Experts before the International Court of Justice: What for?

Experts before the International Court of Justice: What for? Abstract International courts and tribunals are dealing with an increasing number of cases involving complex technical and scientific issues. In doing so, the facts at hand may fall outside the realm of a respective body’s judicial expertise. This article examines the role of experts before the International Court of Justice, delineating the respective advantages and disadvantages of proceedings involving Court-appointed experts, and those that proceed with the party-appointed experts only. In doing so, this article looks at the existing case law, statute and rules of the Court, as well as the actual utility of experts in legal proceedings. 1. INTRODUCTION The International Court of Justice (ICJ) is no different from other international courts and tribunals in that it deals with an increasing number of cases in which the determination of key issues requires technical or scientific expertise that lies outside the realm of the Court’s judicial expertise. This article will focus on the role and involvement of experts in proceedings before the ICJ, as well as the advantages and disadvantages of using party-appointed experts as compared to those appointed by the Court. There is a fundamental question as to the actual role of experts and the weight the Court places (or should place) on their findings in deciding the dispute before it. Experts are appointed by the Court or used by the parties in order to provide their expert opinion on scientific or technical matters, not to draw inferences on facts or legal issues. As the Court stated in the Application for Revision and Interpretation (Tunisia/Libya), ‘the purpose of the expert opinion must be to assist the Court in giving judgment upon the issues submitted to it for decision’.1 It is the Court’s role to determine the legal dispute arising in connection with such technical and scientific matters. In other words, the Court is free to deviate from and adopt a different view from the expert. As noted by Anna Riddell, the Court must approach expert evidence with a degree of caution, for at the end of the day it is ‘evidence of opinion, rather than fact, and as such, it must be borne in mind that even highly qualified experts may be wrong’.2 This holds true whether the experts are appointed by the parties or by the Court itself. 2. VARIOUS FORMS OF EXPERT INVOLVEMENT BEFORE THE ICJ The Court has two options when it comes to scientific or technical evidence: (i) either to defer to the parties which would engage experts and present their findings; or (ii) to appoint its own experts. A. Party-appointed Experts The ICJ, like other courts and tribunals, has generally preferred that the parties engage their own experts and present their findings to the Court.3 The parties are generally free to select, examine, and cross-examine experts as they see fit. In the Pulp Mills case, the Court clarified that party-appointed experts should not act as advocates for the party who has appointed them: [T]hose persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.4 With this important consideration in mind, I will now turn to the advantages and disadvantages for the parties in using party-appointed experts. The obvious advantage of party-appointed experts is that each party runs the process starting from the selection of its expert and ending with cross-examination of the expert of the other party before the Court, it has full control over how this expert evidence is presented to the Court and can put forward its case on why the evidence of its expert should be preferred to that of its opponent (e.g. in respect of the content of the relevant expert’s opinion and their credibility). In comparison, the parties do not have the same opportunity to test the evidence of a Court-appointed expert. The parties are only given the opportunity to comment upon the Court-appointed expert’s findings—examination and/or cross-examination of a Court-appointed expert has to date not taken place, which can be contrasted with the practice of international arbitral proceedings.5 As a practical point, the parties bear the costs of hiring their own experts unless otherwise decided by the Court.6 Should it appoint its own experts, the Court must request additional funds from the United Nations (UN) General Assembly. A potential disadvantage of relying solely on party-appointed experts is that, even with the most effective cross-examination, the Court may still not be in a position to assess the relative credibility of the expert evidence of one party over the other. This may occur where there is considerable and evolving scientific debate on a given issue [as was the case, for example, with the beef hormones