Fact-Finding before the International Court of Justice

Description

Fact-Finding before the International Court of Justice examines a number of significant recent criticisms of the way in which the ICJ deals with facts. The book takes the position that such criticisms are warranted and that the ICJ's current approach to fact-finding falls short of adequacy, both in cases involving abundant, particularly complex or technical facts, and in those involving a scarcity of facts. The author skilfully examines how other courts such as the WTO and inter-State arbitrations conduct fact-finding and makes a number of select proposals for reform, enabling the ICJ to address some of the current weaknesses in its approach. The 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. Cover Half-title Title page Copyright information Table of contents Table of cases Acknowledgements Introduction 1 Rules of evidence before the International Court of Justice (i) The development of the rules of evidence before the International Court of Justice 1.1 The fact-finding powers of the International Court of Justice 1.1.1 The power to make orders 1.1.2 The power to make site visits 1.1.3 The power to intervene in and direct proceedings and ask questions 1.1.4 The power to request information from the parties 1.1.5 The power to establish an inquiry or seek expert evidence 1.1.5 (i) Court-appointed experts 1.1.5 (ii) Commissions of inquiry 1.1.6 The power to request information from public international organisations 1.2 Da mihi factum, dabo tibi jus: the Court’s reactive approach to fact-finding 1.2.1 A reluctance to engage with complex factual situations? 1.3 The Court’s reactive approach to fact-finding: contributing factors 1.3.1 Predominance of documentary evidence 1.3.2 Admissibility 1.3.3 The continuing influence of the sovereign nature of the parties 1.3.4 ‘Classical’ approach to the international judicial function 1.4 A natural counterpart: fact-assessment and the weighing of evidence 1.4.1 Assessment of evidence: guiding principles 1.4.2 Practice of the Court 1.5 Does the Court have unlimited discretion to pursue a more proactive approach to fact-finding? 1.5.1 Gagged and bound? The International Court of Justice and its relationship with other principal organs 1.5.2 A static examination of the traditional roles of the principal organs 1.5.3 The Court: principal organ 1.5.4 The Court: judicial organ - functional distinction 1.5.5 Functional parallelism 1.5.6 A dynamic examination of the roles of the principal organs: jurisprudence of the Court 1.5.7 The policy argument: functional parallelism and functional distinction 1.5.8 Summary: the Court’s discretion unfettered 1.6 Chapter 1 summary: the Court’s reactive approach to fact-finding 2 Criticisms of the Court’s current reactive approach to fact-finding (i) Introduction: is the ICJ factually challenged? 2.1 Group 1: problems relating to abundant, particularly complex or technical facts 2.1.1 Blurred lines: the practice of experts appearing as counsel 2.1.2 Factual inaccuracies arguably made as a result of the Court’s reactive approach to fact-finding 2.1.3 Other problems arising out of the Court’s reactive approach to fact-finding 2.1.4 From our own correspondent: the Court’s deference to UN fact-finding 2.1.4 (i) Are weaknesses in UN fact-finding undermining the Court’s factual findings? 