Mastering the Evidence: Improving Fact Finding by International Courts

Abstract

Although international courts increasingly must resolve transboundary conflicts over natural resources and environmental pollution, international judges have limited assistance to adequately review voluminous and complex scientific evidence that is often submitted with these disputes, potentially constraining their assessment of the factual record, and consequently undermining confidence in their judgments and the development of their jurisprudence. Special masters have been used successfully by the United States Supreme Court to manage the portion of its docket where it, like the international courts, acts as a trial court whose judgments are final and without appeal. This Article explains the master’s role and how masters might provide a solution for international courts, particularly but not exclusively the International Court of Justice. It also draws on international experience to suggest a variation on the standard scope of a master. It concludes that special masters will be particularly useful and flexible aids when international courts and tribunals face extensive or highly specialized evidence and resolution of the dispute rests on resolving the parties’ factual differences.

Keywords: international courts, International Court of Justice, evidence