Font Size: a A A

A Study Of Issue Of Evidence In Territorial Dispute Resolution Procedure Of The ICJ

Posted on:2012-07-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:W B ZhangFull Text:PDF
GTID:1116330335488475Subject:International Law
Abstract/Summary:PDF Full Text Request
In any legal system, evidence is crucial for the settlement of disputes, Thus the burden of proof and rules of evidence are essential to any dispute settlement system. As the territorial dispute settlement procedures, evidentiary issues relate to border settlement and the attribution of territorial sovereignty, therefore, the Court have preliminarily established a set of rules of evidence and procedure in resolving the territorial dispute in the parties. Although the International Court of Justice is not a supranational legislative bodies, but in theory, it has an important role in promoting the formation of the international rule of law and customary international law. Meanwhile, a set of rules created by the International Court of Justice in the territorial disputes has provided a reference for most countries, and apply them to the relevant practice.The paper is divided into six chapters, its main contents include as follows: production of evidence before the International Court of Justice related to territorial disputes; rights and responsibilities of the parties and the court's power in obtaining evidence; the types of evidence, admissibility of evidence, the applicable standard of proof and evidentiary rules on probative value; testimonial evidence, expert evidence; its use for reference to territorial dispute settlement between neighboring countries and China. Chapter I mainly analyses production of evidence before the International Court of Justice related to territorial disputes. First, it relates to rights and responsibilities of the parties in production of evidence. The International Court of Justice adheres to the freedom of production in view of Sovereign Equality and Consent Criterion. However, it should also assume certain responsibilities. Though the statute of the International Court of Justice lacks any explicit provisions of an obligation incumbent upon the parties to produce evidence, in practice, each party to the International Court of Justice proceedings has the responsibility not to contravene international law in obtaining the evidence. As for the duty of disclosure of the parties, to some degree, only has a certain'voluntary'in nature, rather than compulsory. However, the liberality of evidentiary regime may bring negative factors, such as the burden of superfluous evidence. Therefore, the Court can limit the number of items or volume of evidence submitted by the parties. At the same time, it may be useful for the court to adopt preliminary consultation proceedings on questions of fact and proof, and so on. As a result, the Court may persuade state to be more discriminating in their submission of evidence, and so improve its ability to settle their dispute in a matter which is both and swift.Secondly, as of the end of 2010, there are four cases involving intervention and submission of evidence by third party states about the territorial dispute. Given permitting a third party to participate in the proceedings, it may risk delaying the normal proceedings, therefore, the Court has made the appropriate provisions, which including the time of submitting evidence, the necessary conditions of participating in the proceedings, etc. However, article 81, para. 3 of the 1978 Rules of Court , which states"the application shall contain a list of the documents in support, which documents shall be attached"does not require a state to submit documentary evidence, only that if it does so, it should provide a list of that evidence, rather that the opposite.Thirdly, the Court enjoys an extremely broad discretion in most matters of evidentiary procedure, including the power to question witnesses, request additional documents or explanations, call witnesses, to appoint experts, obtain evidence by visiting a site or location. However, the Court neglects its powers, because it has consistently viewed its own powers to seek evidence as strictly secondary in character, with its primary function being the mere supervision of parties'submission of documentary and testimonial evidence on the basis of sovereign equality. For the purpose of developing the Court's jurisprudence and delivering judgments more precisely, it should build the confidence to use its powers so as to made extensive findings of fact. At the same time, it uses for reference to dispute methods in other field.Chapter II analyses admissibility of evidence concerning the territorial dispute before the International Court of Justice, including order and time of submission of evidence, admissibility of evidence and critical date, evidential weight, rule of exclusion of evidence, and so on.Generally, Documentary evidence is almost without exception presented to the International Court of Justice in accordance with the order and the time limit of submission of evidence. In other words, as long as the parties submit evidence within time limits, the Court has accepted the principle that any evidence produced by the parties should be admitted automatically. However, it does not mean that the Court should accept all evidence submitted by the parties. For example, late -filed evidence is inadmissible. Namely, after the closure of the written proceedings, no further documents may be submitted to the Court by either party except with the consent of the other party or silence of the other party. In absence of consent, the Court, after hearing the parties, may, if it considers the document necessary, authorize its production.In practice, the restrictions upon admissibility of evidence in municipal procedure have certain place before the International Court of Justice. Moreover, the Court has developed specific rules how evidence should be presented in case concerning territorial disputes. The Court emphasizes the importance of the critical date, not so much in relation to the weight to be given to it but rather to the admissibility of evidence. At the same time, it cannot take into consideration acts having taken place after critical date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them. Moreover, if it is self-serving, designed to strengthen, or even establish that State's claim to sovereignty, it is not concerned with the reduced weight to be given to it, but with the admissibility of evidence.It is noted that the weight of the evidence is closely related to the admissibility of evidence. However, compared with the admissibility of evidence, the weight