dispute before the World Trade Organization (WTO)],7 such that both party-appointed experts are able to present credible opinions on a particular issue. In such circumstances, the additional guidance provided to the Court by a Court-appointed expert may play an important role. B. Court-appointed Experts The Court has the power to appoint experts under Article 50 of its Statute, which provides that: The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.8 Article 62(1) of the Rules of the Court further provides that: The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose [emphasis added].9 On this basis, in order to determine the disputed facts in complex scientific or technical cases, the Court may request further explanations from the parties and then decide to formally appoint an expert in consultation with the parties. Judge Gaja accurately discerns that the reference to ‘any time’, as spelled out in Article 50 of the ICJ Statute, allows the Court to request an expert opinion at the time of its choosing, including during the deliberations after oral hearings.10 However, throughout its history, the Court has rarely appointed its own experts.11 Several judges, in their individual capacity, have criticized the Court’s reluctance to appoint its own experts in a number of cases.12 In my view, such appointments should be an exception rather than the rule, as I will explain below. For example, in the Pulp Mills case, the Court was criticized for not having resorted to expert assistance, as provided for in Article 50 of its Statute.13 However, the Court must be convinced of the need for such expert assistance in the first place. The Court must also be convinced that the evidence and the adversarial approach of the parties have not allowed it to rule on the relevant issues in the circumstances of the case. This was not the case in the Pulp Mills dispute. As Judge Keith emphasized in his opinion: So far as the quality of the information provided by the two Parties is concerned, neither Party challenged any of the detail of the data, many thousands of items, gathered by the monitoring stations, up and down the river and at the effluent point at the plant, and recorded in the many tables included in the documents before the Court. Rather, they disagreed about how those data were to be interpreted.14 The Court was also criticized in the same case for having used, what some have called, rather abusively in my view, experts fantômes (ghost experts). But, in reality, these are neither experts in the sense attributed to them under the Statute, nor ghosts. They are merely assistants to the Registrar who are recruited for a fixed period of time. They are placed at the disposal of Members of the Court who would like to consult with them in order to understand and clarify certain technical or scientific elements at dispute in a given case. Just as Court-appointed experts discussed above, these neutral assistants can serve an important role in elucidating complex scientific concepts, while not impeding the efficiency or expediency of the Court. A further manner by which Members of the Court may seek consultation with experts is through the use of assessors. According to Article 30(2) of the ICJ Statute, ‘[t]he Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.’15 Such a procedure would allow members to consult with assessors during deliberations on technical and scientific questions, gaining further clarity during discussions with fellow members. Article 289 of the UN Convention on the Law of the Sea (UNCLOS) provides for a similar procedure to be used by the Court, ITLOS, or arbitral tribunals interpreting UNCLOS, in which no fewer than two experts may sit with the adjudicatory tribunal and deliberate without voting, akin to the role of assessors.16 Such an assessor appointment would be advantageous in that it would allow the Members to consult an expert during the very final stages of a deliberation. However, this must be balanced with the potential that assessors may wield excessive influence on the adjudicatory outcome. As of today, assessors have never been used by the Court.17 A possible disadvantage of using Court-appointed experts lies in the process for the selection of experts. The Court may not always have the required know-how, in the moment, to ensure an objective selection process. There is, of course, the possibility of referring to an outside body to make the appointment as has been done, for example, in the Indus Waters Kishenganga arbitration (where the rector of the Imperial College of London was requested to appoint the Engineer Member of the Tribunal),18 but such delegation is not without its own risks when dealing with sensitive inter-State disputes. In practice, unless the procedure for the appointment of experts