4 : Evidence

Question 1

What are some differences btwn international courts/tribunals and domestic courts regarding matters surrounding evidence and fact-finding ? (3)

Answer 1

1/ much more flexible approach

2/ no ability to compel disputing parties to produce evidence

3/ sensibilities surrounding State sovereignty

Question 2

What are some reasons for the flexible rules regarding evidence and fact-finding before international courts/tribunals ? (4)

Answer 2

1/ desire to respect sovereignty of litigating States

2/ great importance, sensitivity and complexity of interests at stake + demand for thorough and comprehensive search for truth

3/ very limited or inexistent power to coerce the production of evidence

4/ desire of int courts/tribunals to avoid their ability to decide cases as they deem proper being curtailed by strict evidentiary rules

Question 3

Approach of evidence and fact-finding in 2 main legal systems ?

Answer 3

1/ common law : truth lies somewhere in btwn the opposing positions of the parties ; task of the court is to referee the competition btwn these parties

2/ civil law : search for truth relies both on the intervention and expertise of the judiciairy and on the involvement of the parties ; task of the court is to actively engage in establishing the case facts

Question 4

What cases can be considered as not being fact-intensive ? (2)

Answer 4

1/ cases about content or existence of the law

2/ cases about treaty interpretation

Question 5

What are the main different types of evidence ? (3)

Answer 5

1/ documentary evidence

2/ expert reports

3/ testimonies

Question 6

What can be considered as documentary evidence ? (7)

Answer 6

1/ diplomatic correspondence

2/ other governmental documents

3/ factual findings of another judicial body (i.e. judicial notice)

4/ photographs and videos

5/ maps and charts

6/ newspaper articles

7/ reports by NGOs

( ! ) list is not exhaustive

Question 7

Characteristics of expert reports ? (3)

Answer 7

1/ drafted by experts to provide information on scientific or technical issues at play before the court

2/ submitted to the court

3/ experts can also be asked to testify during oral proceedings

Question 8

Who can testify before court/tribunal ? (2)

Answer 8

1/ fact witnesses

2/ experts

Question 9

What characterises the evidentiary rules of international court/tribunals ?

Answer 9

they are rudimentary, underdeveloped and often lack in detail

Question 10

What is missing from the evidentiary rules of int courts/tribunals ? (4)

Answer 10

1/ details on admissibility

2/ details on direct and cross-examination of witnesses

3/ rules on the weight that is to be ascribed to different forms of evidence

4/ rules on how to deal with inadmissible evidence

Question 11

What is the general rule regarding the providing of evidence ? (2)

Answer 11

1/ int procedures resemble adversarial procedures

2/ responsibility of the parties to provide the court with the adequate evidence + relevant material

Question 12

Guiding rules on evidence and fact-finding derived from jurisprudence ? (3)

Answer 12

1/ basic principle of proper/good administration of justice (Nicaragua)

2/ basic principle of fair and equal opportunities to give comments on the opponent’s contentions (Nicaragua)

3/ method on the weighing of evidence in DRC v Uganda :

a) caution regarding evidence prepared for the case
b) caution in reliance on materials from a single source
c) preference for contemporaneous evidence from individuals having direct knowledge of the facts
d) special attention to evidence obtained by the examination of individuals, and preference for cross-examination of such witnesses

Question 13

What is the general principle regarding the burden of proof ? (2)

Answer 13

1/ burden of proof lies with the party making the claim (onus probandi incumbit actori)

2/ it is the duty of the party which asserts certain facts to present evidence upholding these facts (Pulp Mills case, 2010)

Question 14

In which circumstances can issues surrounding the burden of proof arise ? (3)

Answer 14

1/ respondent can raise a defense that has to be proved

2/ special agreements for which there are no claimant and respondent

3/ a party can refute and deny the validity of a claim, be in possession of evidence rebutting that claim and refuse to provide that evidence

=> shifting of the burden of proof can be possible in some circumstances

Question 15

Characteristics of the duty of collaboration ? (4)

Answer 15

1/ even though one party bears the burden of proof, both parties have a general duty to collaborate with the court/tribunal to produce evidence supporting the case

2/ not acceptable for a party to withhold relevant evidence

3/ duty is especially important as international courts/tribunals do not have the capacity to compel production of evidence + rely on cooperation of the parties

4/ case will be dismissed if burden of proof is not met

Question 16

Why did Costa Rica win its case in “Certain Activities Carried out by Nicaragua in the Border Area” (Costa Rica v Nicaragua), 2015 ?

