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Home EJIL Analysis Trivia: Cases Before Inter-State Tribunals Involving Examination of Witnesses

Trivia: Cases Before Inter-State Tribunals Involving Examination of Witnesses

Published on October 17, 2013        Author: 

Every now and again I ask trivia questions relating to international law. Previous questions (and answers) are available here. At the end of this post, I have my latest international law trivia question.

In the oral proceedings in the Whaling Case (Australia v. Japan; New Zealand Intervening) heard by the International Court of Justice (ICJ) this past June, there was a relatively rare instance of experts being called to testify at the ICJ by one party, giving oral testimony and also being cross-examined by counsel for the other party. The International Court of Justice is the “principal judicial organ” of the United Nations (Art. 92, UN Charter). Decisions from the Court are final and without appeal (Art. 60, ICJ Statute). These features mean that the Court is usually looked upon, quite rightly, as the leading judicial authority for statements of international law. However, it is important to realise that the ICJ is not only a final court but is also a court of first instance. Thus, the ICJ is both like a Supreme Court and like a trial court. However, though many cases at the ICJ require an element of fact finding, this is usually done on the basis of documentary evidence. It is not often the case that the fact finding is done on the basis of oral evidence given in Court.

Having scientific experts providing their opinion as testimony at the ICJ is in contrast to some previous cases (Gabčíkovo-Nagymaros Project (Hungary/Slovakia)) where parties have included scientific experts as part of their team of counsel rather than as witnesses. In the Pulp  Mills case (Argentina. v. Uruguay) (2010), the Court stated:

“Regarding 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. [para. 167]

In the Whaling Case, Australia heeded this admonition and called Professor Mangel as an expert on June 27. He was examined in chief by Prof Philippe Sands QC, cross examined by Professor Vaughan Lowe QC and asked other questions by a number of judges of the Court. Now for my question:

In which other cases has oral testimony been given in proceedings at the International Court of Justice and other standing international tribunals dealing with inter-State cases? In particular, in which ICJ or inter-State case or cases has an expert or witness been subjected to cross-examination by the other party?

Answers in the comments box below please!

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6 Responses

  1. Semir Sali

    You can start with the Corfu Channel case (UK v Albania) at p. 7-8 (both witnesses and experts were examined and cross-examined by the parties and by members of the Court).

  2. Semir Sali

    Update: ELSI (US v Italy); Application of the Genocide Convention (BiH v. Serbia and Montenegro); Military and Paramilitary Activities (Nicaragua v US) (no cross-examination here because the US did not participate in the merits phase).
    Ps: I am leaving the fun of finding other cases to other people now.

  3. Serena Forlati

    Witnesses were heard also in Nicaragua v. United States (p. 18 of the judgment on the merits) and witnesses and expert witnesses in Bosnia v. Serbia (p. 60 of the judgment on the merits). You may be interested in the exchange of letters relating to additional expert opinion submitted by Japan in the Whaling in the Antarctic case, available in the section concerning written proceedings on the ICJ’s website.

  4. I understand that cross-examination may have formed a valuable element of the proceedings in the Arbitration in the matter of the Indus Waters Kishenganga Arbitration (Pakistan v India) in the Permanent Court of Arbitration, as did the Tribunal’s site visit. The Partial Award issued in this case earlier this year is available on the PCA website at http://www.pca-cpa.org, but no transcripts. However, you will find on the same website the transcripts of the hearings, including of the examination and cross-examination of the parties’ expert witnesses, in the cases of The Government of Sudan/The Sudan People’s Liberation Movement/Army (Abyei Arbitration), and in the case of the Arbitration under Annex VII of the United Nations Convention on the Law of the Sea (Guyana v Suriname). Instances of cross-examination before other international tribunals include the cross-examination before the International Tribunal for the Law of the Sea in Land Reclamation (Malaysia v Singapore)(Provisional Measures) 2003, and cross examination before the Arbitral Tribunal in proceedings under Chapter 11 of NAFTA in the Methanex case of 2005, obviously not an inter-State case. There are also the relatively well-developed procedures involving experts in joint meetings with panels and the parties in WTO dispute settlement, which at times see questioning resembling cross-examination in some measure.

    Readers who are interested in these questions, and underlying issues of a systemic character about the nature and function of international adjudication and arbitration, may like to see my book, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality, just out in paperback with Cambridge University Press.

    Certainly the Court’s expression of its views on the importance of the distinction between advocates and experts in the Case Concerning Pulp Mills is being taken seriously. However, the Court’s expression of its views in Pulp Mills leaves many deeper questions unaddressed. Separating the formal roles of advocates and experts does not answer some of the most profound questions about the administration of justice by international courts and tribunals in cases requiring expertise. Notably, experts’ views on mixed questions of fact and law may well shape the development of the law, as discussed on p 145 and at pp 137-148 of the book referred to above. Additionally, in the case of scientific expertise, there is also the distinct point that experts’ scientific knowledge will naturally be intertwined with normative commitments relevant to factual questions, mixed questions of fact and law, and the development of the law. An example is an adherence by experts to outlooks consistent with applying the precautionary principle in cases of potentially serious irreversible environmental harm. The injection of precautionary considerations by well-informed scientists should be welcomed by international courts and tribunals, as this is likely to put them in a stronger position to understand the case before them. Certainly, it would seem to be difficult if not impossible to try and slice questions to be addressed by experts away completely from related normative questions. Instead, the best way forward is probably to ensure open discussion and transparency as to how normative perspectives and commitments feature within experts’ comments on scientific and technical questions. See p 182 and also pp 153-158.

    All this does also raise the question of independence or neutrality on the part of experts, leading us to wonder when the Court might appoint its own experts rather than relying only on party-appointed experts. This possibility is discussed in Caroline E. Foster “New Clothes for the Emperor? Consultation of Experts by the International Court of Justice” 4(3) Journal of International Dispute Settlement 2013. To date, the Court’s preference has been to rely on adversarial techniques to draw out significant scientific points. This will be assisted when a court or tribunal engages actively in the scientific dimensions of a case. The multiple questions asked of parties by Members of the Court in the case of Whaling in the Antarctic may mark a transition to a more interactive approach to the reception of expert evidence, even if the Court does not go so far as to appoint its own experts under Article 50 of the Statute.

  5. Juan A. Yanez-Barnuevo

    There have also been examination and cross-examination of witnesses and experts in two recent ITLOS cases: the MV Louisa (St. Vincent and the Grenadines v. Spain) and the MV Virginia G (Panama v. Guinea Bissau). Interestingly enough, in those proceedings you find not just lawyers from Anglo-Saxon countries as in most other cases already mentioned, but also lawyers from Iberian countries (Spain and Portugal).