413
one of the areas envisaged.
22
States are responsible for recommending the names of
persons who will be added to the list.
23
The rationale behind Art. 289 is clear. When a dispute involves technical and
scientific matters, the composition of the court or tribunal may be adapted in order
to cope with the technical or scientific necessity of that dispute. Moreover, the court
or tribunal may receive inputs from these experts in the deliberation process and not
only during the hearings.
Theoretically, the existence of a pre-established list of recognized authorities in
each field facilitates the process of choice and appointment of experts. This, in turn,
could contribute to the celerity of the proceedings for nomination. At the same time,
the fact that the pre-established list was tailored by an external process of composition enhances the legitimacy of the choice of the court or tribunal. In this regard,
little doubts could be raised on the criteria adopted for the selection of experts. A
third virtue of a pre-established list is that it adds transparency to the process of
nomination of experts.
24
In other words, the parties would be aware, in advance, of
the numerus clausus list of possible experts who could sit with the court or
tribunal.
Art. 289 is clear in establishing that the use of the permanent list of experts is
optional. If the court or tribunal deems it appropriate, other experts may be
appointed. The word “preferably”, which is repeated in the relevant provision in the
Rules of the Tribunal, is clear in that effect. In sum, the choice conferred to the
Tribunal under Art. 289 is not restricted to the existing lists.
Art. 289 also provides each party with the right to request the appointment of
experts to sit with the court or tribunal. Naturally, the right to request the appointment does not impose a binding obligation on the court or tribunal to accept such
requests. With regard to the Tribunal, this right of the party has a temporal limitation, since the request “shall, as a general rule, be made not later than the closure of
the written proceedings”.
25
However, Art. 15(1) of the Rules of the Tribunal
22 Four are the lists of experts provided under Art. 2, in four different areas: (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation,
including pollution from vessels and by dumping. Each list is drawn up and maintained by a different international organization, according to Art. 2 of Annex VIII UNCLOS: “[t]he lists of
experts shall be drawn up and maintained, in the field of fisheries by the Food and Agriculture
Organization of the United Nations, in the field of protection and preservation of the marine environment by the United Nations Environment Programme, in the field of marine scientific research
by the Intergovernmental Oceanographic Commission, in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization, or in each case by
the appropriate subsidiary body concerned to which such organization, programme or commission
has delegated this function”.
23 According to Art. 2 of Annex VIII UNCLOS, every State Party “shall be entitled to nominate two
experts in each field whose competence in the legal, scientific or technical aspects of such field is
established and generally recognized and who enjoy the highest reputation for fairness and
integrity”.
24 On transparency as a value of international adjudication, see Neumann and Simma (2013),
p. 436.
25 Art. 15(1) of the 2009 Rules of the Tribunal.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
one of the areas envisaged.
22
States are responsible for recommending the names of
persons who will be added to the list.
23
The rationale behind Art. 289 is clear. When a dispute involves technical and
scientific matters, the composition of the court or tribunal may be adapted in order
to cope with the technical or scientific necessity of that dispute. Moreover, the court
or tribunal may receive inputs from these experts in the deliberation process and not
only during the hearings.
Theoretically, the existence of a pre-established list of recognized authorities in
each field facilitates the process of choice and appointment of experts. This, in turn,
could contribute to the celerity of the proceedings for nomination. At the same time,
the fact that the pre-established list was tailored by an external process of composition enhances the legitimacy of the choice of the court or tribunal. In this regard,
little doubts could be raised on the criteria adopted for the selection of experts. A
third virtue of a pre-established list is that it adds transparency to the process of
nomination of experts.
24
In other words, the parties would be aware, in advance, of
the numerus clausus list of possible experts who could sit with the court or
tribunal.
Art. 289 is clear in establishing that the use of the permanent list of experts is
optional. If the court or tribunal deems it appropriate, other experts may be
appointed. The word “preferably”, which is repeated in the relevant provision in the
Rules of the Tribunal, is clear in that effect. In sum, the choice conferred to the
Tribunal under Art. 289 is not restricted to the existing lists.
Art. 289 also provides each party with the right to request the appointment of
experts to sit with the court or tribunal. Naturally, the right to request the appointment does not impose a binding obligation on the court or tribunal to accept such
requests. With regard to the Tribunal, this right of the party has a temporal limitation, since the request “shall, as a general rule, be made not later than the closure of
the written proceedings”.
25
However, Art. 15(1) of the Rules of the Tribunal
22 Four are the lists of experts provided under Art. 2, in four different areas: (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation,
including pollution from vessels and by dumping. Each list is drawn up and maintained by a different international organization, according to Art. 2 of Annex VIII UNCLOS: “[t]he lists of
experts shall be drawn up and maintained, in the field of fisheries by the Food and Agriculture
Organization of the United Nations, in the field of protection and preservation of the marine environment by the United Nations Environment Programme, in the field of marine scientific research
by the Intergovernmental Oceanographic Commission, in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization, or in each case by
the appropriate subsidiary body concerned to which such organization, programme or commission
has delegated this function”.
23 According to Art. 2 of Annex VIII UNCLOS, every State Party “shall be entitled to nominate two
experts in each field whose competence in the legal, scientific or technical aspects of such field is
established and generally recognized and who enjoy the highest reputation for fairness and
integrity”.
24 On transparency as a value of international adjudication, see Neumann and Simma (2013),
p. 436.
25 Art. 15(1) of the 2009 Rules of the Tribunal.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…