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UBC Theses and Dissertations

Fact finding and the World Court Foster, William F. 1968

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PACT FINDING AND THE WORLD COURT William F, Poster LL.B(Hona), University of Auckland, New Zealand, 1967 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF Master of Laws i n the Department of LAW We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1968 In p r e s e n t i n g t h i s t h e s i s in p a r t i a l f u l f i l m e n t o f the r e q u i r e m e n t s f o r an advanced degree at the U n i v e r s i t y o f B r i t i s h C o lumbia, I agree t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p urposes may be g r a n t e d by the Head o f my Department o r by h i s r e p r e s e n -t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . The U n i v e r s i t y / o f B r i t i s h Columbia Vancouver 8, Canada Depa rtment ABSTRACT On December 16, 1963, the General Assembly of the United Nations adopted Resolution 1967 (XVIII) recording i t s b e l i e f that provision f o r impartial fact f i n d i n g within the framework of inte r n a t i o n a l organizations, and i n b i l a t e r a l and m u l t i l a t e r a l conventions, could make an important contribution to the peaceful settlement of disputes, and to t h e i r preven-t i o n . The Resolution noted a considerable body of practice i n the use of fact f i n d i n g methods i n international r e l a t i o n s , which i s available to be studied " f o r the progressive develop-ment of such methods" (6th perambular paragraph). In the l i g h t of thi s Resolution, the object of this study was to ascertain the nature and the scope of the fact f i n d i n g powers possessed by the p r i n c i p a l j u d i c i a l organ- of the community of nations, the World Courtj and t h e i r applica-b i l i t y i n the various types of proceedings which may be i n s t i -tuted before i t . As a background the major problems inherent i n , and the nature and function of, the law of evidence i n international j u d i c i a l proceedings are sketched. An attempt i s also made to determine the respective rights and duties of the l i t i g a n t s and the World Court i n the matter of the adduction of evidence. The provisions of the Statute and Rules of the World Court which expressly confer upon i t fa c t finding powers are then examined. A broad competence i s seen to be granted the Court to request the production of evidence, and to undertake investigations and enquiries of various kinds into the facts i i of the issues submitted to i t . The only condition precedent to the exercise of these powers being that the l i t i g a n t states must have agreed to submit t h e i r dispute to the Court f o r ad-jud i c a t i o n . Notwithstanding a paucity of authority, i t i s also found that the Itforld Court also possesses cert a i n implied f a c t f i n d i n g powers stemming not from the instruments of i t s crea-t i o n , but from i t s inherent nature as a j u d i c i a l t r i b u n a l . This implied competence to undertake researches, of i t s own motion, into the facts of an issue submitted to i t supplements the Court's express competence, although a duplication of the power to appoint independent experts i s evident. It i s then ascertained whether the World Court can have recourse to a l l the f a c t finding powers conferred upon i t i n the two categories of proceedings, contentious and advisory proceedings, which may be i n s t i t u t e d before i t . Some li m i t a t i o n s on the Court's powers are found to ex i s t i n the case of advisory proceedings, these l i m i t a t i o n s deriving from the nature of the proceedings. With respect to contentious proceedings no lim i t a t i o n s were found. Prom the preceding examination of the fact finding powers of the World Court i t was concluded that i t had the p o t e n t i a l to discover the absolute truth of any issue sub-mitted to i t for decision, with the co-operation of the p a r t i e s . While some amendments to the Statute and Rules of the Court were suggested, i t was f e l t that any major revisions of the i i i . C ourt's powers would have no s u b s t a n t i a l e f f e c t u n t i l the j u r i s d i c t i o n of the Court became compulsory. TABLE OP CONTENTS Chapter 1 : Introduction . . . . . . 1 (1) The Theme • 1 (2) Law and Pact 3 Chapter 2 : Nature and Function of the Law of Evidence i n Proceedings" Before the World Court 8 Chapter 3 • Pact Finding - Express Competence 22 (1) Documentary Evidence . . . » 26 (2) Enquiries and Expert Evidence 31 (3) Testimonial Evidence . . . 1+1 Third Party Evidence kS (5) Miscellaneous Provisions. . . 1+8 Chapter 1| : Pact Finding - Implied Competence 50 (1) Documentary Evidence . . . . 51 (2) Enquiries and Expert Evidence 52 (3) J u d i c i a l Notice . . . . b% (I4) V i s i t s to the Place . . . 59 (5) T h i r d Party Evidence . . . 60 Chapter 5 : Pact Finding i n Proceedings Before" the World Court 63 (1) Proceedings i n Contentious Matters 63 (2) Advisory Proceedings . . . 70 Chapter 6 : Conclusions . . . . . . . . 77 Bibliography . . . . . . . . . . . 83 Table of Cases 87 CHAPTER 1 INTRODUCTION 1 . The Theme One of the main problems i n the law of international j u d i c i a l i n s t i t u t i o n s i s the relationship of state sovereignty and the j u r i s d i c t i o n of international tribunals. Submission to the j u r i s d i c t i o n of a tr i b u n a l implies a surrender of sov-ereignty. The extent of the surrender may be said to be prop-ortionate to the degree of d i s c r e t i o n open to the tr i b u n a l 1 concerned when deciding a case submitted to i t . The present study w i l l deal with an important aspect of t h i s j u d i c i a l freedom of determination, namely: to what extent can the World 2 Court seek to discover the truth independently of the evidence and information brought before i t v o l u n t a r i l y by the parties? The primary concern of this study i s twofold. F i r s t , a survey has been made of the instruments creating, and the practice of, the World Court to ascertain what techniques may be adopted by i t , to apprise i t s e l f of the true f a c t s of an issue. Secondly, an attempt has been made to analyze the ex-tent to which the Court may seek to e s t a b l i s h the truth i n the various types of proceedings which may be i n s t i t u t e d before i t . 1 Lauterpacht, The Development of International Law by  the International Court 3 9 U ( 1 9 5 » ) » 2 The term "World Court" i s here used to embrace both the International Court of Justice (hereinafter referred to as the I.C.J.) and the Permanent Court of International Jus-t i c e (hereinafter referred to as the P.C.I.J.) i t s predecessor. 2, The author of a recent survey on the use of out-of-court information by the courts of a common law country, 3 Canada, suggested there were three techniques by which the t r i e r of f a c t could obtain evidence to supplement that presen-ted by the p a r t i e s , so that the truth of a dispute could be k better discovered. The techniques were (1) j u d i c i a l notice, (2) view by the t r i e r of f a c t , and (3) the use of independent experts as investigators of f a c t , or as a u x i l i a r y t r i e r s of 5 f a c t . These techniques are e s s e n t i a l l y methods by which the t r i b u n a l i t s e l f may f i n d " e x t r a - c u r i a l " material and informa-t i o n , necessary f o r the just and equitable settlement of a d i s -pute, i r r e s p e c t i v e of the cooperation of the p a r t i e s . But, the ensuing discussion of the techniques available to the World Court w i l l encompass a broader f i e l d than t h i s . I t w i l l i n -clude the r i g h t s , i f any, of the tribunal to request the parties to produce further evidence or explanations, documentary or o r a l , which may have been withheld from i t . B a s i c a l l y this study deals with a problem i n the law of procedure. However, the discussion involves questions fun-damental to the work and functions of in t e r n a t i o n a l j u d i c i a l t r i b u n a l s . The p r i n c i p l e of the effectiveness of international 3 S c h i f f , "The Use of Out-of-Court Information i n Pact Determination at T r i a l , " 1+1 Can.B. Rev. 335 (1963). b, " J u d i c i a l notice" i s used by S c h i f f to r e f e r to those propositions i n a party's case as to which he w i l l not be required to o f f e r evidence being taken f o r true by the t r i -bunal without need of evidence. Ibid . , 338-55» 5 I b i d . , 337. 3. law c o n f l i c t s with the p r i n c i p l e that j u r i s d i c t i o n i s based on the common w i l l of the p a r t i e s . Concern f o r j u d i c i a l caution runs counter to the regard f o r the function of i n t e r -national tribunals as organs f o r the development of the law. The general i n t e r e s t of preserving the independence of the judges i n th e i r j u d i c i a l capacity clashes with the desire of the parties to arri v e at the t r i b u n a l ! s assessment of, and solutio n to, t h e i r p a r t i c u l a r problem. And, the need to give int e r n a t i o n a l l e g a l procedure a regulated and formal framework i s at variance with the need f o r the active p a r t i c i p a t i o n i n the proceedings on the part of the t r i b u n a l . As Jenks has so aptly stated: In every l e g a l system law and procedure constantly react upon each other. Changes i n the substantive law c a l l f o r new procedures and remedies; new procedures and remedies make possible changes i n the substantive law. So i t i s i n inte r n a t i o n a l law; i f we wish so to develop the law as to respond to the challenge of our times our remedies and procedure must be s u f f i c i e n t l y varied and f l e x i b l e f o r the purpose. 6 The close i n t e r - a c t i o n of substantive and procedural law i s both a major contributory factor to the importance of rules governing the powers of an international t r i b u n a l to gather f a c t u a l evidence, and a strong j u s t i f i c a t i o n f o r the submission that these procedural rules deserve perhaps greater attention than has been accorded to them i n le g a l writings. 2. Law and Fact When considering the power of an inte r n a t i o n a l 6 Jenks, The Prospects of International Adjudication l8Lj.(196i|)« j u d i c i a l t r i b u n a l to c a l l evidence of i t s own motion the problem w i l l immediately a r i s e , what i s the difference between law and fact? I s , f o r instance, municipal law always merely facts from the standpoint of i n t e r n a t i o n a l law? Are the pro-visions of a b i l a t e r a l or m u l t i l a t e r a l treaty matters of f a c t or matters of law? The task of j u d i c i a l tribunals i s e s s e n t i a l l y the same i n municipal and international l i t i g a t i o n . That i s the t r i b u n a l must ascertain the issues i n dispute between the parties and determine those issues i n favour of one party or 7 the other. In the course of ascertaining and determining those issues the tribunal must make such findings as to matters of f a c t as are relevant to the issues and as are permitted by the evidence before i t ; , and further, the tribunal declares the rules or propositions of law which, i n the l i g h t of findings of f a c t and of the issues to be decided, j u s t i f y the way i n which the t r i b u n a l resolves the issues. At f i r s t sight the difference between law and f a c t seems a simple one. Whether, fo r example, the f i s h i n g vessels 7 But what of advisory proceedings? A r t i c l e 9 6 of the United Nation's Charter, and Chapter IV of the I.C.J. Statute, empower the"court to deliver advisory opinions to c e r t a i n or-ganizations. An advisory opinion has been defined as "a formal opinion by ... a court of law ... upon a question of law held by /a competent body7 but not a c t u a l l y presented i n a concrete case at law": Black's Law Dictionary 75 (l+th ed . l 9 5 D . Advisory opinions thus lack the two elements which characterize "a concrete case at law", namely: (i) r i v a l l i t i g a n t s ; and, ( i i ) a s p e c i f i c actual f a c t s i t u a t i o n out of which th e i r dispute arose. I t should be noted that the advisory procedure i s not unique to the I.C.J., but i s also a common feature of some muni-c i p a l law systems: see f o r instance Frankfurter. "A Note on Ad-visory Opinions," 37 Harv. L. Rev. 1002 (1923-21+), and Rubin, of state A have encroached on the t e r r i t o r i a l sea of state B i s a question of f a c t ; the rules that determine the l i a b i l i t y of state A raise a question of law. As opposed to the facts which describe what happened, law deals with the question of 8 what ought to be done about those f a c t s . But, to draw a l i n e between law and f a c t i n abstracto i s well nigh impossible f o r , as Dickinson has written, ques-tions of law and fact ,.. are not two mutually exclusive kinds of ques-tions based upon a difference of subject matter. Matters of law grow downwards into roots of fact and matters of f a c t reach upwards without a break into matters of law. 9 A tribunal can only discover the p r i n c i p l e s of law applicable i n a c e r t a i n case when i t knows the material f a c t s , but what facts are material i n the dispute is . determined by the law. Thus questions of law and f a c t cannot be too sharply divorced; the borderline i s a f l e x i b l e one i n the sense that i t varies according to the purpose for which i t i s to be f i x e d . For the purposes of this study the d i s t i n c t i o n may be drawn from a p r a c t i c a l viewpoint. In connection with gen-e r a l rules of international law there i s no question of proof. "The Nature, Use and E f f e c t of Reference Cases i n Canadian Constitutional Law;" 6 McGill L.J. 168 (1958). 8 Bohlen, "Mixed Questions of Law and Fact" 7 2 U. Pa. L. Rev. I l l , 112 (19214). * 9 Dickinson, Admini3trative Justice and the Supremacy of The "Law 55 (1927). 6. 10 Jura novit c u r i a . In the B r a z i l i a n Loans Case the Permanent Court of International Justice stated that: The Court ... i s a tribunal of i n t e r n a t i o n a l law, and ... i n this capacity i s deemed to know what the law i s .... 11 But i f a state r e l i e s upon something s p e c i a l unto i t s e l f such as a treaty r i g h t or regional rule of i n t e r n a t i o n a l law, t h i s party obviously takes a chance i f i t does not submit -~ 12 enough material upon which to lay the foundation of i t s r i g h t . The t r i b u n a l w i l l , however, take into account more s p e c i f i c 13 rules i f i t i s aware of them. Therefore questions of law, as opposed to questions of f a c t , need not be raised by the parties themselves; the t r i b u n a l can, and should, examine them proprio 111 motu. However, the problem of d i s t i n c t i o n may s t i l l a r i s e i f the tribunal must r e l y on elements, discovered through i t s own researches, which are i n the border area between law and f a c t as, f o r instance, when i t has to adjudge a h i s t o r i c t i t l e to certain t e r r i t o r y . These elements, i t i s suggested, w i l l be outside the d i r e c t a p p l i c a t i o n of the p r i n c i p l e of jura novit curia and must therefore be established. Hence, as 10 This i s a well known p r i n c i p l e of j u d i c i a l procedure i n municipal law which has received recognition by international j u d i c i a l t r i b u n a l s . See Bin Cheng, General P r i n c i p l e s of Law as Applied by International Courts and Tribunals 229-301(1953). 11 P.C.I. J.,. Sec.A, Mo. 20/21, 12l+(1929). Cf .Free Zones of Upper Savoy and the D i s t r i c t of Gex, P.C.I.J., Ser. A/B, No.1+6", 138(1932) . C o r f u Channel Case"THerit3;)7/l9U97 I.C.J. Rep.l+,51-56. 12 E ^ . Asylum Case^ /19507 I.C.J. Rep.9, 7U• 13 See i n t h i s regard Judge Basdevaht i n the Case of Certain  Norwegian Loans /l957/ I.C.J. Rep.9, 7k• 11+ Bin Cheng, op.cit.supra note 10. at 299. 7. regards the material on which the tribunal bases i t s decision, t h i s material must have been presented during the proceedings otherwise i t should be considered as constituting a breach of the p r i n c i p l e audiatur et a l t e r a pars which i s one of the 15 general p r i n c i p l e s of law recognized by c i v i l i z e d nations. By the p r i n c i p l e audiatur et a l t e r a pars the parties to the dispute are guaranteed j u r i d i c i a l equality i n t h e i r capacity as l i t i g a n t s and an impartial settlement of t h e i r 16 dispute. Consequently the parties have the r i g h t to hear, and to reply, to a l l the evidence and material on which the t r i b u n a l bases i t s decision. And t h i s r i g h t must extend to evidence procured by the t r i b u n a l of i t s own i n i t i a t i v e , whether or not such evidence a l t e r s the basis of the claim, i f there i s to be no doubt as to the s u f f i c i e n c y and regular-17 i t y of the proceedings. 15 This i s established by Bin Cheng, op.cit.supra note 10, at 290-98. 16 These may be sa i d to be the two cardinal c h a r a c t e r i s t -i c s of any j u d i c i a l process. 17 In the Corfu Channel Case (Merits) /X9k9j I.O.J. Rep,!