The International Court of Justice and Scientific Expertise

Abstract

The ICJ Statute is set to ensure that in Court as a whole the main forms of civilization and ... principal legal systems of world find themselves duly represented. (1) In practice, this leads to some sort of balance between judges educated in civil law and those educated in common law. During my nine years at Court, I have always been surprised at how rare it was that differences based on these legal traditions came to fore. But they do so, if only occasionally, and where they appear they almost always turn on questions of procedure, here again on matters of evidence. The one such clash of (legal) civilizations that impressed me most strongly was related to handling by Court of scientific evidence in Pulp Mills case brought by Argentina against Uruguay in 2006 and decided four years later. (2) I would submit that difference had to do with views on management of what I would call civil litigation, or a civil procedure, before and in Court (ICJ proceedings certainly bearing distinct civil-procedural rather than criminal- or administrative-procedural features). In a nutshell, and perhaps a bit oversimplified, case arose out of a project, authorized by Uruguay, for construction of two (later, one) huge pulp mills situated on like-named river forming boundary with Argentina. Argentina claimed that operation of mill would lead to considerable pollution of River Uruguay and thus to all sorts of negative consequences, which would breach a treaty concluded between two countries in 1975 specifically for protection and preservation of river. In contrast, Uruguay tried to convince Court that operation of plant did conform to highest (i.e., EU) standards and best practices of industry. As expected, both parties produced large amounts of scientific expert evidence, both in their written pleadings and in oral hearings. (3) Confronted with mass of such highly complex technical material, I found myself simply not feeling capable of drawing necessary legal conclusions, for instance on severity and thus relevance of emission of certain noxious substances for water pollution. To give a few examples, I had no clue as to effects of breakdown of nonylphenolethoxylates; binding of sediments to phosphorus; possible chain of causation leading to algal bloom or dioxin/furan pollution; how to assess whether two- or rather three-dimensional modeling was most appropriate practice in evaluating hydrodynamics of a river; or what role an Acoustic Doppler Current Profiler can play in such an evaluation. The situation, as I saw it, was simply that Court on its own could not possibly assess and weigh such complex evidence without expert assistance. So what kind of assistance did Court get? First, that of party-appointed The problem here, however, was that they took stand not as expert witnesses, but as parties' counsel, thus immunizing themselves both against examination of their evidence by bench and against cross-examination by opposing party. (4) And, as they were supposed to do, they merrily contradicted each other's testimonies over a wide range of issues. Second, Court helped itself, as it were, by appointing what I called phantom experts. To mention them does not breach confidentiality. No less an insider than Sir Robert Jennings, a former President of Court, reported in 1996 that the Court has not infrequently employed cartographers, hydrographers, geographers, linguists, and even specialized legal experts to assist in understanding of issue in a case before it; and has not on whole felt any need to make this public knowledge or even to apprise parties. (5) The Registrar of Court, Philippe Couvreur, has defined role of such experts retained by Court for purely internal consultation as that of temporary Registry staff members, entrusted with giving of internal scientific opinions under oath of confidentiality demanded of full-time registry staff. …