417
The second illustrative example is the South China Sea Arbitration. As mentioned, tribunal-appointed experts assisted the tribunal in matters of hydrology,
environmental impact and navigational safety issues. Interestingly, in addition to the
experts nominated by the parties which testified before the tribunal and the independent experts, the Tribunal also accepted the report of a pro bono independent
expert—an expert whose reports Philippines relied on and the Tribunal attributed
some weigh for drawing conclusions with regard China violations of nautical safety.
40
The pro bono expert does not seem to be a category previously set forth in the
Rules of Procedure of the Tribunal. The Tribunal made several references to this
expert in order to ground its conclusions, especially with the view of reinforcing the
conclusion of its other independent expert. However, the Tribunal has not made any
reference to Art. 24 of its Rules. The absence of any reference to the Rules allows
one to hold that this type of expert is not an independent expert nor an ex parte
expert. It is difficult to resist to the impression that the pro bono expert has acted as
a sort of amicus curiae expert—another category of expert which was not envisaged
by the Rules of Procedure. Be that as it may, a general evaluation on the use of
experts demonstrates that they were essential for the Tribunal to reach its conclusions and deal with the technical aspects of the dispute. As assessed by one author,
the South China Sea Award “may be seen as an important instance of international
tribunals utilising independent experts to test the claims of the parties, while still
retaining control over ultimate factual conclusions and their legal characterisation”.
41
Moreover, it seems to reinforce the “common practice” of Annex VII tribunals in
appointing experts in complex disputes.
With these information in hand, one may turn to the question of the scant use of
independent experts by ITLOS in contrast by a relatively frequent appointment of
them in Annex VII tribunals.
The preliminary question is whether ITLOS had ever had a real opportunity to
appoint experts since a great deal of cases brought before it concerned prompt
releases of vessels and provisional measures. Even in the extremely technical
Bangladesh/Myanmar case or in the recent Ghana/Côte d’Ivoire case, there is no
sign of the Tribunal having any kind of consultation with experts in the terms of Art.
77. This absence may lead one to inquire whether the Tribunal has ever had any kind
of informal expert input in order to grasp the technicalities of any dispute. As it is
well known, sometimes international tribunals employ invisible experts—that is,
experts who assist the tribunal as members of the Registry and who no one knows
the identity and the content of the advice. These experts tainted the practice of the
International Court of Justice and were keenly criticized by several judges and
40 In assessing the present Submission, the Tribunal takes into account the Allen Report, submitted
by the Philippines, as well as the report of 15 April 2016 by Captain Gurpreet S. Singhota, (see The
South China Sea Arbitration, Award, p. 429, note 1347) who was appointed by the Tribunal in
accordance with Art. 24 of the Rules of Procedure in order to obtain an independent expert assessment of the Philippines claims (ibidem, para. 1084). See also paras 1097, 1098 and 1100.
41 Paine (2016).
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
The second illustrative example is the South China Sea Arbitration. As mentioned, tribunal-appointed experts assisted the tribunal in matters of hydrology,
environmental impact and navigational safety issues. Interestingly, in addition to the
experts nominated by the parties which testified before the tribunal and the independent experts, the Tribunal also accepted the report of a pro bono independent
expert—an expert whose reports Philippines relied on and the Tribunal attributed
some weigh for drawing conclusions with regard China violations of nautical safety.
40
The pro bono expert does not seem to be a category previously set forth in the
Rules of Procedure of the Tribunal. The Tribunal made several references to this
expert in order to ground its conclusions, especially with the view of reinforcing the
conclusion of its other independent expert. However, the Tribunal has not made any
reference to Art. 24 of its Rules. The absence of any reference to the Rules allows
one to hold that this type of expert is not an independent expert nor an ex parte
expert. It is difficult to resist to the impression that the pro bono expert has acted as
a sort of amicus curiae expert—another category of expert which was not envisaged
by the Rules of Procedure. Be that as it may, a general evaluation on the use of
experts demonstrates that they were essential for the Tribunal to reach its conclusions and deal with the technical aspects of the dispute. As assessed by one author,
the South China Sea Award “may be seen as an important instance of international
tribunals utilising independent experts to test the claims of the parties, while still
retaining control over ultimate factual conclusions and their legal characterisation”.
41
Moreover, it seems to reinforce the “common practice” of Annex VII tribunals in
appointing experts in complex disputes.
With these information in hand, one may turn to the question of the scant use of
independent experts by ITLOS in contrast by a relatively frequent appointment of
them in Annex VII tribunals.
The preliminary question is whether ITLOS had ever had a real opportunity to
appoint experts since a great deal of cases brought before it concerned prompt
releases of vessels and provisional measures. Even in the extremely technical
Bangladesh/Myanmar case or in the recent Ghana/Côte d’Ivoire case, there is no
sign of the Tribunal having any kind of consultation with experts in the terms of Art.
77. This absence may lead one to inquire whether the Tribunal has ever had any kind
of informal expert input in order to grasp the technicalities of any dispute. As it is
well known, sometimes international tribunals employ invisible experts—that is,
experts who assist the tribunal as members of the Registry and who no one knows
the identity and the content of the advice. These experts tainted the practice of the
International Court of Justice and were keenly criticized by several judges and
40 In assessing the present Submission, the Tribunal takes into account the Allen Report, submitted
by the Philippines, as well as the report of 15 April 2016 by Captain Gurpreet S. Singhota, (see The
South China Sea Arbitration, Award, p. 429, note 1347) who was appointed by the Tribunal in
accordance with Art. 24 of the Rules of Procedure in order to obtain an independent expert assessment of the Philippines claims (ibidem, para. 1084). See also paras 1097, 1098 and 1100.
41 Paine (2016).
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…