|, the parties were given the opportunity to comment on the experts' report. Both parties availed themselves of t h i s r i g h t : see i n f r a . , 35«Cf» Legal Status of Eastern Greenland, P.C.I.J., S e r . C , No. 66(1933)J P.C.I.J., Ser. A/B, No. 53(1933). One of the parties wished to introduce fresh documents i n i t s o r a l rejoinder. The court by i t s decision, while reserving the r i g h t to refuse the f r e s h documents also "reserves the r i g h t to f u r -nish the Danish agent with an opportunity to make observations on the f r e s h documents-produced by Norway i n her o r a l rejoinder", P.C.I.J., Ser.C, No. 66, 2615(1933); P.C.I.J., Ser A/B, No.53, 25-26 (1933). See also A r t . I48 P.C.I.J. Rules of Court, P.C.I.J., Ser. D, No.l, 31 ( U t h ed. 19W (hereinafter c i t e d as the P.C.I.J. Rules), and Art. I4.8 I.C.J. Rules of Court, I.C.J., Ser. D, No. 1, 5U (2nd ed. 19U7) (hereinafter c i t e d as the I.C.J. Rules). '8. CHAPTER 2 NATURE AND FUNCTION OF THE LAW OF EVIDENCE IN PROCEEDINGS BEFORE THE WORLD COURT As conducive to a broader understanding of the subject matter which i t i s designed to treat, i t seems well to make a few observations of a general character as to the nature and function of the law of evidence i n the international j u d i c i a l process. Two factors have been of decisive influence on the law of evidence i n international j u d i c i a l proceedings. These are (1) the presence before the World Court of sovereign states as l i t i g a n t s ; and (2) the problems faced by both coun-se l and tribunal i n the obtaining of evidence. International j u d i c i a l proceedings derive a d i s t i n c -t i v e character from the f a c t that the parties are sovereign 18 states. Because the parties are sovereign states the conse-quences of an er r o r by a t r i b u n a l , or of a f a i l u r e on i t s part to ascertain the facts r e l a t i n g to a decision, may be f r e -quently more f a r reaching i n e f f e c t than i n municipal l i t i g a -t i o n . The decision of a tribunal may a f f e c t the t e r r i t o r i a l 19 i n t e g r i t y of a state, or involve a fi n d i n g which would give 18 A r t i c l e 3I4 (1) of the I.C.J. Statute provides that "only states may be parties i n cases before the Court." See also A r t . 34 of the P.C.I.J. Statute, P.C.I.J., Ser. D, No.l, 13 (1+th ed. 19i|0) (hereinafter c i t e d as the P.C.I.J. Statute). 19 E.g. Case concerning'the Right of Passage over Indian  T e r r i t o r y /19607 i . C . J . Rep. ki Temple of Preah Vihear Case 0-962/ I.C.J. Rep. 6. 9. r i s e to international r e s p o n s i b i l i t y on the part of one of 20 the l i t i g a n t s . As Sandifer has noted: The v i t a l i nterests of states d i r e c t l y concerning the welfare of thousands of people may be adversely affected by a decision based upon a misconception of the f a c t s . The maintenance of f r i e n d l y relations between the states involved may well depend upon the fairness and thoroughness of the proceedings through which a decision i s reached, 21 The importance of a r r i v i n g at the facts of a d i s -pute, which flows from this composition of the p a r t i e s , has been acknowledged by the World Court, While recognizing that the f a c t s , the existence of which they must determine, may be 22 of any kind, the Court has stressed that " i t i s the f a c t s , clear f a c t s , which must be taken into account" i n the deter-23 mination of any dispute. Or, as expressed by the International Court of Justice i n the Asylum Case, ... the only important question to be considered here i s the objective existence of the f a c t s , and i t i s t h i s which must determine the decision of the Court. 21+ Despite the insistence of the Court that i t s decisions be based on a l l relevant facts of any dispute the r e a l i z a t i o n 20 E.g. Chorzow Factory Case, P.C.I.J., Ser.A, No. 17(1928); Oscar Chin Case, P.C.I.J., Ser. A/B, No. 63(1931+); Corfu  Channel Case (Merits) J/l9U97 I.C.J. Rep.l+. 21 Sandifer, Evidence Before International Tribunals 3(1939). 22 Serbian Loans Case. P.C.I.J., Ser.A, No. 20, 19(1929); referred to i n the Southwest A f r i c a Case (Preliminary Objections), /19627 I.C.J. Rep. 319, 1+23, with approval. C l e a r l y among others disputes concerning pure matters of f a c t may be brought before the Court, f o r the states concerned may agree that the f a c t to be established would constitute a breach of international law; see Serbian Loans Case, P.C.I.J., Ser. .A, No.20, 19(1929). 23 Temple of Preah Vjhear Case,/19627 I.C.J. Rep.6,67. 21+ /19597 I.C.J. Rep. 266, 287. 10. of t h i s end i s fraught with problems. One of the major d i f f i -c u l t i e s i n i n t e r n a t i o n a l adjudication i s that of obtaining com-plete and s a t i s f a c t o r y evidence notwithstanding, i n some i n -stances, the best intentions of counsel,nor the collaboration of the p a r t i e s . The constantly recurring complaint of t r i b u -nals i s that they are compelled to act on the basis of meagre and incomplete evidence the veracity of which may i t s e l f be i n doubt. Further, counsel and agents have not infrequently been faced with nearly insuperable obstacles i n the c o l l e c t i o n of evidence. The problems which may a r i s e i n the c o l l e c t i o n of accurate and authentic evidence are well i l l u s t r a t e d by the d i f f i c u l t i e s which confronted the Government of Czechoslovakia i n obtaining evidence f o r the proceedings before the Permanent Court of International Justice i n the case of Appeals from  Certain Judgements of the Hungro-Czechoslovak Mixed A r b i t r a l  Tribunal. The Court could obtain an idea of the d i f f i c u l t i e s which had handicapped the representatives of the Czechoslovak Government i n t h e i r search for evidence, i t was declared, by examining the documents annexed to the appellant's memoir, since papers of an a u x i l l i a r y nature related to them could not be found and others of primary importance could not be discovered. The Czechoslovak Government had been forced to request the Court to i n v i t e the Royal Hungarian Government to produce c e r t a i n important documents which had only l a t e l y been 25 Sandifer, op.cit.supra note 21 at 15. 26 P.C.I.J., Ser. C, No. 72 (193D. 11. discovered i n ce r t a i n l i b r a r i e s or which remained i n the 27 hands of the l a t t e r Government, Many factors contribute to the d i f f i c u l t i e s faced by tribunals and counsel i n the a c q u i s i t i o n of evidence, and i t i s well to mention those which have received most frequent attention although they may not have ar i s e n i n proceedings before the World Court, (1) As a r e s u l t of the p r i n c i p l e of t e r r i t o r i a l sov-ereignty i t i s not possible f o r the representatives of one state to enter into the t e r r i t o r y of another f o r the purpose of c o l l e c t i n g evidence required to support i t s case before the tr i b u n a l ; at l e a s t , not without the consent of that other state. It was declared by the International Court of Justice i n the Corfu Channel Case that the f a c t of ••• t h i s exclusive t e r r i t o r i a l control exercised by a state within i t s f r o n t i e r has a bearing upon the methods of proof available to e s t a b l i s h the knowledge of that state as to /the events com-plained of_7. By reason of th i s exclusive control the other state, the victim of the breach of i n t e r -national law, i s often unable to fu r n i s h d i r e c t proof of facts giving r i s e to r e s p o n s i b i l i t y , 28 The scope of the problem created by a state's r i g h t to exclu-sive control of the t e r r i t o r y subject to i t s j u r i s d i c t i o n should not be underestimated. The problem i s i m p l i c i t i n every dispute a r i s i n g from an act, or acts, perpetrated within or without the t e r r i t o r y of the claimant state where the e v i -27 Ib i d . , 510. 28 (Merits) /19497 I.O.J. Rep. l | , 18 12. dence, on which i t desires to bases i t s claim, i s not to be found xtfithin i t s own j u r i s d i c t i o n . In such circumstances the claimant state may only obtain this material and information with the concurrence of the state within whose j u r i s d i c t i o n i t i s perceived to l i e . (2) In the absence of express pro v i s i o n i n the rules of procedure empowering a tribunal not only to compel the atten 29 dance of witnesses, but also to impose penalties for perjury, extreme d i f f i c u l t i e s may be encountered i n obtaining the presence of witnesses before a t r i b u n a l , or i n procuring dep-30 o s i t i o n , and i n ensuring the testimony presented i s true. (3) Again, i n the absence of an express p r o v i s i o n authorising the tribunal to order the production of a l l docu-ments relevant to a dispute, important material and information may be withheld from i t , as occurred i n the Corfu Channel Case. The factors of distance and time also present problems i n the accumulation of s a t i s f a c t o r y evidence. The d i s -tances which have to be traversed i n obtaining the necessary ev idence are not infrequently very great. In such cases reliance must be placed l a r g e l y , i f not e n t i r e l y , on evidence taken ex  parte by the interested party with no p o s s i b i l i t y of checking 29 Neither the Rules of Court of the P.C.I.J, or I.C.J. confer the right to subpoena witnesses or to punish f o r perjury But see for example the Rules of Court of the Court of the European Communities, reproduced by Valentine, The Court of  Justice of the European Communities I483-5UU (1965)• 30 For an account of the d i f f i c u l t i e s which may be encoun-tered see Anderson, "Production of Evidence by Subpoena before International Tribunals," 27 A.J.I.L. l;98(1933), and Jessup "National Sanctions for International Tribunals," 20 Am.B.Ass.J. 56 (1931*). 31 See i n f r a , 27-29. 13. 3 2 i t s accuracy and c r e d i b i l i t y at the time of the proceedings. The long period of time frequently elapsing between the events giving r i s e to the dispute and the submission of the dispute 33 f o r adjudication i s a major cause of d i f f i c u l t y . The r e s u l t of the delay i s that evidence which might e a s i l y have been obtained at that time i s l o s t . Possible witnesses may die, or i t may be necessary to take t h e i r statements ex parte long a f t e r the event. Documents are l o s t , misplaced or destroyed, and cannot be replaced or must be replaced by documents of doubtful authenticity. And counsel may f i n d i t d i f f i c u l t to piece together a story which would have been common knowledge 3U to t h e i r predecessors of a previous generation. (5) A further f r u i t f u l source of d i f f i c u l t y i n ob-35 taining needed evidence arises from the complex conditions pro-voking the c o n f l i c t i n g claims submitted to j u d i c i a l settlement. This i s e s p e c i a l l y so i n disputes involving questions of v i t a l 36 37 national i n t e r e s t s , or a r i s i n g out of an international war. 32 On th i s point see Crandall,"Principles of International Law Applied by the Spanish Treaty Claims Commission" k A.J.I.L. 806, 806-807 ( 1 9 1 0 ) . 33 Fortunately the majority of cases presented to the P.C.I.J, and the I.C.J, represent an exception to t h i s . 3k On this point see McKernan, "Special Mexican Claims" 3 2 A.J.I.L. k5l, H62 -63 ( 1 9 3 8 ) . 35 I t i s well to mention here that a d i f f i c u l t y p e culiar to slaims commissions i s the notorious negligence of claimants i n /fu rnishing material to substantiate t h e i r claims. Because of the nature of the claims and the limited time generally a v a i l -able to prepare the claims counsel and agents must r e l y l a r g e l y on the claimants for information. 3 6 E.g. North A t l a n t i c Coast Fisheries Arbitration, 1 1"R.I.A.A. 1 6 7 ; Diversion of the Waters from the Meuse,P.C.I.J. Ser.A/B, No. 70 ( 1 9 3 7 ) . 3 7 E.g. Alabama A r b i t r a t i o n , 1 Moore,International A r b i t r a -tions I4.95 • Very aware of the' status of the l i t i g a n t s , the neces-s i t y to base i t s decision on a l l the relevant material and i n -formation i n any dispute, and the problems which may a r i s e i n the c o l l e c t i o n of such material and information, the World Court has refused to adopt s t r i c t t echnical rules of evidence i n r e l a t i o n to either the admission and evaluation of evidence, or the burden of proof; i n f a c t , technical rules of evidence are frowned upon. This attitude i s concisely stated by M. Huber, President of the Permanent Court of International J u s t i c e , i n a memorandum on the subject of the r e v i s i o n of the Rules of Court, where he declared: /The Court/ must not run the r i s k of a case between two states being decided on the basis of a purely formal administration of j u s t i c e , 38 The practice of the Court makes i t clear that i t has a wide freedom to decide whether p a r t i c u l a r evidence should be admissible or not; and once admitted, as to the weight that s h a l l be attached to i t . The Court has been very l i b e r a l i n the admission of evidence submitted to i t at any time before the submission of the case to the Court f o r d e c i -sion. In the judgement of the Permanent Court of International Justice i n the case of the Free Zones of Upper Savoy and the  D i s t r i c t of Gex the Court declared, i n overruling the demand of the Swiss Government that the Court r e j e c t as inadmissible ce r t a i n submissions made by the French Government at a late stage i n the o r a l proceedings, that the 38 P.C.I.J., Ser. D, No. 2 (add.) 101-102 (1926). 15. ••• decision of an international dispute of the present order should not mainly depend on a point of procedure. 39 Again, i n the case concerning German Interests i n P o l i s h Upper Sil e s i a , t h e Court stated i n i t s judgment that " i t was e n t i r e l y f r e e to estimate the value of the statements 40 made by the p a r t i e s . " In applying t h i s rule i t accepted the uncontested statement made i n the applicant's (Prince Lichnowsky) case, and his declaration opting f o r German nationality, as s u f f i c i e n t proof of the Prince's n a t i o n a l i t y . This was done over the demand by Poland that these assertions be substantiated by documentary proof. In i t s judgment on the question of j u r i s d i c t i o n i n the Chorzow Factory Case the Court asserted that i t could not take account of declarations, admissions or proposals made by the parties i n di r e c t negotia-tion s , the negotiations having l e d to no agreement, although evidence of these matters had been admitted during the pro-41 ceedings. Thus, no rule of evidence finds greater support i n the proceedings of the World Court, and the instruments of i t s creation, than the one that the Court i s not bound to ad-here to s t r i c t rules of j u d i c i a l evidence. This i s borne out by the statement of M, Huber i n 1925 where he asserted that as the statuite did ••• not contain a trace of a formal and r i g i d system of evidence i t would be inadmissible f o r the 39 P.C.I . J . , Ser. A/B, N O . 46, 155-56 (1932). 40 P.C.I . J . , Ser. A, No. 7, 72-73 (1926). 41 P.C.I . J ., Ser. A, No. 9, 19 (1928). 16. C o u r t t o c r e a t e s u c h a r e g i m e t h r o u g h i t s r u l e s . . . . T h e a t t i t u d e t a k e n b y t h e C o u r t . . . s e e m s t h u s a b s o l u t e l y t o c o n f o r m t o t h e e x i g e n c i e s o f t h e j u r i s d i c t i o n e x e r c i s e d b y i t : t h e P a r t i e s m a y p r e s e n t a n y p r o o f t h a t t h e y j u d g e u s e f u l , a n d t h e C o u r t i s e n t i r e l y f r e e t o t a k e t h e e v i -d e n c e i n t o a c c o u n t t o t h e e x t e n t t h a t i t d e e m s p e r t i n e n t . 1+2 W i t h r e s p e c t t o t h e b u r d e n o f p r o o f t h e p r a c t i c e o f t h e C o u r t s u p p o r t s t h e c o n t e n t i o n t h a t t h e b u r d e n l i e s u p o n t h e r e a l c l a i m a n t , i d e n t i f i e d a c c o r d i n g t o t h e s u b s t a n t i v e i s s u e s o f t h e c a s e , a n d n o t u p o n t h e p l a i n t i f f s t a t e f r o m t h e 1+3 p u r e l y p r o c e d u r a l s t a n d p o i n t . T h e s t a t e w h i c h i s a s s e r t i n g t h e r i g h t t o a c t i n a c e r t a i n w a y , o r i s r e l y i n g u p o n a n e x c e p t i o n t o t a k e i t o u t s i d e a g e n e r a l p r o h i b i t i o n i m p o s e d b y i n t e r n a t i o n a l l a w o n a c e r t a i n a c t i o n , c a r r i e s t h e b u r d e n o f p r o o f i n r e s p e c t o f t h e s e c l a i m s . I n a n y o n e c a s e t h e b u r d e n o f p r o o f w i l l f a l l a t t i m e s u p o n t h e " p l a i n t i f f " s t a t e , a n d a t t i m e s u p o n t h e " d e f e n d a n t " s t a t e , a c c o r d i n g t o t h e v a r i o u s i s s u e s b e t w e e n t h e p a r t i e s . P r o m t h i s i t c a n b e d e d u c e d t h a t t h e m a x i m o n u s p r o b a n d i a c t o r i i n c u m b i t i s o n l y a p p l i c a b l e a t t h e i n t e r n a t i o n a l l e v e l i f t h e t e r m a c t o r i s u n d e r s t o o d a s r e f e r r i n g t o t h e r e a l c l a i m a n t . T h u s , i n t h e c a s e c o n c e r n i n g t h e L e g a l S t a t u s o f  E a s t e r n G r e e n l a n d N o r w a y , i n e f f e c t , w a s i n t h e p o s i t i o n o f 1+2 P . C . I . J . , S e r . D , N o . 2 ( a d d . ) 21+9, 250 (1926). 1+3 R o s e n n e , T h e I n t e r n a t i o n a l C o u r t o f J u s t i c e 1+08-10 (1957). S e e a l s o L a u t e r p a c h t , o p . c i t . s u p r a n o t e 1, a t 362-67, a n d W i n t e r b e r g , " O n u s P r o b a n d i D e v a n t d e J u r i s d i c t i o n s A r b i -t r a l e s " 55 R e v . G e n . d e D r o i t I n t ' l . P u b l i c 321 (1951). I n c e r t a i n c a s e s t h e b u r d e n o f p r o o f m a y b e d e t e r m i n e d b y p r e s u m p t i o n s . S e e B i n C h e n g , o p . c i t . s u p r a n o t e 10, a t 30^-306, a n d S a n d i f e r , o p . c i t . s u p r a n o t e 21, a t 98-100. 