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Dissenting opinion of Judge Lucky on ITLOS verdict

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Contd from page 4
In his oral submission, Counsel for Myanmar, argued: "the Applicant, at least during the hearing, added to its list of its counsel the name of two geology professors, which is its right, calling them "independent experts". The concept of "independent experts" who are members of the legal team is very interesting" (see the Pulp Mill Case, infra). The reports of the experts were part of the pleadings of Bangladesh.
Counsel for Myanmar also submitted that: "We are not necessarily in agreement with all the information presented by Bangladesh's independent experts, but it does not seem worthwhile to devote lengthy discussion on irrelevant points".
I do not accept the above submissions of irrelevance, because in my opinion the reports are fair and balanced. They provide valuable scientific geological, physical and geomorphological evidence, which I find very helpful when addressing and determining certain aspects of the case.
Expert evidence
The applicable law
I think the law set out in the Rules of the Evidence Act of the Republic of Trinidad and Tobago. (Laws of Trinidad and Tobago) These Rules are helpful in considering the expert evidence in this case. They incorporate rules of international law and jurisprudence.
Expert's overriding duty to the court
Section 33.1 provides:
33.1    (1) It is the duty of an expert witness to help the Court impartially on matters relevant to his expertise.
(2)    This duty overrides any obligations to the person from whom he has received instructions.
Experts-way in which duty to court is to be carried out
33.2    (1) Expert evidence presented to the court must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.
33.3    (2) An expert witness must provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.
(3)    An expert witness must state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract him from his concluded view.
(4)    An expert witness must make it clear if a particular matter or issue falls outside his expertise
Contents of report
33.10
(1) An expert's report must-
(a) give details of the experts qualifications;
(b) give details of any literature or other material which the expert has used in making his report;
© say who carried out any test or experiment which the expert has used for the report;
(d) give details of the qualifications of the person who carried out any such test or experiment; and
(e) where there is a range of opinion on the matters dealt with in the report-
(i) summarise the range of opinion; and
(ii) give reasons for his opinion. I am satisfied that the experts have satisfied every requirement set out in the above sections of the Act and by extension the requirements set out in international jurisprudence.
I am also guided by the dicta in the Case concerning Pulp Mill on the River Uruguay (Argentina v. Uruguay), in dealing with expert evidence the judgment reads, in part:
The Court now turns to the issue of expert evidence. Both Argentina and Uruguay have placed before the Court a vast amount of factual and scientific material in support of their respective claims. They have also submitted reports and studies prepared by the experts and consultants commissioned by each of them, as well as others commissioned by the International Finance Corporation in its quality as lender to the project. Some of these experts have also appeared before the Court as counsel for one or the other of the Parties to provide evidence.
The Parties, however, disagree on the authority and reliability of the studies and reports submitted as part of the record and prepared, on the one hand, by their respective experts and consultants, and on the other, by the experts of the IFC, which contain, in many instances, conflicting claims and conclusions. In reply to a question put by a judge, Argentina stated that the weight to be given to such documents should be determined by reference not only to the "independence" of the author, who must have no personal interest in the outcome of the dispute and must not be an employee of the Government, but also by reference to the characteristics of the report itself, in particular the care with which its analysis was conducted, its completeness, the accuracy of the data used, and the clarity and coherence of the conclusions drawn from such data."
(I.C.J. Reports 2011, paras. 165-166)
In the instant case the experts in their reports show no personal interest in the outcome of the dispute. They are not employees of the Bangladesh Government. The analysis was apparently conducted wit care and supported by references. The reports are complete and thorough, clear and cohesive. The data was not challenged or contradicted. The conclusions in the reports are specific and accurate.
In its reply to the same question, Uruguay suggested that reports prepared by retained experts for the purposes of the proceedings and submitted as part of the record should not be regarded as independent and should be treated with caution; while expert statements and evaluations issued by a competent international organization, such as the IFC, or those issued by the consultants engaged by that organization should be regarded as independent and given "special weight".
167. The Court has given most careful attention to the material submitted to it by the Parties, as will be shown in its consideration of the evidence below with respect to alleged violations of substantive obligations. 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. (my emphasis)
168. As for the independence of such experts, the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of international law to those facts which it has found to have existed. (my emphasis)
With respect to the reports of the experts in this case, and the contents therein, it appears to me that authenticity and veracity are crucial.
The fact that Drs. Curray and Kudrass are the persons who prepared the reports is not disputed, what appears to be disputed is the v