409
2 The Role of ex parte Experts Under UNCLOS Litigation:
A Point of Convergence
It a truism that the procedure before interstate international tribunals tends to pay
great attention to the will of States. It is not surprising, thus, that the evidentiary
system before these tribunals put emphasis on the role of the parties in discharging
the burden of proof. Litigating States often make recourse to ex parte experts to
ground their technical or scientific claims.
At least two types of ex parte experts can be identified in international judicial
practice. The first possibility is the one amounting to the so-called category of counsel experts. Parties generally have the possibility to resorting to their own experts as
members of their respective teams. Almost every defence team before an international tribunal include two or three technical advisors in order to substantiate their
technical arguments. A potentially problematic situation occurs when these experts
plead before an international court in the quality of a counsel without examination
by the tribunal or by the other party—a practice which has been reprimanded by the
ICJ in the Pulp Mills case.
6
The second category concerns those cases where parties call experts for testifying before the tribunal, then being subjected to cross-examination. Sometimes this
category is labelled as expert-witness. Either ITLOS rules and the arbitral tribunals
rules specifically envisaged this category of experts and its examination.
7
They both
appear abundantly in disputes resolving issues concerning the law of the sea
8
and
the practice before ITLOS and Annex VII tribunals does not seem to diverge significantly. In almost every case raising technical or scientific issues the parties nominated an expert to give oral evidence. Interestingly, recent rules of procedure of
6 The ICJ observed that “[r]egarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert
witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in
their respective delegations. The Court indeed considers that those persons who provide evidence
before the Court based on their scientific or technical knowledge and on their personal experience
should testify before the Court as experts, witnesses or in some cases in both capacities, rather than
counsel, so that they may be submitted to questioning by the other party as well as by the Court”
(ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para.
167).
7 With regard to ITLOS Rules, see Articles 44, 77, 78, 79 and 80.
8 Party-appointed experts were used in ITLOS, M/V “SAIGA” (No. 2) Case (Saint Vincent and the
Grenadines v. Guinea); ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v.
Japan), Provisional Measures; ITLOS, The “Camouco” Case (Panama v. France), Prompt
Release; ITLOS, The “Monte Confurco” Case (Seychelles v. France), Prompt Release; ITLOS,
The “Grand Prince” Case (Belize v. France), Prompt Release; ITLOS, Case concerning Land
Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional
Measures; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar); ITLOS, The M/V
“Louisa” Case (Saint Vincent and the Grenadines v. Spain); ITLOS, The M/V “Virginia G” Case
(Panama/Guinea-Bissau); ITLOS, Dispute Concerning Delimitation of the Maritime Boundary
between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire).
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
2 The Role of ex parte Experts Under UNCLOS Litigation:
A Point of Convergence
It a truism that the procedure before interstate international tribunals tends to pay
great attention to the will of States. It is not surprising, thus, that the evidentiary
system before these tribunals put emphasis on the role of the parties in discharging
the burden of proof. Litigating States often make recourse to ex parte experts to
ground their technical or scientific claims.
At least two types of ex parte experts can be identified in international judicial
practice. The first possibility is the one amounting to the so-called category of counsel experts. Parties generally have the possibility to resorting to their own experts as
members of their respective teams. Almost every defence team before an international tribunal include two or three technical advisors in order to substantiate their
technical arguments. A potentially problematic situation occurs when these experts
plead before an international court in the quality of a counsel without examination
by the tribunal or by the other party—a practice which has been reprimanded by the
ICJ in the Pulp Mills case.
6
The second category concerns those cases where parties call experts for testifying before the tribunal, then being subjected to cross-examination. Sometimes this
category is labelled as expert-witness. Either ITLOS rules and the arbitral tribunals
rules specifically envisaged this category of experts and its examination.
7
They both
appear abundantly in disputes resolving issues concerning the law of the sea
8
and
the practice before ITLOS and Annex VII tribunals does not seem to diverge significantly. In almost every case raising technical or scientific issues the parties nominated an expert to give oral evidence. Interestingly, recent rules of procedure of
6 The ICJ observed that “[r]egarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert
witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in
their respective delegations. The Court indeed considers that those persons who provide evidence
before the Court based on their scientific or technical knowledge and on their personal experience
should testify before the Court as experts, witnesses or in some cases in both capacities, rather than
counsel, so that they may be submitted to questioning by the other party as well as by the Court”
(ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para.
167).
7 With regard to ITLOS Rules, see Articles 44, 77, 78, 79 and 80.
8 Party-appointed experts were used in ITLOS, M/V “SAIGA” (No. 2) Case (Saint Vincent and the
Grenadines v. Guinea); ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v.
Japan), Provisional Measures; ITLOS, The “Camouco” Case (Panama v. France), Prompt
Release; ITLOS, The “Monte Confurco” Case (Seychelles v. France), Prompt Release; ITLOS,
The “Grand Prince” Case (Belize v. France), Prompt Release; ITLOS, Case concerning Land
Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional
Measures; ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar); ITLOS, The M/V
“Louisa” Case (Saint Vincent and the Grenadines v. Spain); ITLOS, The M/V “Virginia G” Case
(Panama/Guinea-Bissau); ITLOS, Dispute Concerning Delimitation of the Maritime Boundary
between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire).
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…