17. defendant as the proceedings were i n s t i t u t e d by Denmark. Nor-way, however, argued that i n the l e g i s l a t i v e and administrative acts, on which Denmark r e l i e d as proof of the exercise of her sovereignty, the word "Greenland" was used not i n the geo-graphical sense, but only as designating the colonized areas of the west coast. The Permanent Court of International Jus-t i c e ruled, concerning t h i s contention, that t h i s was "a point as to which the burden of proof l i e s on Norway." In the 1 + 6 Asylum Case, Columbia as applicant invoked a customary ru l e of in t e r n a t i o n a l law which, not being general i n t e r n a t i o n a l law, may be regarded as a question of f a c t , and as outside the hi p r i n c i p l e of .jura novit c u r i a . The International Court of Justice l a i d down the general p r i n c i p l e that ... the party which r e l i e s on a custom of t h i s kind must prove that this custom i s established i n such a manner that i t has become binding on the other party. 1 + 8 While,in the Minquiers and Ecrehos Case,both parties were subject to an equal burden of proof i n e s t a b l i s h i n g t h e i r res-pective t i t l e s to the islands i n question, the Court being c a l l e d upon to "appraise the r e l a t i v e strength of the opposing 1*9 claims." 1 + 5 P.C.I.J., Ser. A/B, N o . 5 1 + , 1 + 9 ( 1 9 3 3 ) • See also Rights of United States Nationals i n Morocco 7 1 9 5 2 / I.C.J. Rep.200,212-13, and Bin Cheng "Rights of United States Nationals i n the French Zone of Morocco" 2 I.C.L.Q. . 3 5 4 ( 1 9 5 3 ) . 1+6 /195P7 I.C.J. Rep.266. 1 + 7 See supra, 5 - 6 . 1+8 A 9 5 Q 7 I.C.J. Rep.266,276; and see Corfu Channel Case (Merits)^ Z191+97 I - C J . Rep.l+. 1+9 I.C.J. R e p . 1 + 7 , 6 7 ? and see Temple of Preah Vihear Case, /l962/ I.C.J. Rep. 6. 18. Coupled to t h i s d i v i s i o n of the burden of proof, between the claimant and defendant state i n accordance with the facts which they respectively allege, i s the duty of the Court to use every available means f o r discovering the true 50 f a c t s of a dispute. Wlnterberg has contended that t h i s i s one of the two p r i n c i p l e s complementary to the fundamental norm regarding the d i v i s i o n of the burden of proof. He asserts that the Court i s not only competent, but i s also obliged to p a r t i c i p a t e , i t s e l f , i n the ascertainment of the fa c t s ; i t must play an active r o l e . The second complementary p r i n c i p l e i s found i n the corresponding duty of the parti e s to co-operate with the Court i n this search for the t r u t h by furnishing doc-51 uments, witnesses, and other evidence on request. 52 In only one case, the Oscar Chin Case , before the World Court can authority f o r t h i s rather extreme p o s i t i o n be 53 found. The B r i t i s h Government, i n this case, had requested the Court to order an inquiry, i n p a r t i c u l a r on the e f f e c t of the Belgian measures upon other private transport enterprises 51+ on the Congo, including Belgian concerns>after 1931. However, i n view of i t s finding that the facts had been s u f f i c i e n t l y 50 Winterberg, supra note 43. Cf. Sandifer op.cit.supra note 21 at'97-98, and Scelle j Report on A r b i t r a l P r o c e d u r e , I.L.C. Doc. A/CN 1+/18, paras. 6t+,71. 51 Winterberg. supra note 43,at 331,335,339. 52 P.C.I.J., Ser. A/B, N0.63 (1934). 53 But see the boundary a r b i t r a t i o n between French Guiana and B r a z i l , where the Swiss Federal Council, i n i t s decision as a r b i t r a t o r , declared that "the a r b i t r a t o r holds he i s not bound to confine himself to the contentions of the parties and the sources of evidence which they invoke.... I t i s the duty of the ar b i t r a t o r ... to ascertain the t r u t h by a l l the means which are at his disposal." This passage i s reproduced i n Commentary on  The Draft Convention on A r b i t r a l Procedure, I.L.C. Doc.A/CN. U92TW(T9^T. 54 P . C . I . J . , Sev. A / B , No. 63, 69 (1934) 1 9 . proved i n the documents for i t to determine that the Belgian measures were not i n breach of any inte r n a t i o n a l o b l i g a t i o n , the Court stated ••• there i s no occasion to order the enquiry suggested at the beginning of the hearing by the Agent f o r the Government of the United Kingdom. 5 5 This f i n d i n g was met by some strrngent comments from Judge Van Eysinga, one of the dissenting judges. After s t a t i n g that there had never been a case before the Court where the facts had been i n dispute to the same extent, he stressed that the Court was not ti e d down to any system of taking e v i -dence: that i t s task was to co-operate i n the objective ascer-5 6 tainment of the t r u t h . The Court cannot omit to use any means which may enable i t to ascertain the objective t r u t h , as regards the obtaining of evidence; the Statute provides that the Court s h a l l take active steps and not adopt a passive a t t i t u d e . 5 7 Apart from Judge Van Eysinga's statement, there i s very l i t t l e other support f o r Winterberg's proposition that there i s a po s i t i v e duty on the Court to discover the t r u t h by a l l the means at i t s disposal. Neither the practice of 5 8 the Court, nor the provisions of the instruments of i t s 5 5 P.C.I.J., ser. A/B, No.63, 8 8 ( 1 9 3 4 ) . Cf. Free Zones of Upper Savoy and the D i s t r i c t of Gex,,P.C.I.J., Ser.A/B,No.4^7 i62TT9327r 5 6 P.C.I.J., Ser. fA/B, No.63, 1 4 6 ( 1 9 3 4 ) . 5 7 I b i d . , '147, 5 8 The Court has, i n several cases, declined to make use of experts notwithstanding the requests of the part i e s to that end. See i n f r a note 9 0 . 20. creation, notwithstanding Judge Von Eysinga's i n t e r p r e t a t i o n of the Statute, recognizes or places the Court under any such duty. At the most the Statute gives the Court a discretionary r i g h t to p a r t i c i p a t e a c t i v e l y i n the c o l l e c t i o n of evidence i f i t deems such p a r t i c i p a t i o n expedient and necessary; the Court 59 may request the production of further evidence, i t may order 60 an enquiry or expert opinion, but i t does not have to do e i t h e r . Thus, i t i s suggested that t h i s alleged duty can be meaningful only i n very general terms. I t cannot amount to more than an o b l i g a t i o n to exercise j u d i c i a l l y a d i s c r e t i o n as to the appropriate procedural methods f o r f i n d i n g the facts 61 i n a , p a r t i c u l a r case. That a ... decision could be v i t i a t e d on some such ground as e s s e n t i a l error merely because the IpouvtJ had decided against employing available means to gather evidence of i t s own motion i s an untenable p o s i t i o n . 62 From t h i s general outline of the law of evidence i n i n t e r n a t i o n a l j u d i c i a l proceedings i t i s obvious that the World Court has a very wide scope f o r the ascertainment of the t r u t h i n the absolute sense. In ascertaining the facts concerning the c o n f l i c t i n g claims of the par t i e s before i t the Court i s not hindered by technical rules r e l a t i n g to ei t h e r , the competence, relevance and m a t e r i a l i t y of the evidence, or the burden of proof. Despite t h i s freedom from 59 See i n f r a , 26-31. 60 See i n f r a , 31-4L 61 White, the Use of Experts by International Tribunals 9 (1965). 62 I b i d . 21. r e s t r i c t i v e and technical r u l e s , however, problems,created i n some instances by the parties themselves, and i n others by events beyond the control of the p a r t i e s , w i l l arise i n the attainment of that absolute truth. To enable the Court to overcome these problems, i t has been claimed that the Court i s not l i m i t e d to a mere consideration of the informa-t i o n and material-presented to i t by the p a r t i e s ; but that i t i s obliged to undertake, of i t s own motion, enquiries and investigations of various kinds into the facts of any issue submitted to i t . I t i s the nature and extent of these var-ious enquiries and investigations which w i l l be considered i n the following sections of t h i s study. 22. CHAPTER 3 PACT FINDING - EXPRESS COMPETENCE In assessing the competence with which the World Court i s imbued to pursue the facts of a dispute, two sides of the coi n of competence must be discussed. On the one hand, i t i s necessary to ascertain what express powers have been conferred on the Court to undertake or order enquiries and investigations of various kinds into the f a c t s of a d i s -pute. And, on the other hand, i t i s r e q u i s i t e to determine whether the Court possesses an . implied discretionary power to pursue such enquiries and investigations i n the absence of express provisions to t h i s end i n i t s rules of procedure. The express powers of the World Court, a permanent in t e r n a t i o n a l j u d i c i a l t r i b u n a l , to play an active role i n the c o l l e c t i o n of f a c t u a l evidence, although ultimately derived from the agreement of states embodied i n the i n s t r u -ments creating i t and conferring rule making powers upon i t , are l a i d down and known i n advance by the parties i n any subsequent proceedings. The states may, or may not, have p a r t i c i p a t e d i n the drafting of the o r i g i n a l documents setting up the Court; i n any event they are unable to authorise the 63 Court to depart i n any major extent from the rules of procedure. 63 This also applies to cases brought before the I.C.J, by s p e c i a l agreement for provisions contemplating the amendment of s t i p u l a t e d l e g a l procedures upon the request of the p a r t i e s see A r t . 39 ( o f f i c i a l language) and Art. 1+6 ( hearing i n public) of the I.G.J. Statute. See also Art's. 39 and 1+6 P.C.I.J. Statute. 23. A purported conferment, or denial, of the power to seek out the facts by any method the Court deems f i t , absent such p r o v i s i o n i n the exi s t i n g r u l e s , would c e r t a i n l y be a depar-ture. The Court, as a permanent t r i b u n a l , and the p a r t i e s to proceedings before the Court, are confined to the powers found i n the Court's statute and the procedural rules drawn up under the rule making a r t i c l e i n the Statute, This p o s i t i o n of the World Court may be contrasted with that of an ad hoc j u d i c i a l t r i b u n a l . The competence and powers of an ad hoc tribunal to discover the truth independently of evidence adduced by the p a r t i e s , derives d i r e c t l y and immed-i a t e l y from the consent of the par t i e s as expressed i n the compromis or a r b i t r a l agreement under which i t was established. Thus at each stage of the a r b i t r a l process assurances e x i s t f o r the protection of the parties flowing from the r e l a t i v e l y close control which they exercise over the proceedings. These assurances are found not only i n the pro v i s i o n of the com-65 prorois i t s e l f , but also i n l e g a l rules applicable to the con-duct of hearings before the t r i b u n a l whether they are derived from the compromis, the rules drawn up by the t r i b u n a l under a rule making power conferred upon i t , or general p r i n c i p l e s 66 of international law applicable to such hearings, Carlston 6I4 A r t i c l e 30(1) provides "the Court s h a l l frame rules f o r carrying out i t s functions. In p a r t i c u l a r i t s h a l l lay down rules of procedure," See also A r t . 30, P.C.I.J. Statute. 65 Notably i n the a r t i c l e s governing the composition of the tribunals and the extent of i t s j u r i s d i c t i o n . 66 Carlston, The Process of International A r b i t r a t i o n 260 (191+6). He also refers to the assurances concerning the mode of rendering the award and the form and substance of the award. See also Simpson & pox, International A r b i t r a t i o n 147-514(1959), and Bin Cheng, op.cit.supra note 10, at ,257 et seq. 2b,. has made the point that the p a r t i e s are able to l i m i t , by agreement, the competence and the powers of the tribunal they are creating and to ensure that the applicable rules of pro-cedure are s u f f i c i e n t l y f l e x i b l e for the s a t i s f a c t o r y r e s o l u -t i o n of the dispute submitted to i t . In embarking upon an a r b i t r a t i o n a state may r e l y on the p r i n c i p l e that the t r i b u n a l w i l l be required to confine i t s e l f to the sphere of action defined i n the compromis and to conduct i t s e l f with due regard for law and u n i v e r s a l l y accepted rules of procedure. Yet withal i n t e r n a t i o n a l a r b i t r a t i o n i s an i n f i n i t e l y f l e x i b l e process; i t s procedures can ever be adapted to the demands made upon i t . The form and type of procedure can always be adjusted to the complexity and volume of the l i t i g a t i o n to be submitted for decision. 67 I t i s cl e a r from the foregoing, that the p r i n c i p l e that the j u r i s d i c t i o n of an i n t e r n a t i o n a l t r i b u n a l flows d i r e c t l y from the consent of the parties has been subjected to a process of refinement insofaras the World Court i s con-cerned, f a c i l i t a t e d without doubt, by i t s permanence. Where as the t o t a l i t y of an ad hoc tribunal's j u r i s d i c t i o n derives d i r e c t l y from the express consent of the parties creating i t , 68 t h i s i s true only of the " p r i n c i p a l " j u r i s d i c t i o n of the Court. That i s , whether the Court has j u r i s d i c t i o n to adjudicate on the merits of a claim w i l l depend s o l e l y on the formulation of the issues by the p a r t i e s , and their agreement to submit 67Carlston, op.cit. supra note 66, at 260. Again i n the same work Carlston states "procedural rules should be care-f u l l y adapted to the requirements of each arbitration as i t arises so that i t may be consuraated, speedily, economically, and justly," i b i d . , 4. 68 For a discussion of the term "principal" jurisdiction see 1 Rosenne, The Law and Practice of the International Court 318-19 (1965). 25. the dispute to the Court for decision. Even i n the l a s t r e s o r t , where there i s no such agreement, i t i s from the var-ious formulations of the par t i e s that the Court must determine whether or not they have agreed that i t should decide the 69 matters i n dispute. But, a l l other matters^ which the Court may be c a l l e d upon to deal, in^connection with/ or derived from,'' the decision on the merits are considered to f a l l within the Court's " i n c i -dental" j u r i s d i c t i o n . The c h a r a c t e r i s t i c feature of t h i s " i n c i -dental" j u r i s d i c t i o n i s that i t depends,"not upon the s p e c i f i c consent of the p a r t i e s , " but upon the existence of some objec-t i v e f a c t such as the existence of proceedings before the 70 Court. This does not mean that the exercise by the Court of i t s i n c i d e n t a l j u r i s d i c t i o n i s e n t i r e l y divorced from any question of consent. I t i s obvious that i f the Court lacks a l l j u r i s d i c t i o n to deal with a case on the merits, because of the absence of consent, i t automatically follows that i t 71 w i l l also lack a l l i n c i d e n t a l j u r i s d i c t i o n . The point i s that the converse i s also true. Once the p a r t i e s have consen-ted merely to the exercise by the Court of i t s primary j u r i s -d i c t i o n the Court w i l l immediately become competent to exer-cise i t s i n c i d e n t a l j u r i s d i c t i o n . Thus, perhaps, instead of 6 9 i b i d . , 319. 70 I b i d . . i+22-23. 71 Treatment of U.S. A i r c r a f t and Crews i n HungaryZL95U7 I.C.J. Rep. 99, 103. Cf. A e r i a l Incident of Hth September 195U Case. /1958/ I.C.J. Rep. 15«,160. 26. using th© term " i n c i d e n t a l " to characterize t h i s aspect of the Court's j u r i s d i c t i o n , "inherent" would be more apt. What the objective facts are, and the conditions, f o r the exercise of any p a r t i c u l a r aspect of t h i s i n c i d e n t a l j u r i s d i c t i o n are l a i d down i n the Statute and Rules of the World Court, and i n general p r i n c i p l e s r e l a t i n g to the admini s t r a t i o n of j u s t i c e . S u f f i c e i t to say, f o r the purposes of this study, that once a case i s submitted to the Court f o r decision the Court automatically becomes e n t i t l e d to exercise a l l the rights and powers, including those authorizing i t to play an active role i n the c o l l e c t i o n of evidence, i n c i d e n t a l to i t s j u r i s d i c t i o n , to enable i t to render a just and equit-able decision, not withstanding the objections of the parties The nature and extent of the express powers given the World Court to obtain material and information to supple-ment that adduced by the parties w i l l now be discussed. Whether the Court possesses an implied rule making power, which extends to give i t competence to c a l l evidence and i n i t i a t e i n q u i r i e s of i t s own motion, w i l l emerge i n a l a t e r 73 part of t h i s study. 1. Documentary Evidence A r t i c l e 1+9 of the Statute of the International Court of Ju s t i c e , adopted without amendment from the Statute 7k of the Permanent Court of International J u s t i c e , provides 72 See i n f r a . 50-63 73 See i n f r a , 63-70 7k See A r t . 1+9 P.C.I.J. Statute. 27. i n t e r a l i a , that: The Court may, even before the hearing begins c a l l upon the agents to produce any document .... Formal note s h a l l be taken of any r e f u s a l . Not many examples of the exercise of this power e x i s t ; and i n only one instance has a party refused to produce the docu-ments requested by the Court. In the case of Appeals from Certain Judgments of  the Hu ngro-C ze chos1ovak Mixed A r b i t r a l Tribunal the Permanent Court of International Justice was invited,by the Czechoslovak Government,to request the production by/the Royal Hungarian Government,of c e r t a i n documents of importance to the former's 75 case. The request was duly complied with and the documents produced. Admittedly, the request f o r production was made on the i n v i t a t i o n of Czechoslovakia, one of the p a r t i e s , but i t i s s t i l l nevertheless an exercise by the Court of the d i s -cretionary power conferred on i t by A r t i c l e l j . 