is provided in a treaty or special agreement,19 there is no body that could by default serve as an appointing authority for experts, and to which the Court could defer. Varying methods of expert selection have been contemplated in the scholarly literature, yet I am not convinced that they are entirely necessary, given the Court’s ability to employ a thorough and rigorous selection process when it deems expert input imperative. Scholars have floated ideas of pre-trial procedures in chambers,20 the appointment of special masters as fact-finders,21 a standing ICJ ‘Scientific Advisory Body’,22 and resort to international organizations for expert consultation.23 However, on their merits, each of these options takes away the fundamental need in expert selection: flexibility. Cases before the Court do often raise complex and precise questions which a standing body may not be able to answer, which may not be fully elaborated in pre-trial procedure, or upon which international organizations may not have an entirely objective view. Given the breadth and diversity of cases before the Court, the ICJ needs to retain a large degree of discretion in the way it selects its own experts. Further, the Statute and the Rules of the Court are silent on the required qualifications of experts. This raises a question mark as to the weight the Court should place on the findings of experts, in the absence of any objective benchmark for assessing their qualifications in the first place. This said, the ICJ has in the past given the parties an opportunity to comment on the subject of the expert opinion, the number of experts, and their mode of appointment and the procedure to be followed.24 In my view, a more fundamental issue is one of the utility of Court-appointed expert evidence. The role of the Court is to settle disputes submitted to it on the basis of the facts identified and presented to it by the parties. While there may be significant benefit in having an expert report, for example, in assessing monetary value of the expropriated property (Chorzów Factory),25 damage to property (Corfu Channel)26 or damage to the environment, I am less convinced that there is always an added value of Court-appointed experts for the effective discharge of the Court’s judicial function. In any event, the role and mandate conferred upon an expert must be circumscribed to that of establishing and assessing the technical and scientific elements of the evidence in a given case. It is for the judges to derive legal consequences from that assessment in the context of the settlement of a given dispute. A specific situation in which a Court-appointed expert could be useful occurs when one side to a dispute fails to appear before the Court. For instance, Article 9 of Annex VII of UNCLOS requires a tribunal to ‘satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law’.27 The ICJ Statute repeats this requirement in similar terms: Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction … but also that the claim is well founded in fact and law.28 As part of this heightened responsibility of ensuring that the claim is well founded in fact and law in cases of non-participation of one of the parties, the Court could appoint its own experts on certain technical and scientific matters. For example, in a recent South China Sea (Philippines v China) arbitration, the tribunal noted that, in light of China’s non-participation in the proceedings, it had to be ‘particularly vigilant with respect to establishing whether the Philippines’ claims are well founded in fact and in law’. The tribunal ‘has done so, for example, by retaining independent experts on technical matters raised by the Philippines’ pleadings’.29 The tribunal appointed an expert hydrographer, experts on the environmental impact of Chinese construction on coral reef systems, and an independent expert opinion on Philippines’ evidence on navigation safety issues.30 More generally, inter-state arbitral tribunals have increasingly resorted to appointing their own experts,31 often combining their input with site visits by the tribunal itself.32 3. CONCLUSION In conclusion, it is the primary duty of the parties to bring the facts before the Court. It is also primarily for the parties to shed light on any technical or scientific matters, including through submission of expert evidence. Of course, in certain circumstances it may be helpful for the Court to appoint its own expert, particularly where the opinions of the experts presented by the parties diverge significantly or a party fails to appear. However, while the Court does have the power to appoint its own experts, it must exercise this power with utmost caution. Footnotes 1 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), Judgment [1985] ICJ Rep 192, 228, para 65. 