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1.4. Evidentiary Privileges in International Courts and Tribunals

Date to be confirmed

Track: 1. International Law. International Justice. Rule of Law. Constitutional Law
Discussion session

There is no unified approach towards the issue of evidence within the system of international courts and tribunals. As a result, courts and tribunals frequently do not have clear rules on the taking of evidence. In practice, judicial bodies have developed specific solutions for some matters. Nevertheless, such methods and approaches may vary on a case-by-case basis. In these circumstances, legal certainty, including the clarity of procedural rights and obligations of the parties as well as of the court’s role in the taking of evidence, may not be provided and ensured.

One of the results is that international courts and tribunals frequently find that their attempts to resolve some factual disputes are hindered or even frustrated by a party’s failure to produce evidence. One of the ways in which a party may prevent the production of evidence is by refusing to disclose it on the grounds of privilege. As a result, the following questions may arise: (1) means of a court or tribunal to ensure the delivery of evidence by the parties; (2) non-disclosure of evidence and good faith (e.g., the ongoing M/V “Norstar” case, ITLOS); (3) non-disclosure and the burden of proof; (4) non-disclosure and duty to cooperate; (5) refusal to produce evidence and adverse inferences (e.g., the Corfu Channel and the Bosnian Genocide cases, ICJ).


* The Programme may be subject to change