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Dilemma or Chimera?—Admissibility of Illegally Obtained Evidence in International Adjudication

Published online by Cambridge University Press:  27 February 2017

Hugh Thirlway
Hugh Thirlway*
Affiliation:
International Court of Justice
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Extract

Procedural law on the international plane, especially the law applicable to international judicial proceedings, has long tended to be the poor relation of substantive law. In particular, insufficient attention has often been paid to its sources, and to the manner in which it may be created; and confident assertions tending to confuse the Sollen with the Essen, lex lata with lex ferenda, have been made with a frequency not to be expected in other fields of international law. Hence the common temptation to model international procedural norms or rules on what are perceived to be analogous dispositions of municipal procedural law, without taking sufficient account either of the degree of generality, actual or potential, of the municipal law rule, or of the accuracy of the analogy involved in its transfer to the international plane.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 3 , July 1984 , pp. 622 - 641
Copyright
Copyright © American Society of International Law 1984

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References

1 Cf. Lauterpacht, H., Private Law Sources and Analogies of International Law 84–85 (1927)Google Scholar, who draws attention to

the tendency on the part of many writers to resort to notions peculiar to their own municipal law or to some other system of private law regardless of the fact that conceptions of that kind cannot, owing to their technical character or the altogether special reason of their creation, claim that degree of cogency which is conditioned by the actual universality of a legal rule, from the point of view either of juridical logic or of legal justice, and which alone may serve as a basis of analogy.

2 Reisman, & Freedman, , The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication, 76 AJIL 737 (1982)CrossRefGoogle Scholar.

3 1949 ICJ Rep. 4 (Judgment of Apr. 9).

4 1980 ICJ Rep. 3 Judgment of May 24).

5 Cf. in this respect the dictum in the Fisheries Jurisdiction cases that the International Court, “as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.” 1974 ICJ Rep. 3, 23-24, para. 53 (Judgment of July 25).

6 The question is marginal to the subject of this article, but nevertheless deserves to be followed up, if only in a footnote. In the Reisman/Freedman article, the relevant PCIJ cases are presented in terms suggesting prohibition by the Court of production of the evidence—prohibitions ante factum. In fact, however, examination of the cases shows that the dicta in question were post factum, and did not, except in one case, amount to rulings on admissibility, but to categorizations of the evidence as irrelevant or unhelpful. The exception is the Order of Aug. 20, 1929 in the River Oder Commission case, and there the ground of inadmissibility was not in fact confidentiality of the records, but the fact that they were travaux préparatoires in which three of the parties to the case had not participated, so that so far as they were concerned, the records were res inter alios acta. See 1929 PCIJ, ser. A, No. 23, at 42.

In the Chorów Factory case, the Court stated that it “cannot take account” of statements made in the course of negotiations; i.e., while the evidence could be offered, it would place no reliance on it (the French “elle ne saurait faire état des déclarations” is still more clearly in this sense).

In the European Commission of the Danube case, while the Court raised the question of possible reliance on confidential records, it expressly declined to rule on the point: “the Court is not called upon to consider to what extent it might have been possible for it to take this preparatory work into account.” 1927 PCIJ, ser. B, No. 14, at 32.

In fact, with regard to the question of the confidentiality of the documents, the interesting aspect of the Danube Commission case is that the Court, so far from regarding confidentiality as a ground for declining to receive them, itself sought them out; and it listened to quotation from, and comment on, them at the hearings without intervening. The Registrar of the Court had written, presumably on instructions, to the French Foreign Minister to ask that the Court be supplied with certain travaux préparatoires of the Treaty of Versailles (1927 PCIJ, ser. C, No. 13-IV, vol. IV at 2078-79). The reply of the Foreign Minister drew attention to the confidential character of the records (id. at 2084-85). However, the Romanian Government furnished certain extracts to the Court (id., vol. I at 277), and these were commented on, first by counsel for Romania, who had himself participated in the work recorded in the extracts (id. at 187), and later by counsel for the United Kingdom (id. at 277-78).

In the case of Diversion of Water from the Meuse, the attitude of the Court was clearly, not that the document (a draft treaty) in question was inadmissible, but that it was unnecessary: “the President of the Court thought that there was no need to add the draft treaty to the Court’s record, and accordingly asked the Belgian Agent not to produce it.” 1937 PCIJ, ser. C, No. 81, at 224 (emphasis added).

Cf. also Art. V, para. 1 of the Special Agreement of March 29, 1979 between the United States and Canada concerning the Gulf of Maine, summarized in 73 AJIL 480 (1979).

7 If a court (other than one including a jury) declines to regard a particular piece of evidence as material, or considers that no weight can be attached to it—which is certainly a power possessed by any court—then whether it treats it as “admissible” or not becomes a wholly academic, or moot, question.

8 “The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules governing their activity as a Court” (Eastern Carelia, 1923 PCIJ, ser. B, No. 5, at 29 (emphasis added)); “There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore” (Northern Cameroons, 1963 ICJ Rep. 15, 29 (Judgment of Dec. 2) (emphasis added)); and see the quotation from the Fisheries Jurisdiction cases in note 5 supra.

