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29 Aust. YBIL 27 (2010)
Burden of Proof in International Courts and Tribunals

handle is hein.journals/ayil29 and id is 31 raw text is: Burden of Proof in International Courts and
Caroline E Foster*
I. Introduction
Adjudication of disputes under public international law has more frequently
involved addressing the legal questions dividing the parties, rather than points of
fact.1 This has contributed to the view that the burden of proof should not be
overemphasised. Although seldom referring directly to the issue, the Permanent
Court of International Justice (PCIJ) did expressly apply the rule that a party
asserting a fact bore the burden of proving it,2 but the Court's decisions generally
Dr Caroline E Foster is a Senior Lecturer at the University of Auckland, New Zealand.
Previously she worked for the New Zealand Ministry of Foreign Affairs and Trade
(1992-99). She holds undergraduate degrees in Law and French (1992) from the
University of Canterbury and a graduate diploma from the Academia Diplomitica de
Chile 'Andres Bello' (1993); she obtained her LLM (1997) and PhD (2003) from the
University of Cambridge. The author thanks Jesse Nicol, Associate Professor Chester
Brown, Professor Peter Watts, Professor James Crawford, the Editors of the Australian
Year Book of International Law and anonymous reviewers for reading this article prior
to publication and for their valuable comments and suggestions. Responsibility for
errors or misperceptions remains her own. The article draws on work for a
forthcoming monograph: C Foster, Science and the Precautionary Principle in
International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality
(2011). The article goes beyond the monograph in placing a greater emphasis on the
need for certainty in the articulation of the rule on burden of proof and more strongly
urging the development of international practice so as to help ensure this certainty for
litigants, while still allowing for flexibility in instances where there may be
considerations such as the need to accommodate the precautionary principle.
Additionally the article envisages that the use of international courts and tribunals'
inherent powers is likely to be the mechanism used first to bring about changes in the
rules on burden of proof, with subsequent changes in customary international law
relating to the rules and in due course in conventional sources and potentially in the
content of relevant general principles of law internationally.
M 0 Hudson, The Permanent Court of International Justice: A Treatise (1934) 500;
M Kazazi, Burden of Proof and Related Issues: A Study on Evidence before
International Tribunals (1996) 83; HWA Thirlway, 'Procedural Law and the
International Court of Justice' in V Lowe and M Fitzmaurice (eds), Fifty Years of the
International Court of Justice: Essays in Honour of Sir Robert Jennings (1996) 389,
2    See The Mavrommatis Jerusalem Concessions [ 1925] PCIJ (ser A) No 5; Legal Status
of Eastern Greenland [1933] PCIJ (ser A/B) No 53, 49. A Riddell and B Plant,
Evidence Before the International Court ofJustice (2009).

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