Expert Witnesses and the International Court of Justice

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http://urn.fi/URN:NBN:fi:hulib-201905061810
Title: Expert Witnesses and the International Court of Justice
Author: Pohja, Sebastian
Contributor: University of Helsinki, Faculty of Law
Thesis level: master's thesis
Abstract: Science plays an important role in determining factual issues. Science also has a link with public international law. Courts, whether national or international, rely on scientific facts, theories and expertise in their work. The United Nations’ principal judicial organ, the International Court of Justice, is not an exception and occasionally it has to rely on scientific expert evidence. This thesis studies the procedural rules related to scientific fact-finding in the International Court of Justice. The theoretical background of the thesis is based on the division of two important schools of thought when it comes to scientific fact-finding in international adjudication. The so-called nihilist school is rejected in the thesis but the emphasis is on a variation of the second school (Victorian engagement) called outsourcing school. The outsourcing school claims that international courts take scientific knowledge into account when solving disputes and they call experts to produce evidence. The thesis addresses the following research question: “Should scientific experts be heard before the International Court of Justice as counsels or as witnesses”. The research method is purely traditional doctrinal legal research. This method was chosen because of the sources of the study that mainly consist of provisions of the Statute of the International Court of Justice, the Rules of Court, other official documents and case-law of the International Court of Justice. The first part of the thesis, focusing on the Statute of the International Court of Justice and the Rules of Court, utilizes the standard interpretation methods of international treaties. When it comes to the second part of the study, the case-law, the method is to describe and critically analyse three cases of the International Court of Justice. In the thesis I have been able to confirm that pursuant to Article 43(5) of the Statute of the International Court of Justice together with Articles 54-72 of the Rules of Court, scientific experts should be heard before the Court as expert witnesses instead of counsels of the parties. This approach seems to be applied by the Court according to its latest case-law. The conclusion is confirmative interpretation applied by the Court in Whaling in the Antarctic case. The interpretation of the Statute of the International Court of Justice and the Rules of Court demonstrates that there are multiple provisions concerning experts in the oral proceedings. It is not mentioned in the rules that experts should be heard as counsels in the oral proceedings. Instead the rules concerning experts in the procedure all focus on the oral proceedings and assimilate experts with witnesses. This suggests that the correct position for scientific experts is as expert witnesses who make the solemn declaration before giving their evidence. The three cases assessed in the thesis are all related to international environmental law because it is a field of law with close connection to scientific knowledge. The first case, Gabčíkovo-Nagymaros, demonstrated that hearing the experts as counsels caused mostly a confusion and eventually the Court partly rejected the scientific evidence in the judgement. The second case, Pulp Mills on the River Uruguay, was a “game changer” in the sense that the members of the Court identified the problem of hearing scientific experts as counsels and expressed in the judgement and the dissenting opinions that hearing them as expert witnesses would have been much more reasonable. The last case, Whaling in the Antarctic, was basically the Court’s new interpretation put into practice. In this case the Court used the whole potential of Article 43 of the Statute of the International Court of Justice and Articles 54-72 of the Rules of Court and it proved to be beneficial to hear experts as expert witnesses instead of counsels. Hearing scientific experts as expert witnesses gives the parties the possibility to better actualize their procedural rights. They may both examine the expert evidence by presenting questions directly to the experts called by either of the parties. It increases the efficiency of the procedure because the experts do not engage in reviewing each other’s actions or rhetorical speeches but focus on the scientific issues. Additionally it makes the procedure more transparent because one may note the responses to questions presented by the members of the Court and observe what the judges are focusing on.
URI: URN:NBN:fi:hulib-201905061810
http://hdl.handle.net/10138/301476
Date: 2019
Discipline: Kansainvälinen oikeus
International law
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