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4 - Proceedings on the merits: fact-finding and attribution of State responsibility

Published online by Cambridge University Press:  28 July 2009

Jo M. Pasqualucci
Affiliation:
University of South Dakota
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Summary

The importance and transcendence of the evidence in a jurisdictional proceeding is obvious. It has even been said that the proceeding constitutes, in essence, a broad probative opportunity directed at verifying the de facto conditions that support the legal claims. The juridical consequences are constructed on the basis of the facts. Consequently, the judge must give special attention to the issue of the evidence before beginning the juridical consideration, and, particularly, do so in a firm and reasonably certain way, so that justice may be done in the specific case.

Introduction

If the case is not dismissed in the preliminary objections stage of the proceedings, the Court will consider the merits of the case. During the merits phase, the Court engages in fact-finding and determines whether the State is responsible for the alleged violation. The function of fact-finding in the judicial process is ‘to enable the tribunal to discover the truth concerning the conflicting claims of the parties before it’. In doing so, the judges must evaluate the evidence presented to the tribunal.

Cases before international tribunals are generally heard by judges who were trained in different legal traditions. The two primary legal systems are civil and common law. The integration of these systems is most obvious in the area of fact-finding, where the evidentiary practices between the civil and common law systems differ in significant respects. Under common law, the parties are adversaries who bear the initiative in presenting evidence.

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Publisher: Cambridge University Press
Print publication year: 2003

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