International procedural regulation in the common interest: the role of fact-finding and evidence before the International Court of Justice

BACKGROUND: By developing international law, international courts can also contribute to the protection and promotion of community interests. The ICJ, in particular, is capable of promoting community interests by adjudicating inter-State claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law.
OBJECTIVE: Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. The objective of the research project is to access the ways in which ICJ procedural rules can be adjusted and tailored for multiparty aspects in order to protect community interests and enhance international court’s legitimacy.
MATERIAL AND METHODS: Qualitative analysis of extensive and specialized bibliography. Implementation of deductive method.
RESULTS: Most procedural rules can be adjusted for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy. This research project identified the need to expand the following procedural rules:  intervention of third parties; participation of non-State actors as amici curiae; fact-finding powers; and rules of evidence.   
CONCLUSIONS: This article argues that the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. In particular, this article identified two issues that deserve further analysis with a view to promoting the interests of the international community: fact-finding in complex cases involving community interests, which includes the need for independent expertise and guidance on cross-examination issues; and transparency in the production of documentary evidence and its consequences in community interests’ cases.


Introduction
This article is part of a research project globally devoted to the enhancement of International Court of Justice (ICJ) procedures for litigating in the common interest. The objective of the research project is to access the ways in which ICJ procedural rules can be adjusted and tailored for multiparty aspects in order to protect community interests and enhance international court's legitimacy. With a view to responding to this challenge, this research project identified the need to expand the following procedural rules: intervention of third parties; participation of non-State actors as amici curiae; fact-finding powers; and rules of evidence.
The article intitled 'Enhancing ICJ procedures for litigating in the common interest: third-party intervention and amicus curiae briefs' (Revista de Direito da Cidade, vol. 11, nº 1) dealt with the issues of third-party intervention and amicus curiae briefs; while the current paper touches upon procedural rules regarding fact-finding powers and evidence. Both works share the same theoretical framework and depart from the same idea according to which the role of international courts is not limited to the bilateral dispute settlement between States 2 ; they perform other important functions, such as the development of normative expectations -in order to achieve international adjudication's full potential, which is the realisation of justice 3 . By developing international law, the role of ICTs encompasses the protection and development of the international community and its values 4 .
Still having the ICJ as a focus, this analysis will address the Court's ability to promote 'community interests' 5 by adjudicating inter-state claims 6 . Although not reflecting an integrated regime capable of protecting specific values, such as the European Court of Human Rights or the Inter-American Court of Human Rights, the ICJ's recognition and application of erga omnes obligations is in itself a patent example of its prominent role in the protection of the interests of the international community. Nevertheless, the Court's intrinsic tension between state consent and global values may undermine its capacity to promote public interest 7 . Indeed, the tension between the multilateral nature of the conflicting substantive law and the bilateral nature of its own proceedings may generate significant backlashes 8 .  Leiden, vol. 5, n. 3, p. 369-408, 2006. p. 217-384). For more details, see WOJCIKIEWICZ ALMEIDA, P. Enhancing ICJ procedures for litigating in the common interest: third-party intervention and amicus curiae briefs. Revista de Direito da Cidade, Rio de Janeiro, vol. 11, n. 1, 2019. p. 331. 6 NOLLKAMPER, A. International Adjudication of Global Public Goods: The Intersection of Substance and Procedure. The European Journal of International Law, vol. 23, n. 3, 2012. p. 769-770. 7 In This paper argues that there is a disconnection between community interests and procedure, which has not been attuned to reflect contemporary international law challenges deriving from community interests 9 . Procedures can be interpreted, enhanced, voire designed in order to ensure the promotion of community interests 10 . However, it appears that the ICJ has been very modest in utilising its powers to expand procedural rules beyond its mandate to ensure the application of substantive law reflecting community interests 11 .
Judicial procedures could be expanded in a way to strengthen the democratic legitimation of judicial decisions. Therefore, in contentious cases involving litigation in the 'common interest', a diverse range of procedural issues may raise particular concerns, such as intervention of third parties 12 , participation of non-state actors as amici curiae, Enhancing ICJ procedures for litigating in the common interest: third-party intervention and amicus curiae briefs. Revista de Direito da Cidade, Rio de Janeiro, vol. 11, n. 1, 2019. p. 331. fact-finding powers and rules of evidence 13 . According to the Court's survey conducted as a preparation to the Seminar held on the occasion of the 70th Anniversary of the Court's first inaugural sitting, the topic of evidence and fact finding has been identified as the most questionable one, thereby requiring important reform proposals, notably regarding the Court's treatment of scientific cases 14 . The establishment of fact and rules of evidence within the ICJ are both relevant for the legitimation of international adjudication, notably when community interests are concerned 15 . This article argues that two issues deserve further analysis with a view to promoting the interests of the international community: fact-finding in complex cases involving community interests, which includes the need for an independent expertise and guidance on crossexamination issues (B); and transparency in the production of documentary evidence and its consequences in community interests' cases (C).

