BETWEEN SCIENCE AND LAW: THE USE OF EXPERTS BEFORE THE INTERNATIONAL COURT OF JUSTICE

The aftermath of the Pulp Mills judgement raised questions about the inadequacy of instruments at the International Court of Justice’s disposal to deal with disputes having science-heavy or factual-complex evidence involved. In other words, the questions was whether and to what extent a court of law, especially one with some diplomatic contours as the ICJ, could properly grapple with complex evidence when called to settle a scientific dispute. In recent times, several disputes brought before the Court have touched upon scientific evidence and highly technical matters. Accordingly, the question sparked interest in the scholarship. The problem of how courts of law operate whenever they meet science can be traced back to the eighteen century, almost as a consequence of the industrial revolution, and has been present ever since. The ways to deal with those problems depend, to a certain extent, on the contours of the legal system in which they arise. While the Anglo-Saxon system favoured the use of party-appointed experts, le juge de la codification of civil law systems would not conceive the idea of letting the parties almost exclusively responsible for identifying the “truth”. Both systems had problems in taming science within the courtrooms. Paradoxically, since the evidentiary system of the International Court of Justice appears to be a blend between the two systems, it is not a surprise to see some of those problems being mirrored in the international level. Although the appearance of experts before international courts is not a recent feature, the growing number of technical questions underlying disputes shed new lights on the potential problems arising with their appearance. This seems to be true particularly if one considers that experts can perform different functions before international tribunals. In the context of the ICJ, experts (a) may offer technical assistance to the parties in their pleadings appearing as members of the defensive teams; (b) may be called by the parties to give evidence before the Court in the quality of pleaders; (c) can be called through an specific procedure and be tested by the technique of cross-examination; (d) can help the Court to gather the factual information of a dispute (fact-finding function); (e) can be called in order to help the Court to understand the technical or scientific evidence put forward by the parties in a dispute (fact-assessment function); and (f) can perform an specific technical function related to their knowledge such as the preparation of maps or helping the parties to demarcate their boundaries. In the light of these potential and varied functions, an examination of the instruments at the ICJ’s disposal might prove to be useful in the context of the growing numbers of scientific disputes. In order to perform this examination, this study is structured in three parts. The first chapter offers a perusal of instruments for the use of experts available to the ICJ to deal with technical and scientific evidence. The primary focus is to draw a framework on the limits and the problems related to each instrument employed by the Court. In the second chapter, the examination targets to other two tribunals dealing with interstate disputes. The idea of examining the rules and the case law of other tribunals has as main purpose the comparison between instruments. Given the several possibilities of international adjudicative bodies to examine, my focus will be on two tribunals which are, to more or less extent, more similar to the context in which the ICJ operates: the International Tribunal for the Law of the Sea (ITLOS) and interstate arbitration. In the third chapter, I examine three procedural values which appear strictly connected to the appearance of experts in a judicial proceeding, namely transparency, due process and the independence and impartiality of the adjudicative body. Drawing from the practice of the ICJ and the comparison between legal instruments, I test each instrument at the Court’s disposal in the light of such values. I conclude with some suggestions on how the ICJ could improve, taken these procedural values into account, its method of employing experts to deal with technical and scientific evidence. If one looks to the way the Court and the parties availed themselves of experts in its recent case law (2006-2016), it appears to exist a continuous development and refinement of the techniques and procedures regarding experts. Comparing the procedures employed by the parties and by the Court in the Pulp Mills case (whose oral hearings took place in 2009) with those in the Whaling (2014) and Costa Rica v. Nicaragua (2016, still pending) cases, one can identify a more active approach assumed by the Court. The evolutionary approach finds confirmation in the fact that the Court, for the first time since the Corfu Channel case, has resorted to article 50 and nominated two independent experts to gather evidence in locu. This “evolution” might be attributed to two relevant factors. First, one is left with the impression that a prolific dialogue has occurred between parties, Court and scholarship. The second factor contributing to the amelioration of the procedure on experts is due to the fact that disputes touching upon technical issues were and are still being brought by States before the ICJ. The argument developed in this thesis is that whatever should be the avenue explored by the Court, it should be put to the test of three procedural values: transparency, due process and independence. That would certainly add, to a greater or lesser extent, to the fairness of the proceedings, to the correctness of the judgment, to the effectiveness of the decision-making process and, ultimately, to the over-arching legitimacy of the judicial activity. The second main general proposal espoused by this thesis after the examination conducted is that the Court would benefit from a blended approach to the problem, combining techniques of common law and civil law, or more specifically, combining the use of ex parte and ex curiae experts when dealing with cases of a complex background. That seems to be the successful lesson taught by arbitral tribunals settling interstate disputes. A combined approach would also shield the Court from criticisms which allege that the method of testing evidence by the use of party-appointed experts is too heavily influenced by the common law system. The combined use of experts does not only strike a balance between the civil law and common law approaches to the procedure, but also between the values to be protected by the proceedings. In practical terms, the ICJ seems to be well equipped to improve the cross-examination of party-appointed experts with the use of assessors or ex curiae experts so as to receive technical advice. This solution would not require to Court to adopt a measure too far-off from its present procedure. If it is true that there is a strong likelihood that technical and scientific matters might appear again in the docket of the World Court, then it seems also true that experts still have an important role to perform in the proceedings before the ICJ. Testing the procedures for refining the fact-finding and fact-assessment by the Court through procedural values might constitute an adequate and useful way for refining the procedure regarding the appearance of experts.