of evidence is not a legal issue but a question of fact. In Anglo-American evidential procedure, evidence which has no weight or of probative value is to be excluded as inadmissible. Nevertheless, the Court has happened only infrequently that it takes the course of declaring inadmissibility in resolving the territorial dispute. In fact, it has seemed preferable not to use admissibility but admission. Certainly, the rules on admissibility are more liberal than in national courts, thus all evidence once admitted is subjected to an evaluation of weight.Although the Court has the freedom to admit evidence of all kinds, its practice in this is, nevertheless, governed by a number of general principles of evidential law recognized by states in national systems. Therefore, there are circumstances in which the Court applying freedom of production to have refused to accept evidence submitted by the parties, including late-filed evidence, evidence obtained through settlement negotiations, irrelevant evidence, evidence lacking authenticity, hearsay evidence, evidence obtained breach of estoppel. Undoubtedly, it can reduce the burden of admissibility of superfluous evidence. Moreover, parties may evaluate the relevance, credibility and weight of evidence, and exclude to proffer certain inadmissible evidence.Chapter III the Court deals with the essence of proof itself on the territorial dispute. First, in terms of evidence and procedure generally, the International Court of Justice can be seen as more frequently conforming to the civil legal tradition, thus it lacks a specific standard. At the same time, In view of the complexity of the territorial disputes among the parties, the International Court of Justice absorbed the common law tradition, therefore an applicable standard is preponderance of evidence by the Court implicitly in the judicial practice. However, when the Court applied 'preponderance of evidence'to the territorial dispute, it exist a logical confusion because of comparing a piece of evidence with another simply. It sometimes leads into a simple game. This caused the international community to question the authority of the International Court of Justice. In fact, there are different opinions within the International Court of Justice. Accordingly, rules of evidence are still developing. As a result, Preponderance of evidence is lower standard of proof, in contrast, beyond reasonable doubt standard is very higher, so the Court is faced with two competing ideals: flexibility in adjudication and certainty for the parties. The paper upholds that the International Court of Justice should adopt the clear and convincing standard. Adopting such standard not only would enable the Court to safeguard the flexibility, but give the parties a greater deal of guidance.Secondly, with regard to the burden of proof on territorial disputes, as a general rule, the accepted formula for deciding the proponent of the legal burden of proof has been the maxim actori incumbit onus probandi. In other words, the claimant carries the burden of proof. Nevertheless, the Court holds that each party is called upon to establish the arguments on which it relies in support of its claim to sovereignty over the object in dispute. Namely, the burden of proof may, thus, be divided. Apparently, the Court does not simply rely on traditional applicant/respondent dichotomy. In general, in cases brought by application, the burden is on the application, and respondent merely has a negative burden.However, In particular, for cases brought by Special Agreement, there is equality in terms of the burden of proof, rather than special provisions on burden of evidence in an agreement. At the same time, the state requesting intervention bears the burden of proof and it must demonstrate convincingly what it asserts, that is to identify the interest of a legal nature. It demands only that the interest'may be affected', not that it'will be affected'or even that it is'likely to be affected'. Furthermore, if there are some facts or matters which re already within the knowledge of the judges, either by reason of their being so widely known that they do not require explanation, or because they relate to the existence of a law, which all judges are presumed to know, the Court does not require the parties to provide proof thereof. Third, Presumptions do have an important role to play in international law involving territorial disputes. Presumptions may be rebuttable or irrebuttable. Rebuttable presumptions permit the presumption of fact to be overturned generally by evidence. Irrebuttable presumption may not be so overturned. Inferences are a tool of judicial reasoning employed to aid a court in determining whether the burden of proof has met in cases where direct evidence is not available on a particular fact.Concretely, the effect of an irrebuttable Presumption is to conclusively prove the presumed fact, either relieving the claimant of the need for proof, or making it impossible for him to meet the burden of proof if the presumption operates in favour of the other party. Namely, it cannot be rebutted by evidence to the contrary. Only one example can be found in the case law of the International Court of Justice, namely it arose in Preah Vihear. In contrast, irrefutable presumption may be discharged or increased the weight of the burden of proof the plaintiff. Presumption and the shifting the burden of proof are often linked. Rebuttable presumptions do not in fact reverse the burden of proof. They simply relieve the proponent of the burden from having to initiate proof or adduce evidence on the fact to be presumed. This does however shift the burden of evidence to the other party. Inferences are useful method of proof for the International Court of Justice. Without lacking direct evidence in those cases, the Court states proof may be drawn from inferences of fact. Moreover, it helps to decide whether the burden of proof is met. In particular, irrebuttable inferences may sufficiently discharge the burden of proof of the parties. Inferences merely mean the fact is considered proven and no'burden'is shifted.Chapter IV mainly tracks the Court'practice related to types of evidence, probative value, rules of comparison concerning probative value. In general, there exist documentary evidence, testimony and expert evidence with regard to types of evidence submitted by the parties. Written evidence is a general rule, testimony and expert evidence is an exception. In practice, the International Court of Justice has given the corresponding weight to various types of evidence.In comparative rules of probative value, the International Court of Justice always