B. Fact-finding in complex cases involving community interests
In the Pulp Mills on the River Uruguay case 16 , the Court was largely criticised due to a lack of sufficient evidence since it officialy relied on expertise provided by the parties. The scientific character of this dispute -involving water quality, maintenance of ecological balance and pollution -required 'scientific fact-finding', which has been perceived as a distinct category of fact-finding in international adjudication 17 . Given its peculiar character, 'scientific fact-finding' ought not to be treated as traditional fact-finding 18 . As acknowledged by Judge Cançado Trindade in his separate opinion in the Pulp Mills case, 'international environmental law is attentive to human health' 19 . Contemporary human rights protection and environmental protection are necessarily linked and reflect issues of general public interest 20 . Rules and obligations referring to the protection of the environment are adopted in the 'common superior interest of humankind' 21 .
In such cases involving the protection of the environment, which is also considered a community interest, the dissenting opinion of Judges Al-Khasawneh and Simma could not be more appropriate: the Court should have either appointed its own experts or had party-appointed experts subjected to cross-examination 22 . In its separate opinion in the Gabčíkovo-Nagymaros case 23 , Judge Weeramantry also stressed that rules governing inter partes litigation may be inadequate when adjudicating environmental issues that affect interests of humanity 24 . Indeed, the Court's traditional approach to fact-finding is clearly not suitable in complex scientific cases or in cases in which 'a high degree of scientific uncertainty subsists 25 , i.e., in cases involving the interests of the international community.
In order for the Court to reframe its proceedings on factfinding issues with a view to protecting the interests of the international community, the following proposals could be made: firstly, the Court should ban from its practice the use of 'experts-fantômes' (1); secondly, experts should appear before the Court as witnesses and not as counsels (2); and thirdly, the Court should make more active use of its powers to appoint an independent expert whenever community interests are at stake (

Eliminating 'experts-fantômes'
The Court has been informally assisted by 'cartographers, hydrographers, geographers, linguists' and other legal experts, without making this public knowledge 26 . Such recurrent practice deprives the Court's proceedings of transparency, openness and procedural fairness 27 . Moreover, Parties are not able to comment upon the opinion rendered by such 'experts-fantômes' or cross-examine them during oral proceedings. Yet Article 67 (2) of the Rules and Article 50 of the Statute expressly allow parties to comment upon every expert opinion arranged by the Court. Denying access to such technical opinions is contrary to due process and to the good administration of justice. Even if Judges rely on 'invisible experts', the Parties should always be informed 'whether consultants have been engaged by the Court and according to which mandate' 28 , as suggested by Judge Gaja.  As a general policy, the recourse to 'experts-fantômes' should be eliminated from the Court's practice 29 , particularly in cases involving community interests. Also, it would be desirable for the Court to make 'a general policy statement restricting the use of "invisible" experts' for the sake of transparency 30 . Such criticism appears to have resonated well with the Court and paved the way for it to avoid recourse to 'experts-fantômes' in recent cases involving scientific evidence, such as in the Whaling in the Antarctic case 31 . Arguably, ICJ's proceedings should encompass a new Rule condemning the use of experts-fantômes.

