408
[and] its proper interpretation and application requires both legal and scientific
expertise”.
2
Thus, since judges and arbitrators master the legal expertise, the remaining question is how a tribunal cope with the necessity of scientific expertise. In spite
of their “recognized competence in the field of the law of the sea”,
3
arbitrators or
judges from ITLOS are not necessarily versed in geomorphology, in financial
assessment of nautical vessels nor in the analysis of the stocks of certain fish species. The case law related to the application and interpretation of UNCLOS provisions confirms that even a specialized judge sometimes requires the assistance of
experts to properly settle a dispute submitted to it by litigating parties.
The relationship between science and law and the manner whereby international
courts and tribunals settle disputes possessing a science-heavy background is not
new, but has gained the spotlight in recent times.
4
Accordingly, adjudicative bodies
have developed several techniques to cope with the necessity of scientific understating of the facts under dispute. For instance, international tribunals can adopt a precautionary approach when natural resources are involved, as ITLOS once did in the
provisional measures of the Southern Bluefin Tuna Cases. Another option is to
bypass the scientific question by over-relying on the burden of proof, which appears
to be the path followed by the International Court of Justice (ICJ) in the Pulp Mills
case. In both occasions the adjudicative body seemed to have relied on legal techniques rather than directly engaging with evidence underlying the dispute.
Additionally, there is the possibility of resorting to experts during judicial proceedings. The rules and the practice of ITLOS and Annex VII arbitral tribunals
envisage several possibilities in this regard. To some extent, they mirror the instruments at the disposal of the International Court of Justice, where the question has
been discussed thoroughly.
5
The purpose of this chapter is to analyse, assess and
discuss the problems that have emerged in the practice concerning the recourse to
experts in tribunals having jurisdiction under UNCLOS other than the ICJ. In performing such an examination, I would pay special attention to the points of convergence and divergence in the practice of ITLOS and Annex VII arbitral tribunals, as
well as the most sensitive problems arising from such practice. My examination
will, thus, be structured in three sections, which correspond to each one of the general categories of experts that may appear in an international judicial proceeding:
party-appointed experts (Sect. 2), the assessor-like expert envisaged in Art. 289
UNCLOS (Sect. 3), and tribunal-appointed experts (Sect. 4). Some tentative conclusions are sketched at the end, especially with regard to the unique features of the
practice of ITLOS and Annex VII tribunals when compared with other international
tribunals.
2 ITLOS, Delimitation of the Maritime Boundary between Bangladesh and Myanmar, Judgment,
14 March 2012, para. 411.
3 Art. 2 of ITLOS Statute.
4 Treves (2012), p. 489; Foster (2013), Sands (2014), Mbengue (2016) and Gaja (2017).
5 Riddell and Plant (2009), Tams (2012), Peat (2014) and Devaney (2016).
L. C. Lima
[and] its proper interpretation and application requires both legal and scientific
expertise”.
2
Thus, since judges and arbitrators master the legal expertise, the remaining question is how a tribunal cope with the necessity of scientific expertise. In spite
of their “recognized competence in the field of the law of the sea”,
3
arbitrators or
judges from ITLOS are not necessarily versed in geomorphology, in financial
assessment of nautical vessels nor in the analysis of the stocks of certain fish species. The case law related to the application and interpretation of UNCLOS provisions confirms that even a specialized judge sometimes requires the assistance of
experts to properly settle a dispute submitted to it by litigating parties.
The relationship between science and law and the manner whereby international
courts and tribunals settle disputes possessing a science-heavy background is not
new, but has gained the spotlight in recent times.
4
Accordingly, adjudicative bodies
have developed several techniques to cope with the necessity of scientific understating of the facts under dispute. For instance, international tribunals can adopt a precautionary approach when natural resources are involved, as ITLOS once did in the
provisional measures of the Southern Bluefin Tuna Cases. Another option is to
bypass the scientific question by over-relying on the burden of proof, which appears
to be the path followed by the International Court of Justice (ICJ) in the Pulp Mills
case. In both occasions the adjudicative body seemed to have relied on legal techniques rather than directly engaging with evidence underlying the dispute.
Additionally, there is the possibility of resorting to experts during judicial proceedings. The rules and the practice of ITLOS and Annex VII arbitral tribunals
envisage several possibilities in this regard. To some extent, they mirror the instruments at the disposal of the International Court of Justice, where the question has
been discussed thoroughly.
5
The purpose of this chapter is to analyse, assess and
discuss the problems that have emerged in the practice concerning the recourse to
experts in tribunals having jurisdiction under UNCLOS other than the ICJ. In performing such an examination, I would pay special attention to the points of convergence and divergence in the practice of ITLOS and Annex VII arbitral tribunals, as
well as the most sensitive problems arising from such practice. My examination
will, thus, be structured in three sections, which correspond to each one of the general categories of experts that may appear in an international judicial proceeding:
party-appointed experts (Sect. 2), the assessor-like expert envisaged in Art. 289
UNCLOS (Sect. 3), and tribunal-appointed experts (Sect. 4). Some tentative conclusions are sketched at the end, especially with regard to the unique features of the
practice of ITLOS and Annex VII tribunals when compared with other international
tribunals.
2 ITLOS, Delimitation of the Maritime Boundary between Bangladesh and Myanmar, Judgment,
14 March 2012, para. 411.
3 Art. 2 of ITLOS Statute.
4 Treves (2012), p. 489; Foster (2013), Sands (2014), Mbengue (2016) and Gaja (2017).
5 Riddell and Plant (2009), Tams (2012), Peat (2014) and Devaney (2016).
L. C. Lima