Treading in Shallow Waters: The Contentious Standard of Proof in International Adjudication

Domestic courts across the spectra of common law and civil law municipal legal systems have extensively employed specific fact-finding approaches of what is known as the rules for the admission of evidence. In terms of the evidentiary aspects, the courts at the domestic level tend to invoke burden of proof and standard of proof as appropriate tools for adjudication or fact-finding, and in light of this statement, it is critically essential to exploit and respect the municipal scholarship which forms the backbone for the development of jurisprudence in international adjudication.

To quote an example, the European Court of Human Rights (hereinafter ‘ECHR’) has a substantial and cogent system of adopting the fact-finding approach of the domestic courts, and barring a few exceptions, continues to administer disputes with this strategy. Although the disputes brought before the ECHR are dragged in due to the exhaustion of localised remedies, its approach to follow the spirit of the domestic courts’ standard of proof tends to reflect the general practice of international tribunals.

In this regard, it can be analogically derived that international tribunals have often been informed from domestic courts’ stance on the three basic tenets of evidentiary aspects, namely admission of evidence, the burden of proof and standard of proof. For the admission of evidence, international tribunals such as the International Court of Justice (hereinafter ‘ICJ’), International Criminal Court, International Centre for Settlement of Investment Disputes and WTO Disputes Settlements Forum have made it evidently clear that a far-liberal approach is to be undertaken, akin to that of the civil law countries but with a caveat of giving primacy to the written form of evidence over oral evidence.

Contrastingly to this robust and strategised approach of international tribunals in terms of the admission of evidence and paying adequate homage to the general principles of adjudication, the traditional mechanism echoed by the tribunals concerning the standard of proof is notably morbid and a stark anomaly, that further complicates the scheme of evidence. Although an individual ingredient of the scheme of evidence, the standard of proof, is mainly dependent on the burden of proof as the party claiming under the dispute must adhere to the required standards set by the concerned international tribunal. It goes without saying that the standard of proof set by the tribunals is neither certain nor standard, with the majority of tribunals being flexible in nature and spirit. Before delving deeper into the echelons of the standard of proof, it must be briefly conceptualised that the standard of proof differs in context from the common law and civil law systems.

In the former, the test of ‘preponderance of the evidence’ forms the crux for civil law disputes and the ‘beyond reasonable doubt’ standard forms the core for criminal law disputes. In addition to this, there are some glaring additions of the ‘clear and convincing’ standard devised by the US, but it is more or less an offshoot of the existing standards. In the latter, there is no organised distinguishable standard for either criminal or civil law disputes.

The usual practice of the courts in such civil law countries is descriptively discussed by Mark Schweizer, who states that;

Standard of proof in civil law nations is always the (full) conviction of the judge, be it a ‘conviction intime’ or a ‘conviction raisonnée’, a reasoned or reasonable conviction (meaning that the judge must justify his or her decision by valid arguments).

Coming back to the moot point, it can be said that despite the fact that there are no exacting standards in international adjudication, international criminal tribunals have been historically inclined towards the rule of ‘ beyond reasonable doubt’ (having a presumption of innocence) given the fact that harsh criminal actions are being discussed in the forum and also because this standard finds a mention in Article 66 of the Rome Statute. In the case of other forums, it has been suggested that at least five different parallel standards may have been laid down, though it would still be a gamble to narrow down the approach of international courts in terms of international adjudication to these specific standards as there might always be other non-referred standards.

The human rights courts have generally followed the criminal tribunals’ application of ‘burden of proof’ or the vaguely defined ‘clear and convincing manner’ standard, but at least, one court has suggested that there might be no ‘clear and convincing’ standard of proof in human rights courts’ jurisprudence. In one recognizable ICJ judgment in the Corfu Channel case, a similar ‘beyond reasonable doubt’ approach was adopted. The court explicitly espoused;

A charge of such exceptional gravity against a state would require a high degree of certainty that has not been reached here.”

Even though the statement quoted above hints towards a more stringent standard being adopted by the court, it alternatively also stated that a more flexible recourse in terms of prima facie evidence must be undertaken when one of the parties is a victim of an international breach and is unable to furnish enough evidence to make a rigid claim.

Other standards that are of importance in this discussion is the ‘convincing’ standard of the Velasquez-Rodriguez case, the ‘preponderance of evidence’ standard, specifically enunciated by the ICJ in the Norwegian Loans case as a ‘balance of probabilities test’, and finally, the standard without a standard or the ‘judge’s discretion’ standard, which is followed by the majority of the tribunals.

The first of these standards stands in between the cusp of ‘beyond reasonable doubt’ and ‘preponderance of evidence’ tests. Also known as the ‘sufficiency of evidence’ standard, it has been heavily relied upon by the courts in cases such as the Nicaragua case, the Oil Platforms case and the Congo case, and by other forums, especially in cases where the evidence must be established clearly and convincingly without reaching the extremity of ‘beyond reasonable doubt’ and having to prove prima facie evidence. To quote the International Tribunal for the Law of the Sea in the M/V Saiga judgment, where it was categorically stated, borrowing the approach in the Ambatielos case, that;

[F]or the purpose of the admissibility of the application for prompt release of the M/V Saiga, it is sufficient to note that non-compliance with article 73, paragraph 2, of the Convention, has been ‘alleged’ and to conclude that the allegation is arguable or sufficiently plausible.

The second of the preceding three standards is the ‘preponderance of evidence’ standard, a somewhat controversial standard in international adjudication as it involves a balance of probabilities, even when the issues being discussed before the international tribunals are of high national as well as international relevance. The Court adopted such an approach in the Norwegians Loans case, stating that;

The degree of burden of proof to be adduced ought not to be so stringent as to render the proof unduly exacting.”

The analogy laid down in this judgment becomes exceptionally crucial in those situations where either one of the parties is not in a position to present convincing or ‘beyond reasonable doubt’ evidence, either due to the infirmity of its position, evidence being possessed by the other party in the suit or where it is not available due to lack of access.

Finally, the third standard, which is popularly called the ‘judge’s discretion’ standard advances the idea that the international tribunals must not follow a rudimentary set of standards to determine the veracity of evidence in international jurisdiction. The civil law doctrine has been keenly followed by the international tribunals as it provides leverage to the judges to not be bound under the compartments of certain standards. This gives greater liberty of adjustment according to the factual framework of the disputes with a higher possibility of justice being meted to both the parties and avoiding the risk of party-superiority.

The complexities in defining the boundaries for a standard of proof emanates from the argument that international adjudication is just a misnomer for judicial reasoning based on living national/domestic procedural frameworks with a hypothetical fabric of international governing principles of law. Having this two-faced approach of interpretation and adjudication of international disputes makes it exceedingly difficult to cull out a flexible common standard for the mechanism of evidentiary fact-finding. In light of the catena of paths adopted by the international tribunals, the situation looks bleak for a systematically governed universal principle being employed by these courts of diverse nature in the near future.

Originally published at on February 20, 2020.



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