Evidence before International Courts and Tribunals

The British Institute of International and Comparative Law has undertaken a major study in the law of evidence before international courts and tribunals. In 2000 the Institute obtained funding from the Leverhulme Trust to conduct a pilot study on evidence before international courts and Tribunals, to explore the usefulness and manageability of the topic and provide an insight into a future major study. This was completed in 2002 and indicated the need for further examination of evidentiary questions in international adjudication.

Following the award of a grant from the Department of Constitutional Affairs, the evidence project became a major endeavour in the Public International Law department. A dedicated research team in the Institute, consisted of Anna Riddell, the Project Director, assisted by research fellow Brendan Plant. In addition, the input and experience of international judges and practitioners was an essential contribution to the project.

Evidence in the International Court of Justice

The first phase of the project, now completed, was to examine the issues of evidence before the International Court of Justice. The purpose of this phase of the project is a detailed academic examination of the development of the rules of evidence before the Court, and their current status. In addition, this drawing together of an authoritative compilation of practices, procedures and techniques employed in the Court provides a valuable body of material which the Court itself, practitioners and the parties to disputes can use in the preparation of cases.

The publication was reviewed at an early stage both by the Advisory Panel of Professor Philippe Sands, Sir Michael Wood and Sir Franklin Berman, and also by academics, practitioners and judges who expressed an interest in the project at a discussion seminar in October 2007. The comments and input from these experts on the subject were incorporated into the publication and the research and consultations has resulted in the publication of Evidence Before the International Court of Justice by Anna Riddell and Brendan Plant in February 2009 (hyperlink to book please).

Archived Project News

  • May 2006 - Visit to the ICJ

In May 2006 Anna Riddell attended the public hearings in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro). The case is an interesting one given that it is the first time a charge of genocide has been heard before the Court, and Bosnia Herzegovina is making interesting arguments as to the admissibility of evidence heard in cases before the International Criminal Tribunal for the Former Yugoslavia. In addition, Serbia's continued denial of the Court's jurisdiction has given rise to very interesting discussion. The case is also unusual in that several witnesses were called by both parties, which has only happened in nine previous cases before the Court. The hearings ended in May 2006, and judgment is expected in six to nine months' time.

A second visit to the Court is proposed in order to present a questionnaire on evidence to the Judges and the Registry of the Court in order to ascertain the practical way in which evidence is dealt with and to ensure that all possible issues and problems have been identified and examined. The judges will also be asked for their input on draft chapters of the publication, to keep it as relevant and as useful as possible to all parties who might use it as a tool for reference in the future.

  • June 2006 - Annual Conference Discussion Panel

As a major session of the BIICL Annual Conference on 16 June 2006, a lively and engaging panel discussion on evidence in the ICJ took place, with Dr Chittharanjan Amerasinghe, Professor Alain Pellet, Professor Khawar Qureshi and Professor Andreas Zimmermann each offering their views, the session being chaired by Sir Franklin Berman.

This acted as an excellent showcase for the project and prompted considerable interest both in academia and at the practising Bar. It highlighted the fact that this is an exciting time in the development of the rules of evidence of the Court, and the forthcoming project publication will be able to take these developments into account.

  • September 2006 - Project Progress Update

We have now read all 25 Advisory Opinions and 92 Judgments given by the ICJ since 1946. In the cases in which evidence is discussed in any detail (8 Advisory Opinions and 57 Judgments), a case report has been created, with quotations and citations, and our analysis of the Court's treatment of evidence. These have been documented in a database which will serve as an at-a-glance reference point for us during the writing phase, and will eventually be put onto our website, constituting a significant resource for our Members. We have also created a timeline of the treatment of evidence by the Court over the years, showing when a particular concept was first discussed, modified or elaborated upon.

  • February 2007 - Project Progress Update

The research on the ICJ is now drawing to a close, and a draft chapter plan has been prepared. We are now beginning to write up our findings from the last year. A timetable for the completion of each chapter is in place, and although deadlines often have a habit of creeping, we hope to stick to them!

The first draft of the project publication should be finished by September, and it will then be circulated to our group of experts for comment and input. We are hoping to convene a discussion forum later in the year in order to give us valuable feedback.

  • May 2007 - Evidence Project Researchers meet with ICJ Judge

The Director of the Evidence Project, Anna Riddell, and Researcher Brendan Plant, travelled to Oxford to hear Judge Bernardo Sepulveda-Amor of the International Court of Justice give a lecture entitled, 'The International Court of Justice and the Use of Force'. The event was organised by the Oxford Public International Law Discussion Group, convened by the British Institute's intern, Lydia-Maria Bolani.

Following the lecture Judge Sepulveda discussed the International Court of Justice and its evidentiary rules and procedures with Ms Riddell and Mr Plant over lunch. He was able to give some interesting insights and answer many questions on the workings of the Court.

  • June 2007 - Visit to the ICJ and Meetings with President Higgins and the Registrar

Evidence Project Director, Anna Riddell, and Researcher Brendan Plant, attended the oral proceedings on the Preliminary Objections of Colombia on Jurisdiction in the case concerning Territorial and Maritime Dispute (Nicaragua v Colombia) at the Peace Palace in The Hague this week.

In addition, both President Rosalyn Higgins and the Registrar, M Philippe Couvreur, were kind enough to give generously of their time to the project researchers to answer their questions, provide an insight into the workings of the Court, and give their views on evidence in the Court.

Visits to the International Criminal Tribunal for the Former Yugoslavia to view the Appeal Hearings in the Limaj et al. case and to the International Criminal Court were also made.

  • June 2009 - Discussion Forum on Expert Evidence and Official Launch of Evidence Before the International Court of Justice

On 22 June 2009 the Institute convened a discussion forum on the issue of expert evidence before International courts and tribunals, to coincide with the launch of 'Evidence Before the International Court of Justice' by Anna Riddell and Brendan Plant.

Sir Franklin Berman convened the discussion between Professor Michael Reisman, Chris Carleton of the UK Hydrographic Office, Professor Philippe Sands QC and Dr Mojtaba Kazazi, which covered aspects such as the qualification of experts, the use of expert witnesses, the use of experts by tribunals 'behind closed doors', the use of experts as part of a legal team, and what rules could be introduced to improve the use of experts.

Follow up on Investment Treaty Arbitration and Evidence

The British Institute intends to follow up on this project with research on investment treaty arbitration and evidence.

This project would aim to identify and clarify the detailed rules and practices of international investment tribunals in relation to collection, production, admissibility, examination, assessment and weighing of different types of evidence under the ICSID and UNCITRAL rules.

This would be the first time such comprehensive review and analysis has been carried out and will be of practical significance. It is clear that the quality of the fact-finding process adds to the acceptance of judicial and arbitral decisions by the disputing parties and more widely. It is hoped that the research will promote the credibility, legitimacy and confidence in the system of investor-state arbitration. It should also contribute to the greater coherence and predictability of this important aspect of the arbitral procedure.

Funding is being sought for this project.