Experts should appear as witnesses with all related consequences
The practice of including experts as counsel or advocates before the ICJ has been extensively criticised by academia and by the Court itself, notably because advocates are not subject to cross-examination and to questions from the bench 32  37 The term 'expert witness' 'refers to a person who can testify both as to knowledge of facts, and also give an opinion on matters upon which he or expert witnesses in a growing number of cases 38 , notably in the Whaling case. In the latter, the ICJ was confronted with complex scientific issues that required the opinion of experts 39 . Such experts, appointed by the parties as witnesses, were examined, cross-examined, and were also questioned by Judges 40 . In the absence of a specific procedure for the examination and cross-examination of experts either in the Rules or in the Practice Direction 41 , the President of the Along these lines, the Court could make it clear the principle of 'proscription of contact between counsel and witnesses' (a witness of fact or expert witness must not communicate with any counsel or representative of a party on any disputed issues until cross-examination is concluded); the 'express banning of witness proofing'; and the 'adoption of the rules on open and leading questions' 52 . Moreover, the conduction of cross-examination by counsels must be directed to the issues in dispute. It would also be useful if witnesses were forbidden from reading written pleadings prior to their testimony and from observing oral hearings' 53 . The proposals above require the adoption of a Practice Direction in order to guide the interpretation of Art. 63 and 67 of the Rules and Art. 45 of the Statute, or through a more general guidance to be available in the Court's website, drawing on the Court's practice to date.

Appointing an independent expert as a regular practice
Cross-examination and questions from the bench towards expert-witnesses are certainly positive for the Court to assess the credibility of the expert's opinion and to understand the issue under examination. This however does not 'provide the Court with the scientific or technical knowledge that may be necessary to make a decision', notably when parties' experts disagree 54 . A preferable method for the Court to acquire scientific or technical knowledge would be the appointment of independent experts 55 , which has often been advocated by scholarship 56 .
By appointing its own experts as provided by Article 50 of the Statute and 67 of the Rules, the Court would 'establish itself as a careful, systematic court which can be entrusted with complex scientific evidence' 57 . In its declaration, In the case Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), the Court made an effort to follow the procedure outlined in Article 67 of its Rules. The Court informed the Parties, by an exchange of letters, of its intention to appoint independent experts to conduct a site visit, while also welcoming the Parties to present their views on (i) the subject of the expert opinion; (ii) the number and mode of appointment of the experts; and (iii) the procedure to be followed 62 . In response, Costa Rica requested the Court to appoint three experts and to have the opportunity to make observations on their identity, as well as to provide comments on the reports submitted before the beginning of the oral proceedings 63 . Finally, by its Order of 31 May 2016, the Court decided to appoint two independent experts by Order of its President after hearing the Parties. Such experts were to visit the site and to prepare a written report on their findings, which was to be communicated to the Parties to comment upon 64  the experts identified, the Court, by an Order of 16 June, appointed two independent experts, pursuant to Art. 50 of its Statute and to Article 67 of the Rules. The referred experts were questioned by Judge Tomka and provided responses to the written comments of Costa Rica on the report they submitted on 30 April 2017. Doubt remains on how the Court will make use of such expert opinions and what procedure it will follow in cases involving environmental law, such as the Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia), initiated on 6 June 2016. In any case, recent practice indicates that the Court seems more encouraged to make use of Article 50 of the Statute to appoint its own experts. The Court should indeed be more active in indicating independent experts whenever it deals with factually complex cases and with those concerning interests of the international community, i.e., environmental law cases. It may be desirable for the Court to activate its powers under Art. 50, as follows: (i) when there is contestation of expert evidence by parties; (ii) when access to the evidence is restricted to only one of the parties, such as in the Corfu Channel case; (iii) when the Court does not possess scientific and technical knowledge and cannot only rely on the cross-examination of experts indicated by the parties 65 .
Therefore, the Court should make greater use of its power to appoint experts under Art. 50 of the Statute -as a regular practice -whenever appropriate, notably whenever community interests are at stake, possibly by adopting a practice direction in this regard 66 . The issue of requests for disclosure of evidence is also relevant to the protection of community interests by international courts. This has motivated an intense debate in the Bosnian and Croatian Genocide cases, which also dealt with matters involving community interests -the protection of human rights. However, the debate regarding the powers of the Court to draw adverse inferences towards nonproduction of documents predates the Genocide cases and is worth revisiting (1). In any case, the ICJ could make more active use of its power to request information proprio motu, as well as to grant discovery requests with all its related consequences (2).