Answer 16

Counsel for Costa Rica presented significant evidence, such as satellite images and close-up photos of the canal being dug

Question 17

What are some possible standards of proof ? (3)

Answer 17

( ! ) No specification in sets of rules of int judicial bodies we study in this course

1/ proof beyond reasonable doubt (often before ICC and criminal jurisdictions)

2/ preponderance of evidence (balance of probabilities) : evidence of one party has to outweigh evidence produced by the other side

3/ exception for grave accusations : evidence has to be “fully conclusive” (Bosnia Genocide case)

Question 18

Distinction btwn fact witnesses and expert witnesses ?

Answer 18

1/ fact witnesses : report about facts that are within their knowledge, usually during oral proceedings

2/ expert witnesses : explain technical or scientific subjects to a non-technical and non-scientific audience in an impartial and objective manner

Question 19

Characteristics of integrated teams of experts and counsel before the ICJ ? (3)

Answer 19

1/ roles of expert and advocate were merged

2/ experts often appeared before the ICJ as counsel, without direct or cross examination

3/ in Pulp Mills case, ICJ indicated this practice should come to an end => experts should appear and testify before the Court as experts or witnesses, and not as counsel

Question 20

Resort to court-appointed experts ? (3)

Answer 20

1/ standard practice at the WTO

2/ not uncommon in inter-State arbitration

3/ very rare at the ICJ

Question 21

What was an alternative method to court-appointed experts used at the ICJ ? (3)

Answer 21

1/ Invisible experts

2/ Practice criticised in a dissenting opinion of the Pulp Mills case : appointment of consultants goes against the good administration of justice as well as against transparency and procedural fairness

3/ In Maritime Delimitation in the Caribbean Sea and the Pacific Coast (Costa Rica v Nicaragua), 2018, the ICJ reformed its practice : appointed 2 experts, allowed the parties to communicate their observations on the choice of experts and to comment on the expert report

Question 22

What is a site visit ?

Answer 22

an on-site inspection to obtain evidence that might be relevant for the dispute

Question 23

Pros of site visits ?

Answer 23

First-hand knowledge can be extremely valuable to gain a full sense of the facts underlying the dispute

Question 24

Cons of site visits ? (4)

Answer 24

1/ expensive

2/ disruptive and time-consuming

3/ risk of ex parte communications

4/ potential for bias and misimpressions

Question 25

Facts surrounding fraudulent evidence ? (3)

Answer 25

1/ int courts/tribunals have no rules surrounding this issue

2/ absence of rules is problematic as parties can not always be counted upon to provide authentic and non-fraudulent evidence

3/ it can be difficult to determine the source and authenticity of evidence presented by parties

Question 26

Case that proves fraudulent evidence is an issue before international courts/tribunals ? (4)

Answer 26

1/ Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain), 1994

2/ Qatar submitted 81 pieces of fraudulent evidence

3/ Reaction : parties agreed Qatar should not make any reference to these documents

4/ ICJ took a passive and deferential approach : it did not make its own investigation, did not use the word “fraud” in the judgment, never formally excluded documents from the record, etc.

Question 27

Some exceptions to the general practice of admitting any evidence presented before int courts/tribunals ? (4)

Answer 27

1/ evidence obtained in violation of IL

2/ time-barred or late-filed evidence

3/ evidence of uncertain authority

4/ irrelevant evidence

Question 28

Different factors taken into consideration in the evaluation of evidentiary weight ? (4)

Answer 28

1/ source of the evidence

2/ procedure followed to bring evidence to the tribunal/court

3/ relationship of evidence to events

4/ question of verification (e.g. cross-examination ; corroboration by other sources ; etc.)

Question 29

What is circumstantial evidence ? (2)

Answer 29

1/ indirect evidence of a fact in dispute btwn the parties

2/ the fact the parties are seeking to prove/disprove has to be inferred from this series of other facts (i.e. circumstantial evidence)

Question 30

What is direct evidence ?

Answer 30

Evidence that proves the existence of a fact without need for inferences/presumptions

Question 31

What is adverse inference ? (3)

Answer 31

1/ A legal inference drawn by a court/tribunal

2/ due the silence/inaction and hence failure of the party against whom the inference is drawn

3/ to prove evidence when this party is expected to do so

Question 32

2 questions submitted by UK and Albania in Corfu Channel case ?

