Download This PaperOn the Uncertainties Surrounding the Standard of Proof in Proceedings Before International Courts and Tribunals
DIRITTI INDIVIDUALI E GIUSTIZIA INTERNAZIONALE, LIBER FAUSTO POCAR, pp. 427-442, G. Venturini & S. Bariatti, eds., Giuffrè, 2009
20 Pages Posted: 7 Mar 2011
Date Written: 2009
Abstract
In the absence of a treaty provision, the standard of proof in proceedings before international courts or tribunals should be a matter for the “general principles of law recognized by civilised nations” to which reference is made in Art. 38 (1) (c) of the ICJ Statute. This, however, leads to an interesting problem: although every tribunal, national or international, has to apply (explicitly or implicitly) some kind of standard of proof, in comparative national law there would appear to be no true unanimity on what the standard of proof should be in civil proceedings and therefore no general agreement between legal systems which could be the basis for extending a standard of proof to, for instance, inter-State disputes as a general principle of law. International criminal proceedings and fact-finding by human rights courts (at least by the ECtHR) are special cases: there is agreement that a high standard of proof - proof beyond a reasonable doubt - applies to them. But this type of clarity is, on the whole, untypical of international proceedings generally. Notoriously, the standard of proof tends to vary from tribunal to tribunal or even from case to case, in a continuum going from a light standard (balance of probabilities) to a high one (proof beyond reasonable doubt).
Keywords: international law, international courts and tribunals, evidence, standard of proof, international criminal law, human rights, European Court of Human Rights, Inter-American Court of Human Rights, International Court of Justice
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