Evidence Before the International Court of Justice By Anna Riddell and Brendan Plant. London: British Institute of International and Comparative Law, 2009. Pp. xxvii, 420. $130.
The recent exchanges in the pages of the Journal between Judge Stephen M. Schwebel and Paul S. Reichler (1) regarding fact-finding by the International Court of Justice (ICJ) in the Nicaragua Case (2) illustrate important--if sometimes overlooked and poorly understood--aspects of adjudication in the ICJ and other international courts and tribunals: evidence and fact-finding. Many contemporary international legal disputes are not about legal rules. They are about the existence or nonexistence of legally significant facts. While international lawyers characteristically focus on international courts' and tribunals' discussions of legal rules, these institutions' determinations of facts often determine outcomes.
Despite their importance, the processes by which courts and tribunals determine facts generally operate without explanation and out of sight. good English-language literature on fact-finding in international adjudication is sparse. This dearth is in no small part because fact-finding rests on the unique facts of individual cases. understanding decision-makers' choices in a case requires close understanding of the underlying factual record, something few outside observers have time or inclination (or, with closed proceedings, the ability) to pursue. (Professor Nancy Combs's recent work (3) noted at the end of this review is a welcome exception.)
Evidence Before the International Court of Justice by Anna Riddell and Brendan Plant is thus a valuable and important addition to scholarship on the problems of evidence and fact-finding in international adjudication. The authors offer a thoughtful and thorough examination of how the ICJ, a key institution in the international legal order, goes about finding the facts on which important decisions sometimes rest. The work is generally respectful of the Court, but it offers many well-considered criticisms and proposals for improvement. While Riddell and Plant focus on the ICJ, their crisp and cogent examinations of issues and doctrines should be of value to international judges and advocates more generally. Because of its visibility and prestige, the ICJ's approaches to evidence and fact-finding provide important reference points for the expanding universe of other international courts and tribunals.
The work grows out of a study on evidence before international courts and tribunals launched in 2000. The ICJ was subsequently selected as a subject for further detailed research to be carried on by the authors, both research fellows at the British Institute of International and Comparative Law. An advisory panel of distinguished senior lawyers, all experienced advocates before the Court, offered guidance. The work covers the Court's decisions through November 2007, so subsequent cases raising evidence issues are not included; a few will be briefly mentioned at the end of this review.
Particularly given the growing number of international disputes involving complex technical and scientific questions, some writers and advocates have come to see fact-finding as a significant challenge for the Court. As Riddell and Plant observe, more than a few ICJ judges agree:
[A] majority of separate and dissenting opinions criticize the Court for not using its powers to gather evidence, for wrongly evaluating the evidence presented, or for applying an evidentiary doctrine such as the standard of proof in an unsatisfactory way. It has never been the criticism that the Court is overzealous in its scrutiny of evidence. (P. 32) Not everyone shares these critical assessments. Some see the ICJ's fact-finding as not particularly significant "because there have been few cases in which the parties have actually contested the facts underlying their dispute" (p. 70). That observation has been true in the past; the bulk of the cases before the ICJ and the Permanent Court of International Justice (PCIJ) have been legal disputes, but the picture is changing. "[I]n recent years the Court has increasingly been called upon to adjudicate cases in which it must make extensive findings of facts on the basis of complicated and expansive dossiers of evidence ..." (id.). As the authors show, the Court has not always managed these cases well.
Following chapter 1's brief introduction to the origins and outline of the work, chapter 2 examines the context shaping the Court's approach to evidence. As it notes, the ICJ's practice in many matters, including evidence, involves borrowing from both the civil-law and common-law traditions. The result is not always happy. "[A]t times it appears that the Court represents an incoherent synthesis of incompatible influences rather than 'the best of both worlds'" (p. 11). The Court's Statute and Rules provide little guidance and few limits, instead offering "a light and malleable framework within which the Court and the parties are free to decide among themselves the court procedures" (p. 23). The judges thus have great freedom to work through the complexities of particular cases and any conflicts or confusions stemming from their varied legal backgrounds. "The Court is given complete discretion to make orders to regulate the conduct of each case as it sees fit ..."(p. 14).
As the descendant of the PCIJ, the ICJ reflects the state-centered conceptions of international law prevailing when the PCIJ was launched in 1922. Its primary role is to...