2 A Riddell, ‘Scientific Evidence in the International Court of Justice — Problems and Possibilities’ (2009) 20 FYIL 229, 234. See also Temple of Preah Vihear (Cambodia v Thailand) (Merits), Judgment [1962] ICJ Rep 6, Separate Opinion of Judge Fitzmaurice, 52, 58–59. 3 The International Tribunal for the Law of the Sea (ITLOS) adheres to similar preferences. 4 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Rep 14, 72, para 167 [hereafter, Pulp Mills]. 5 ICJ, Rules of the Court (adopted 14 April 1978), printed in Acts and Documents No 6 (The Hague: ICJ, 2007), art 67(2) [hereafter, Rules of the Court]. See Indus Waters Kishenganga Arbitration, Pakistan v India, Partial Award, PCA Case No 2011-01, ICGJ 476 (PCA 2013), 18 February 2013, paras 111 and 117 [hereafter, Indus Waters] (the arbitral tribunal insisted that cross-examination take place physically before the tribunal, holding that any alternative arrangement could lead to ‘serious issues of procedural fairness’ and interfere with ‘due process rights’). 6 UN, Statute of the International Court of Justice, 18 April 1946, art 64 [hereafter, ICJ Statute]. 7 Panel Reports, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/R/CAN (Canada) / WT/DS26/R/USA (USA), adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, 235 / DSR 1998:II, 699. 8 ICJ Statute (n 6) arts 50–51; Rules of the Court (n 5) art 67. 9 Rules of the Court (n 5) art 62(1). 10 G Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 417. 11 See Corfu Channel case (Merits), Judgment of 9 April 1949 [1949] ICJ Rep 4, 20–22; Corfu Channel case (Assessment of the Amount of Compensation due from the People's Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244 (hereafter, Corfu Channel (Compensation Judgment)); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30 March 1984, [1984] ICJ Rep 166; and, most recently, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), Order of 31 May 2016, [2016] ICJ Rep 235; ibid, Order of 16 June 2016, [2016] ICJ Rep 240. 12 See eg Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment [1962] ICJ Rep 6, Dissenting Opinion of Judge Koo 75, 100, para 55; Kasikili/Sedudu Island (Botswana/Namibia), Judgment [1996] ICJ Rep 1045, Separate Opinion of Judge Oda 1116, 1119, para 6; Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 112, para 9, Declaration of Judge Yusuf 216, 217, para 5, Dissenting Opinion of Judge ad hoc Vinuesa 266, 291, para 95. 13 Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 110, paras 4–10, Declaration of Judge Yusuf 216, Separate Opinion of Judge Cançado Trindade 135, 190, paras 149–51, Separate Opinion of Judge ad hoc Vinuesa 266, 284ff, paras 70ff. 14 Pulp Mills (n 4) Separate Opinion of Judge Keith 121, 123, para 7. 15 ICJ Statute (n 6) art 30(2); Rules of the Court (n 5) art 9. 16 UN Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3, art 289 [UNCLOS]. 17 Gaja (n 10) 418; C Foster, Science and the Precautionary Principle in International Courts and Tribunals: Experts Evidence, Burden of Proof and Finality (2011) 128. 18 Indus Waters (n 5), para 14. 19 See the Compromis in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Merits, Judgment of 12 October 1984, [1984] ICJ Rep 246, 253 (Compromis, art II.3), where the USA and Canada jointly requested that the Court appoint a technical expert in order to assist in delimiting the maritime boundary. 20 See D Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 BYBIL 271, 300–02. 21 See K Highet, ‘Evidence and Proof of Facts’, in L Fisler Damrosch (ed), The International Court of Justice at a Crossroads (1987) 355, 372. 22 See JG Sandoval Coutasse and E Sweeney-Samuelson, ‘Adjudicating Conflicts over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case’ (2011) 3 Göttingen JIL 447, 466–67. 23 Peat (n 20) 294. 24 See eg Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, [2014] ICJ Rep 226, 236, paras 14–17; see also MM Mbengue, ‘Scientific Fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) LJIL 529, 550. 25 Factory at Chorzów (Germany v Poland), Judgment [1928] PCIJ 13. 26 Corfu Channel case (Assessment of the Amount of Compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244. 27 UNCLOS (n 16) art 9, Annex VII. 28 ICJ Statute (n 6) art 53. 29 South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12 July 2015, para 15. 30 ibid, paras 58, 84(b) and 84(c). 31 See eg Guyana v Suriname, Award, ICGJ 370 (PCA 2007), 17 September 2007, 17; Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Bangladesh v India, Final Award, ICGJ 479 (PCA 2014), 7 July 2014, paras 15–17 [hereafter, Bay of Bengal]. 32 See eg Bay of Bengal, ibid; Indus Waters (n 5) paras 33–40 and 77–88. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Experts before the International Court of Justice: What for?

