THE PAST AND PROSPECTS OF SCIENTIFIC EVIDENCE
by Viren Bansal
The nature of cases the International Court of Justice (hereinafter interchangeably referred to as the ICJ/the Court) deals with, either by adjudicating or providing advisory opinions, can be interpreted as an indicator of ‘unfavorable behavior’ in international law. The ‘unfavorable behavior’ that the ICJ has increasingly become subject to is trans-boundary conflicts over environmental pollution and natural resources. The submission of such disputes to the ICJ creates a sort of reluctance amongst the judges due to the vast amounts of complex evidence submitted by either side, which discounts their role of factual ...view middle of the document...
This paper will discuss the manner in which Courts initially made use of the Special Master (hereinafter, referred to as the Expert) and then discuss a recent case where the Special Master was utilized in a manner more suitable to the ICJ.
The apex court of general jurisdiction for conflicts between states has repeatedly not answered calls for reforming its practice in evidence. Consequently, this is creating an impediment in its jurisprudence over a docket of disputes it is yet to adjudicate upon, which include boundary disputes, Columbian discharge of aerial pesticide and the Japanese whaling. Water resources and climate change conflicts are going to continuously increase in the future. The coming of the Pulp Mills Case brought along with it severe disapproval of the ICJ by its very own judges. The said case observed a conflict on a shared river over industrial development between Uruguay and Argentina. When dealing with cases that involve environmental quality and natural resources, though thoroughly reviewing the factual evidence is important, it is not exclusive to conflicts of such a nature. The question the judges framed and answered in the final judgment was how should complex scientific evidence, that is a deciding factor in the case, be dealt with by the judges. This question draws out a dichotomy between the actual function of judges as the guardian of the court in allowing the submission of scientific evidence and the extended-judicial burden the judges took up by answering such a question. This was extensively studied in the (Daubert) rules of admissibility of the U.S. Supreme Court. This problem of putting too much emphasis on scientific evidence was hinted at by another judge in the said case. This hinted response had still failed to adequately answer the need for reformation that has been recommended, since the ICJ began to hear disputes of such a nature.
There are pragmatic concerns Courts have with hampering their role in adjudicating over cases; or they may have overlooked their available options. Judge ad hoc Vinuesa’s opinion, in the Pulp Mills Case, does imply that the ICJ may have not appointed an expert to deal with the scientific evidence in order to prevent a delay that would have been caused otherwise. Though cost is a seminal concern for any court, given the financial resources that are dedicated to such cases, it is not the only barrier for the entry of scientific experts. While there exists adequate authoritative discourse on judicial partialities on evidence, common law and civil law practices of judges, it would be best to explore other reasons to understand why international courts do not avail of their recourse of scientific experts.
A concern judges may have about introducing expert evidence is that it may adversely affect their adjudicative mandate. This point was shortly raised by Judge Yusuf in the Pulp Mills Case, where he states:
“The question arises as to whether there is a risk...