9 ; the Court was acting of i t s own motion. The Court i s not bound to order the production of documents, but i t may do so irre s p e c t i v e of the desires of the p a r t i e s . Nor are the pa r t i e s to proceedings before the Court conferred the ri g h t to demand the discovery and inspection of documents. The other instance i n which the production of docu-ments-was requested by the Court was i n the Corfu Channel 76 Case. A s p e c i f i c request was made to the Agent f o r the United 75 P.G.I.J., Ser. C, No. 72 (193D. 76 (Merits) /19H9/ I.G.J. Rep.b,. 28. Kingdom to produce a document concerning which, on the 77 ground of secrecy, a witness had refused to answer questions. The document was not produced, the Agent pleading secrecy, and the Court took note of the r e f u s a l . In the course of i t s judgment the International Court of Justice made reference to the B r i t i s h r e f u s a l to produce the document. Because of the r e f u s a l , the Court said, ... i t i s not possible to know the r e a l content of these naval orders. The court cannot however draw from t h i s refusal to produce the orders any conclusions d i f f e r i n g from those to which the actual events give r i s e . The ... Agent stated that the instructions i n these orders r e l a t e d solely to the contingency of shots being f i r e d from the coast - which d i d not happen. I f i t i s true, as the com-mander of the Yolage said i n evidence, that the orders contained information concerning certain positions from which the B r i t i s h warships might have been f i r e d at, i t cannot be deduced therefrom that the vessels had received orders to reconnoitre the Albanian coastal defences. L a s t l y , as the Court has to judge of the innocent nature of the passage, i t cannot remain i n d i f f e r e n t to the f a c t , though two warships struck mines there was no reaction on t h e i r part, or on that of the c r u i s e r s that accom-panied them. 78 It i s clear from this comment that the mere re f u s a l of a state to produce documents i s not i n i t s e l f reason f o r the Court to give judgment against i t . Nor can the Court refuse to adjudicate on a dispute, disregarding other e v i -dence of a decisive nature, s o l e l y on the basis of a state's f a i l u r e to comply.with a request f o r production. The r e f u s a l i s just another f a c t o r which must be taken into account i n 77 k Corfu Channel Case - I.C.J. Pleadings. U28 (1949-50). 5 Corfu Channel Case - I.C.J. Pleadings. 255 (1949-50). 78 (Merits), ft.9k9j I.C.J. Rep. 4, 32. 29. considering the weight to be attached to that party's case. In theory the necessity f o r the exercise of the power to request the production of documents, r e l i e d on by a party during the proceedings, cannot a r i s e . A r t i c l e 1+3(2) places the parties under an obli g a t i o n to submit to the Court 79 " a l l documents and papers i n support" of t h e i r case. But t h i s a r t i c l e does not take into account the contingencies that either the documents may be i n the hands of the opposition, 80 who has not r e l i e d on them, or a t h i r d state, or the docu-ments may be of a secret nature. With respect to the l a s t contingency i t should be noted that nowhere i n the Courts judgment, i n the Corfu Channel Case, was the r i g h t of a party to withhold documents on the 81 ground of secrecy, or privelege, sanctioned. I t has been suggested that i f a party was faced with the necessity of pro-ducing secret documents i t could request, as was i t s r i g h t , 82 that the Court declare the proceedings closed to the p u b l i c . But, t h i s suggestion has not yet been put into p r a c t i c e . There i s one further instance i n which i t i 3 possible that the Court may request a party r e l y i n g on cer t a i n docu-ments to produce them. During discussions by the Permanent Court of International J u s t i c e , concerning the obli g a t i o n to 79 See A r t . 1+3(2) P.C.I.J., Statute. 80 This was the p o s i t i o n i n the case of Appeals from  Certain Judgments of the Hungro-Czechoslovak Mixed A r b i t r a l  Tribunal, P.C.I.J,, Ser. c, No. 72(1931). 81 (Merits),/!91+97 I.C.J. Rep.l+. 82 P.C.I.J., Ser. D, No.2(add.), 127 (1926). 30. present a l l documents i n support, i t was suggested that i t was not necessary f o r a party to produce the whole of a lengthy document, consisting of separable portions, provided that each portion represents a thought, or a f a c t , complete i n i t s e l f and not dependent on the context from which i t 83 was taken. Prom th i s i t can be discerned that should a party r e l y on an extract, or a portion, of a document which out of context, misrepresented the true nature or meaning of the document, the Court may request the production of the whole. This s i t u a t i o n has not yet arisen although the Perma-net Court of International Justice i n one instance, ... i n view of the importance of s t r i c t accuracy i n the text of documents f i l e d with the Court, ... decided ... to draw the attention of the agents to c e r t a i n innacuracies i n documents which had been submitted to i t . 81+ One writer has referred to the Court's r i g h t to request the production of documents as being ... l i m i t e d to documents which have been referred to, or r e l i e d upon, i n the pleadings of the other party without being produced and which are i n the exclusive possession of that party. 85 The practice of the Court has shown that i t s r i g h t to d i s -covery encompasses a broader f i e l d than t h i s . Not only can i t request the production of a l l documents r e l i e d on by a 83 P.C.I.J., Ser* D, No.2 (3d add.), 101 (1936). 8k P.C.I.J., Ser. E., No.8, 261 (1932). For a lengthy exchange of views between the Danish and Norwegian Agents during the proceedings i n the case concerning the Legal Status  of Eastern Greenland with reference to allegations by the l a t -t e r that Denmark had submitted with her case a number of i n -complete and misleading quotations, see P.C.I.J. Ser.C, No.63, 992-95,1003(1933),P.C.I.J., Ser. C, No.67,3291-9k,3556-58(1933). 85 Sandifer, op.cit.supra note 21, at 73. party, but i t may also exercise t h i s r i g h t to obtain the prod-u c t i o n by one party of documents r e l i e d on s o l e l y by the other, 2. Enquiries and Expert Evidence The Statute of the World Court contemplates the use, i n proceedings before the Court, both of expert witnesses c a l l e d by the p a r t i e s , either of t h e i r own motion or at the -i n v i t a t i o n of the Court, and of enquiries and opinions by commissions of experts appointed by the Court. This section 86 i s devoted to a consideration of the l a t t e r use of experts. A r t i c l e 50 of the Court's Statute provides that the Court may entrust, at any time, ... any i n d i v i d u a l , body, bureau, commission or other organization that i t may select with the task of carrying out an inquiry or giving an expert opinion. 87 There i s one precondition which has to be f u l f i l l e d by the Court before i t can order an inquiry or expert opinion. 88 A r t i c l e 57 of the Rules of Court provides that the Court i s f i r s t obliged to hear the parti e s on the matter although, from the wording of the a r t i c l e , i t i s not bound to take account of the objections, i f any, which may be made. Then, i n making the order, the Court must state the number and mode of appointment of the persons to hold the enquiry or 86 The powers of the Court over.experts c a l l e d by the parties are discussed i n f r a , 41-45. 87 See Art.50 P.C.I.J. Statute. 88 See Art. 57 P.C.I.J. Rules. 32. 8 9 the experts and the procedure to be followed by them. This power, although discussed on several occasions 9 0 by the Court, has been invoked i n only two cases, the Chor-9 1 9 2 zow Factory Case and the Corfu Channel Case. In the l a t t e r case recourse was twice had to experts by the Court, but i n di f f e r e n t circumstances i n each instance. In the Chorzow Factory Case the Permanent Court of International Justice ordered an inquiry into the value of an expropriated undertaking f o r the purpose of determining the compensation due. In the Court's own words, the object of the inquiry was to enable i t ... to f i x with a f u l l knowledge of the f a c t s , i n conformity with the p r i n c i p l e s l a i d down i n Judg-ment No. 1 3 , the amount of the indemnity to be paid by the P o l i s h Government under the terms of ... Judgment No. 13» 9 3 The terms of reference, for the three experts appointed, were to ascertain the estimated value of the undertaking, including stocks at the moment of taking possession by the P o l i s h Gov-9 4 ernment, or i t s present value. Two questions were put to the experts, the object of which was to determine the amount of compensation due for unlawful expropriation i n circumstances 89 Art. 57(1) I.C.J. Rules;Art.57(1) P.C.I.J. Rules. 90 E.g. Oscar Chin Case, P.C.I.J., S e r . A / B , N o . 6 3 ( 1 9 3 4 ) ; Phosphates i n Morocco Case, P.C.I.J., Ser.C,No.84,P.C.I.J. Ser. C,No.b'5(193F7; Anglo-I rani an O i l Co.Case - I.C.J. Pleadings 360 (1952); Nottebohm Case (Second Phase^1955/ I.C.J. Rep.9. 9 1 P.C.I.J., Ser.A, No.17 (1928). 9 2 (Merits) / 1 9 4 9 / I.C.J. Rep.4. 93 Order of September 13 ,1928,P.C.I.J.,Ser.A,No.17,99 . ( 1 9 2 8 ) . 9 4 Judgment i b i d . , 52. i n which r e s t i t u t i o n was impossible. However, the pa r t i e s reached a settlement out of Court before the experts termin-ated t h e i r enquiry. The outstanding instance of the use of experts was 96 i n the Corfu Channel Case. In t his case the United Kingdom claimed i n t e r a l i a , that Albania was l e g a l l y responsible f o r the destruction and damage of two B r i t i s h warships during 97 passage through the Corfu Channel. The Channel had prev-i o u s l y been swept f o r mines and the United Kingdom "suspected 98 that this was the work of Albania" . I t wa3 with regard to the allegations of the United Kingdom that the International Court of Justice made use of independent technical experts. These experts were brought i n at two stages of the proceedings: (i) to give an opinion on c e r t a i n f a c t u a l ques-tions, and to state what conclusions, i f any, could be drawn from the facts as they found themj and ( i i ) a f t e r the Court had pronounced on the int e r n a t i o n a l r e s p o n s i b i l i t y of Albania, to examine the estimates of damage submitted by the United Kingdom. 99 The order i n i t i a t i n g the f i r s t enquiry referred to the relevant a r t i c l e s i n the Court's Statute and Rules, and 95 Order of September 13, 1928, i b i d . , 99. 96 (Merits),/l9l+97 I.C.J. Rep. J+. 97 (Preliminary Objection), /191+7-191*8/ I.C.J. Rep. 15, 17. 98 B r i e r l y , The Law of Nations 1+22 (6th ed. Waldock 1963). 99 /I91+7-48/ I.C.J. Rep. 121+. 34. then "to the fact that, c e r t a i n points having been contested by the p a r t i e s " made i t necessary to obtain an expert opinion. There followed eight s p e c i f i c and detailed points upon which the experts' opinion was requested. The order then continued i n paragraphs VI and VII to provide: VI, The Experts s h a l l bear i n mind that t h e i r task i s not to prepare a s c i e n t i f i c or technical state-ment of the problems involved, but to give the Court a precise and concrete opinion upon the points submitted to them, VII. The Experts s h a l l not l i m i t themselves to state th e i r findings; they w i l l also as f a r as possible, give the reasons for these findings i n order to make t h e i r true significance apparent to the Court. If need be they w i l l mention any doubts or d i f f e r -ences of opinion amongst them. These provisions may well have been included because of the l i v e l y contest as to the fa c t s which had taken place, and of the degree of reliance which the Court was obliged to place 100 on circumstantial evidence. The experts submitted t h e i r f i r s t report i n Janu-ary 1949, and i t was duly communicated to the parties by the Court. The Albanian Government, however, was d i s s a t i s f i e d with the report, a l l e g i n g gaps and uncertainties which could 101 compromise the f i n a l decision of the Court. A l e t t e r from the Yugoslav Government, who requested the Court to treat the l e t t e r as a n o t i f i c a t i o n of collaboration and not as any act of intervention, also claimed the report contained uncertainties, 100 Se  Lauterpacht, op.cit.sup a no e 1, t 88-89. 101 This may be discerned from the l e t t e r of January 4*1949, sent by the Yugoslav Government to the Court, 5 Corfu Channel  Case - I.C.J. Pleadings 253 (1949-50). 35. gaps, and certa i n inaccuracies. In the l e t t e r , Yugoslavia offered to l e t the experts carry out c e r t a i n investigations on the spot to r e c t i f y t h e i r errors and omissions i f the 102 Court were to consider t h i s useful and necessary. As was the case the Court did f i n d i t useful and necessary f o r the experts to v i s i t the area and carry out ob-servations on the spot. The decision,directing the experts to v i s i t the l o c a l i t y i n question,requested them to make i n -vestigations on land and i n the adjacent waters, and to con-duct any experiments which they might consider useful with a view to v e r i f y i n g , completing and, i f necessary, modifying, 103 the answers i n t h e i r January report. In due course the experts f i l e d the new report. It was communicated to the parti e s who submitted t h e i r obser-10k vations on i t . Several members of the Court put questions to the experts a r i s i n g out of the report, and a hearing was 105 held i n which the experts gave t h e i r r e p l i e s . The importance of the expert report i n a s s i s t i n g the Court to reach a decision, on the question of the r e s p o n s i b i l -i t y of Albania,, i s well i l l u s t r a t e d i n the portion of i t s judgment which dealt with the v i s i b i l i t y of any mine laying 102 I b i d . 103 fi-Wj I.C.J. Rep. 21. 10k. For the observations see 5 Corfu Channel Case -I.C.J. Pleadings 93,115 (19k9-50). 105 /194?7 I.C.J. Rep. 152-62, 163-69. 36. operations from the Albanian coast. The Court set i t s e l f the task of examining, by i n d i r e c t evidence, Albania's know-ledge of the mine laying i n her t e r r i t o r i a l waters, apart from any connivance on her part. I t was said that: The proof may be drawn from inferences of f a c t 106 provided they leave no room f o r reasonable doubt. Two sets of facts which corroborated one another were con-sidered: the f i r s t related to the attitude of Albania, both before and a f t e r the disaster; the second conerned the f e a s i b i l i t y of observing mine laying from the Albanian coast. On the l a t t e r set of facts the experts' report was of a s s i s -1 0 7 tance to the Court. The Court i n considering these f a c t s quoted from the report: The Experts consider i t to be indisputable that i f a normal lookout was kept ... and i f the look-outs were equipped with binoculars as has been stated, under normal conditions f o r this area, the mine laying operations ... must have been noticed by these coastguards. 1 0 8 The Court's conclusion on t h i s point was that i t .,. cannot f a i l to give great weight to the opinion of the experts who examined the l o c a l i t y i n a manner giving every guarantee of correct and impartial information. 109 The second occasion on which the Court resorted to the use of experts i n the Corfu Channel Case was i n r e -l a t i o n to assessing the amount of reparation due from Albania to the United Kingdom. As the Albanian Government 106 I b i d . , 1 8 . 1 0 7 I b i d . . 2 0 . 1 0 8 Ibid., 2 1 . 1 0 9 Ibid. 3 7 . refused to co-operate on eith e r the question of the quantum of damages, or the appointment of experts to assess the quantum of damages, the Court i t s e l f designated experts to 110 examine the estimates submitted by the United Kingdom. The experts, so appointed, agreed with the B r i t i s h estimate i n respect to one ship, but reached a higher estimate f o r the second. The Court, however, declared i t s e l f unable to award 111 more than the sum claimed. The questions submitted to the experts i n the Corfu  Channel Case pertained d i r e c t l y to the main issues between the p a r t i e s , namely, what means had been used to lay the minefield, and whether t h i s could have been done without the knowledge of the Albanian Government. White has suggested that the use of experts may be equally appropriate i n r e l a -t i o n to matters raised by way of defense to an admitted r e s -112 p o n s i b i l i t y . That i s , although a state may not dispute i t s l i a b i l i t y at i n t e r n a t i o n a l law, i t may r e l y on other factors to modify the nature, or amount of reparation due. This was the p o s i t i o n adopted by Greece i n the Soclete Commerciale 113 de Belgique Case. The dispute between Belgium and Greece concerned the execution of certain a r b i t r a t i o n awards given i n favour of a Belgian Company i n 1936. While admitting the awards were binding on her, Greece pleaded f i n a n c i a l i n a b i l i t y 110 I b i d. , 238. 111 I b i d . , 2i|9. For the experts' report see i b i d . ,258-60. 112 White, op.cit.supra note 61, at lib,. 113 P.C.I.J., Ser. A/B, No.78 (1939). 