THE PAST AND PROSPECTS
The nature of cases the International Court of Justice (hereinafter referred to as the ICJ) deals with, either by adjudicating or providing advisory opinions, can be interpreted as an indicator of 'unfavorable' behavior in international law. The 'unfavorable' behavior that the ICJ has increasingly become subject to is trans-boundary conflicts over environmental pollution and natural resources. The submission of such disputes to the ICJ creates a sort of reluctance amongst the judges due to the vast amounts of complex evidence submitted by either side, which discounts their role of factual assessment. This reluctance also impedes the quality of jurisprudence vis-??-vis the judgment. 'Why can't they just exercise their existing authority to obtain expert assistance'? is the first question that should be asked but isn't relevant for the purpose of this paper. It needs to be understood at this point that to assume they should exercise the aforesaid authority is also to assume there is value to the best possible fact finding. Only when legal principles are that imperative to the decision, is when a special approach should be taken.
The United States Supreme Court, like international courts, has successfully managed to use the role of special masters to administer its original jurisdiction docket. In order to address questions of law, both the International Courts and the United States Supreme Court make best use of their procedures. When dealing with disputes arising between states, in the United States, over sharing of watercourses or boundaries, the United States Supreme Court is known to appoint experts for the collection of evidence and its evaluation. A conclusions report has to be submitted to the Court after. International courts in a number of cases could procure economic and efficient assistance from a special master.
The apex court of general jurisdiction for conflicts between states has repeatedly not answered calls for reforming its practice in evidence. Consequently, this is creating an impediment in its jurisprudence over a docket of disputes it is yet to adjudicate upon, which include boundary disputes, Columbian discharge of aerial pesticide and the Japanese whaling. Water resources and climate change conflict cases are going to continuously increase in the future. The coming of the Pulp Mills Case brought along with it severe disapproval of the ICJ by its very own judges. The said case observed a conflict on a shared river over industrial development between Uruguay and Argentina. When dealing with cases that involve environmental quality and natural resources, though thoroughly reviewing the factual evidence is important, it is not exclusive to conflicts of such a nature. The question the judges framed and answered in the final judgment was how should voluminous and complex scientific evidence that is a deciding factor in the case be dealt with by the judges. This question draws out a dichotomy between the actual functions of judges as the guardian of the court in allowing the submission of scientific evidence and the extended-judicial burden the judges took up by answering such a question. This was extensively studied in the (Daubert) rules of admissibility of the U.S. Supreme Court. This problem of putting too much emphasis on scientific evidence was hinted at by another judge in the said case. This hinted response had still failed to adequately answer the need for reformation that has been recommended, since the ICJ began to hear disputes of such a nature.
There are pragmatic concerns Courts have with hampering their role in adjudicating over cases; or they may have overlooked their available options. Judge ad hoc Vinuesa's opinion, in the Pulp Mills Case, does imply that the ICJ may have not appointed an expert to deal with the scientific evidence in order to prevent a delay that would have been caused otherwise. Though cost is a seminal concern for any court, given the financial resources that are dedicated to such cases, it is not the only barrier for the entry of scientific experts. While there exists adequate authoritative discourse on judicial partialities on evidence, common law and civil law practices of judges, it would be best to explore other reasons to understand why international courts do not avail of their recourse of scientific experts.
A concern judges may have about introducing expert evidence is that it may adversely affect their adjudicative mandate. This point was shortly raised by Judge Yusuf in the Pulp Mills Case, where he states:
'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.'
On closely examining other cases and the comments in the extra-curial writings of Judge Frank, there is a suggestion that there are some who are primarily concerned with the deterioration of judicial authority. These concerns can be adequately dealt with by useful guidelines to direct the functions of the expert, after analyzing the significant role of judges in dealing with scientific evidence. This does not negate the possibility of the expert appointed by the Court mastering the evidence too forcefully and arousing a sense of resentment among the parties of having lost control of their case. Another problematic situation could arise if the Court were to reject the opinion of the expert and provide a contrary judgment, which would speculatively have a weak foundation. This provides the Court with multiple reasons to leave the exposition of such evidence to the concerned parties.
Though judges should not pass on their functions to the expert, they can utilize their assistance to accurately understand and adjudicate upon the complex evidence. This would also help in sharpening their ability to adjudicate over cases with similar evidence in the future. Any doubts on the extent to which the authority of the expert influences the final decision of the Court can be avoided by drawing a clear distinction between the questions asked to the scientific expert and the ultimate question the Court is confronted with.
(A) WORKING WITH EXPERTS IN THE PAST
The ICJ has seldom made use of its authority to appoint experts. The Corfu Channel Case and the dispute between Canada and the United States over their mutual boundary in the Gulf of Maine are the first few instances where the ICJ invoked their said authority. The tasks of the experts in these cases was limited to the collection of evidence, analyzing the site of the dispute, assisting the Court on producing the documents of its work, etc. Though restricted from performing most of the functions of the special master, they discharged some facets of the master's duty.
The Corfu Channel Case saw the Court appoint naval officers of nationalities different from the concerned parties to resolve certain issues. It did so by invoking its authority under Article 57 of the Rules and Article 48 and 50 of the Statute of the International Court of Justice. The question the experts were made to deal answer was whether mines that damaged British ships had been laid in the Corfu Channel recently, and the location and type of mines that caused the damage. Based on their expert answer, the Court ruled that newly laid mines in the territorial waters of Albania had damaged the ships. It is also to be noted that because their initial report was inconclusive, the Court requested the expert committee to view the location of the dispute on the grounds of 'verifying, completing, and, if necessary, modifying the answers given in their report.' This required them to determine whether the Albanian guards had observed this covert operation. They were able to compile a conclusive report quite promptly, between 1948-49. The parties commented, both orally and in writing, on the questions posed by the judge to the experts on their findings. Finally, the Court decided that it could not 'fail to give great weight to the opinion of the Experts who examined the locality in a manner giving every guarantee of correct and impartial information' , and ruled that the mines could not have been planted without the Albanian Government being party to it.
In the Gulf of Maine Case , the parties requested the ICJ to invoke its authority and set-up an expert committee to aid in marking out the boundary. They requested the Court to end their conflict-filled history by specifically determining the boundary line. This request for an expert brought with it the parameters around which the expert would function through the course of the case. This consisted of both the parties jointly selecting the expert, the expert being able to consult the chamber at its discretion, etc. The Court then appointed the expert , who made a declaration under oath to remain impartial and to the confidentiality of the reports he would see.
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