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Sandifer, Durward V., Evidence before international Tribunals, Charlottesville1975

Sandifer, Durward V., Evidence before international Tribunals, Charlottesville1975
Table of Contents

III The Production of Evidence


Obligations of the Parties



Section 29. Burden of Proof


A further factor in preventing the growth of technical rules concerning the burden of proof is that in international adjudications between States in their own right (as distinguished from proceedings before claims commissions) , there has in many cases been no distinction in the position of the parties as plaintiff and defendant. 90 Witenberg rejects the argument that this prevents the application of a rule of burden of proof: "For if the burden of proof falls on the plaintiff, it is not because he is the plaintiff, but it is in the last analysis because he124 alleges a fact . . . . [I]t is not as plaintiff as such that the burden of proof falls on him. It falls to him who alleges a fact, as the Roman law says." 91

Rosenne says of the situation in the International Court of Justice, in cases initiated under the Optional Clause of the Court's Statute:

Although the Rules of Court use the term "applicant" and "respondent", this is a matter of drafting convenience and only designates the formal position of the parties. On the other hand, viewed as a matter of substance, the tendency of the Court is to separate the various issues arising in any one case, treating each one separately. The result is that each State putting forward a claim is under the general duty to establish its case in fact anti in law, without there being any implication that such State is "plaintiff" or "applicant" in the sense in which the term is used in municipal litigation. 92

With the pleadings going, forward simultaneously, a division of the burden of proof can at best be determined with difficulty and then late in the proceedings, other than the ultimate burden of substantiating with satisfactory evidence affirmative contentions made or of rebutting contentions thus substantiated.93 Parties in such cases are inclined to resist any suggestion of treating them as plaintiffs or defendants.94


130 However, in stressing the obligation of both parties to produce evidence in their possession, these cases represent a sound conclusion. They go too far only in suggesting that there is no rule of burden of proof in international proceedings. While there are no technical rules such as those found in Anglo-American law, there is a primary burden on him who asserts to prove his assertion, and that rule should be maintained, especially in claims commissions.111


V Documentary Evidence


The Best Evidence Rule


Section 46. Resort to Secondary Evidence


217 The Court added, however: "By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion."72 In its Memorial the United Kingdom gave a persuasive statement in support of the acceptance of circumstantial evidence in this case:

For under these principles responsibility for breaches of law may be fixed upon a delinquent by circumstantial as well as direct evidence. If this were not so, it would be impossible for any system of law, including international law to be effectively enforced. Moreover, in the present case the circumstantial evidence consists of the cumulative evidence of several circumstances all pointing in one direction. It has therefore a compelling force leading only to one conclusion and, in the submission of the Government of the United Kingdom, establishes the complicity of Albania beyond all reasonable or moral doubt.73

218 In another decision, the Anglo-Iranian Oil Co. Case, the court had to determine the admissibility, as proof of the intention of the Iranian Government, of an Iranian law of June 14, 1931. It had been contended that this piece of legislation was inadmissible "as a purely domestic instrument, unknown to other Governments," and as a "private document written only in the Persian language which was not communicated to the League or to any of the other States which had made Declarations." In rejecting this contention, the court said:

The Court is unable to see why it should be prevented from taking this piece of evidence into consideration. The law was published in the Corpus of Iranian laws voted and ratified during the period from January 15, 1931 to January 15, 1933. It has thus been available for the examination of other governments during a period of about twenty years. The law is not, and could not, be relied on as affording a basis for the jurisdiction of the Court. It was filed for the sole purpose of throwing light on a disputed question of fact, namely the intention of the Government of Iran at the time when it signed the Declaration.74

