Are International Judges Afraid of Science?: A Comment on Mbengue

Abstract

This article considers and critiques the proposition that international adjudicators are afraid or avoid determinations of scientific fact because of their discomfort with the technical expertise involved or the probabilistic judgments required of such fact-finding. It argues that this contention ignores the endemic fact-finding challenges faced by international tribunals generally, that the uncertainties attributed to “scientific” evidence are actually prevalent throughout the judicial process, that adjudicators are actually quite familiar with probabilistic judgments, and that structural constraints on courts and arbitrators and adjudicators’ own backgrounds affect how well fact-finding occurs, irrespective of whether it involves science. Finally, it suggests that to the extent international judges and arbitrators avoid confronting and answering head-on facts subject to scientific proof this may actually be a good thing.