scientific Fact-Finding in International Adjudication’ (2011) 34 Loy. L.A. Int'l & Comp. L. Rev. 53Google Scholar, at 58.

86 Whaling in the Antarctic, supra note 1, paras. 14–17.

87 Whaling in the Antarctic, supra note 1, paras. 20–1. This procedure was also followed in Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Merits, Judgment of 16 December 2015 (not yet published).

88 Public Sitting held on Wednesday 26 June 2013, at 10a.m., at the Peace Palace, President Tomka presiding, in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Verbatim Record, CR 2013/7, at 16–18.

89 Public Sitting held on Thursday 27 June 2013, at 10a.m., at the Peace Palace, President Tomka presiding, in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Verbatim Record, CR 2013/9, at 38.

90 See, however, Corfu Channel, Pleadings, Oral Arguments and Documents, Volume III: Oral Proceedings (First Part), 22 November 1948, Morning, at 427–8 (sowing the seeds of this procedure: the Agent will put to his witness his first question. This may be a very general question, one that will allow the witness to say all that he wishes to say or that he knows, or the questions may be presented in detail, one after another. Then the Agent and the Counsel for the opposite side will have the right to put new questions to the witness. The President of the Court and the members of the Court will then also have the right, if they think fit, to put questions to the witness.).

91 Corfu Channel, Pleadings, Oral Arguments and Documents, Volume III: Oral Proceedings (First Part), 22 November 1948, Morning, at 428.

92 D'Aspremont and Mbengue, supra note 25, at 257.

93 Whaling in the Antarctic, supra note 8 (Judge Owada, Dissenting Opinion), para. 25, (Judge Abraham, Dissenting Opinion), para. 36, (Judge Yusuf, Dissenting Opinion), para. 44, (Judge Xue, Separate Opinion), para. 15, (Judge Sebutinde, Separate Opinion), para. 9.

94 Whaling in the Antarctic, supra note 8, para. 24.

95 Such an approach was not seen thereafter in the Certain Activities carried out by Nicaragua in the Border Area (Nicaragua v. Costa Rica), Merits, Judgment of 16 December 2015 (not yet published)/Construction of a Road in Costa Rica along the San Juan River, supra note 87, decisions either.

96 Whaling in the Antarctic, supra note 1, para. 67.

97 Ibid., para. 66.

98 Gros, G., ‘The ICJ's handling of Science in the Whaling in the Antarctic Case: A Whale of a Case?’, (2015) 6 Journal of International Dispute Settlement 578CrossRefGoogle Scholar, at 592–3.

99 Whaling in the Antarctic, supra note 8, para. 20.

100 Ibid., para. 21.

101 Ibid., para. 34.

102 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), supra note 95; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), supra note 87.

103 Ibid., paras. 193–4.

104 Ibid., paras. 197–207.

105 Mbengue, M.M. and Das, R., ‘The ICJ's Engagement with Science: To Interpret or Not to Interpret?’, (2015) 6 Journal of International Dispute Settlement 568CrossRefGoogle Scholar, at 574–5.

106 Certain Activities carried out by Nicaragua in the Border Area, supra note 95; Construction of a Road in Costa Rica along the San Juan River, supra note 87.

107 Public Sitting held on Tuesday 14 April 2015, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Verbatim Record, CR 2015/2, at 5.

108 Ibid., at 6.

109 Ibid.

110 Public Sitting held on Tuesday 14 April 2015, at 3 p.m., at the Peace Palace, President Abraham presiding, in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Verbatim Record, CR 2015/3, at 13.

111 Ibid.

112 Certain Activities carried out by Nicaragua in the Border Area, supra note 95; Construction of a Road in Costa Rica along the San Juan River, supra note 87, paras. 90, 105.

113 Ibid., paras. 193–4.

114 Ibid., para. 203.

115 Pulp Mills, supra note 9, at 110.

116 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment of 10 December 1985, [1985] ICJ Rep. 228; see also Pulp Mills, supra note 28, at 219.

117 White, G.M., The Use of Experts by International Tribunals (1965), 164Google Scholar.

118 Pulp Mills, supra note 27, at 72–3.

119 White, supra note 117, at 11–12.

120 Pulp Mills, supra note 28, at 219, para. 10: ‘the question arises as to whether there is a risk that the resort to an expert opinion may take away the role of the judge as the arbiter of fact and therefore undermine the Court's judicial function? My answer is in the negative. First, it is not for the expert to weigh the probative value of the facts, but to elucidate them and to clarify the scientific validity of the methods used to establish certain facts or to collect data. Secondly, the elucidation of facts by the experts is always subject to the assessment of such expertise and the determination of the facts underlying it by the Court. Thirdly, the Court need not entrust the clarification of all the facts submitted to it to experts in a wholesale manner. Rather, it should, in the first instance, identify the areas in which further fact-finding or elucidation of facts is necessary before resorting to the assistance of experts.’

