The Law and Practice of Fact-Finding before the International Court of Justice James Gerard Devaney Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, August, 2014 (submission) European University Institute Department of Law The Law and Practice of Fact-Finding before the International Court of Justice James Gerard Devaney Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Martin Scheinin, EUI Professor Francesco Francioni, EUI Judge Giorgio Gaja, International Court of Justice Professor Geir Ulfstein, University of Oslo © James Gerard Devaney, 2014 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author 4 Thesis Summary This thesis takes as its starting point a number of significant recent criticisms of the way in which the International Court of Justice (the Court) deals with facts. After examining the Court’s substantial fact-finding powers as set out in its Statute and Rules, it is noted that the Court has not made significant use of the fact-finding powers that it possesses, instead preferring to take a reactive approach to fact-finding. It is this reactive approach, largely relying on the parties to put evidence before the Court, which is the subject of recent criticisms both from within the Court itself and from international legal scholarship. Having assessed the merits of these arguments, the thesis takes the position that such criticisms are indeed warranted and that the Court’s reactive approach to fact-finding falls short of adequacy both in cases involving abundant, particularly complex or technical facts and in those cases involving a scarcity of evidence, such as cases of non-appearance. Subsequently, the thesis undertakes a comparative exercise in order to examine how other relevant inter-state tribunals conduct fact-finding. Drawing on the practice of other tribunals, namely the adjudicative bodies of the World Trade Organization and a number of recent inter- state arbitrations, the thesis then makes a number of select proposals for reform which, it is argued, will enable the Court to address some of the current weaknesses in its approach to fact-finding and better ensure factual determinations that are as accurate as they can possibly be within the judicial process. Such 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. 5 6 Abstract The thesis takes as its starting point a number of significant recent criticisms of the way in which the International Court of Justice deals with facts. Drawing on an extensive survey of other relevant inter-state tribunals the thesis makes a select number of proposals for reform which could realistically be made through orders or practice directions to remedy some of the defects of the Court’s current reactive approach to fact-finding, crucially without amendment of the Court’s Statute. The thesis first notes that the Court is regularly faced with cases of such a complex or technical nature so as to be beyond what any judge could be reasonably expected to comprehend. Next, Chapter 1 shows that despite possessing far-reaching fact-finding powers the Court has never utilised them to any meaningful extent. Instead, the Court’s approach to fact-finding is in many respects reactive – the onus being placed squarely on the parties to place before the Court the information necessary for the establishment of a sound factual basis upon which the case can be decided. That the Court operates in this manner is the product of a number of interrelated factors including resource constraints and, most significantly, a deferential attitude to states in light of their sovereign nature – an attitude that has permeated the operation of the Court since the days of the Permanent Court of International Justice (PCIJ). Chapter 2 explores a number of criticisms that have been made of the way in which the Court operates. These criticisms of the Court’s reactive approach have emanated both from international legal scholarship and from within the Court itself. Whilst the merits of the Court’s current approach are acknowledged, it is argued that the Court’s reactive approach falls short of adequacy both (i) where the facts are abundant or particularly complex or technical, since the Court struggles to effectively assess the evidence presented, and (ii) where there is a paucity of facts, since the Court struggles to fulfil its Article 53(2) ICJ Statute obligation to satisfy itself that the case is sound in fact and in law. It might be said that this much is uncontroversial. As such, the thesis seeks to take the next step and explore whether we can envisage an approach that would allow the Court to more effectively conduct fact-finding. In doing so, the thesis takes advantage of the much- discussed proliferation of international courts and tribunals and draws upon the substantial body of practice in this area. A survey of this body of practice in Chapter 3 reveals that a number of other international courts and tribunals, such as the WTO adjudicative bodies and inter-state arbitrations generally take a more proactive approach to fact-finding. The thesis then asks whether the adoption of a similarly proactive approach by the ICJ could potentially help to remedy some of the fact-finding deficiencies for which the Court has been criticised in recent times. Drawing on the practice of the other international courts identified, Chapter 4 suggests that there are a number of avenues open to the Court with potential to address some of its current weaknesses, should it choose to do so: 1. The first relates to the possibility of making greater use of the fact-finding powers that the Court already possesses. Chapter 4 explores the possibility of the Court taking a teleological approach to its Statute and Rules and the so-called duty of collaboration in asking whether the Court could potentially construe its fact-finding powers to compel the production of evidence, as opposed to merely requesting it. 7 2. Secondly, the possibility of better utilising the Court’s power to order provisional measures under Article 41 of its Statute is examined. 3. Thirdly, relating to both the fact-finding and fact-assessment process, the thesis explores the possibility of increased use of experts, the refinement of the current procedure for the presentation of expert evidence and greater use of cross-examination as a way of aiding the Court’s effective assessment of the facts put before it by the parties. Finally, Chapter 5 examines the merits of a more proactive approach to fact-finding, facilitated in the manner set out in the previous chapter. However, before the relative merits of a more proactive approach can be assessed, Chapter 5 first of all addresses the fundamentally important question of whether the Court has completely unconstrained discretion to take a more proactive approach to fact-finding or whether its discretion is somehow fettered by factual determinations made by other UN organs (in particular the Security Council under Chapter VII of the Charter). Ultimately it is argued that there is nothing in either the Court’s constitutive instruments or practice which would fetter the Court’s discretion and that accordingly the Court, as an independent international tribunal, is competent to adopt a more proactive approach to fact-finding. In moving to consider the merits of a more proactive approach, Chapter 5 next illustrates in practical terms what the more proactive approach set out in Chapter 4 would look like. Whilst a case is made for such reforms, Chapter 5 considers the limitations of the Court’s fact-finding powers and ruminates on the merits of the Court’s current reactive approach to fact-finding. Subsequently, after the limitations of the Court’s powers have been established, it is argued that taking a more proactive approach to fact-finding is no panacea for the current problems that the Court faces. Nevertheless, it is maintained that implementation of any of the proposals set out in Chapter 4 would ultimately leave the Court better placed to make accurate factual determinations upon which the law could be decided. 8 Acknowledgements First and foremost I would like to express my gratitude to my supervisor Professor Martin Scheinin who was always there when he was needed and whose calm, measured supervision allowed me to write the PhD that I wanted to. Further, my greatest thanks go to Professor Christian Tams – without his encouragement I would never have applied for the PhD, and more generally without his unwavering support I would not be where I am today. A similar debt is owed to Thérèse O’Donnell who, one rainy winter afternoon in Glasgow took the time to talk to an uncertain undergraduate and first sparked my interest in public international law. The thesis was written mainly in the Biblioteca Nazionale (invariably with Hanna Eklund with whom I have spent many of the happiest moments of my life in Florence), the Lauterpacht Centre for International Law in Cambridge and of course in the Statistics Room of the EUI library. My time in Cambridge was the most productive period of the whole process and my thanks go to Professors Roger O’Keefe, James Crawford, Philippe Sands, Iain Scobbie and Drs Brendan Plant and Akbar Rasulov who all took the time to sit down with me and listen to my thoughts on what would become this thesis. None of them had to, but they all did, and for that I am extremely grateful.