Publication Type
Journal Article
Version
publishedVersion
Publication Date
1-2015
Abstract
Like many international tribunals, the International Court of Justice subscribes heavily to the principle of free admissibility of evidence. Neither its statute nor rules impose substantive restrictions on the admissibility of evidence, whether by way of exclusionary rules or an exclusionary discretion. Instead, the court’s practice has been to focus on evaluating and weighing the evidence after it has been admitted. There are certainly features of the ICJ that sets it apart from domestic courts and arguably justify such an approach: the ICJ is for settling disputes between sovereign states; it does not use a typical fact-finding system; its rules and practices reflect a mix of civil and common law traditions; and traditional exclusionary rules were not conceived with inter-state dispute resolution in mind. Yet for any judgment to have legitimacy, the evidential foundations must be strong and there should be a coherent and principled mechanism to sieve out problematic evidence at an early stage. Having this mechanism can also ensure that resources are not wasted and rights protected. Through an examination of the court’s rules and jurisprudence and the rules and practices of other international tribunals, this article makes the case for the codification of a provision that gives the ICJ an exclusionary discretion.
Keywords
International Court of Justice, international adjudication, principle of free admissibility, exclusion of evidence, judicial discretion
Discipline
Evidence | International Law
Publication
International Commentary on Evidence
Volume
13
Issue
1
First Page
1
Last Page
40
ISSN
1554-4567
Identifier
10.1515/ice-2016-0001
Publisher
De Gruyter
Citation
CHEN, Siyuan.
Re-assessing the evidentiary regime of the International Court of Justice: A case for codifying its discretion to exclude evidence. (2015). International Commentary on Evidence. 13, (1), 1-40.
Available at: https://ink.library.smu.edu.sg/sol_research/1776
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
http://doi.org/10.1515/ice-2016-0001