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The law and practice of fact-finding before the International Court of Justice
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Florence : European University Institute, 2014
EUI; LAW; PhD Thesis
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DEVANEY, James, The law and practice of fact-finding before the International Court of Justice, Florence : European University Institute, 2014, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/33884
Abstract
This thesis takes as its starting point a number of significant recent criticisms of the way in which the International Court of Justice (the Court) deals with facts. After examining the Court's substantial fact-finding powers as set out in its Statute and Rules, it is noted that the Court has not made significant use of the fact-finding powers that it possesses, instead preferring to take a reactive approach to fact-finding. It is this reactive approach, largely relying on the parties to put evidence before the Court, which is the subject of recent criticisms both from within the Court itself and from international legal scholarship. Having assessed the merits of these arguments, the thesis takes the position that such criticisms are indeed warranted and that the Court's reactive approach to fact-finding falls short of adequacy both in cases involving abundant, particularly complex or technical facts and in those cases involving a scarcity of facts, such as cases of non-appearance. Subsequently, the thesis undertakes a comparative exercise in order to examine how other relevant inter-state tribunals conduct fact-finding. Drawing on the practice of other tribunals, namely the adjudicative bodies of the World Trade Organization and a number of recent inter-state arbitrations, the thesis then makes a number of select proposals for reform which, it is argued, will enable the Court to address some of the current weaknesses in its approach to fact-finding and better ensure factual determinations that are as accurate as they can possibly be within the judicial process. Such proposals include (but are not limited to) the development of a power to compel the disclosure of information, greater use of provisional measures and a clear strategy for the use of expert evidence.
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Defence date: 28 November 2014
Examining Board: Professor Martin Scheinin, EUI; Professor Francesco Francioni, EUI; Judge Giorgio Gaja, International Court of Justice; Professor Geir Ulfstein, University of Oslo.
Examining Board: Professor Martin Scheinin, EUI; Professor Francesco Francioni, EUI; Judge Giorgio Gaja, International Court of Justice; Professor Geir Ulfstein, University of Oslo.