38. to make the payments due to the Company. Neither Belgium nor Greece requested an expert inquiry into the l a t t e r ' s f i n a n c i a l p o s i t i o n nor d i d the Court i n i t s judgment con-sider such a course necessary. The Court stated that the awards were d e f i n i t i v e , obligatory, and had the force of lib, res judicata, and therefore i t could do nothing. However, a dissenting Judge, Judge Van Eysinga* asserted that the case involved "a question of ascertaining a f a c t , " the f i n a n c i a l s i t u a t i o n of Greece. And, that the ascertainment of t h i s f a c t required an expert report, f o r the Court could not simply adjudicate on the basis of what the two parties presented to i t , notwithstanding t h e i r statement that t h i s 115 question should remain outside the scope of the proceedings. The proposition stated by Judge Van Eysinga, namely that the Court i s competent to order an expert enquiry under A r t i c l e 50, despite the fact that the par t i e s have intimated that they do not wish the matter to enter into the proceed-ings, can not be questioned insofaras the World Court i s concerned. This right i s conferred on i t by A r t i c l e 57 (l) of the Rules of Court. I f the issue i s raised by the pleadings, as i t was i n the Societe Commerciale de Belgique  Case, the Court i s not r e s t r i c t e d to the evidence adduced by the p a r t i e s . I t i s free to consider other facts which, i t may determine, are relevant and necessary to the decision of the issues. lib, I b i d . , 178. 115 I b i d . , 182. 39. It has emerged from the preceding discussion of the use of experts that the expert has i n general a straight f o r -ward job, namely to assist the Court i n the establishment, and/or elucidation, of facts within the terms of the refer-ence given him by the Court. The expert is there to assist "in ferreting out" the facts. The necessity for, and the importance of, the Court fs authority to order independent inquiries into, and expert opinions on, the facts of a case is well illustrated by Lauterpacht's comment that: A substantial part of the task of judicial t r i -bunals consists i n the examination, and weighing, of the relevance of facts for the purposes of determining l i a b i l i t y and assessing damages, as the Corfu Channel Case showed, the Court i s i n a position to perform that task with exacting care.116 This quotation also brings out a point essential to the role of an expert appointed by the Court. The expert is there solely to assist i n finding f a c t 3 where the circumstances of a case render i t necessary or expedient. He cannot usurp the judicial function of the Court - he cannot identify which facts are relevant or significant, nor examine and weigh them for the purposes of determining l i a b i l i t y and assessing damages. However, there is nothing to prevent the parties agreeing to submit their dispute to a tribunal composed of technical, non-legal, experts as happened i n the f i n a l stage 116 Lauterpacht, op.cit.supra note 1, at 48. See also Dillard, "A Tribute to Philip C. Jessup and some Comments on International Adjudication" 62 Colura.L.Rev. 1138,111+5 (1962). 40. of the Free Zone of Upper Savoy and the D i s t r i c t of Gex Case.-France and Switzerland agreed to appoint three experts, i n the economic and finance f i e l d , to draw up revised regula-117 tions f o r the exchange of goods between the regions concerned. But, i n the absence of an express agreement, conferring upon the experts a j u d i c i a l function, a decision by the Court, based on the f i n d i n g of fact,and/or the opinion, i n the experts' r e -port would constitute a delegation by the Court of i t s j u d i -c i a l function. Such conduct by the Court, i t has been sugges-ted, would be ground for the r e f u s a l by one or both pa r t i e s 118 to carry out the award. In view of the wide power of the World Court to order enquiries and expert opinions on any point of f a c t which may be raised i n the pleadings,it may be asked: what safeguards e x i s t to protect the fundamental r i g h t of the par t i e s to comment on, or reply to, a l l the evidence brought before the Court? The answer i s to be found i n the Rules of Court, A r t i c l e 57(3) of which provides that: Any report or record of any enquiry and any expert opinion s h a l l be communicated to the p a r t i e s . 119 In p r a c t i c e , t h i s p r o v i s i o n has been interpreted as confer-r i n g on the parties the right to see the r e s u l t s of the i n -quiry or the experts' opinion immediately i t i s submitted to the Court. The pa r t i e s are thus i n a p o s i t i o n to assess the 117 P.C.I.J. Ann.Rep., Ser.E, No. 10, 106 (1934). 118 White, op.cit.supra note 61, at 165. 119 See Art. 57(2) P.C.I.J. Rules. significance of the report i n r e l a t i o n to t h e i r own case and to comment on i t . In the Corfu Channel Case, f o r i n s -tance, the p a r t i e s were given the opportunity to comment on 120 the experts' f i r s t report i n t h e i r oral r e ply and rejoinder. For the second report, following the inquiry on the spot, the Court's order gave the parties the right to f i l e written ob-servations on any new statement which the report might con-121 t a i n . 122 3. Testimonial Evidence Recourse to testimonial evidence i n i n t e r n a t i o n a l 123 j u d i c i a l proceedings i s rare. The Statute and Rules of the World Court merely provide a framework fo r the c a l l i n g of witnesses and experts, and the taking of depositions. A l -though neither instrument confers on the Court power to sub-poena and compel the attendance of witnesses or experts , 12U 125 administer oaths, nor punish f o r perjury, there are nevertheless three methods open to the Court by which i t can obtain testimonial evidence. 120 This right of the parties was not expressly included i n the order of December 17,1948? the Registrar was merely under a duty to communicate the report to the p a r t i e s . See y/1947-487 I.C.J. Rep.124,127. 121 /l9U97 I.C.J. Rep.21. 122 I.e. Evidence by means of witnesses as distinguished from documentary evidence. 123 See Hudson, International Tribunals 9U (19U4) and 2 Rosenne, op.cit.supra note 661, at 572. 124 Each witness and expert i s required by Art.53 of the I.C.J. Rules to make a declaration before giving testimony. See also Art. 53 P.C.I.J. Rules. 125 For the e f f e c t i v e administration of testimonial proof a t r i b u n a l must have the power, i t i s suggested, to (l)compel the attendance of witnesses; (2) compel the giving of evidence 42. The f i r s t method i s that where the parties have v o l u n t a r i l y c a l l e d witnesses or experts i n support of t h e i r 126 cases, the President and Judges of the Court may put ques-127 tions to them. The Rules, as suggested above, do not con-vey with any p r e c i s i o n p r e c i s e l y what system should be adopted f o r the examination by the Court of such witnesses or experts. However, i t appears that the a ccepted procedure i s that the witness or expert i s f i r s t questioned by the agent who has c a l l e d him, then by the opposition, followed by the President and Judges. The agent, producing the witness or expert, having the r i g h t to put further questions to the witness or expert, and to add technical evidence on completion of the 128 "cross-examination". Next, the Court i s empowered "to request the parties to c a l l witnesses or experts". If the attendance of the wit-ness or expert cannot be obtained, by the party requested to produce testimonial evidence, either through the former's refusal to attend, or his presence within a t h i r d state, the 129 provisions of A r t i c l e 44 of the Statute may be invoked. This a r t i c l e authorizes the Court, of i t s own i n i t i a t i v e , to apply d i r e c t l y to the Government within whose j u r i s d i c t i o n the by the witnesses; and (3) punish f o r perjury. 126 Art.49 I.C.J. Rules makes provi s i o n f o r the c a l l i n g of witnesses by the p a r t i e s . See also Art.49 P.C.I.J. Rules. 127 See Art.51 I.C.J. Statute and Art.53 I.C.J. Rules, and also Art.51 P.C.I.J. Statute and Art.53 P.C.I.J. Rules. 128 This procedure was followed i n the Corfu Channel Case: see 3 Corfu Channel Case - I.C.J. Pleadings 427 (1949-50). For an example of technical explanations, see 4 Anglo Norwegian  Fishe r i e s Case - I.C.J. Pleadings 64 (1951). 129 Art.54 I.C.J. Rules. See also Art.54 P.C.I.J. Rules. 1+3. 130 witness i s to be found to secure his appearance. The t h i r d and f i n a l method open to the Court to obtain testimonial evidence i s by taking The necessary steps for the examination of wit-nesses and experts otherwise than before the Court i t s e l f . 131. The exercise of t h i s r i g h t , by i t s very nature, necessitates recourse to A r t i c l e 1+1+ of the Statute - the Court must ob-t a i n the permission of the State, within whose j u r i s d i c t i o n the witness or expert i s residing, to hold the commission to take the testimony i t requires. Although the par t i e s themselves have c a l l e d wit-nesses and experts to substantiate t h e i r allegations on sev-132 e r a l occasions, the Court has never had to order the taking of testimonial evidence "otherwise than before the Court i t s e l f " ; and, only once has the Court requested the parties to c a l l witnesses or experts. In the case of German Interests i n P o l i s h Upper  S i l e s i a the Court, requiring c e r t a i n information of a techni-c a l nature, i n v i t e d the pa r t i e s to c a l l persons able to f u r -133 nish explanations and information i n t h i s connection. Though the p a r t i e s chose the witnesses they were heard not as part of the presentation of t h e i r respective cases, but as a means 130 S e also J&rt. 1+1+ P.G.I.J. Statute. 131 Art-56> I.C.J. Rules. See also Art.£6 P.C.I.J. Rules. 132 E.g. Corfu Channel Case/l 91+97 I.C.J. Rep.!+; Anglo-Norwegian Pi 3 h e r i e s Case/195I/ I.C.J. Rep.116; Temple of  Preah Vihear Case/1962/ I.C.J. Rep,6; Southwest A f r i c a Case /1966/ I.C.J. Rep.l+. 133 P.C.I.J., Ser.A, No.7, 96(1926); P.C.I.J., Ser. C, No.11, 29 (1926). 44. by which the Court furnished i t s e l f with the additional information. A f t e r the evidence was given the parties were 134 allowed to examine the witnesses c a l l e d by the other party. To ensure that the testimonial evidence presented achieves a high degree of accuracy, a t r a n s c r i p t of the e v i -dence of each witness and expert i s taken, and then made available to him i n order that mistakes may be corrected 135 under the supervision of the Court. This record i s then afterwards signed by the witness or expert. I t i s obvious that the general r u l e i n respect to the obtaining of testimonial evidence i s that a party under-takes to produce his own witnesses as well as those whom the Court wishes to hear. As was stated by Judge A n z i l l o t i j /jt/eliance must above a l l be placed i n the w i l l i n g -ness and a b i l i t y of the parties to f u r n i s h the Court with the necessary evidence.... The Court ^irust approach/ the p a r t i e s ; and only i f a party were unable to produce a witness ... was the pro-cedure mentioned i n A r t i c l e 44 of the Statute to be resorted to. 136 Although the deficiency i n the power of the Court i n r e l a t i o n to the obtaining of testimonial evidence has not been heretofore the occasion of any d i f f i c u l t y , i t might very well put the Court i n an embarrassing s i t u a t i o n . For i n addition to the f a c t that i t makes the compulsory attendance of witnesses dependent upon the good f a i t h of the states con-134 P.C.I.J., Ser. C, Ko. 11, 29 (1926). 135 A r t . 60(2) I.C.J. Rules. See also Art. 60(2) P.C.I.J. Rules which d i f f e r s s l i g h t l y to the I.C.J. Rules. 136 P.C.I.J., Ser. D, No. 2 (3d. add.), 24O-4MI936). 45. oerned, i t i s to be noted that few states seem to have l e g i s -l a t i o n which would enable them to produce witnesses to t e s t i -f y before the Court, 4. T h i r d Party Evidence The Court, by A r t i c l e 34(2) of i t s Statute, subject to and i n conformity with i t s Rules, may request of public international organisa-tions information relevant to the cases before i t , and s h a l l receive such information presented by such organisations on t h e i r own i n i t i a t i v e , 137 This p r o v i s i o n i s supplemented by c e r t a i n provisions i n the Rules of Court, By A r t i c l e 57(3) thereof, the Court may, at any stage of the proceedings before the termination of the hearing, either proprio motu or at the request of one of the p a r t i e s , request a public i n t e r n a t i o n a l organization to f u r n i s h information relevant to a case before i t , deciding also whether the information s h a l l be presented o r a l l y or i n w r i t i n g . A r t i c l e 57(i|) prescribes that where an organisa-t i o n wishes to supply information of i t s own i n i t i a t i v e i t s h a l l do so i n memorial form. The Court, i n such circum-stances, reserves the r i g h t to request that the information be supplemented, either o r a l l y , or i n writing, i n the form of answers to any questions i t may see f i t to formulate. The phrase "public international organization" i s not defined. I t i s suggested however, that on the one hand i t r e f e r s only to inter-governmental agencies, but on the 137 There was no equivalent p r o v i s i o n i n the P.C.I.J. Statute, 1+6. other hand i s not l i m i t e d to Specialized Agencies. With respect to Specialized Agencies attention may be c a l l e d to 138 the p rovision which appears i n the "Relationship Agreements", of which the following, from International Labour Organiza-t i o n Agreement, i s t y p i c a l : The International Labour Organisation agrees to fu r n i s h any information which may be requested by the International Court of Justice i n pursuance of A r t i c l e 3I4 of the Statute of the Court. 139 These clauses oblige the Specialized Agencies concerned to supply the information requested by the Court, and thus "transform the f a c u l t a t i v e provisions of A r t i c l e 31+(2) ... 11+0 into an obligatory one". Unfortunately no instance of the ap p l i c a t i o n of ll+l 142 these provisions has occurred. In the Corfu Channel Case, 11+3 H+T* the Anglo-Iranian O i l Co.Case, and the Southwest A f r i c a 138 I.e. the agreements which e s t a b l i s h the status of the Specialized Agencies. 139 2.L.O. Agreement.Art.IX(1).Agreements between the  United Nations and the Specialized Agencies and the International  Atomic Energy Agency. U.N. Doc.ST/SG/lk(1961). See also P.A.O. Agreement A r t . I X ( l ) ; UiJ.E.S.C.O. Agreement A r t . X I ( l ) ; I.C.A.O. Agreement A r t . X ( l ) ; W.H.O. Agreement Art . X ( l ) ; I.R.O. Agree-ment A r t . X ( l ) ; I.T.U. Agreement A r t . V I I ( l ) j W.M.O. Agreement A r t . V I I ( l ) ; I.M.C.O. Agreement Art . X ( 2 ) . Ibid. No such clause appears i n the agreements with the I.B.R.D., I.M.P., I.D.A., and U.P.U., i b i d . 11+0 1 Rosenne, op.cit.supra note 68, at 287. ll+l Although no equivalent provisions to those discussed are to be found i n the Rules or Statute of the P.C.I.J., that Court adopted a procedure very s i m i l a r to that contemplated by the Rules and Statute of the I.C.J, i n the Monastry of St. Naoum Case. P.C.I.J., Ser.B, No.9 (1921+). 11+2 (Preliminary Objections) /191+7-191+8/ I.C.J. Rep.l£. 11*3 Z~19527 I.C.J. Rep.93. 11+1+ (Preliminary Objections) /19627 I.C.J. Rep.319. and Northern Cameroons cases important questions involving the construction of the United Nations Charter were argued between the p a r t i e s , but no request f o r information was made to that organisation. In the Rights of U.S. Nationals i n Morocco Case, the a r t i c l e s of the agreement creating the International Monetary Fund were c i t e d , but again no request II46 f o r information was made. There was some i n d i c a t i o n i n 11+7 the A e r i a l Incident of 27 July 1955 Case that the Court might request the International C i v i l Aviation Organization 148 f o r assistance, but no request was made as the Court found i t was without j u r i s d i c t i o n to decide on the merits of the issue. However, should the occasion a r i s e , there can be no question that the Court would request the organization con-cerned for information. Nor would the organization be l i m i t e d to supplying information on the i n t e r p r e t a t i o n or application of the instruments of i t s c r e a t i o n ; i t would be obliged to supply a l l the information and material within i t s possession relevant to the question i n dispute should the Court so re-quest. Nor i s i t l i k e l y that the use of such information by the Court would infring e the p a r t i e s ' r i g h t to a f a i r and impartial adjudication of t h e i r dispute as the Court i s auth-orized to allow the pa r t i e s "to comment i n writing on the i n -145 Z19637 I.C.J. Rep.15. 146 Z19527 I.C.J. Rep.200. 147 ZJ9597 I.C.J. Rep.127. 148 I.C.A.O. Doc.C-WP/2609 of 21 February 1958, para. 5 . 48. 11*9 formation thus furnished"by the organizations. 5. Miscellaneous Provisions There are two further provisions, of the instruments creating the World Court, which require consideration i n con-nection with the Court's express powers to f i n d f a c t s . The f i r s t i s A r t i c l e 54 of the Rules of Court which provides, i n t e r a l i a , that: The Court ... may c a l l for the production of any other evidence on points of f a c t i n regard to which the parties are not i n agreement. 150 In view of the f a c t that the Court has been granted s p e c i f i c 0 powers to request the production of documents and witnesses, to i n i t i a t e enquiries, and to obtain information from t h i r d p a r t i e s , whether they be experts or public i n t e r n a t i o n a l organizations, the authority conferred by A r t i c l e 54 must be regarded as a general residuary power which may be invoked to f i l l any gaps l e f t i n the Court's knowledge of the f a c t s a f t e r recourse has been had to these other means of f a c t f i n d i n g . However, i t i s d i f f i c u l t to foresee what "other evidence" there could be that would not be disclosed by one or more of the s p e c i f i c techniques of f a c t f i n d i n g provided 151 f o r i n the Statute and Rules. Secondly, A r t i c l e 49 of the Court's Statute empowers i t to c a l l upon the agents of the p a r t i e s , at any time before 11+9 Art.57(4) I.C.J. Rules. • 150 See Art.54 P.C.I.J. Rules. 151 Perhaps such "other evidence" may encompass such things as documents relevant to the dispute which are not r e -l i e d on by either party, and exhibits. 