90With reference to the terms used to designate the prosecuting and the defending parties in municipal and international law, see HARVARD RESEARCH IN INTERNATIONAL LAW, COMPETENCE OF THE COURTS IN REGARD TO FOREIGN STATES, art. 1 (c) and (d) , and comment 489-90 (1932).
91Witenberg, Onus Probandi devant les Juridictions Arbitrales, 55 REV. GEN. DE DROIT INT'L PUB. 325, 327 (3d ser. 1957) (translation) .
93For example, the United States-Mexican General Claims Commission, 1923, declared in the course of its opinion in the Parker Case: "The absence of international rules relative to a division of the burden of proof between the parties is especially obvious in international arbitrations between governments in their own right, as in those cases the distinction between a plaintiff and a respondent often is unknown, and both the parties have to file their pleadings at the same time. Neither the Hague Convention of 1907 . . . nor the Statute and Rules of the Permanent Court of international justice . . . contain any provision as to a burden of proof." OPINIONS 40 (1927) .
94An instance of this may be found in the division of opinion that arose between Japan, on the one hand, and France, Germany, and Great Britain, on the other, in the Perpetual Leases Case. In their Mémoire tire three Governments referred to themselves as plaintiffs and Japan as defendant. Japan in its Contre-Mémoire asserted that "this pretention was unfounded from every point of view." In its Statement of Objections, Japan contended that if either party could properly be considered a defendant, it was the three Governments, since the issue was whether they had violated the terms of their treaties with Japan. STATEMANT OF OBJECTIONS OF THE IMPERIAL JAPANESE GOVERNMENT TO THE CONTRE-MÉMOIRE AND CONCLUSION OF THE GOVERNMENTS OF GERMANY, FRANCE, AND GREAT BRITAIN 2, 82 (1904).
111"Undoubtedly the burden of proof falls upon the claimants before commissions as in other cases, except insofar as such burden may he removed by the provisions of the protocol. The claimant's case once made out, the burden is transferred to the defendant. . . "RALSTON, LAW AND PROCEDURE 220. After quoting this statement, Feller asserts that he "cannot believe that such is "undoubtedly" the rule, and would consider it highly undesirable if it were." MEXICAN COMMISSIONS 261,"Le principe que le fardeau de la preuve incombe au demandeur est admix sans hesitation deviant le jurisdictions internationales. II repose stir des Wes de justice et de logique qui Wont jamais été discutées." G. RIPERT, LES REGLES DU DROIT CIVIL APPLICABLES AUX RAPPORT INTERNATIONAUX, 44 RECUEIL DES COURS (Hague Academy of International Law) 646 (II-1933) .Witenberg finds in customary law the basis for this conclusion: "[T]here exists in international law a rule dividing the burden of proof, and . . . this rule consists precisely in imposing on the plaintiff and on the defendant the burden, respectively,of proving the facts that they allege." Note 92 supra, at 327 (translation).
731 I.C.J. Pleadings 41 (1948) See also 2 id. at 326-37; 3 id. at 259-61: 4 id. at 479-80; 2 ROSENNE, supra note 18, at 5182-83; J. SYATAW DECISIONS OE THE INTER NATIONAL COURT of JUSTICE 24-2 , 1962) ; I G. SCHWATZENBERGER, INTERNATIONAL Law 47-4$ (3d ed. 1()57) ; 2 J. VERZIJI., JURISPRUDENCE of THE WOLRD COURT 106-070966) "However, I doubt whether by founding oneself on indirect evidence, it is possible to conclude that a State is responsible vis-à-vis another State. I do not believe that that international justice could be content with indirect evidence of the sort has been produced in the present case, which affects the honor of a State, and its position in the community of nations." Dissenting Opinion, Judge Krylov [1949] I.C.J. 69. "In a system of evidence which is based upon free appraisal by the judge, as is the case in national criminal legislation and in international law, circumstantial evidence means facts which, while not supplying immediate proof of the charge, yet make the charge reasonable with the process of reasoning . . . the most reliably doctrine takes the view that "proof by circumstantial evidence is regarded as successfully established only when other solutions would imply circumstances wholly astonishing, unusual and contrary to the way of the world." These rules must be a constant guide in weighing evidence." Dissenting opinion, Judge Badawi-Pasha, id. at 59.
74[1959] I.C.J. 107.

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