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UBC Theses and Dissertations

Fact finding and the World Court Foster, William F.

Abstract

On December 16, 1963, the General Assembly of the United Nations adopted Resolution 1967 (XVIII) recording its belief that provision for impartial fact finding within the framework of international organizations, and in bilateral and multilateral conventions, could make an important contribution to the peaceful settlement of disputes, and to their prevention. The Resolution noted a considerable body of practice in the use of fact finding methods in international relations, which is available to be studied "for the progressive development of such methods" (6th perambular paragraph). In the light of this Resolution, the object of this study was to ascertain the nature and the scope of the fact finding powers possessed by the principal judicial organ of the community of nations, the World Court and their applicability in the various types of proceedings which may be instituted before it. As a background the major problems inherent in, and the nature and function of, the law of evidence in international judicial proceedings are sketched. An attempt is also made to determine the respective rights and duties of the litigants and the World Court in the matter of the adduction of evidence. The provisions of the Statute and Rules of the World Court which expressly confer upon it fact finding powers are then examined. A broad competence is seen to be granted the Court to request the production of evidence, and to undertake investigations and enquiries of various kinds into the facts of the issues submitted to it. The only condition precedent to the exercise of these powers being that the litigant states must have agreed to submit their dispute to the Court for adjudication. Notwithstanding a paucity of authority, it is also found that the world Court also possesses certain implied fact finding powers stemming not from the instruments of its creation, but from its inherent nature as a judicial tribunal. This implied competence to undertake researches, of its own motion, into the facts of an issue submitted to it supplements the Court's express competence, although a duplication of the power to appoint independent experts is evident. It is then ascertained whether the World Court can have recourse to all the fact finding powers conferred upon it in the two categories of proceedings, contentious and advisory proceedings, which may be instituted before it. Some limitations on the Court's powers are found to exist in the case of advisory proceedings, these limitations deriving from the nature of the proceedings. With respect to contentious proceedings no limitations were found. From the preceding examination of the fact finding powers of the World Court it was concluded that it had the potential to discover the absolute truth of any issue submitted to it for decision, with the co-operation of the parties. While some amendments to the Statute and Rules of the Court were suggested, it was felt that any major revisions of the Court's powers would have no substantial effect until the jurisdiction of the Court became compulsory.

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