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Abstract

Abstract International courts and tribunals are dealing with an increasing number of cases involving complex technical and scientific issues. In doing so, the facts at hand may fall outside the realm of a respective body’s judicial expertise. This article examines the role of experts before the International Court of Justice, delineating the respective advantages and disadvantages of proceedings involving Court-appointed experts, and those that proceed with the party-appointed experts only. In doing so, this article looks at the existing case law, statute and rules of the Court, as well as the actual utility of experts in legal proceedings. 1. INTRODUCTION The International Court of Justice (ICJ) is no different from other international courts and tribunals in that it deals with an increasing number of cases in which the determination of key issues requires technical or scientific expertise that lies outside the realm of the Court’s judicial expertise. This article will focus on the role and involvement of experts in proceedings before the ICJ, as well as the advantages and disadvantages of using party-appointed experts as compared to those appointed by the Court. There is a fundamental question as to the actual role of experts and the weight the Court places (or should place) on their findings in deciding the dispute before it. Experts are appointed by the Court or used by the parties in order to provide their expert opinion on scientific or technical matters, not to draw inferences on facts or legal issues. As the Court stated in the Application for Revision and Interpretation (Tunisia/Libya), ‘the purpose of the expert opinion must be to assist the Court in giving judgment upon the issues submitted to it for decision’.1 It is the Court’s role to determine the legal dispute arising in connection with such technical and scientific matters. In other words, the Court is free to deviate from and adopt a different view from the expert. As noted by Anna Riddell, the Court must approach expert evidence with a degree of caution, for at the end of the day it is ‘evidence of opinion, rather than fact, and as such, it must be borne in mind that even highly qualified experts may be wrong’.2 This holds true whether the experts are appointed by the parties or by the Court itself. 2. VARIOUS FORMS OF EXPERT INVOLVEMENT BEFORE THE ICJ The Court has two options when it comes to scientific or technical evidence: (i) either to defer to the parties which would engage experts and present their findings; or (ii) to appoint its own experts. A. Party-appointed Experts The ICJ, like other courts and tribunals, has generally preferred that the parties engage their own experts and present their findings to the Court.3 The parties are generally free to select, examine, and cross-examine experts as they see fit. In the Pulp Mills case, the Court clarified that party-appointed experts should not act as advocates for the party who has appointed them: [T]hose persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.4 With this important consideration in mind, I will now turn to the advantages and disadvantages for the parties in using party-appointed experts. The obvious advantage of party-appointed experts is that each party runs the process starting from the selection of its expert and ending with cross-examination of the expert of the other party before the Court, it has full control over how this expert evidence is presented to the Court and can put forward its case on why the evidence of its expert should be preferred to that of its opponent (e.g. in respect of the content of the relevant expert’s opinion and their credibility). In comparison, the parties do not have the same opportunity to test the evidence of a Court-appointed expert. The parties are only given the opportunity to comment upon the Court-appointed expert’s findings—examination and/or cross-examination of a Court-appointed expert has to date not taken place, which can be contrasted with the practice of international arbitral proceedings.5 As a practical point, the parties bear the costs of hiring their own experts unless otherwise decided by the Court.6 Should it appoint its own experts, the Court must request additional funds from the United Nations (UN) General Assembly. A potential disadvantage of relying solely on party-appointed experts is that, even with the most effective cross-examination, the Court may still not be in a position to assess the relative credibility of the expert evidence of one party over the other. This may occur where there is considerable and evolving scientific debate on a given issue [as was the case, for example, with the beef hormones dispute before the World Trade Organization (WTO)],7 such that both party-appointed experts are able to present credible opinions on a particular issue. In such circumstances, the additional guidance provided to the Court by a Court-appointed expert may play an important role. B. Court-appointed Experts The Court has the power to appoint experts under Article 50 of its Statute, which provides that: The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.8 Article 62(1) of the Rules of the Court further provides that: The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose [emphasis added].9 On this basis, in order to determine the disputed facts in complex scientific or technical cases, the Court may request further explanations from the parties and then decide to formally appoint an expert in consultation with the parties. Judge Gaja accurately discerns that the reference to ‘any time’, as spelled out in Article 50 of the ICJ Statute, allows the Court to request an expert opinion at the time of its choosing, including during the deliberations after oral hearings.10 However, throughout its history, the Court has rarely appointed its own experts.11 Several judges, in their individual capacity, have criticized the Court’s reluctance to appoint its own experts in a number of cases.12 In my view, such appointments should be an exception rather than the rule, as I will explain below. For example, in the Pulp Mills case, the Court was criticized for not having resorted to expert assistance, as provided for in Article 50 of its Statute.13 However, the Court must be convinced of the need for such expert assistance in the first place. The Court must also be convinced that the evidence and the adversarial approach of the parties have not allowed it to rule on the relevant issues in the circumstances of the case. This was not the case in the Pulp Mills dispute. As Judge Keith emphasized in his opinion: So far as the quality of the information provided by the two Parties is concerned, neither Party challenged any of the detail of the data, many thousands of items, gathered by the monitoring stations, up and down the river and at the effluent point at the plant, and recorded in the many tables included in the documents before the Court. Rather, they disagreed about how those data were to be interpreted.14 The Court was also criticized in the same case for having used, what some have called, rather abusively in my view, experts fantômes (ghost experts). But, in reality, these are neither experts in the sense attributed to them under the Statute, nor ghosts. They are merely assistants to the Registrar who are recruited for a fixed period of time. They are placed at the disposal of Members of the Court who would like to consult with them in order to understand and clarify certain technical or scientific elements at dispute in a given case. Just as Court-appointed experts discussed above, these neutral assistants can serve an important role in elucidating complex scientific concepts, while not impeding the efficiency or expediency of the Court. A further manner by which Members of the Court may seek consultation with experts is through the use of assessors. According to Article 30(2) of the ICJ Statute, ‘[t]he Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.’15 Such a procedure would allow members to consult with assessors during deliberations on technical and scientific questions, gaining further clarity during discussions with fellow members. Article 289 of the UN Convention on the Law of the Sea (UNCLOS) provides for a similar procedure to be used by the Court, ITLOS, or arbitral tribunals interpreting UNCLOS, in which no fewer than two experts may sit with the adjudicatory tribunal and deliberate without voting, akin to the role of assessors.16 Such an assessor appointment would be advantageous in that it would allow the Members to consult an expert during the very final stages of a deliberation. However, this must be balanced with the potential that assessors may wield excessive influence on the adjudicatory outcome. As of today, assessors have never been used by the Court.17 A possible disadvantage of using Court-appointed experts lies in the process for the selection of experts. The Court may not always have the required know-how, in the moment, to ensure an objective selection process. There is, of course, the possibility of referring to an outside body to make the appointment as has been done, for example, in the Indus Waters Kishenganga arbitration (where the rector of the Imperial College of London was requested to appoint the Engineer Member of the Tribunal),18 but such delegation is not without its own risks when dealing with sensitive inter-State disputes. In practice, unless the procedure for the appointment of experts is provided in a treaty or