adopts a corresponding set of implied rules in resolving territorial disputes. Namely, the probative value of international treaties prevails over any other written evidence; other written documentary evidence prevails over the initial evidence; the probative value of official acts generally is better than the probative value of private behaviors. However, evidence submitted by the parties is sometimes endowed with too flexible probative value by the International Court of Justice in the specific cases. Even if ungratified treaties may be some weight. Undoubtedly, this practice erodes the domestic constitutional function of the parties.While it is similar to the application of the treaty, but Uti possidetis juris has not brought about a more stable international borders. Although Uti possidetis juris has achieved a great success in Asia, Africa and Latin America, it does not solve the fundamental problem of territorial disputes, which only prevents territorial disputes from becoming apparently. Moreover, the weight of the evidence on effective control tends to abuse.For the Court'comparative rules of probative value, the paper argues that the International Court of Justice should endow unratified treaties with no probative value, and the probative value of evidence on effective control and the historical evidence should be differential treatment as the case might be: As for probative value of official acts better than private behavior, if the parties lack international treaties related to boundaries and sovereignty of the territory, private behaviors should have some weight.Therefore, for non-colonial countries, hierarchy of probative value should be as follows: probative value of valid international treaties prevails over inchoate rights/effective control; effective control prevails over inchoate right; inchoate right prevails over unratified treaties or defective legal acts. For colonial countries at one time, the hierarchy is as follows: probative value of valid of international treaties prevails over inchoate right/effective control; inchoate right/ effective control prevails over colonial legislation and other legal documents; colonial legislation and other legal documents prevails over colonial effectivités; post-colonial effectivités prevails over inchoate right; post-colonial effectivités prevails over unratified treaties or defective legal acts, etc.Chapter V mainly discusses testimonial evidence in resolving the territorial disputes before The International Court of Justice. Needless to say, according to the rules under the Statute of the ICJ, in the process of resolving the territorial dispute, the parties have the right to provide all the evidence by arranging for witnesses and experts. The International Court of Justice should not exclude such evidence unless it has no relevance or probative value; simultaneity, the Court can not issue an order to cancel such rights of the parties as well. From the point of view of previous judicial cases, even though the Court permits the parties to provide oral evidence, there are still some deficiencies. There are a number of possible reasons why oral evidence has been a rare feature of the International Court of Justice, including the essential attribute of its own; considerations of judicial practice; the nature of the case itself, and so on. In addition, it is too flexible to examine witnesses before the International Court of Justice. Overall, testimony did not play its role, though if it to some degree has weight in territorial cases. However, if the written evidence can be used to supplement witness and expert advice, it is no doubt that it could be conducive to the procedure of testimonial evidence so as to remove some of the problems associated with live evidence. The potential utility of combing the two through the use of witness statements and depositions should be explored by the Court.At the same time, the Court did not actively exercise the right to appoint its own experts. The International Court of Justice should set up an expert database or instructional list by learning from procedures of national law, the model of the WTO or other agencies. These experts may be recommended by the States, then they be selected by the International Court of Justice. The International Court of Justice can also directly appoint experts with international prestige from various fields to set up a Committee, which can give advice to the Court ; at the same time, the Court appoints some experts to visit a site, gather information and submit a report for the case. Needless to say, it is an important instrumental value for the territorial dispute settlement beyond all doubt.Chapter VI makes some researches on territorial and boundary disputes between neighboring countries and China. At present, the majority of the land border has been resolved except for India and Bhutan. Meanwhile, China is a geographically disadvantaged country on the sea. In particular, the delimitation of East China Sea and South China Sea is attributed to'double'disputes, which hindered maritime delimitation owing to the island's sovereignty. Traditionally, China attaches importance to historical evidence relatively, noting that our country always enjoys indisputable sovereignty over those islands. However, China's Southern Tibet, Diaoyu islands, reefs and other parts of the territory of the Nansha Islands are being encroaching and controlling illegally by India, Japan, Vietnam, Malaysia, the Philippines and other neighboring countries respectively. Therefore, from the perspective of effective control, China is in a disadvantaged situation in these waters. The chapter draws on the hierarchy rule of'treaty law prevail over effective control', linking relevant case, thus presents the idea that the Court increasingly adopted effectivités to adjudge the sovereignty of disputed territory to the party which actually control it.In addition to finding historical evidence, we should study on treaties involved Diaoyu Islands, the Sino-Indian border and territorial disputes and Nansha Islands, and provide further support for safeguard on the territorial sovereignty of our country with neighboring countries in the future on the basis of the rule. At the same time, we should positively take the necessary measures to strengthen sovereign acts for disputed areas in response to other country's position from the level of evidence on effective control. In sum, China should protect our territories, maritime rights and interests effectively by the way of taking a variety of evidence.
Keywords/Search Tags:ICJ, Territorial Dispute, Issue of Evidence, Use for Reference
PDF Full Text Request
Related items