ICJ의 영토분쟁 사건에서의 증거의 유형과 증명력 평가 (The Law of Evidence in the Territorial Disputes Before the International Court of Justice)

서지정보

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· 저자명 : 김원희

초록

The present study aims to describe and analyze the law of evidence in the territorial disputes before the International Court of Justice (ICJ). The purpose of the study is to provide a comprehensive overview of the law of evidence in the territorial disputes before the ICJ, to clarify and critically comment on it, and to counter argue against some criticism that the ICJ is unable and unwilling to carry out investigation into those complicated and specialized factual situations. To this end, the study analyses the Statute of the ICJ, Rules of Court, Practice Direction and the instruments on the procedure of the ICJ and the case law in territorial disputes as well as those cases which evidentiary issues were significantly dealt with before the ICJ. These include the case law of the Permanent Court of International Justice (PCIJ), but the case law of international arbitration will be excluded because the law of evidence before international arbitration would not only vary according to special agreement between contesting parties but also be temporary in nature.
In recent years, some commentators criticize that the ICJ has been very reluctant to make use of its powers to investigate disputed facts, misinterpreted evidence which would be rather decisive for the resolution of the case and given the weight to the evidence from unreliable sources. Besides, even the Judges of the ICJ often have raised some doubts about evidentiary issues in their dissenting or separate opinions.
More often than not, the ICJ has been criticized for the lack of transparency of its approach to evidence and fact-finding. Some Judges, scholars and practitioners have expressed disappointment that the ICJ has not explained how the Court has evaluated specific items of evidence or how it has reached its conclusions on disputed fact.
But it is doubtful to what extent the criticism would be tenable considering the development of evidentiary practice before the ICJ and whether the same criticism can be applied to the law of evidence and evidentiary practice in the territorial disputes before the ICJ. It is true that most of critics were from common law countries or given legal education in those countries. The critics also have focused on the Court’s appreciation of evidence which is based on ‘l’intime conviction du juge’, the evidentiary system from civil law countries.
In fact, in territorial disputes, the admissibility and evaluation of evidence have played a crucial role to decide which contesting parties have proved so-called ‘relative title’.
As it is suggested that the distribution of burden of proof or appreciation of evidence in territorial disputes have influenced considerably the outcome of the proceeding, the importance of the law of evidence before the ICJ cannot be overemphasized.
Therefore the study delves into those evidentiary issues such as admissibility of evidence, burden of proof, types of evidence in the territorial disputes, evaluation of evidence. Chapter 2 considers the source of the law of evidence as well as the general principles of the law of evidence before the ICJ; the principle of wide and free admissibility and some limitations on it. Chapter 3 examines the burden of proof before the ICJ, which follows the usual rule where the party presenting an allegation will bear the burden of establishing it, but the question of the standard of proof is far more controversial in the ICJ. It also discusses the standard of proof in the territorial disputes comparing with those in other cases. Chapter 4 tries to classify the types of evidence frequently presented and dealt with in territorial disputes. It gives an overview of the concept and functions of documentary evidence, witness evidence, expert evidence and electronic evidence by reviewing the case law of the ICJ.
Chapter 5 provides a critical overview of the Court’s approach to the task of evaluating evidence in the territorial disputes. After the Nicaragua case in 1986, the ICJ has a tendency to clarify the factors to be considered when evaluating each item of evidence. In particular, the evaluation of the merits of evidence presented by both parties to the territorial dispute is the most essential task committed by the ICJ. It will clarify how the ICJ evaluate the probative force of evidence and to which evidence the ICJ tends to give more weight than other. Finally, Chapter 6 examines the special feature and structure of the ICJ’s evidentiary system and will answer that question whether there are sufficient rules of evidence applicable in the territorial disputes before the ICJ enough to ensure the transparency, predictability and fair trial for contesting parties.

영어초록

The present study aims to describe and analyze the law of evidence in the territorial disputes before the International Court of Justice (ICJ). The purpose of the study is to provide a comprehensive overview of the law of evidence in the territorial disputes before the ICJ, to clarify and critically comment on it, and to counter argue against some criticism that the ICJ is unable and unwilling to carry out investigation into those complicated and specialized factual situations. To this end, the study analyses the Statute of the ICJ, Rules of Court, Practice Direction and the instruments on the procedure of the ICJ and the case law in territorial disputes as well as those cases which evidentiary issues were significantly dealt with before the ICJ. These include the case law of the Permanent Court of International Justice (PCIJ), but the case law of international arbitration will be excluded because the law of evidence before international arbitration would not only vary according to special agreement between contesting parties but also be temporary in nature.
In recent years, some commentators criticize that the ICJ has been very reluctant to make use of its powers to investigate disputed facts, misinterpreted evidence which would be rather decisive for the resolution of the case and given the weight to the evidence from unreliable sources. Besides, even the Judges of the ICJ often have raised some doubts about evidentiary issues in their dissenting or separate opinions.
More often than not, the ICJ has been criticized for the lack of transparency of its approach to evidence and fact-finding. Some Judges, scholars and practitioners have expressed disappointment that the ICJ has not explained how the Court has evaluated specific items of evidence or how it has reached its conclusions on disputed fact.
But it is doubtful to what extent the criticism would be tenable considering the development of evidentiary practice before the ICJ and whether the same criticism can be applied to the law of evidence and evidentiary practice in the territorial disputes before the ICJ. It is true that most of critics were from common law countries or given legal education in those countries. The critics also have focused on the Court’s appreciation of evidence which is based on ‘l’intime conviction du juge’, the evidentiary system from civil law countries.
In fact, in territorial disputes, the admissibility and evaluation of evidence have played a crucial role to decide which contesting parties have proved so-called ‘relative title’.
As it is suggested that the distribution of burden of proof or appreciation of evidence in territorial disputes have influenced considerably the outcome of the proceeding, the importance of the law of evidence before the ICJ cannot be overemphasized.
Therefore the study delves into those evidentiary issues such as admissibility of evidence, burden of proof, types of evidence in the territorial disputes, evaluation of evidence. Chapter 2 considers the source of the law of evidence as well as the general principles of the law of evidence before the ICJ; the principle of wide and free admissibility and some limitations on it. Chapter 3 examines the burden of proof before the ICJ, which follows the usual rule where the party presenting an allegation will bear the burden of establishing it, but the question of the standard of proof is far more controversial in the ICJ. It also discusses the standard of proof in the territorial disputes comparing with those in other cases. Chapter 4 tries to classify the types of evidence frequently presented and dealt with in territorial disputes. It gives an overview of the concept and functions of documentary evidence, witness evidence, expert evidence and electronic evidence by reviewing the case law of the ICJ.
Chapter 5 provides a critical overview of the Court’s approach to the task of evaluating evidence in the territorial disputes. After the Nicaragua case in 1986, the ICJ has a tendency to clarify the factors to be considered when evaluating each item of evidence. In particular, the evaluation of the merits of evidence presented by both parties to the territorial dispute is the most essential task committed by the ICJ. It will clarify how the ICJ evaluate the probative force of evidence and to which evidence the ICJ tends to give more weight than other. Finally, Chapter 6 examines the special feature and structure of the ICJ’s evidentiary system and will answer that question whether there are sufficient rules of evidence applicable in the territorial disputes before the ICJ enough to ensure the transparency, predictability and fair trial for contesting parties.

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