special agreement,19 there is no body that could by default serve as an appointing authority for experts, and to which the Court could defer. Varying methods of expert selection have been contemplated in the scholarly literature, yet I am not convinced that they are entirely necessary, given the Court’s ability to employ a thorough and rigorous selection process when it deems expert input imperative. Scholars have floated ideas of pre-trial procedures in chambers,20 the appointment of special masters as fact-finders,21 a standing ICJ ‘Scientific Advisory Body’,22 and resort to international organizations for expert consultation.23 However, on their merits, each of these options takes away the fundamental need in expert selection: flexibility. Cases before the Court do often raise complex and precise questions which a standing body may not be able to answer, which may not be fully elaborated in pre-trial procedure, or upon which international organizations may not have an entirely objective view. Given the breadth and diversity of cases before the Court, the ICJ needs to retain a large degree of discretion in the way it selects its own experts. Further, the Statute and the Rules of the Court are silent on the required qualifications of experts. This raises a question mark as to the weight the Court should place on the findings of experts, in the absence of any objective benchmark for assessing their qualifications in the first place. This said, the ICJ has in the past given the parties an opportunity to comment on the subject of the expert opinion, the number of experts, and their mode of appointment and the procedure to be followed.24 In my view, a more fundamental issue is one of the utility of Court-appointed expert evidence. The role of the Court is to settle disputes submitted to it on the basis of the facts identified and presented to it by the parties. While there may be significant benefit in having an expert report, for example, in assessing monetary value of the expropriated property (Chorzów Factory),25 damage to property (Corfu Channel)26 or damage to the environment, I am less convinced that there is always an added value of Court-appointed experts for the effective discharge of the Court’s judicial function. In any event, the role and mandate conferred upon an expert must be circumscribed to that of establishing and assessing the technical and scientific elements of the evidence in a given case. It is for the judges to derive legal consequences from that assessment in the context of the settlement of a given dispute. A specific situation in which a Court-appointed expert could be useful occurs when one side to a dispute fails to appear before the Court. For instance, Article 9 of Annex VII of UNCLOS requires a tribunal to ‘satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law’.27 The ICJ Statute repeats this requirement in similar terms: Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction … but also that the claim is well founded in fact and law.28 As part of this heightened responsibility of ensuring that the claim is well founded in fact and law in cases of non-participation of one of the parties, the Court could appoint its own experts on certain technical and scientific matters. For example, in a recent South China Sea (Philippines v China) arbitration, the tribunal noted that, in light of China’s non-participation in the proceedings, it had to be ‘particularly vigilant with respect to establishing whether the Philippines’ claims are well founded in fact and in law’. The tribunal ‘has done so, for example, by retaining independent experts on technical matters raised by the Philippines’ pleadings’.29 The tribunal appointed an expert hydrographer, experts on the environmental impact of Chinese construction on coral reef systems, and an independent expert opinion on Philippines’ evidence on navigation safety issues.30 More generally, inter-state arbitral tribunals have increasingly resorted to appointing their own experts,31 often combining their input with site visits by the tribunal itself.32 3. CONCLUSION In conclusion, it is the primary duty of the parties to bring the facts before the Court. It is also primarily for the parties to shed light on any technical or scientific matters, including through submission of expert evidence. Of course, in certain circumstances it may be helpful for the Court to appoint its own expert, particularly where the opinions of the experts presented by the parties diverge significantly or a party fails to appear. However, while the Court does have the power to appoint its own experts, it must exercise this power with utmost caution. Footnotes 1 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), Judgment [1985] ICJ Rep 192, 228, para 65. 