International Adjudication – Standard of Review and Burden of Proof: Australia‐Apples and Whaling in the Antarctic

• Author: Caroline E. Foster
• Published date: 01 July 2012
• DOI: http://doi.org/10.1111/j.1467-9388.2012.00742.x
• Date: 01 July 2012

International Adjudication – Standard of Review and

Burden of Proof: Australia-Apples and Whaling in

the Antarctic

Caroline E. Foster

New cases dealing with complex matters of conserva-

tion and biodiversity continue to push forward the

boundaries of international adjudicatory processes in

various bodies, including the International Court of

Justice and the World Trade Organization Appellate

Body. Successfully addressing matters such as burden

of proof and ‘standard of review’ is pivotal to main-

taining the integrity and effectiveness of international

adjudication. Advances in such areas should be appro-

priate for application in all fora and all disputes. While

the rules on burden of proof need to undergo further

development, contrastingly, caution is needed in rela-

tion to ‘standard of review’.

INTRODUCTION

Important procedural and substantive matters remain

unsettled in public international law adjudication,

including in international trade law. Considerable dis-

cretion continues to lie in the hands of international

courts, tribunals and dispute settlement panels. Recent

and current proceedings in the World Trade Organiza-

tion (WTO) and the International Court of Justice (ICJ)

bring closer to a head two particular problems: the

burden of proof, and the ‘standard of review’. These are

the twin subjects of this article.

International judicial practice in areas such as burden of

proof and standard of review develops simultaneously

in the ICJ, in the WTO, under the United Nations

Convention on the Law of the Sea and in international

arbitration more widely. There are powerful functional

and intrinsic reasons for common practice, and cross-

fertilization between the various organs of dispute

settlement is inevitable. The opportunity to consider

how other courts and tribunals approach difficult

issues is naturally important for helping adjudicators

determine their own course of action.1Accordingly, the

article examines practice across a number of inter-

national judicial fora.

The article deals first with the ‘standard of review’,

arguing strongly for due caution in the use of this

notion because of its potential to undermine the adju-

dicatory function under public international law. The

article looks second at the rules on burden of proof,

including the question of when a rule is an exception

and whether the precautionary principle, developed in

international environmental law, might reverse the

burden of proof. The article focuses on developments in

the fields of trade and environment, health, biosecurity

and conservation – where the issues of standard

of review and burden of proof have recently become

central.

STANDARD OF REVIEW

The question of the deference potentially due to sover-

eign States in international adjudication has been rec-

ognized for some time as a matter related to the

constitutional function of international courts and tri-

bunals.2As a matter of domestic politics there may be

considerable appeal to the idea that a State defending

itself in international litigation is entitled to special

treatment, particularly where the measures being

defended take the form of domestic regulation in the

fields of health, environment and biosecurity. Espe-

cially in the field of multilateral trade, policy develop-

ment in the past few decades has led to heightened

sensitivities about national sovereignty. Perhaps as a

result, the idea of deferential ‘standards of review’ has

gained considerable traction in WTO dispute settle-

ment, though it is increasingly a subject of contention

elsewhere in public international law.3For instance,

1C. Brown, A Common Law of International Adjudication (Oxford

University Press, 2007), at 233.

2D. Cass, ‘The “Constitutionalization” of International Trade Law:

Judicial Norm-generation as the Engine of Constitutional Develop-

ment in International Trade’, 12:1 European Journal of International

Law (2001), 39; J. Jackson, ‘Dispute Settlement and the WTO:

Emerging Problems’, 1:3 Journal of International Economic Law

(1998), 329, at 330, 346.

3See The Government of Sudan/The Sudan People’s Liberation

Movement/Army (Abyei Arbitration), Award of the Arbitral Tribunal, 22

July 2009. The award is found at <http://www.-cpa.org/showpage.

asp?pag_id=1306>. In this case, the Tribunal was asked to determine

whether experts of the Abyei Boundaries Commission had exceeded

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Review of European Community & International Environmental Law

RECIEL 21 (2) 2012. ISSN 0962 8797

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