Mastering the evidence: improving fact finding by international courts.

• Author: Payne, Cymie

1. INTRODUCTION II. THE PAST AND PROSPECTS FOR THE FUTURE A. The Past: Working with Experts B. The Pulp Mills Evidence: Voluminous, Complex, Scientific, and Technical III. THE SPECIAL MASTER IV. FINDING THE AUTHORITY TO USE MASTERS IN INTERNATIONAL COURTS A. Finding Authority to Appoint a Special Master 1. International Court of Justice 2. Permanent Court of Arbitration Rules of Procedure 3. Commissions: United Nations Compensation Commission B. Balancing the Roles of Judge and Special Master C. Transparency to the Parties and to the Public D. Committee of Experts, to Work After the Judgment Is Issued 1. International Tribunal for the Law of the Sea 2. Iron Rhine Railway Arbitration V. IMPLEMENTATION VI. CONCLUSION I. INTRODUCTION

   Increasingly, international courts 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. It is a curious fact that they have not fully used their existing authority to acquire expert assistance. The proposition that they should obtain scientific and technical expertise is based on the assumption that there is a value to the best possible fact finding; where legal principles or political motives are more relevant to a decision, a different approach would be called for. (1)

   Special masters have been used successfully by the United States Supreme Court to manage its original jurisdiction docket where it, like the international courts, is a trial court whose judgments are final and without appeal. (2) Both the United States Supreme Court and the international courts optimize their procedures to address questions of law. To review and digest questions of fact in disputes between states of the United States over boundaries and allocation of shared watercourses, the United States Supreme Court often appoints an expert, mandating that he collect and evaluate evidence, and submit a report with conclusions to the Court. (3) The international courts could obtain the same efficient and economical assistance from special masters in many cases. 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.

   The International Court of Justice, the chief court of general jurisdiction for disputes between nations, has failed to heed past calls for reform in its evidentiary practice. As a result, it is not keeping pace with its jurisprudence or its current docket of contentious cases, which includes disputes over Japanese whaling, Columbia's aerial pesticide spraying, and boundary disputes. (4) It is sure to be presented with climate change and water resource conflicts in the future. In April 2010, the International Court of Justice was censured by its own judges for incompetence in handling technical and scientific information in the Pulp Mills case. (5) Pulp Mills presented a dispute between Argentina and Uruguay over industrial development on a shared river. (6) Thorough and informed review of factual evidence is of particular importance for disputes that involve natural resources and environmental quality, although the problem is not exclusive to this subject matter. (7)

   The question is how judges should deal with complex and voluminous scientific or technical evidence that plays a dispositive role in the final judgment. This is quite distinct from a court's gatekeeper role in allowing scientific evidence to be submitted to juries, which has been heavily studied in conjunction with the famous United States Supreme Court Daubert rules of admissibility. (8)

   Hinting at the difficulty of addressing the problem, another judge in the Pulp Mills case observed that too much emphasis on scientific evidence is misplaced. (9) This response ignores the repeated calls for reform that have been made by informed observers and practitioners since the International Court of Justice began to hear environmental disputes. (10)

   Courts do have practical concerns about delaying a case or lacking sufficient funds to obtain expert advice; or a court may have overlooked options available to it. (11) Cost is an important consideration for any court, and will be addressed in the discussion that follows. However, given the financial resources that are devoted to these disputes, cost is not likely the chief barrier to bringing in outside expertise. While much has been written about the difference between the civil law and common law training of international judges, attempting to explain judicial preferences for production of evidence by the court or by the parties, other reasons may better explain the international courts' infrequent recourse to assistance with technically and scientifically complex information. (12)

   Judges may be concerned that by bringing in experts to assist their analyses they will relinquish their mandate to decide cases. (13) Judge Yusuf raises and then dismisses this point in his Pulp Mills Declaration: "[T]he question arises as to whether there is a risk that the resort to an expert opinion may take away the role of the judge as the arbiter of fact and therefore undermine the Court's judicial function? My answer is in the negative." (14)

   However, scrutiny of other cases and judges' frank comments in extracurial writing suggests that for some, concerns about erosion of judicial authority are a central factor. (15) These concerns may recede if a deeper analysis of the appropriate roles of judges and experts in the examination of scientific and technological evidence leads to effective guidelines that would direct the efforts of the expert.

   Alternatively, if the court's own expert advisor appears to master the evidence too forcefully, the parties may resent the loss of control of their case. If the court's expert provides yet another equally plausible opinion, it may merely re-situate the "battle of the experts" from the parties to the court itself. Further, if the court rules contrary to the opinion of its own expert, it may seem to have built its judgment on a weak foundation. Thus, there may be several reasons why courts may prefer to leave explanation of the evidence to the parties. (16)

   Undoubtedly, judges should not hand over their authority to experts. However, they can seek assistance in understanding and assessing the evidence. Judges can also sharpen their focus on the nature of judging technical and scientific evidence. The excess authority of an expert that is feared might be avoided by clearly distinguishing the nature of the questions that scientific and technical experts are asked from the ultimate questions before the court.

   This Article first summarizes the problem as it was presented in the Pulp Mills case and provides a brief perspective on the past use of experts in International Court of Justice cases and prospects for the future docket. It then looks at the appointment, powers, and mandate of special masters used by the United States Supreme Court. Next, the authority of the International Court of Justice to appoint a special master is considered and recommendations are made. Finally, this Article 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.

2. THE PAST AND PROSPECTS FOR THE FUTURE

   1. The Past: Working with Experts

      In the past, the International Court of Justice has rarely invoked its authority to use experts. It appointed its own experts in its first case, Corfu Channel, (17) and later in the dispute between the United States and Canada over their mutual boundary in the rich fishing grounds of the Gulf of Maine (where, not incidentally, both Canada and the United States issued oil and gas permits). (18) In these cases, the experts' tasks were narrow in scope: collecting evidence, viewing the site of the dispute, interviewing witnesses, and assisting the Court in producing the documentation of its work. (19) While more limited than the role of a special master, they performed some aspects of the master's job.

      In Corfu Channel, the Court appointed a committee of three Naval officers, of nationalities different from the disputants, to resolve certain disputed issues of fact. (20) It used its authority under Articles 48 and 50 of the Statute of the Court and Article 57 of the Rules. (21) Among the eight questions experts were asked to resolve were whether mines that damaged British ships had been laid in the Corfu Channel recently, and the location and type of mines that caused the damage. (22) Their answers allowed the Court to conclude that the ships were damaged by newly laid mines in Albanian territorial waters. (23) As their initial report was inconclusive, the Court asked the committee to make a visit to the site of the incident for the purpose of "verifying, completing, and, if necessary, modifying the answers given in their report." (24) This entailed interviewing witnesses and making site inspections to determine whether Albanian coastguards could have observed surreptitious mine laying, and even included an experiment with a boat at night. (25) Both reports, and the mission to Yugoslavia and Albania, were accomplished between December 17, 1948 and February 8, 1949, (26) fairly promptly. The judges questioned the experts, and the parties commented, orally and in writing, on their reports and responses to the Court's questions. (27) The Court concluded that it could not "fail to give great weight to the...