Answer 32

1/ is Albania responsible for the explosions + duty to pay compensation ?

2/ has UK violated ALB sovereignty + duty to provide satisfaction ?

Question 33

What did the ICJ hold with regard to the 2 questions presented before it in the Corfu Channel case ?

Answer 33

1/ ALB was responsible for explosions + had duty to pay compensation bc it must have been aware and had knowledge of the minelaying in its waters

2/ UK did violate ALB sovereignty + duty to pay satisfaction bc it had no right of intervention but a duty to respect ALB territorial sovereignty

Question 34

Why did the ICJ reject UK argument that ALB had colluded with YUGO gvt in laying the mines in its waters ? (4)

Answer 34

1/ testimony of Kovacic provided hearsay evidence

2/ but Kovacic’s statements could not be corroborated by the ICJ bc third parties were not witnesses before the Court to confirm

3/ ICJ requested a “degree of certainty” (p.17) here bc the charges were of exceptional gravity

4/ thus hearsay evidence is not conclusive and has to be corroborated

Question 35

What type of evidence did the ICJ rely on to conclude ALB was aware of what happened in its waters and had knowledge of the minelaying ? (2)

Answer 35

It relied on 2 major pieces of circumstantial evidence :

1/ ALB’s close watch over waters of Corfu Channel (documentary evidence)

2/ Possibility of observing minelaying from ALB coast (geographical circumstances, tests carried out by experts)

Question 36

What did the ICJ stress about indirect evidence in the Corfu Channel case, p. 18?

Answer 36

1/ indirect evidence must be regarded as of special weight

2/ when it is based on a series of facts linked together and leading logically to a single conclusion

Question 37

Why did the UK and the ICJ rely on circumstantial evidence to prove ALB was aware of the minelaying in the Corfu Channel case ?

Answer 37

Bc as a third State, it would have been difficult for the UK to gather direct evidence as it had to respect ALB’s exclusive territorial control

Question 38

What type of evidence did ALB invoke to support its argument UK had violated its territorial sovereignty bc its passage in strait of Corfu Channel was not innocent ? (2)

Answer 38

1/ ALB invoked circumstantial evidence to support its contention UK’s passage was not an ordinary passage but a political mission

2/ ICJ was skeptical about this circumstantial evidence and did not characterize the situation as violation of ALB sovereignty on the grounds of a non innocent passage

Question 39

Why did UK not provide XCU document containing naval operations orders and what did the ICJ conclude from this refusal ? (2)

Answer 39

1/ UK refused to produce XCU document bc of naval secrecy

2/ ICJ concluded no factual findings and adverse inference could be drawn against UK from this refusal

Question 40

Why did ICSID arbitral tribunal not rely on direct evidence in Metal-Tech v Republic of Uzbekistan case, and what did it rely on ? (2)

Answer 40

1/ could not rely on direct evidence bc of the nature of corruption, which is very hard to prove

2/ relied on circumstantial evidence, also designated as “red flags” for corruption

Question 41

What circumstantial evidence did the arbitral tribunal rely on in Metal-Tech v Republic of Uzbekistan case ? (5)

Answer 41

1/ proof of services

2/ lack of qualifications

3/ connections with public officials

4/ amount of payments

5/ payment method

Question 42

Why did arbitral tribunal not focus on the question of the burden of proof in the Metal-Tech v Republic of Uzbekistan case, and why was it then appropriate for the tribunal to draw adverse inferences ? (3)

Answer 42

1/ testimony was provided by a witness for the claimant, which made the tribunal suspicious and lead it to request additional information by itself

2/ the arbitral tribunal thus explicitly asked the claimant for additional info and warned it that adverse inferences would be drawn if it did not provide the required evidence

3/ this was done for the good administration of justice

Question 43

What was the standard of proof ultimately applied by the arbitral tribunal in Metal-Tech v Republic of Uzbekistan case ?

Answer 43

“reasonable certainty”, which signals a lower standard of proof

Question 44

Cases of inter-State arbitration in which courts appointed experts ? (3)

Answer 44

1/ South China Sea Arbitration (PHI v CHI)

2/ Guyana v Suriname

3/ Indus Waters Kishenganga (PAK v India)

Question 45

Cases in which ICJ appointed experts ? (2)

Answer 45

1/ Corfu Channel

2/ Gulf of Maine