Building the Bridge between Science and Law at the International Court of Justice: From Ex Parte to Ex Curia Experts

Abstract

The increased need for scientific knowledge in international dispute settlement is a consequence of both scientific and technological developments and the low normativity of the rules developed in response to these developments. Issues relating to the protection of the environment or use of natural resources are becoming increasingly present in the sphere of international dispute settlement. Naturally, disputes involving scientific ‘facts’ are coming to the forefront of the case law before the International Court of Justice. The sheer volume and nature of the scientific evidence presented to the Court poses particular challenges. Accordingly, this has become a hot topic in scholarly debate. The ICJ has been heavily criticized for its deference when it comes to evidence of a highly scientific or technical matters and its lack of recourse to its powers under Article 50 of the Statute to appoint its own experts to elucidate scientific facts. Before 2016 the Court has only done so twice. Potentially times are changing, the ICJ has appointed experts in its most recent case of Costa Rica v. Nicaragua. This could be the beginning of a trend where the Court is prepared to depart from its previous reluctance to engage with scientific evidence. It will be in particular interesting to see how the Court will develop its practice in this regard and whether a formalized procedure will be established. This paper will make an argument in favor of Courts’ engagement with scientific evidence through the use of Court-appointed experts. The focus of this paper is on the use of experts before the International Court of Justice. Best practices can be drawn from other international dispute settlement mechanisms. The argument put forward has scientific issues connected to environmental harm in mind, however the logic presented may be transposed to other areas that require additional scientific and technical knowledge.