49. 152 the conclusion of the hearing, to supply explanations. This p r o v i s i o n i s supplemented by A r t i c l e 52 of the Rules which authorises the Court to put questions to agents and counsel 153 during the hearing for the purpose of obtaining explanations. No i n d i c a t i o n i s given as to the matters on which explanations may be i n v i t e d , but the practice of the Court supports the contention that explanations may be requested with regard t o both matters of law and matters of f a c t . In the Monetary  Gold Case the Court r e l i e d on A r t i c l e 49 i n making an i n t e r -locutory order i n connection with a preliminary question 154 going to i t s j u r i s d i c t i o n . In the Ambatielos Case the prov-155 i s i o n was used to request a party to supply additional f a c t s . And, i n the Anglo-Norwegian Fisheries Case A r t i c l e 52 of the Rules was r e l i e d on by the Court to obtain explanations of 156 a technical nature from the Norwegian agent. The relevance of these l a t t e r provisions to the topic under consideration i s l i m i t e d , for i t i s very u n l i k e l y that the f a c t s of any p a r t i c u l a r dispute w i l l be within the personal knowledge of counsel or agent. Their importance l i e s i n the f a c t that the Court i s able to request explanations on any points which, i n i t s opinion, require c l a r i f i c a t i o n , t hus enabling i t better to appreciate the f u l l s i g n i f i c a n c e of the material and information presented to i t . 152 See A r t . 49 P.C.I.J. Statute. 153 See A r t . 52 P.C.I.J. Rules. 154 /19527 I . C J . Rep. 44. 155 Ambatielos Case - I.C.J. Pleadings 346,566 (1953). l5o 4 Anglo-Norwegian Fisheries Case - I.C.J. Pleadings 474 (195D. CHAPTER h 50 PACT FINDING - IMPLIED COMPETENCE That i n t e r n a t i o n a l j u d i c i a l t r i b u n a l s , both perma-nent and ad hoc, possess implied rule making power would not seem to be doubted. Even i n the absence of express authority, a t r i b u n a l may assume the power to promulgate rules of pro-157 cedure as an incident of i t s j u d i c i a l r e s p o n s i b i l i t y . Appar-ently, i t has been assumed by in t e r n a t i o n a l tribunals that they have a power analogous to that of municipal courts to determine t h e i r own rules of procedure, subject to any l i m i -158 tations upon t h e i r authority i n the instrument of creation, Ralston has said that Prom the very nature of things ... courts have the right to adopt ordinary rules to govern t h e i r procedure and determine the p r i v i l e g e s and duties of the l i t i g a n t s before them. This r i g h t exists whether expressed i n the protocol . or not, 159 Whatever i t s source, there can be no doubt that the power i s well established by customary p r a c t i c e . But does this implied rule making power extend to confer on the World Court a discretionary competence to c a l l evidence of i t s own motion, and to ascertain f o r i t s e l f the facts i n a dispute, i n the absence of an express provision to 157 Hudson, op,cit,supra note 123, at 86; Simpson & Pox, op,cit*supra note 66, at 147,152; Sandifer, op.cit,supra note 21, at 28-29* See also the dictum of the United Kingdom -Mexican Claims Commission i n the Cameron Case, 5 R.I.A.A. 29'. 158 Sandifer, op.cit.supra note 21 at 197* 159 Ralston, Law and Procedure 197(1926). 51 t h i s end i n i t s rules of procedure. There i s very l i t t l e relevant practice recorded i n the proceedings of ad hoc t r i -bunals and mixed commissions, c e r t a i n l y nothing i n the way of d i r e c t authority, to support the presence within internation-a l J u d i c i a l tribunals of an implied discretionary power to undertake t h e i r own investigations into the facts of a case. However, such practice as does e x i s t , mainly i n proceedings before the World Court, would seem to point to the recognition of an implied power to take an active role i n the c o l l e c t i o n of evidence. 1. Documentary Evidence As has been seen, the Court by i t s statute and rules has been conferred express power to request the production of documents, and any other evidence on points of f a c t , i n r e -160 gard to which the par t i e s are not i n agreement. The documents which may be the subject of the exercise of these powers are l i m i t e d to those i n the possession of the par t i e s to pro-ceedings, whether or not r e l i e d on during the hearing. Fur-ther, through a request to a public international organization for information, the Court may also receive documentary e v i -161 dence relevant to the proceedings before i t . Prima fa c i e t h i s appears to be the extent of the Court's powers to obtain documentary evidence. 160 See supra,26 - 31. 161 See supra.U5 - I48. 52. However, Judge Jessup, i n his dissenting judgment 162 i n the Southwest A f r i c a Case, indicated that, i n his opinion, the Court's competence to have regard to documents, relevant to any issue before the Court, goes beyond the competence suggested by the Statute and Rules. In discussing the e v i -163 dence considered by the Court i n i t s advisory opinion of 1950, he stated: One must be aware however, that the International Court of Justice does not l i m i t i t s e l f to consider-ing documents a c t u a l l y presented to i t by counsel, or as i n the case of the 1950 Advisory Opinion, by the Representatives of the Governments or the United Nations. 161+ This statement indicates that the Court has an implied comp-etence to have regard to documents other than those produced by the p a r t i e s , either v o l u n t a r i l y or i n pursuance to an order for production, or by public i n t e r n a t i o n a l organizations. 2, Enquiries and Expert Evidence During the discussions, by the members of the Per manent Court of International J u s t i c e , of the amended Rules of Court i n 1936, Judge A n z i l o t t i pointed out that whenever the Court requested an enquiry or expert opinion, under 165 A r t i c l e 50 of i t s Statute, i t was exercising an inherent power appertaining to i t as a t r i b u n a l . He said: 162 ^9667 I.C.J. Rep.6,348. 163 International Status of Southwest A f r i c a Ca3e/195o7 I.C.J. Rep. .125. ' 161+ Z19667 I.C.J. Rep.6, 348. 165 See A r t . 50 I.C.J. Statute. 53 I t was of no great consequence whether these powers were derived from A r t i c l e 50 or from a general p r i n c i p l e of procedure not stated i n the Statute. In any case the Court has the power to order an expert in q u i r y . 166 This view must carry great weight as i t aroused no recorded dissent from the other judges. Nor did they make any r e f e r -ence to the consent of parties as a necessary precondition f o r the exercise of t h i s power by the Court. There i s no recorded instance of the World Court having i n i t i a t e d an expert enquiry by virtue of the implied competence accredited to i t by Judge A n z i l o t t i , and, i n f a c t such a course has only once been taken by any j u d i c i a l t r i -bunal. In the Lighthouse A r b i t r a t i o n , the Permanent Court of A r b i t r a t i o n ordered expert enquiries and appraisals i n the absence of any express authority to do so i n the compromis, and apparently without asking the parties whether they cons en 167 ted. Under A r t i c l e 7(6) of the compromis of July 15,1931, the tr i b u n a l was to ... conform to the rules f o r proceedings by a r b i -t r a t i o n i n Chapter III of Part IV of the Convention for the P a c i f i c Settlement of Disputes, signed at The Hague on October 18th, 1907. 168 This excluded the provisions r e l a t i n g to the appointment of 169 experts by the t r i b u n a l i n Chapter VI. There i s no corres-166 P.C.I.J., Ser.D, No.2(3d. add). 24/7 (1936). 167 12 R.I.A.A- 155; 3-9567 I n t ' l . Rep. 659 (No.23). 168 Text of compromis, 12 R.I.A.A. 161. 169 Text of 1907 Hague Convention for the P a c i f i c S e t t l e -ment of Disputes reproduced i n The Hague Conventions and Dec-larations of 1899 and 1907 (Scott ed. 19lJK 54. ponding provision i n Chapter I I I , The report of the proceedings i n the Lighthouse  A r b i t r a t i o n contains no mention of the t r i b u n a l ^ asking the partie s whether they agreed to the employment of independent experts. Neither i s any objection to t h i s course recorded. On the contrary, the award of the t r i b u n a l indicates that i t came to an independent decision on t h i s point, one of the main reasons f o r which wa3 the inadequacy of the documentary e v i -dence presented by the p a r t i e s , and which i t regarded i t s e l f 170 as being under an obliga t i o n to take. It i s d i f f i c u l t to envisage i n what circumstances the World Court would have recourse to i t s implied competence to i n i t i a t e expert enquiries i n the l i g h t of the express power conferred upon i t . However, should a state, while con-senting to the submission of a dispute to the Court, lodge a reservation with respect to the ap p l i c a t i o n of A r t i c l e 50 of the Statute, i t i s suggested that the Court could circum-vent any problems raised by the reservation through recourse to i t s inherent competence, 171 3, J u d i c i a l Notice International j u d i c i a l t r i b u n a l s , notwithstanding the absence of any express authority i n the compromis or 172 rules of procedure, have followed the practice of accepting 170 12 R.I.A.A. 288; /19567 I n t ' l L.Rep.348 (No.23). 171 For the d e f i n i t i o n of the term " j u d i c i a l notice"as used i n t h i s section see supra, note 4. 172 In only two instruments creating international j u d i c i a l tribunals has the writer found provision expressly conferring on the tribunal authority to take j u d i c i a l notice of certain f a c t s . See Art.21 of the Charter of the I.M.T. (Nuremberg), and Art. c e r t a i n facts as true without requiring the production of proof. The practice of the World Court does not constitute an exception to t h i s . In general, i t appears that the facts of which j u d i c i a l notice w i l l be taken by the Court may be divided into two categories: (1) notorious f a c t s ; and (2) " j u d i c i a l " f a c t s . With respect to the f i r s t category, that of notor-ious f a c t s , the Court has held that facts which are of common knowledge do not need to be substantiated by proof. In i t s judgment i n the case concerning German Interests i n P o l i s h Upper S i l e s i a , the Court refused to accept the P o l i s h conten-t i o n that proof of a c q u i s i t i o n of Czechoslovak n a t i o n a l i t y could be established only be means of a c e r t i f i c a t e from the Czechoslovak Government recording the f a c t . I t then declared, with reference to c e r t a i n data furnished by one of the a p p l i -cants i n proof of his na t i o n a l i t y : Moreover these data, furnished by the Applicant r e l a t e , at least i n part, to matters of common knowledge; Poland does not dispute t h e i r accuracy, she merely asks f o r documentary proof. 173 Again i n the advisory opinion of the Permanent Court of Inter-national Justice concerning the Austro-German Customs Regime^ Judge A n z i l o t t i , i n considering the evidence, and i n p a r t i c u l a r the f a c t as to whether the aim of the customs regime was to eff e c t the p o l i t i c a l union of the two countries, declared: 13(d) of the Charter of the I.M.T. (Par East), c i t e d by Bin Cheng, op.cit.supra note 10, at 303 note,10. 173 P.C.I.J., Ser.A, No. 7, 73 (1926). 56. Her© we are confronted with a well-known f a c t and one which the Court could take into consid-eration even i f i t had not been advanced by the interested p a r t i e s . 171+ Although i t i s clear that the Court w i l l take j u d i c i a l notice of notorious f a c t s , no i n c l u s i v e l i s t of those f a c t s can be made as the issue has arisen only r a r e l y i n pro-ceedings before the Court. However, i t i s clear f o r the above passages that facts of history w i l l be treated as within the common knowledge of the t r i b u n a l . Within the second category f a l l f a c t s with which the Court i s presumed to be acquainted on account of t h e i r close nexus to the j u d i c i a l function. The p r i n c i p a l i n s t -ances of such facts i n inte r n a t i o n a l j u d i c i a l proceedings are tr e a t i e s and l o c a l laws. Of international t r e a t i e s , the Court w i l l apparently take j u d i c i a l notice. In the International Commission of the River Oder Case. the Court said i n i t s judgment that the f a c t not having been contested, that Poland had not r a t i f i e d the Barcelona Convention, i t was "evident that the matter was purely one of law such as the Court could and should examine 175 ex o f f i c i o . " But with respect to rules of municipal law, which may be raised during the proceedings, the^ p o s i t i o n i s not as cl e a r . In the B r a z i l i a n Loans Case the Court said i n 174 P.C.I.J., Ser. A/B, NO. 20, 70(1931). See also Com-petence of the I.L.O. with respect to A g r i c u l t u r a l Labour  Case, P.C.I.J., Ser. A7B"7~NO.2, 31 H 9 2 2 H 175 P.C.I.J., Ser. A, No.23, 18-19 (1929). 57. i t s judgment that being "a tribunal of i n t e r n a t i o n a l law" i t was " i n t h i s capacity ••• deemed to know what the law i s " but that i t was not also obliged to know the municipal law 176 of the various countries' . However, i t added: A l l that can be said i n t h i s respect i s that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied, And t h i s i t must do eith e r by means of evidence furnished i t by the p a r t i e s , or by means of any researches which the Court may think f i t to undertake or to cause to be undertaken. 177 Prom this i t appears that although the Court does not consider i t s e l f bound to know the l o c a l law of the states appearing before i t , at the same time i t does not consider such law simply a question of f a c t to be proved by evidence produced by the p a r t i e s . This leaves the Court f r e e , i t i s suggested, perhaps even obligated, to resolve, through i t s own researches, any uncertainty concerning such a law i f the parties f a i l to produce adequate proof. Nevertheless, i t i s the more prudent course for the pa r t i e s not to leave the Court the burden of the e l u c i d a t i o n of questions of municipal law e s s e n t i a l to the proof of the contentions on which they r e l y . For as stated by Judge A n z i l o t t i i n the case concerning the Consistency of Certain Danzig Decrees with the Constitution of the Free C i t y , A r t i c l e 38 of the Statute, i n prescribing the sources of law to be applied by the Court, ... only mentions in t e r n a t i o n a l treaties or 176 P.C.I.J., Ser. A, No. 21, 12k (1929). 177 Ibid. 58. custom and the elements subsidiary to these two sources to be applied i f both of them are lacking. 178 He then asserted: I t follows that the Court i s reputed to know i n t e r -national law; but i t i s not reputed to know the domestic law of the d i f f e r e n t countries. 179 The value of j u d i c i a l notice, as a means by which the Court may apprise i t s e l f of the true facts of a dispute, i s l i m i t e d i f the term j u d i c i a l notice i s used to r e f e r to the propositions i n a party's case as to which he i s not required to produce evidence, being taken f o r true by the tri b u n a l without the need f o r proof. On this d e f i n i t i o n of j u d i c i a l notice, i t i s es s e n t i a l that the fact of which j u d i c i a l notice i s taken has been raised by the party. How-ever, i n view of the statement of Judge A n z i l o t t i , that there are c e r t a i n facts which the Court can take into consideration 180 even i f they "had not been advanced by the interested p a r t i e s " , the p r i n c i p l e of j u d i c i a l notice i n in t e r n a t i o n a l j u d i c i a l proceedings i s not so r e s t r i c t e d . This dictum extends the operation of the p r i n c i p l e beyond the sphere of facts actually r a i s e d by the parties themselves, to a l l f a c t s which, i f con-tained i n the allegations of the p a r t i e s , would have been the subject of j u d i c i a l notice. But, the dictum cannot be read as extending the actual categories of f a c t s of which j u d i c i a l notice w i l l be taken. 178 P . C L I . J . Ser. A / B , NO. 65, 60 (1935). 179 I b i d . , 61. 180 See 3upra, 55 - 56. 5 9 . k* V i s i t s to the Place The power of a tri b u n a l to v i s i t the scene con-nected with the dispute would not seem to be dependent upon express authorization i n the compromis or rules of procedure. The decision of the Permanent Court of International J u s t i c e , i n the case concerning the Diversion of Water from the Meuse, to v i s i t the scene and see the various canals, locks and other i n s t a l l a t i o n s , was not based upon any express 1 8 1 p r o v i s i o n i n the Court's Statute or Rules of Procedure. I t was, admittedly, made at the request of Belgium, one of the p a r t i e s , with the consent of the other party, the Netherlands, but the Court regarded the suggestion as an i n v i t a t i o n to procure i t s own information, rather than as an o f f e r on the part of Belgium to present evidence. Hudson has pointed out that the Court was free to decide whether or not i t should 1 8 2 take advantage of the i n v i t a t i o n , and i t i s clear from the response of the President to the Belgium suggestion, as well as from the terms of the Court order deciding upon an inspec-1 8 3 t i o n , that the Court was acting of i t s own motion and not 181+ acquiescing i n a suggestion by one of the p a r t i e s . 1 8 1 P.C.I.J., Ser. A/B, NO. 7 0 ( 1 9 3 7 ) . 1 8 2 Hudson " V i s i t s by International Tribunals to Places Concerned i n the Proceedings" 3 1 A.J.I.L. 6 9 6 , 6 9 7 ( 1 9 3 7 ) . And see Hudson, The Permanent Court of International J u s t i c e , 5 6 6 -6 7 ( 1 9 1 + 3 ) . 