Evidence before the International Court of Justice
Title: Evidence before the International Court of Justice
Publisher: British Institute of International and Comparative Law
Citation: London, British Institute of International and Comparative Law, 2009
Some recent contentious issues about the use of evidence in cases before the International Court of Justice have highlighted the importance of fact-finding and the use of evidence before this Court. This major study by the British Institute of International and Comparative Law on the issue of evidence before the International Court of Justice has examined all aspects of the Court's relationship with facts in detail, in both contentious and advisory proceedings, from the recently refined procedure for submitting late evidence, to the hearing of live witness testimony in the Peace Palace. Considerations of flexibility and respect for the sovereignty of the State Parties before it have traditionally deterred the Court from constructing concrete rules on matters of evidence, but the increasing numbers of cases in which a thorough consideration of the facts has been essential has highlighted that some detailed procedural guidance is necessary in order to ensure a well-functioning system of adjudication. It is apparent that the Court has paid an incerasing amount of attention to its evidentiary proceedings as a result, often encountering difficulties in the inherent tensions between the common and civil law traditions and thus a divergence of opinions on the Bench. This book examines the history and development of the treatment of evidence since the early days of the PCIJ up to the recent Nicaragua v Honduras judgment, critically analysing the Statute and Rules of the Court, dicta from judgments and separate and dissenting opinions, the newly developed Practice Directions and academic writings on the subject. It aims not only to provide an academic discussion of the subject, but also to act as a guide to practitioners appearing before the Court.
Table of Contents:
Structure and organization of the Court : implications for the Court's approach to evidence -- Production of evidence : rights and responsibilities of the parties, powers of the Court -- Proof -- Admissibility and use of evidence -- Non-production, privilege, and non-appearance -- Documentary evidence -- Testimonial evidence -- Expert evidence -- Evidence in proceedings under the Court's advisory jurisdiction
This publication has recently found support from and apparently influenced the International Court of Justice itself. On 20 April 2010 the Court delivered its Judgment in the Pulp Mills on the River Uruguay case between Argentina and Uruguay, in which it appears to follow a recommendation made in the book concerning expert evidence, and several individual Judges draw support from the conclusions of study in their Declarations, Separate and Dissenting Opinions, quoting from the book as well as citing argument and using research in it to shape their opinions.; The initiative taken by the British Institute of International and Comparative Law to carry out a thorough study of the rules of evidence in international courts and tribunals will place international lawyers deeply in their debt. There can be hardly any field of international legal practice presenting no possibility of presentation of a claim, at some stage and in some circumstances, to an international court or tribunal, so that consideration of procedural issues, and in particular what facts must be proved, and how they are to be proved, may come to have almost as great an importance for the practitioner as consideration of the state of the substantive law. The proliferation of such tribunals in recent years, each with its own nature, its own constituent instrument, and its growing body of practice, also necessitates the focusing of attention on the underlying principles. The study will be an excellent starting-point, in view of the thoroughness with which the relevant material has been assembled, and set against an analytical assessment in relation to those principles. Professor Hugh Thirlway, Former First Legal Secretary of the International Court of Justice