2.1.5 Certain aspects of the Court’s reliance on factual determinations made by other international courts 2.2 Group 2: problems arising from insufficient evidence, specifically non-appearance 2.2.1 Cases of non-appearance 2.2.2 The Court’s role in cases of non-appearance and resulting difficulties 2.3 Chapter 2 summary: criticisms of the Court warranted 3 The practice of other international courts and tribunals Introduction (i) Fact-finding and fact-assessment before the adjudicative bodies of the WTO (ii) Background 3.1 Fact-finding and fact-assessment at the WTO General provisions (i) Article 12.7 DSU (ii) Article 11 DSU 3.1.1 Evidentiary practice before Panels 3.1.1.1 Evidence put before Panels by the parties 3.1.1.2 Experts appearing on behalf of the parties 3.1.2 WTO fact-finding powers: traversing the frontiers of truth 3.1.2.1 Information that can be gathered by the Panel: Article 13 DSU 3.1.2.2 Power to ask questions 3.1.2.3 Power to request information under 13 DSU 3.1.2.4 Power of Panels to mandate individual experts and expert review groups under Article 13 DSU 3.1.2.5 Special permanent expert bodies 3.1.2.6 Summary: the fact-finding approach of WTO Panels 3.1.3 Evidence before the Appellate Body - Article 17 DSU 3.1.4 Notable crosscutting evidentiary issues affecting both Panels and the AB 3.1.4.1 Burden of proof 3.1.4.2 Adverse inferences 3.1.5 WTO concluding remarks 3.2 Fact-finding and fact-assessment in recent inter-State arbitrations 3.2.1 The influence of the Iran-US Claims Tribunal 3.2.1 (i) The extent to which the Iran-US Claims Tribunal takes an active role in investigating facts 3.2.1 (ii) Production of documents: Article 24(3) 3.2.1 (iii) Enforcement of production orders 3.2.1 (iv) Adverse inferences 3.2.1 (v) The use of experts 3.2.1 (vi) The Iran-US Claims Tribunal in the round 3.2.2 Guyana/Suriname 3.2.2 (i) Introduction 3.2.2 (ii) Hydrographic expert 3.2.2 (iii) Dispute over disclosure of documents 3.2.2 (iv) The Tribunal’s approach to fact-finding 3.2.2 (v) Independent expert 3.2.2 (vi) The arbitral Tribunal’s approach in the round 3.2.3 Abyei Arbitration 3.2.3 (i) Introduction 3.2.3 (ii) Evidence : the Tribunal’s request for certain documents 3.2.3 (iii) Experts appointed by the Tribunal 3.2.3 (iv) Experts and witnesses appointed by the parties 3.2.3 (v) Abyei in the round 3.2.4 Kishenganga 3.2.4 (i) Introduction 3.2.4 (ii) Adoption of Rules of Procedure 3.2.4 (iii) Site visits 3.2.4 (iv) Information requested of the parties 3.2.4 (v) Information requested by the parties 3.2.4 (vi) Expert witnesses 3.2.4 (vii) The Kishenganga arbitration in the round 3.3 Chapter 3 summary 4 Winds of change: the possibility of reform 4.1 Developing a power to compel the disclosure of evidence 4.1.1 As things stand: discovery and the unclear binding nature of Article 49 ICJ Statute 4.1.2 ‘Should’ means ‘shall’? The curious case of Article 13 WTO DSU 4.1.3 Developing a power to compel the disclosure of evidence for the ICJ 4.1.4 The duty of collaboration and the burden of proof (i) Definition (ii) The duty of collaboration in international instruments (iii) The duty of collaboration in international jurisprudence (iv) A duty of collaboration that is conditional 4.2 Provisional measures 4.2.1 What is the object of provisional measures? 4.2.2 When can provisional measures be made? 4.2.3 Provisional measures and evidence 4.2.4 The obstacle to using provisional measures as part of a more proactive approach to fact-finding 4.2.5 Legal consequences of non-compliance with provisional measures 4.2.6 Failure to comply with provisional measures and duty of collaboration generally: adverse inferences 4.3 Developing a clear strategy for the use of experts before the court 4.3.1 Fostering a culture of examination and cross-examination in open court 4.3.1 (i) Cross-examination: from white elephant to indispensable weapon in the Court’s arsenal 4.3.2 Court-appointed experts 4.3.2 (i) An aid in the comprehension of factually complex evidence 4.3.2 (ii) Facilitating the disclosure of evidence 4.3.2 (iii) Necessary safeguards for the appointment of the Court’s own expert 4.3.3 Summary: a clear strategy for the use of experts before the Court 4.4 Chapter 4 summary: realistic measures to achieve a more proactive approach to fact-finding 5 A more proactive approach to fact-finding (i) Introduction 5.1 Positive aspects of the Court’s current reactive approach 5.2 How to deal with factually complex cases before the Court 5.3 The limits of the Court’s fact-finding powers Epilogue Bibliography Index