183 P.C.I.J., Ser. C, No.81, 5 5 3 ( 1 9 3 7 ) . 181+ Cf. Free Zones of Upper Savoy and the D i s t r i c t of G-ex  Case, P.C.I.J., Ser. A / B 7 No. 1+6, 1 6 2 - 6 3 1 1 9 3 2 7 i n which the Court declined to make an investi g a t i o n of the spot, which i t was authorized to do under the special agreement between France and Switzerland. 60# What use, i f any, the Court made of the information thus gained i s not indicated i n i t s judgment. The minutes of the Court's v i s i t to the places concerned, consisting of the i t i n e r a r y with a bare summary statement of persons heard, were attached to the record of the Court's public s i t t i n g of 185 May 18, 1937. While the extent of the usefulness of t h i s technique f o r fact f i n d i n g may be questioned, i t i s important to bear i n mind the comment by Judge Hudson: /kjn i n t e r n a t i o n a l t r i b u n a l cannot ignore the pos-s i b l e usefulness of such procedure, not only f o r ensuring that r e s u l t s w i l l be arri v e d a t on the basis of the f u l l e s t possible information, but also f o r .creating that support i n public opinion which i s the one sure sanction of i t s judgements.186 5. Third Party Evidence The World Court i s expressly authorised by i t s Statute and Rules to request material and information, r e l e -vant to a dispute before i t , from certain t h i r d p a r t i e s , 187 namely public international organizations. But the question remains, can the Court i n v i t e a t h i r d state, which i s not a party to the proceedings, to bring evidence before the Court? Shs yet, the Court has not had occasion to approach a t h i r d state for evidence, but should such a course become necessary, i t i s suggested, that the Court would be competent to adopt i t . Support f o r thi s contention i s to be found i n the 185 P.C.I.J., Ser. C, No.81, 222-23 (1937). 186 Hudson, supra note 26, at 697. 187 See supra, 1+5 - 48. 61. 188 Corfu Channel Case. One of the arguments of the United Kingdom was that there had been c o l l u s i o n between Albania and Yugoslavia i n the laying of the minefield which caused the damage to the United Kingdom warships. This argument 189 appeared i n the written reply, and assumed prominence i n the 190 hearing. Later, the Albanian Government f i l e d c e r t a i n docu-ments, obtained from the Yugoslav Government, as evidence to rebut this a l l e g a t i o n . Subsequently the l a t t e r formally i n t i -mated to the Court i t s willingness to submit c e r t a i n other 192 documents to the Court, and these documents were ultimately accepted by the Court. Commenting on t h i s i n i t s judgment, the Court said: On i t s side, the Yugoslav Government, although not a party to the proceedings authorized the Albanian Government to produce cert a i n Yugoslav documents, f o r the purpose of refuting the United Kingdom's contention,.,• As the Court was anxious for f u l l l i g h t to be thrown on the facts alleged, i t did not refuse to receive these documents,But Yugoslav's absence from the proceedings meant that these documents could only be admitted as evidence subject to reserves, and the Court finds i t un-necessary to express an opinion on t h e i r probative value, 193 Thus, i f the i n t e r e s t s of a t h i r d state may be i n -volved i n the proceedings before the Court, and the facts i n l88(Merits) fi.9k9j I.G.J. Rep. 4. 189 2 Corfu Channel Case - I.C.J. Pleadings, 258 (1950). 190 5 Corfu Channel Case - I.C.J. Pleadings. 200 (1949-50). 191 I b i d . , 244,233. These documents were not admitted as evidence but, on agreement between the p a r t i e s , were used i n the examination of one witness. 192 Ibid . , 234. 193 (Merits) /1949/ I.C.J. Rep. 4, 17. 62. issue require c l a r i f i c a t i o n , the Court may request the t h i r d state f o r material and information which may throw " f u l l l i g h t ... on the facts alleged." 63. CHAPTER 5 PACT FINDING IN PROCEEDINGS BEFORE THE WORLD COURT Having completed the review of the various f a c t f i n d i n g techniques available to the World Court i t i s now necessary to have regard to t h e i r applications i n the various categories of proceedings which may be i n s t i t u t e d before the Court. The Statute and Rules of the World Court j o i n t l y provide f o r two categories of proceedings: 194 (1) Proceedings i n contentious matters; and 195 (2) Advisory proceedings. 1. Proceedings i n contentious matters States only may be parties to proceedings of a 196 contentious nature before the Court. Such proceedings, by A r t i c l e 36(2) of the Court's Statute, may relate to: the in t e r p r e t a t i o n of a treaty; any question of int e r n a t i o n a l law; the existence of f a c t s , which i f established, would constitute a breach of an int e r n a t i o n a l obligation; or, the nature and extent of the reparation to be made f o r the breach 194 A r t ' s . 34-64 I.C.J. Statute. See also Art's. 34-64 P.C.I.J. Statute. 195 Art's. 65-68 I.C.J. Statute. See also Art's. 65-68 P.C.I.J. Statute. 196 Art.34(1) I.C.J. Statute. See also Art. 34 P.C.I.J. Statute. 6k. 197 of an in t e r n a t i o n a l o b l i g a t i o n . A l l four bases for i n s t i -t u ting proceedings, e n t a i l a consideration of the facts 198 giving r i s e to the dispute. The Statute of the World Court provides two methods by which disputes of a contentious nature may be s e t t l e d . The 199 f i r s t i s before the Court i t s e l f . There can be no question that, insofar as the facts i n issue are i n doubt, the Court can a v a i l i t s e l f of a l l the f a c t finding techniques i t pos-sesses i n such proceedings. The second method i s by summary proceedings before 200 a Chamber of the Court. Here again, i t i s suggested, i f the facts giving r i s e to the proceedings are i n dispute, the Court can undertake i t s own researches into them. Under A r t i c l e 72 (!|) of the Rules of Court the Chamber, of f i v e judges i n summary proceedings, retains the right to c a l l upon the parties to supply verbal explanations, even i f the parties have agreed to dispense with o r a l proceedings which th i s a r t -201 i c l e e n t i t l e s them to do. Further, a l l witnesses and experts 197 See also Art.36 P.C.I.J. Statute. 198 I t i s clear however, that the parties may agree as to the facts of a dispute, and request the Court to determine "any question of international law" a r i s i n g from these f a c t s . As to the ef f e c t of such an agreement see i n f r a , 66 - JO. 199 A r t ' s . 32-60 I.C.J. Rules. See also Art's. 32-60 P.C.I.J. Rules. 200 A r t ' s . 70-73 I.C.J. Rules. See also Art's.70-73 P.C.I.J. Rules. I t should'here be b r i e f l y mentioned that Art's.26-27, P.C.I.J. Statute, provided for the appointment of a special Chambers of the Court f o r labour cases and cases r e l a t i n g to t r a n s i t and communications. Further Art.28, P.C.I.J. Statute, provided that chambers of the Court could s i t elsewhere than at The Hague i f the par t i e s consented. These provisions were never applied. 201 See also A r t . 72(k) P.C.I.J. Rules. 65. who are mentioned i n the proceedings must be available to 202 appear i f , and when, t h e i r presence i s required. It i s clear from the discussion of A r t i c l e 72 during the preparation of the 1936 amendments that the Court intended to preserve the right to a v a i l i t s e l f of the powers to a s c e r t a i n the facts of a dispute even under summary pro-cedure. A proposal that the chamber be only e n t i t l e d to i n s t i t u t e oral proceedings i n the absence of a contrary i n -203 tention, between the parties was defeated. As Vic e - P r e s i -dent Guerrero pointed out: ... the Court /adjudicating as a Chamber of Summary procedure/ ... must, l i k e any other t r i b u n a l , be able to command a l l means f o r obtaining the i n f o r -mation which would enable i t to deliver a sound judgment. The summary character of the proceedings was pri m a r i l y to be obtaL ned by a curtailment of the time-limits. 201+ Consequently, i t appears that the Court retains the ri g h t i n summary proceedings to resort to any or a l l the techniques available to i t to discover the f a c t s . The sum-mary procedure has only been u t i l i z e d i n one case, the Inter-205 p r e t a t i o n of the Treaty of Ne u i l l y . i n which there was no occasion f o r the application of any of the Court's f a c t f i n d i n g powers. 202 Art.72(5) I.C.J. Rules. See also Art.72(5) P.C.I.J. Rules. 203 P.C.I.J., Ser.D, No.2, 3d add., 365-66 (1936). 201+ I b i d . , 366. See also Hudson, op.cit. supra note 182, at 377. 205 P.C.I.J., Ser .A, No's. 3 & 1+ (1921+ and 1925). 66. So f a r the discussion has proceeded on the basis that the facts i n issue have been contested by the parties to the proceedings. Thus, i t may be asked, what i s the p o s i t i o n i f a point of f a c t is undisputed, either because one of the part i e s considers i t to be i r r e l e v a n t , or because the parties (expressly or t a c i t l y ) agree upon i t ? Normally the Court w i l l have no reason to examine these f a c t s . The Permanent Court of International Justice has hence refused to request the production of evidence. ... going outside the terms of the dispute and r a i s i n g a question of law not r e f e r r e d to i t by the p a r t i e s . 206 The International Court of Justice has also declared a purely f a c t u a l difference'- concerning some base-points i n the Anglo-Norwegian F i s h e r i e s Case - "devoid of object" aft e r the prod-uct i o n of new evidence, on the grounds that the Norwegian assertions with regard to these base-points had not been 207 further disputed by the United Kingdom. The next step, however, i s to presume that the Court finds the evidence, as agreed on by the p a r t i e s , pointing i n a d i r e c t i o n contrary to what i s common ground between them. Is the Court bound by the facts as presented by the p a r t i e s , or may i t undertake i t s own researches into the facts even i f such a course constitutes a denial of undisputed points of fact? 206 P.C.I.J., Ser. E, No. 3, 212 (19 ). 207 /X9$l7 I.C.J. Rep. 116, IkO. 67. In municipal law i t i s generally recognized that i n some kinds of cases, namely criminal cases and those c i v i l cases such as divorce cases, where society has a s p e c i a l i n t -erest i n the t r u t h , an admission made by one of the p a r t i e s , or an agreement as to the facts by the p a r t i e s , are by no means always s u f f i c i e n t proof. Given that i n t e r n a t i o n a l j u d i c i a l proceedings, to some extent, must proceed by analogy 208 to municipal proceedings, and that in t e r n a t i o n a l disputes are to be compared with the more ordinary types of domestic c i v i l cases, i t i s s t i l l suggested that the Court w i l l not accept admissions of, or agreements as to, fact to be binding. I f the facts agreed upon by the parties are f a r from the events which r e a l l y took place, the agreement between the parties might be overruled by analogy of the provisions of the Statute which says that states are not e n t i t l e d to 209 request advisory opinions. But even i f the admitted facts do not d i f f e r from what the judge regards as the substantial truth to such an extent that the above argument could be invoked, i t i s to be recommended that the Court follows i t s own idea of j u s t i c e . To ascertain the substantial t r u t h must be the aim of i n t e r -national procedure. I t i s not i n keeping with the dignity of 208 A r t . 38 of the I.C.J, and P.C.I.J. Statutes, res-p e c t i v e l y provide that the Court s h a l l apply "general p r i n -c i p l e s of law recognized by c i v i l i z e d nations," 209 See A r t . 65 I.C.J. Statute which provides that the r i g h t to request advisory opinions i s reserved to authorized "bodies". 68 the World Court that the parties should be able to compel i t to f i n d as established such facts as the Court i t s e l f consid-ers to be i n c o r r e c t . The Court must s e t t l e a r e a l case -210 not a f i c t i t i o u s case. In the practice of the World Court only one state-ment has been made on t h i s problem. Judge Azevedo i n the Corfu Channel Case said: I t i s true ... that an agreement between the parties on the f a c t s i s v a l i d even though an int e r n a t i o n a l court, having more freedom i n regard to evidence than a municipal judge, might make reservations. 211 But how substantial might these reservations, be? Bin Cheng has made the observation that questions of law, as opposed to questions of f a c t , need not be raised by the p a r t i e s , but that the Court should examine them proprio 212 motu. Does t h i s then mean that the Court cannot examine f a c -tual questions proprio motu? It i s suggested that the answer i s no. Bin Cheng himself subsequently makes the statement that: I t may be said that the aim of an in t e r n a t i o n a l tribunal i s to arrive at a moral conviction of the t r u t h and r e a l i t y of a l l relevant facts of a case on which i t s decision i s to be based. 213 210 An exception to this i s where the Court deals with hypothetical cases when giving abstract interpretations of t r e a t i e s . See Hambro, "The J u r i s d i c t i o n of the International Court of Justice," /l95o/ 1 Recueil des Cours 12^,166. 211 (Merits), ft.9k9/ L C J . Rep.k, 8k. 212 Bin Cheng, op.cit. supra note 10, at 299. 213 Bin Cheng, op.cit. supra note 10, at 302. 6 9 . How can the Court ar r i v e at such a conviction i f i t i s l i m i t e d to a consideration of the facts presented to i t by the parties i f the Court i s of the opinion the facts are incorrect? The Statute or Rules of the Court could of course provide that the decision s h a l l be based on the facts as the pa r t i e s see them. But, i n the absence of such p r o v i s i o n the i Court should have the right to overrule even an agreement on the f a c t s , and " f e r r e t out" new facts even on points with re-gard to which the p a r t i e s are not i n dispute. The ascertain-ment of the r e a l t r u t h should be the main r u l e . One question remains: does A r t i c l e 5 4 of the Rules 2 1 4 of Court prevent this solution? That a r t i c l e provides that the Court may c a l l f o r the production of any other evidence on points of fact i n regard to which the par t i e s are not i n agreement. Prima facie t h i s provision may be interpreted as excluding the Court's r i g h t to c a l l evidence when the parties are i n agreement on a point of f a c t . I f t h i s i s correct the Court w i l l have to abstain from overruling an agreement as to, or an admission of, f a c t . Such reasoning, i t i s suggested, cannot be supported. In the Draft Scheme of the f i r s t Rules of Court, A r t i c l e 6 8 provided that the f u l l Court or the Chambers of the Court ... may on th e i r own i n i t i a t i v e ... order the production of any evidence which i t may consider necessary, 2 1 5 2 1 4 See also Art. 5 4 P.C.I.J. Rules. 2 1 5 P.C.I.J., Ser. D, No.2, 370 ( 1 9 2 2 ) . 70. But, t h i s p r o v i s i o n was subsequently amended to the wording now used i n A r t i c l e 5 4 . This a l t e r a t i o n cannot, i n i t s e l f , uphold the view that the draftsmen intended to give the a r t i c l e a more l i m i t e d scope, f o r the p r o v i s i o n was discussed at length and nowhere i s there to be found the reason f o r the 216 a l t e r a t i o n . Prom t h i s , i t i s possible to surmise that the draftsmen of the Rules were thinking only of the ordinary s i t u a t i o n , namely the s i t u a t i o n where the relevant points on which the p a r t i e s agree are beyond doubt. Finally, even i f A r t i c l e 5 4 should be interpreted to the contrary i t cannot absolutely prevent the Court from overruling an admission, or agreement. The Court has a d i s -cretionary power to disregard i t s Rules f o r a p a r t i c u l a r 217 occasion. 2. Advisory Proceedings Under the relevant provisions of the United Nations 218 219 Charter and the Statute of the World Court advisory opinions can only be requested by, or given to, the General Assembly, the Security Council, and such other organs of the United Nations and Specialized Agencies as may be authorised thereto by the General Assembly. Advisory opinions cannot be requested 216 I b i d . , 4 0 9 . 217 Concerning the i n t e r p r e t a t i o n of the Rules of Court i n general, see Rosenne, op.cit.supra note 4 3 , 221. 218 Art. 96. 219 A r t ' s . 65-68. See also Art's. 65-68 P.C.I.J. Statute. 71. °y» or given to, states or groups of states. Further, an advisory opinion merely constitutes a formal opinion by the Court upon a question law submitted to i t by a competent 220 body; i t i s not a decision on a concrete case at law as i t lacks both r i v a l l i t i g a n t s , and a s p e c i f i c actual fact s i t u -ation out of which t h e i r dispute arose. I t follows from the character of advisory opinions and of the e n t i t i e s to which the opinions are rendered that, i n theory at any r a t e , and i n form, advisory opinions are not contentious; i n any case states are not parties to them as they are to a dispute i n the nature of a l i t i g a t i o n . Never-theless, states may, i n p r a c t i c e , be very much affected by the outcome of advisory proceedings, which may indeed have had t h e i r o r i g i n i n a difference of opinion between two or 221 more states, and recognition of t h i s f a c t i s given by the 222 Statute and Rules of Court i n various ways. As a consequence of the nature of these proceedings, and the exhaustive documentation which normally accompanies 223 and follows a request f o r an advisory opinion, the Court w i l l r a r e l y need to exercise i t s powers to i n i t i a t e enquiries and investigations into the facts of any issue on which an advisory opinion i s requested. Nor can there by any question 220 See supra, note J, 221 E.g. Interpretation of Peace Treaties with Bulgaria  Hungary & Roumania~ / l 95 Q/""l* C. J . Rep. 65. 