Nonproduction of evidence and the possibility of drawing adverse inferences
In the Corfu Channel case, the Court found that a State victim of a breach in international law is often unable to furnish direct proof of facts that give rise to responsibility, notably in situations in which the other State exercises exclusive control over a territory. Therefore, the State victim 'should be allowed a more liberal recourse to inferences of fact and circumstantial evidence' 67 . However, in the Court's view, the use of inferences for assessing the truth must CRAWFORD, J.; KEENE, A. Editorial. Journal of International Dispute Settlement, Oxford, vol. 7, 2016. p. 229. 'leave no room for reasonable doubt' 68 . Although the Court set forth a method for drawing inferences 69 , it established a high standard of proof for taking such inferences into consideration 70 .
In the first Genocide case, Bosnia and Herzegovina affirmed that Serbia and Montenegro had a special duty of diligence in preventing genocide and that the proof of its lack of diligence could be inferred from fact and circumstantial evidence 71 . Serbia and Montenegro had considered parts of relevant documents as being classified. In its judgment, the Court concluded that Serbia and Montenegro failed to prevent the genocide in Srebrenica, without it having had recourse to indirect proof or inferences. Indeed, the Court rejected the approach suggested by Bosnia and Herzegovina based on negative inferences 72 and did not call upon Serbia 69 In its judgment in the Corfu Channel case, the Court delineated procedural and evidentiary rules, such as its position towards nonproduction of classified evidence, and the rules governing the use of circumstantial or indirect evidence. The ICJ also distinguished circumstantial evidence from 'direct proof' and considered that circumstantial evidence was a type of indirect evidence. and Montenegro to produce the requested documents 73 . It only stated that it noted 'the Applicant's suggestion that the Court may be free to draw its own conclusions' 74 . However, no conclusions were drawn in that case. The second Genocide case, opposing Croatia to Serbia, followed the same path 75 , as the Court did not deviate from its ruling of 2007 in matters related to evidence 76 . In these cases, although the situation was perfectly justifiable, the Court did not draw any adverse inference from refusals to reply to a request for information under Article 49 of its Statute. This has continued to be so in ICJ current practice, since the Court did not use its power to draw an adverse inference from Costa Rica's request for Nicaragua to provide evidence under its control in the recent Road and Court and Tribunals, Leiden, vol. 6, 2007. p. 138-9.  Certain Activities cases 77 . To date, the ICJ has taken a soft stance towards nonproduction, without shifting the burden of proof or making adverse findings of fact 78 . These cases demonstrate that the Court is missing good opportunities to put into effect the powers attributed to it by the Statute and the Rules with regard to evidence 79 .

