Risarcimento del danno e technical issues. La corte nomina gli esperti indipendenti nel caso Armed activities on the territory of the Congo

Abstract

The paper analyzes two recent orders hold by the International Court of Justice in the Armed activities in the territory of the Congo case, concerning the appointment of experts, according to article 50 of the Statute of the Court. The experts will assist the Court in the assessment of the reparation owed to the Democratic Republic of Congo by Uganda for the injuries caused by Uganda as a result of the breach of several international obligations, determined by the Court in the 2005 Judgment. The analysis has the scope to highlight some of the substantial issues relating to the role of Court-appointed experts in the litigations brought before the Court. The need for this investigation is particularly significant, despite the sparing reliance of the power to call experts by the Court. Notwithstanding the great discretion enjoyed, the Court appointed independent experts only in four cases, including the present one. The limited number of precedents rises several questions related both to the function of Court-appointed experts and the Court approach to technical or scientific complexity. Firstly, the article focuses on the function of the experts appointed by the Court in the case, evaluating the terms of reference assigned by the Court. Secondly, the examination attempt to shed light on the approach of the Court in the exercise of its power to use experts. Regard this point, the essay analyses, on the one hand, the relationship between the margin of discretion, enjoyed by the Court in order to use experts, and the relevance of the Jura novit curia principle, in light on the distinction between questions of law and questions of fact. On the other hand, the essay will evaluate the usefulness of the use of experts in the determination of the amount of reparations, in order to underline the methodology employed by the Court in the assessment of damages. Thirdly, the article questioning whether the appointment of independent experts might affect the principles and rules governing the production and the burden of proof in the adjudication before the Court.