New Clothes for the Emperor? Consultation of Experts by the International Court of Justice

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 consult experts in an individual capacity rather than as group, and to consider adopting an interactive consultation process in order to benefit more fully from their expertise.