Evidence Flashcards
Why a flexible approach to evidence?
1) Sovereignty
2) Thorough and Comprehensive Understanding
3) Less Procedural Technicalities
4) Expense
5) No limitations on ability to decide
What are the concerns around flexible rules for evidence?
Lack of certainty as to how judge arrived at decision undermines the legitimacy of the judgment.
May lead to problems with compliance.
What did Nicaragua (Merits) case say about evidence?
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.
What were the factors Court considers when weighing evidence? (DRC v Uganda)
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
What is the burden of proof?
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.
What are some of the challenges regarding burden of proof?
1) Special agreements: there is no respondent or applicant.
2) Duty of collaboration
What happened in Whaling in Antarctic?
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.
What evidence was used in Costa Rica v Nicaragua?
Close ups and satellite images.
What is the main test when assessing standard of proof?
Weight ascribed to evidence.
What are the three different standards of proof? Name cases.
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.
What are the three powers of int tribunals regarding evidence??
1) Power to require parties to produce evidence.
2) Power to make its own investigations.
3) Power to engage experts.
What are the different provisions for the production of evidence?
Art 34(2) or 49 :ICJ Statute Rule of Tribunal Art 77: ITLOS Art 43(a): ICSID Convention
Can one draw an inference from the non-production of evidence?
- If case of national security, then no. (Corfu Channel)
- Where states do not make this please, adverse inference may be justified (Barcelona Traction).
What did Court say about use of experts in Pulp Mills?
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)
What provisions allow WTO to appoint experts?
Art 11 and 13: Right to seek information and advice, in keeping with Art 11 - assessing the facts objectively.
Why were experts important in South China Sea? (WTO)
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.
What did expert do in Guyana v Suriname?
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.
What provisions allow ICJ to appoint experts?
Art 50 ICJ Statute and Art 67(2) of ICJ Rules.
What did Pulp Mills (dissenting opinions) critique?
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.
What happened after Pulp Mills critique?
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.
What is provision under UNCLOS for appointing experts?
Art 298 UNCLOS
What happened in the case of Maritime Delimitation (Qatar v Bahrain)?
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.
What were the two main questions in Corfu Channel?
1) Was Albania responsible for explosions occurring in October?
2) Did UK violate Albania’s sovereignty?
What was legal basis for Albania’s responsibility in Corfu Channel?
Not whether Albania herself laid the mines, rather did it have knowledge of the minelaying?