9 On the use of concepts, as distinct from principles and rules, as elements of analysis in international law, see the present writer’s International Customary Law and Codification 28-30, 122-23 (1972).

10 See von Mangoldt, , La Comparaison des systèmes de droit comme moyen d’élaboration de la procédure des tribunaux internationaux, 40 Zeitschrift Für Ausländisches öffentliches Recht und Völkerrecht 554 (1980)Google Scholar.

11 Pattenden, , The Exclusion of Unfairly Obtained Evidence in England, Canada and Australia, 29 Int’l & Comp. L.Q. 664 (1980)CrossRefGoogle Scholar.

12 R. v. Sang, [1979] 3 W.L.R. 263, 272 (per Lord Diplock).

13 Pattenden, supra note 11, at 669, based on R. v. Wray, [1970] 11 C.R.N.S. 253.

14 Pattenden, supra note 11, at 673 (citing Bunning v. Cross, [1978] 19 Austl. L.R. 641).

15 17 Halsbury’s Laws of England, para. 12 (4th ed.); Phipson on Evidence, para. 828 (J. Buzzard, R. May & M. Howard 12th ed., 1976); see also Calcraft v. Guest, [1898] 1 Q.B. 759, 764 (citing Lloyd v. Mostyn, [1842] 10 M. & W. 478, 482 (copies of stolen document); more recently, Jeffrey v. Black, [1978] 1 All E.R. 555.

16 See Barcelona Traction, Light & Power Co., Ltd., 1970 ICJ Rep. 4, 32, paras. 33-34 (Judgment of Feb. 5).

17 See South West Africa, 1966 ICJ Rep. 6, 47, para. 88 (Judgment of July 18).

18 Evidence of confessions obtained by promises or threats is in a special subcategory: it is excluded primarily in order to check the excesses of those engaged in prosecution, but undoubtedly one of the reasons why such activities need to be restrained is because the evidence so obtained is likely to be unreliable.

19 Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting), quoted in Bunning v. Cross, [1978] 19 Austl. L.R. 641.

20 People v. Defore, 242 N.Y. 13, 21 (1926).

21 Pattenden, supra note II, at 672-73.

22 1949 ICJ Rep. 4.

23 1980 ICJ Rep. 3.

24 1949 ICJ Rep. at 36.

25 “Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of justice itself.” Id. at 35.

26 Measure for Measure, act 2, sc. 2, line 107.

27 Was this the main intention? The whole mine field was swept—an excellent thing in itself, no doubt, but surely unnecessary for this purpose, since only two mines were retained for expert examination. 1949 ICJ Rep. at 13.

28 1948 ICJ Pleadings (1 Corfu Channel) 170-71.

29 The authors refer to the Iranian communication as an example of “an interesting practice long countenanced by the Permanent Court and the International Court,” and add a footnote reference (note 59) to, inter alia, the Eastern Carelia case (1923 PCIJ, ser. B, No. 5). Since this case is offered as sole support of the allusion to the Permanent Court, it is perhaps worth remarking that, that case being a request for an advisory opinion, the position of the Soviet Government vis-à-vis the Court was basically different from that of the respondents in the Fisheries Jurisdiction, Nuclear Tests, or Hostages cases. On this, see the present writer’s Non-Appearance Before The International Court of Justice, ch. 3 (Cambridge University Press, to appear this year).

30 1980 ICJ Rep. at 8-9.

31 See id. at 31-33, paras. 63-68.

32 See id. at 35-36, paras. 74, 76.

33 See id. at 43-44, para. 93.

34 1980 ICJ Pleadings (U.S. Diplomatic and Consular Staff in Tehran) 484, 486.

35 1980 ICJ Rep. at 43, para. 94.

36 The jurisdiction to make such a determination might also be treated as a form of incidental or “inherent jurisdiction,” “the power to exercise which is a necessary condition of the Court— or of any court of law—being able to function at all,” to use the classification of Judge Sir Gerald Fitzmaurice in Northern Cameroons, 1963 ICJ Rep. at 103.

37 Cf. the dictum of the PCIJ in the Chorzów Factory case, in connection with the principle that “jurisdiction as to the reparation due for the violation of an international convention involves jurisdiction as to the forms and methods of reparation”:

But this principle would be quite unjustifiably extended if it were taken as meaning that the Court might have cognizance of any question whatever of international law, even quite foreign to the convention under consideration, for the sole reason that the manner in which such question is decided may have an influence on the effectiveness of the reparation asked for. Such an argument seems hardly reconcilable with the fundamental principles of the Court’s jurisdiction, which is limited to cases specially provided for in treaties and conventions in force.

1928 PCIJ, ser. A, No. 17, at 61-62.

38 “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form” (Factory at Chorzów, 1927 PCIJ, ser. A, No. 9, at 21); and cf. the Judgment in the Hostages case, 1980 ICJ Rep. at 41, para. 90.

39 Cf. the passage cited in note 37 supra.

40 1949 ICJ Rep. at 18; and cf. the observations of Judge Badawi on the question of circumstantial evidence, id. at 59-60.

41 1980 ICJ Pleadings (U.S. Diplomatic and Consular Staff in Tehran) 125.

42 1980 ICJ Rep. at 10, para. 13.