222 See i n f r a , 7l+ - 75. 223 Art, 65 (2) I.C.J. Statute. See also Art.65 P.C.I.J. Statute, and Rosenne, op.cit.supra note l|3, at I478-80. 72. of the use of such powers by the Court to discover the facts i n a s i t u a t i o n such as obtained i n the Status of Eastern 22I4 C a r e l i a Ca3e. There the Court declined to give an advisory opinion because i t found that the opinion, requested of i t , was directed at obtaining an answer to the very point at issue between Finland and Russia, and the l a t t e r had not accepted the j u r i s d i c t i o n of e i t h e r the Court, or the Council of the League of Nations. This meant, as the Court said i n i t s advisory opinion on the Interpretation of Peace Treaties with Bulgaria. Hungary and Roumania, ... that answering the dispute would be sub-s t a n t i a l l y equivalent to deciding the dispute be-tween the p a r t i e s , and at the same time i t r a i s e d a question of f a c t which could not be elucidated without hearing both p a r t i e s ' intentions. 225 In the Status of Eastern C a r e l i a Case the Court s a i d on t h i s point: The Court does not say that there i s an absolute rule that the request f o r an advisory opinion may not involve some inquiry as to f a c t s , but, under ordinary circumstances, i t i s c e r t a i n l y expedient that the facts upon which the opinion of the Court i s desired should not be i n con-troversy, and i t should not be l e f t to the Court i t s e l f to ascertain what they are. 226 Where there i s no insurmountable obstacle, i n the form of a lack of consent to the Court's j u r i s d i c t i o n by a state involved i n the advisory proceedings, then the Court i s free to resort to the available methods of obtaining the 224 P.C.I.J., Ser. B, No. 5 (1923). 225 /l950/ I.C.J..Rep.65, 72. 226 P.C.I.J., Ser.B, No. 5, 28 (1923). 73. r e q u i s i t e material and information. In other words the p r i n c i p l e as stated i n the Status of Eastern C a r e l i a Case remains the desirable mode of procedure i n advisory opinion cases but i t i s not more than a guide or a working r u l e . This has been recognized by Pitzmaurice where, i n discussing the l i m i t a t i o n s imposed by the Court, i t s e l f , on i t s advisory j u r i s d i c t i o n , he stated that i t would not deliver such an opinion ... i f the Court could not do substantial j u s t i c e i n the matter ... because e s s e n t i a l facts were lacking which could not be made available to the Court by the means at i t s disposal .... 227 Thus, i n the Greco-Bulgarian "Communities" Case the Court i n i t s order of June 30, 1930, stated i t was necessary to supplement the information furnished i n the written doeu-228 ments and o r a l proceedings. I t drew up a series of questions to be answered by the President of the Greco-Bulgarian Mixed Commission. In i t s advisory opinion on the Competence of the 229 European Commission of the Danube, the Court, while relying on the findings of f a c t of the special committee appointed by the League of Nations Advisory and Technical Committee nevertheless made i t clear that, had there been any contrary evidence, i t could, and perhaps would, have ordered i t s own inquiry: 227 Pitzmaurice, "The Law and Procedure of the Inter-national Court of Justice:International Organizations and Tribunals", 19 B.Y.B.I.L. 53 (1952). 228 P.C.I.J., Ser.C, No. 18-1, 1077 (1930). 229 P.C.I.J., Ser.B, No. l l | (1927). 74. The Court i s f u l l y aware that the Roumanian Govern-ment has refused to accept the facts established by the Committee as conclusive evidence i n the mat-te r , but the Court i s of the opinion that f o r the purposes of the present procedure i t must accept the findings of the Committee on issues of f a c t unless i n the records submitted to the Court there i s e v i -dence to refute them, 230 In i t s opinion on the Competence of the International Labour Organisation to Regulate Incidentally the Personal Work of the Employer the Court expressed i t s willingness to hear experts i n the baking industry selected by the International Federation of Trade Unions, but ultimately the Federation de-231 cided not to c a l l them. However, had the Court decided to c a l l these experts of i t s own motion, there i s clear authority, i t i s suggested, for i t s competence to do so; and, for i t to i n s t i t u t e an independent inquiry, or i n v e s t i g a t i o n , i n accord-ance with the provisions of i t s Statute and Rules. As there are no "parties", dn the s t r i c t sense of the term, i n advisory proceedings i t i s very doubtful as to whether the Court could request the states, which may be affected by the proceedings, to c a l l witnesses and experts, or to produce documents or evidence and explanations. However, by A r t i c l e 68 of i t s Statute the Court i s s p e c i f i c a l l y em-powered to follow the provisions of the Statute which apply to contentious proceedings to the extent to which i t recog-232 nizes them to be applicable. Pursuant to that A r t i c l e , the Rules of Court merely provide that any state or states who 230 Ibid., 46. 231 P.C.I.J., Ser.B, No.13 (1926). 232 See also Art.38 P.C.I.J. Statute. 75. may be affected by the advisory opinion may appoint ad hoc 233 judges to s i t during those proceedings. No reference i s made to the f a c t f i n d i n g provisions i n the Statute or Rules. Nevertheless, states who may be affected by the proceedings may, at the Court's i n v i t a t i o n , or on t h e i r own motion, sub-mit statements, and comment on statements submitted, to the 234 235 Court. Such statements and comments may be written or o r a l . Consequently states may produce witnesses to substantiate t h e i r claims or a l l e g a t i o n s . With respect to the Court's power to obtain evidence and information from public i n t e r n a t i o n a l organisations, i t i s suggested that A r t i c l e 34(2) of the Statute and A r t i c l e 57(5) of the Rules of Court only apply to the contentious j u r i s -236 d i c t i o n of the Court. This view i s substantiated by the f a c t that A r t i c l e 66 (2) prescribes a s p e c i a l procedure to enable in t e r n a t i o n a l organisations to present statements to the Court 233 A r t . 31 I.C.J. Statute and Art.83 I.C.J. Rules. And see Art.31 P.C.I.J. Statute and Art.83 P.C.I.J. Rules. 234 Art.66 (2) I.C.J. Statute. See also A r t . 66(2) P.C.I.J. Statute. 235 See supra, note 134. 236 In the case of Reservations to the Convention on _  the Prevention and Punishment of the Crime of Genocide.,/1950/ I.C.J. Rep.406, an advisory matter, the Court thought i t advisable to receive information from the I.L.O., and i n -structed the Registrar to n o t i f y that Organization, i n a p p l i -cation of Art. 66 (2) of the statute: supra, at 407. 76. 237 i n advisory matters. By t h i s a r t i c l e the Court can n o t i f y any i n t e r n a t i o n a l organisation, which i s l i k e l y to be able to f u r n i s h information, of the advisory proceedings, and such organisations may submit written or o r a l statements r e l a t i n g to the question before the Court. But i t should be noted that i f A r t i c l e 34 of the Court's Statute i s applicable only to contentious proceedings then the relevant provisions of the Relationship Agreements 2 3 8 establishing the status of the Specialized Agencies also only apply to contentious cases. Nevertheless i t i s probably true to say that the s p i r i t of the Relationship Agreements ought to be applicable i n advisory matters. 237 See also A r t . 66(1) P.C.I.J. Statute. 2 3 8 See supra, 4 6 . CHAPTER 6 77. CONCLUSIONS The World Court, no less than i t s municipal counterparts, has a primary duty to resolve the issues, of f a c t as well as of law, submitted to i t f o r adjudication. This duty i s owed simultaneously to the parties and to the int e r n a t i o n a l community at large - the l a t t e r having a clear i n t e r e s t i n the proper functioning of i t s main j u d i c i a l organ. But, the proper determination of the l e g a l issues i s often dependent on a correct appreciation of a l l the f a c t u a l e v i -dence. This, i n some instances, may be d i f f i c u l t , i f not im-poss i b l e , to achieve i f the Court i s l i m i t e d to a considera-t i o n of the evidence v o l u n t a r i l y adduced by the p a r t i e s . Thus, i n order to discharge i t s duty s a t i s f a c t o r i l y i n a l l cases, the Court must possess such powers as w i l l enable i t to obtain the absolute t r u t h , or the closest approximation to the ab-solute t r u t h which i s possible i n any given instance. The competence, both express and implied, of the World Court to undertake i t s own researches into the facts of any issue submitted to i t , therefore,is a concomitant of the p r i n c i p l e that i t s function i s to resolve the dispute before i t on the basis of a l l the relevant f a c t u a l data, and that i t has a duty to s a t i s f y i t s e l f that i t i s i n possession of thi s material and information. Winterberg has summarized the cor r e l a t i v e rights and duties of states parties to proceedings and the Court i n the 78. following way: L i t i g a n t states have not only the r i g h t , but also the duty, to prove t h e i r case. They have a r e a l o b l i g a t i o n to collaborate i n providing the international judge with the precise f a c t s . He, for his part, has the onerous duty of himself carrying out researches so as to obtain the true state of the facts i n dispute. 239 Hudson agrees that the Court may, and should i f the circum-stances warrant i t , undertake researches of various kinds into the facts of any dispute of i t s own i n i t i a t i v e , notwith-21+0 standing the absence of express authorization. Although Carlston does not deal s p e c i f i c a l l y with t h i s point, i n his extensive survey of a r b i t r a l awards that have been the object of protests by one, or both, the p a r t i e s on the ground of exces de peuvoir he does not ref e r to a single case where the objection was made that the tr i b u n a l had undertaken i n v e s t i g a -tions and enquiries into the f a c t s , of i t s own motion, with-2U1 out express authority to do so. In the f i e l d of fac t f i n d i n g , among others, i n t e r -national proceedings d i f f e r greatly from proceedings i n a t r i a l court based on the adversary system. In many ways they resemble proceedings conducted upon the i n q u i s i t o r i a l basis 21+2 operative i n many c i v i l law j u r i s d i c t i o n s . Within the j u r i s -239 Winterberg, "La Theorie des Preuves devant des Jur-i s d i c t i o n s Internationales", 56 Recueil des Cours 5, 97 (1936 - I I ) . See also Rosenne, op.cit.supra note 1+3, at 1+09. 21+0 Hudson, International Tribunals, Past and Future 93 ( 1 9 1 + 1 + ) • 21+1 Carlston, op.cit.supra note 66, at 8 1 - 1 2 1 + ( 191+6). 21+2 White, op.cit.supra note 6 1 , at 10, 17-20; Sandifer, op.cit.supra note 21, at 2. 79. dictions wherein i s to be found an adversary system, the trut h which i s sought and obtained i n municipal tribunals i s d i s t i n c t l y " r e l a t i v e " - i f a rule of evidence i s invoked by one party to prevent the submission of c e r t a i n evidence by the other, the function of the judge i s only to determine whether the rule i s properly invoked regardless of the effect on the disclosure of the actual facts involved. Nor can the judge undertake to any, but a very l i m i t e d , extent his own 21+3 investigations and in q u i r i e s into the f a c t s . Gn the other hand, the judge i n an i n q u i s i t o r i a l system retains consider-able control over the adduction of evidence by the p a r t i e s , and the means by which he s h a l l s a t i s f y himself of the true facts of any issue submitted to him. Thus, i t may be said, that under t h i s l a t t e r system the judge has a much wider scope to ascertain the "absolute" truth. It i s suggested that i t can be assumed from the quite extensive and varied practice of the World Court i n the ordering of investigations and i n q u i r i e s of various kinds into the facts of disputes which have aroused no recorded 2 4 4 dissent by the states concerned, that this practice may never arise as a contested issue. Provided the fundamental pro-cedural safeguards are adhered to, p r i n c i p a l l y the communica-2 4 3 See S c h i f f , supra note 3. 2 4 4 The writer has found no case where a state has ob-jected to the use of f a c t finding techniques by the Court. However, i n the Ousaet C l a i m / l 9 5 5 7 I n t ' l L. Rep.312 (No.22) i t was complained that the expert had exceeded his i n s t r u c -tions - but t h i s is another matter. 80. t i o n of a l l evidence obtained by the Court through i t s own researches to the p a r t i e s , and the conferment of a reasonable opportunity to them to comment upon i t , the decision of the Court to play an active role i n the c o l l e c t i o n of f a c t u a l evidence i s not one to which the parties are l i k e l y to object. In conclusion one question remains. Do the f a c t f i n d i n g powers of the World Court require extension or amend-ment? It should here by noted that the content of the pro-cedural rules considered i n t h i s study have not only remained unchanged, but have not been seriously reviewed since 1936. I t i s suggested that the express powers of the Court by which i t can, independently of the p a r t i e s , discover the t r u t h of a dispute i . e . through the use of experts, en-q u i r i e s , and information obtained from public i n t e r n a t i o n a l organizations, are adequate as currently embodied i n i t s Statute and Rules. Although i t i s true that the Court, be-fore i t can order an enquiry, must necessarily obtain the consent of the state within whose t e r r i t o r y the enquiry i s to be held, this should not create any d i f f i c u l t i e s f o r , as has been seen, submission by a state to the Court's p r i n c i p a l j u r i s d i c t i o n necessarily e n t a i l s a submission to i t s i n c i d e n t a l j u r i s d i c t i o n . Possibly, i t may be deemed convenient, or advisable, for the sake of c l a r i t y and certainty, to include i n the Statute or Rules of the Court s p e c i f i c provisions r e l a t i n g to i t s powers to v i s i t the scene of the dispute, and to procure 21+5 See P.C.I.J., Ser. D, No.2 add.3 (1936). 81. evidence from, and use evidence presented by, states not part i e s to the proceedings before the Court. This would also circumvent any problems a r i s i n g from the p o t e n t i a l argu-ment that the Court i s l i m i t e d to the fact f i n d i n g techniques expressly provided for i t i n the instruments of i t s creation. However, such an argument has not yet been invoked by a state and, even without the i n c l u s i o n of express provisions incorp-orating these fact f i n d i n g techniques, i t s chances of success are minimal in.view of the past practice of the Court. The powers of the Court which most obviously require amendment are those r e l a t i n g to documentary and testimonial evidence. The World Court should have the power to require the production of documents, subpoena witnesses, and punish f o r perjury. The conferment of such powers on the Court would be an invaluable contribution to the strengthening of the ' 2I46 i n t e r n a t i o n a l adjudicative process. These powers could be granted to the Court by one of several methods. The f i r s t would be to amend the Statute of the Court. The second would be by an optional protocol conferring such powers on the Court. The t h i r d would be by a general international convention conferring such powers on a l l in t e r n a t i o n a l j u d i -c i a l t r i b u n a l s . The fourth would be by providing f o r such "21+7 powers i n national l e g i s l a t i o n . And the f i f t h would be by 21+6 For an example of an international j u d i c i a l t r i b u -nal with these powers see 3upra t note 29. 21+7 For' an account of such l e g i s l a t i o n see the a r t i c l e s c i t e d supra, note 30. 82. the i n c l u s i o n of provisions conferring such powers i n spe c i a l agreements, and the compulsory j u r i s d i c t i o n clauses of i n t e r n a t i o n a l agreements. But while submission to the j u r i s d i c t i o n of the Court remains voluntary any amendment, with the possible exception of that to the provisions r e l a t i n g to documentary and testimonial evidence, to the f a c t finding powers of the World Court w i l l not have f a r reaching e f f e c t . For, under exi s t i n g conditions, i f a state agrees to submit a dispute to the Court, i t i s not unreasonable to expect that i t w i l l f u l f i l i t s obli g a t i o n to co-operate with the Court i n the production of a l l the evidence. In f a c t , such has been the practice of states i n the majority of cases brought before the World Court. With or without amendment of the Statutes or Rules, however, progress i n the f i e l d of f a c t finding can be made only by rec o n c i l i n g the caution necessary to avoid any im-pairment of the confidence i n the e x i s t i n g procedures of the Court with the ingenuity required to evolve a complete range of f a c t f i n d i n g techniques adequate to expanding needs for the peaceful settlement of disputes. 83. BIBLIOGRAPHY 1. Collections of J u d i c i a l and A r b i t r a l Decisions Annual Digest and Reports of Public International Law Cases. 16 vols. London: Butterworths, 1932 to 1955. Con-tinued as International Law Reports. 17 Vols, to date. London: Butterworths, 1956 - . International Court of Justice. Reports of Judgments Advisory  Opinions and Orders. Leyden: A.W. S i j t h o f f , 191+8 - . Moore, John Bassett. 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