A more active use of the Court's power to request information
According to Art. 49 of the Statute, the Court may request the parties to produce of any documents or explanations. This article must be read in conjunction with Article 62 of the Rules, which clarifies that such evidence or explanation is 'necessary for the elucidation of any aspect of the matters in issue' 80 . Art. 62 also addresses the possibility Even if the Court's power to request information was to be binding on the parties, given the lack of enforcement mechanism of its requests, it could only have recourse to adverse inferences. This is not a new power to be conferred on the Court since Art. 49 of the Statute already provides the Court with the possibility of taking formal notice of any refusal to comply with its requests. The possibility of drawing adverse inferences, although never put in practice by the ICJ, is a common practice in other dispute settlement mechanisms, such as the WTO and the Iran-US Claims Tribunal 84 , and other international criminal and human rights tribunals 85 .
As discussed above, the Court has not made significant use of its power (i) to request information under Article 49 of the Statute, nor developed a practice of granting discovery requests, i.e., (ii) requests by the parties. Much has been debated on the need for the Court to take a more proactive approach and make greater use of its fact-finding powers. As for requests made by the Court itself under Article 49 of the Statute, whenever a requested party fails to produce evidence, 'the Court could consider issuing a procedural order notifying the parties of its intention to draw an adverse inference in order to give the State an opportunity to comply' 86 .
This problem is even more acute whenever the Court deals with the protection of fundamental values or community interests, such as the prohibition of genocide. Grave violations of human rights and acts of genocide are in breach of absolute prohibition of jus cogens 87  by Judge Cançado Trindade in his dissenting opinion in the second Genocide case, human rights tribunals feel obliged to resort, even more forcefully, to presumptions and inferences whenever 'the cases lodged with them disclose a pattern of widespread and systematic gross violations of human rights' 88 . The same might be applicable to the ICJ when it deals with global fundamental values. As a general proposal, the Court should be encouraged to draw adverse inferences, notably in cases involving community interests, in line with the jurisprudence of other international courts and tribunals. Concerning requests made by the parties, the Court could also be more active in addressing requests for the disclosure of information. The issue has been hotly debated in the Genocide cases. The only exception is the ELSI case in which the United States was requested to make available to the Court a financial statement it had mentioned in the oral proceedings 89 . The Italian counsel asked the Chamber to request the disclosure of such document, which was granted and performed by the President. As a result, the United States made available the requested document 90 . Drawing from its practice in the ELSI case, another possibility would be for the Court to make fuller use of the practice piloted in the ELSI case whereby requests for documents would be transmitted by the Court for it to be able to filter such requests. In order to put this in practice, Article 62 of the Court's Rules could be amended accordingly 91 . Needless to say that in cases involving community interests, the Court should make greater use of its powers to obtain evidence and engage actively with any objection to disclosure of documents before it. As put by Judge ad hoc Mahiou in his dissenting opinion in the first Genocide case, in face of grave accusation of genocide, 'it is therefore logical and to be expected that the Court should be called upon or that it should itself employ every means offered it by its Statute to arrive at clear findings on the authenticity or otherwise of alleged facts' 92 .

CONCLUSION
There is no doubt that international adjudication contributes to the achievement of community interests. This paper addressed concrete procedural challenges and identified possible solutions so that the Court could be attuned to this new era of international adjudication, as highlighted by dissenting Judge Weeramantry in the Gabčíkovo-Nagymaros case 93  topics such as fact-finding and evidence were identified among specific reform proposals by the Counsel Survey conducted in preparation for the Seminar held on the 70th Anniversary of the Court's first inaugural sitting 94 . There were calls for 'greater transparency, a more interactive and less formalistic bench and increased openness to the practices and jurisprudence of other international tribunals, both on matters of substance and procedure' 95 .
There is indeed a tendency towards further 'multilateralisation' of procedural law whenever community interests are at stake 96 . As pointed out by Judge Simma, 'international law is finally overcoming the legal as well as moral deficiencies of bilateralism and maturing into a much more socially conscious legal order' 97 . This would enhance both the Court's 'normative' and 'democratic' legitimacy 98 . On the one hand, the normative conception of legitimacy deals with 'the rightness of an institutions' exertion of power within a society' by defining 'a set of moral standards by which an institution or regime is judged or justified' 99 . It is linked to 'legal legitimacy', which supposes the 'institution's observance of its legally constrained mandate' and includes 'the process by which rules, decisions, and actions are made, applied, or interpreted' 100 . If ICTs fulfil certain criteria such as transparency, accountability and due process, they may be viewed as legitimate. On the other hand, aspects of 'normative' legitimacy are also taken into consideration when assessing the 'democratic legitimacy' of global institutions. Indeed, transparency, the participation of those affected and deliberation are of particular significance in building up the 'democratic legitimacy' of ICTs 101 . Rules on fact-finding and evidence are all of the utmost importance not only for protecting community interests, but also for ensuring the normative and democratic legitimation of ICTs, and in particular of the ICJ. It reflects a broad tendency towards a democratization of systems of global governance 102 .