New Clothes for the Emperor? Consultation of Experts by the International Court of Justice
For the final version of this paper please see 2013 4(3) Journal of International Dispute Settlement 139-173
Posted: 22 Jun 2013 Last revised: 22 Jul 2014
Date Written: June 16, 2013
Calls for the International Court of Justice to be more ready to seek the advice of independent scientific experts under Article 50 of the Court’s Statute are gaining momentum following the Court’s judgment in the Case Concerning Pulp Mills (Argentina v. Uruguay). The two cases Whaling in the Antarctic (Australia v. Japan) and Aerial Herbicide Spraying (Ecuador v. Colombia) will provide a lightning rod for determining the Court’s interest in seeking external expert scientific opinion. In each of these cases, the Court may need to take a view on matters to which scientific opinion is essential. The Court will need to ensure it has the capacity to achieve the sufficiently reliable insights into the science necessary for a sound resolution of both disputes, taking into account also the interests of the wider international community. Should the Court decide to make use of Article 50, the procedures employed should be designed in ways that will strengthen and enhance the international constituency’s confidence in the Court as well as producing judgments acceptable to disputing parties. The Court is recommended to consider adopting an interactive process relying on the consultation of experts in an individual capacity rather than as group.
Keywords: international court of justice, scientific evidence, whaling, Antarctic, aerial spraying, Article 50, precautionary principle, burden of proof, the Compact
JEL Classification: K33
Suggested Citation: Suggested Citation