121 Foster, supra note 84, at 144.

122 Jacur, F., ‘Remarks on the Role of Ex Curia Scientific Experts in International Environmental Disputes’, in: Boschiero, N.et al., International Courts and the Development of International Law (2013) 441CrossRefGoogle Scholar, at 444; Foster, supra note 84, at 152.

123 Pulp Mills, supra note 27.

124 Whaling in the Antarctic, supra note 1.

125 Corfu Channel, supra note 41.

126 Statute of the Court, supra note 12, Art. 43.

127 See Pulp Mills, supra note 27, para. 167: ‘The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.’ See also, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 221, para. 27 (Judge Greenwood, Separate Opinion).

128 Pulp Mills, supra note 9, at 111.

129 Rules of the Court, supra note 36, Art. 65.

130 Ibid., Arts. 57, 63, 65.

131 Ibid., Art. 64.

132 Whaling in the Antarctic, supra note 1; Certain Activities carried out by Nicaragua in the Border Area, supra note 95; Construction of a Road in Costa Rica along the San Juan River, supra note 87.

133 See text accompanying notes 79–83.

134 Statute of the Court, supra note 12, Art. 50.

135 Rules of the Court, supra note 36, Art. 67.

136 Indus Waters Kishenganga Arbitration (Pakistan v. India), Letter to the Parties, dated 17 August 2012, PCA Arbitration Tribunal, para. 5: ‘the Court considers that its paramount duty is to maintain both Parties’ due process rights, in particular the right to be heard on the matters on which the Court will render its decision, and the equally important right of the other Party to have adequate opportunity to contradict all those matters.’

137 M.M. Mbengue, ‘Between Law and Science: A commentary on the Whaling in the Antarctic Case’, Questions of International Law (19 April 2015), www.qil-qdi.org/between-law-and-science-a-commentary-on-the-whaling-in-the-antarctic-case-2/.

138 Understanding on the Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, WTO Doc. LT/UR/A-2/DS/U/1, Art. 13.2, Annex 4.1, 4.6 (WTO DSU).

139 Panel Report India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, adopted 22 September 1999, WT/DS90/R, as upheld by Appellate Report India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, adopted 22 September 1999, WT/DS90/AB/R; Panel Report United States – Section 110(5) of the US Copyright Act, adopted 27 July 2000, WT/DS160/R.

140 WTO DSU, supra note 138, Art. 13.1 (‘Each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate.’); Art. 13.2 (‘Panels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter.’); Pauwelyn, J., ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 International & Comparative Law Quarterly 325CrossRefGoogle Scholar, at 328.

141 Pauwelyn, supra note 140, at 328.

142 See, e.g., Appellate Report European Communities – Measures Concerning Meat and Meat Products (Hormones), adopted 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R; Panel Report United States – Continued Suspension of Obligations in the EC – Hormones Dispute, adopted 14 November 2008, WT/DS320/R, as modified by Appellate Report United States – Continued Suspension of Obligations in the EC – Hormones Dispute, adopted 16 October 2008, WT/DS320/AB/R; Panel Report Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, adopted 14 November 2008, WT/DS321/R, as modified by Appellate Report Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, adopted 14 November 2008, WT/DS321/AB/R; Panel Report European Communities – Measures Affecting the Approval and Marketing of Biotech Products, adopted 21 November 2006, WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1.

143 Pulp Mills, supra note 9, at 115–16.

144 Ibid., at 113.

145 Ibid., at 114–15; Coutasse and Sweeney-Samuelson, supra note 11, at 468–9.

146 Tams, supra note 81, at 1109, 1118; Pulp Mills, supra note 9, at 114.

147 Whaling in the Antarctic, supra note 8, para. 33.

148 Ibid.

149 Whaling in the Antarctic, supra note 8, para. 34; United States – Continued Suspension, supra note 142.

150 Whaling in the Antarctic, supra note 8, para. 34.

151 European Communities – Hormones, supra note 142, para. 117.

152 United States – Continued Suspension, supra note 142, para. 590.

153 Appellate Report Japan – Measures Affecting Agricultural Products, adopted 22 February 1999, WT/DS76/AB/R, paras. 129–30; Panel Report European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, adopted 18 September 2000, WT/DS135/R, para. 8.81. In contrast, see C. Foster, supra note 18, at 101 (suggesting that the Court takes an investigative approach rather an adversarial one, since this ‘may better enable the court or tribunal to build up a solid and coherent understanding of the science’).

154 Statute of the Court, supra note 12, Arts. 1, 38.

155 WTO Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, 1867 UNTS 493, Preamble, Art. 3.3.

156 Ibid., Arts. 2.2, 5.1.

157 Whaling in the Antarctic, supra note 8, para. 37.

158 United States – Continued Suspension, supra note 142, para. 591.

159 Ibid.

160 United States – Continued Suspension, supra note 142, para. 592.

161 Ibid., para. 591; European Communities – Hormones, supra note 142, para. 193.

162 Foster, supra note 84, at 152; Jacur, supra note 122, at 442.

163 Coutasse and Sweeney-Samuelson, supra note 11, at 466–7.

164 Ibid.

165 Coutasse and Sweeney-Samuelson, supra note 11, at 466.