Evidence

Question 1

Why a flexible approach to evidence?

Answer 1

1) Sovereignty
2) Thorough and Comprehensive Understanding
3) Less Procedural Technicalities
4) Expense
5) No limitations on ability to decide

Question 2

What are the concerns around flexible rules for evidence?

Answer 2

Lack of certainty as to how judge arrived at decision undermines the legitimacy of the judgment.

May lead to problems with compliance.

Question 3

What did Nicaragua (Merits) case say about evidence?

Answer 3

Provisions of the statute relating to evidence deal with:

1) proper administration of justice
2) give each party a fair opportunity to comment on factual contentions.

Question 4

What were the factors Court considers when weighing evidence? (DRC v Uganda)

Answer 4

1) Court is cautious as to evidence prepared for the case (expert witnesses)
2) Court is cautious regarding evidence from just a single source
3) Prefers contemporaneous evidence from people who observed the events in person
4) With regard to fact finding bodies, examinations should be given special attention - prefers cross examination

Question 5

What is the burden of proof?

Answer 5

Burden of proof lies on the party making the claim.

Pulp Mills - It is the duty of the party ascertaining certain facts to prove the existence of such facts.

Art 27 PCA - more explicit on burden of proof.

Question 6

What are some of the challenges regarding burden of proof?

Answer 6

1) Special agreements: there is no respondent or applicant.

2) Duty of collaboration

Question 7

What happened in Whaling in Antarctic?

Answer 7

Issue: Violation of treaty on regulation of whaling. What programme for scientific purposes?

Held: Mathematic formula, that counsel didn’t understand, wasn’t sufficient evidence that this was for scientific purposes.

Question 8

What evidence was used in Costa Rica v Nicaragua?

Answer 8

Close ups and satellite images.

Question 9

What is the main test when assessing standard of proof?

Answer 9

Weight ascribed to evidence.

Question 10

What are the three different standards of proof? Name cases.

Answer 10

1) Balance of probabilities
- One side proves their case by 51%.
- Norwegian loans - ought not to be so stringent as to render proof unduly exacting.
2) Beyond reasonable doubt
- Corfu Channel - cases of exceptional gravity.
- Requires high degree of certainty.’
3) Sufficient of evidence
- Used more in cases of fraud, less at stake.
- Being ‘convinced.’
- Nicaragua case, Oil Platforms etc.

Question 11

What are the three powers of int tribunals regarding evidence??

Answer 11

1) Power to require parties to produce evidence.
2) Power to make its own investigations.
3) Power to engage experts.

Question 12

What are the different provisions for the production of evidence?

Answer 12

Art 34(2) or 49 :ICJ Statute 
Rule of Tribunal Art 77: ITLOS 
Art 43(a): ICSID Convention

Question 13

Can one draw an inference from the non-production of evidence?

Answer 13

• If case of national security, then no. (Corfu Channel)

- Where states do not make this please, adverse inference may be justified (Barcelona Traction).

Question 14

What did Court say about use of experts in Pulp Mills?

Answer 14

Facts; Argentina brought case against Uruguay for construction of mills on river. Said environmental damages.

Issue: Breach of treaty regulating how to deal with river on boundary.

Held: No link between mills and water pollution. Uruguay did, however, breach procedural obligation by failing to consult.

Role of Experts: Would have been more useful to have the experts present as witnesses, as opposed to counsel. People presenting evidence before court should testify as either experts or witnesses.

However, did not create new practice direction. (Whaling)

Question 15

What provisions allow WTO to appoint experts?

Answer 15

Art 11 and 13: Right to seek information and advice, in keeping with Art 11 - assessing the facts objectively.

Question 16

Why were experts important in South China Sea? (WTO)

Answer 16

China didn’t participate in proceedings so tribunal was careful to accept Philippine’s claims. Appointed a number of experts to help verify the claims by Philippines.

Question 17

What did expert do in Guyana v Suriname?

Answer 17

Helped draw and explain maritime boundary in technically precise manner.

Also conducted site visit to determine exact coordinates of a marker on the land - important for delimitation.

Question 18

What provisions allow ICJ to appoint experts?

Answer 18

Art 50 ICJ Statute and Art 67(2) of ICJ Rules.

Question 19

What did Pulp Mills (dissenting opinions) critique?

Answer 19

ICJ began to hire consultants, sometime parties were even told or consulted about it - ‘invisible experts.’

Dissenting opinions were critical of how the court approaches evidence - it increases doubts over ICJ’s ability to deal with complex scientific questions.

Contrary to need for transparency and procedural fairness, and contrary to the good administration of justice.

Parties unable to review choice of experts (eg fear of impartiality) or review expert’s report.

Question 20

What happened after Pulp Mills critique?

Answer 20

Maritime Delimitation (costa rica v Nicaragua):

• Reformed practice - appointed 2 experts to help determine start of maritime boundary.
• Parties given opportunity to object to choice of experts and comment on reports made.

Question 21

What is provision under UNCLOS for appointing experts?

Answer 21

Art 298 UNCLOS

Question 22

What happened in the case of Maritime Delimitation (Qatar v Bahrain)?

Answer 22

Fact: Qatar presented numerous pieces of fraudulent evidence (maps, surveys etc). Experts in history were hired to investigate snd found to be filled with historical anachronisms.

Issue: No rules to deal with fraudulent evidence.

Held: ICJ took passive and deferential approach. Did not refer to as fraud etc, but let parties work out for themselves. Agreed these documents wouldn’t be referred to.

Question 23

What were the two main questions in Corfu Channel?

Answer 23

1) Was Albania responsible for explosions occurring in October?
2) Did UK violate Albania’s sovereignty?

Question 24

What was legal basis for Albania’s responsibility in Corfu Channel?

Answer 24

Not whether Albania herself laid the mines, rather did it have knowledge of the minelaying?

Question 25

What did ICJ say about standard of proof in determining whether Albania had knowledge?

Answer 25

1) Exclusive control exercised by a state within its frontiers may make it impossible to furnish direct proof of facts.
2) Victim state may be allowed a more liberal recourse to inferences of facts and circumstantial evidence.

Question 26

What were the two factors Court considered, by means of indirect evidence, that Albania had knowledge?

Answer 26

1) Attitude

2) Technical conditions

Question 27

Was UK in violation of Albania’s territorial sovereignty?

Answer 27

The corfu channel belonged to a class of international highways through which passage cannot be prohibited by a coastal state in time of peace.

Had right as long as innocent .

Question 28

Court will permit liberal reliance on circumstantial evidence so long as…? (Scharf and Day)

Answer 28

1) The direct evidence is under the exclusive control of opposing party; and
2) The circumstantial evidence does not contradict any available evidence or accepted facts.

Question 29

What happened in Crime of Genodice?

Answer 29

Refused to draw inferences in deciding genocidal intent.

However, used ‘international concern’ to hold Serbia liable to duty to prevent and punish.

Here, evidence needed by Bosnia was in exclusive territory of Serbia. However, Court also had large amounts of direct evidence available to it - indicating Serbia’s innocence of intent.

Question 30

In Metal Tech, what was the question regarding standard of proof?

Answer 30

If case of corruption, reverse burden so lies on the accused to rebut?

Lex causae - BIT - doesn’t address this.

Facts = ‘suspicions of corruption.’ Therefore, requested more evidence to prove wasn’t engaged in corruption.

Question 31

How did ICSID approach circumstantial evidence?

Answer 31

MT was unable to prove services existed.

Applied ‘red flag analysis’