2 A Riddell, ‘Scientific Evidence in the International Court of Justice — Problems and Possibilities’ (2009) 20 FYIL 229, 234. See also Temple of Preah Vihear (Cambodia v Thailand) (Merits), Judgment [1962] ICJ Rep 6, Separate Opinion of Judge Fitzmaurice, 52, 58–59. 3 The International Tribunal for the Law of the Sea (ITLOS) adheres to similar preferences. 4 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Rep 14, 72, para 167 [hereafter, Pulp Mills]. 5 ICJ, Rules of the Court (adopted 14 April 1978), printed in Acts and Documents No 6 (The Hague: ICJ, 2007), art 67(2) [hereafter, Rules of the Court]. See Indus Waters Kishenganga Arbitration, Pakistan v India, Partial Award, PCA Case No 2011-01, ICGJ 476 (PCA 2013), 18 February 2013, paras 111 and 117 [hereafter, Indus Waters] (the arbitral tribunal insisted that cross-examination take place physically before the tribunal, holding that any alternative arrangement could lead to ‘serious issues of procedural fairness’ and interfere with ‘due process rights’). 6 UN, Statute of the International Court of Justice, 18 April 1946, art 64 [hereafter, ICJ Statute]. 7 Panel Reports, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/R/CAN (Canada) / WT/DS26/R/USA (USA), adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, 235 / DSR 1998:II, 699. 8 ICJ Statute (n 6) arts 50–51; Rules of the Court (n 5) art 67. 9 Rules of the Court (n 5) art 62(1). 10 G Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 417. 11 See Corfu Channel case (Merits), Judgment of 9 April 1949 [1949] ICJ Rep 4, 20–22; Corfu Channel case (Assessment of the Amount of Compensation due from the People's Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244 (hereafter, Corfu Channel (Compensation Judgment)); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30 March 1984, [1984] ICJ Rep 166; and, most recently, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), Order of 31 May 2016, [2016] ICJ Rep 235; ibid, Order of 16 June 2016, [2016] ICJ Rep 240. 12 See eg Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment [1962] ICJ Rep 6, Dissenting Opinion of Judge Koo 75, 100, para 55; Kasikili/Sedudu Island (Botswana/Namibia), Judgment [1996] ICJ Rep 1045, Separate Opinion of Judge Oda 1116, 1119, para 6; Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 112, para 9, Declaration of Judge Yusuf 216, 217, para 5, Dissenting Opinion of Judge ad hoc Vinuesa 266, 291, para 95. 13 Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 110, paras 4–10, Declaration of Judge Yusuf 216, Separate Opinion of Judge Cançado Trindade 135, 190, paras 149–51, Separate Opinion of Judge ad hoc Vinuesa 266, 284ff, paras 70ff. 14 Pulp Mills (n 4) Separate Opinion of Judge Keith 121, 123, para 7. 15 ICJ Statute (n 6) art 30(2); Rules of the Court (n 5) art 9. 16 UN Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3, art 289 [UNCLOS]. 17 Gaja (n 10) 418; C Foster, Science and the Precautionary Principle in International Courts and Tribunals: Experts Evidence, Burden of Proof and Finality (2011) 128. 18 Indus Waters (n 5), para 14. 19 See the Compromis in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Merits, Judgment of 12 October 1984, [1984] ICJ Rep 246, 253 (Compromis, art II.3), where the USA and Canada jointly requested that the Court appoint a technical expert in order to assist in delimiting the maritime boundary. 20 See D Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 BYBIL 271, 300–02. 21 See K Highet, ‘Evidence and Proof of Facts’, in L Fisler Damrosch (ed), The International Court of Justice at a Crossroads (1987) 355, 372. 22 See JG Sandoval Coutasse and E Sweeney-Samuelson, ‘Adjudicating Conflicts over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case’ (2011) 3 Göttingen JIL 447, 466–67. 23 Peat (n 20) 294. 24 See eg Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, [2014] ICJ Rep 226, 236, paras 14–17; see also MM Mbengue, ‘Scientific Fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) LJIL 529, 550. 25 Factory at Chorzów (Germany v Poland), Judgment [1928] PCIJ 13. 26 Corfu Channel case (Assessment of the Amount of Compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244. 27 UNCLOS (n 16) art 9, Annex VII. 28 ICJ Statute (n 6) art 53. 29 South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12 July 2015, para 15. 30 ibid, paras 58, 84(b) and 84(c). 31 See eg Guyana v Suriname, Award, ICGJ 370 (PCA 2007), 17 September 2007, 17; Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Bangladesh v India, Final Award, ICGJ 479 (PCA 2014), 7 July 2014, paras 15–17 [hereafter, Bay of Bengal]. 32 See eg Bay of Bengal, ibid; Indus Waters (n 5) paras 33–40 and 77–88. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Apr 24, 2018

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