Fact‐finding in Inter‐state Adjudication

Publication Date01 March 1996
Date01 March 1996
DOIhttp://doi.org/10.1111/j.1468-2230.1996.tb02075.x
AuthorSaju Jacob
Fact-finding in Inter-state Adjudication
Saju
Jacob”
all analogies are imperfect in this respect, and yet the whole of our reasoning from
experience
.
. .
is reasoning from extremely imperfect analogies between past and present
occurrences. The question
is
not, are the conditions of the two problems the same?
-
for
that
may always be answered in the negative
-
but do they resemble each other closely enough
for the old solution
to
be
so
modified as to apply to the new problem,
or
to
suggest an
analogous solution which may
be
applied
to
it?’
Introduction
Inter-state disputes that have arisen for adjudication before the International Court
of Justice reveal variations and inconsistencies in the nature of judicial fact-
finding.2 Justifying these variations as the products
of
coincidence or error is
unsatisfactory and fails to illuminate the underlying reasons for factual decisions.
These reasons remain shrouded in uncertainty, leaving the rationale for the
peculiar nature of fact-finding to speculation.
Yet the giving of reasons for factual findings and the articulation of those
standards that form the basis for the determination
of
fact act as guards against
decisional arbitrariness. Further, such reasons display the relationship between
factual predicates and ultimate verdicts. They also make manifest the Court’s
perception of the development of international law and the nature of substantive
principles which ought to shepherd its continued evolution. Incongruities between
substantive outcomes and their factual premises ought thus to be capable of
judicial justification.3
This article suggests a theoretical framework within which decisions of fact by
the International Court can be scrutinised and rationalisations sought between
factual findings and substantive verdicts. This framework relies upon a theory of
municipal procedural arrangement advanced by Mirjan Damaska4 but reworked in
the light of the assessment by Lon Fuller of adjudication as an effective mechanism
of dispute res~lution.~
The
resulting hybrid theory allows for an analysis of fact-
finding in terms of the relationship between the nature
of
legal authority in the
International Court
and
the
dominant objectives
of
adjudicative proceedings within
the overarching context of the characteristics of inter-State disputes. Whilst this
framework envisages a paradigm of fact-finding, it nevertheless allows for
comparisons to be drawn with instances of fact-ascertainment by the Court.
*Clifford Chance.
Lorimer, ‘Prologomena
to
a
Reasoned System of International Law’ in
Studies: National
und
International
(London: W. Green
&
Sons,
1890)
p
159.
The term ‘fact-finding’
is
here used to denote that process of judicial reception and interpretation of
factual data deemed necessary by the
Court
to form an adequate evidential foundation upon which to
construct relevant substantive principle.
In
this context,
see
in particular the
Sovereignty Over Certain Frontier Land
case
(1959)
ICJ Rep
209;
Burkina Faso/Mali Frontier Dispute
case
(1986)
ICJ Rep
554;
Rights of Passage Over Indian
Territory
case
(1960)
ICJ Rep
6;
South- West Africa
cases
(1966)
ICJ Rep
6;
Paramilitary Activities in
Nicaragua
case
(1986)
ICJ Rep
14.
Darnaska,
The Faces of Justice and State Authority:
A
Comparative Approach to the Legal Process
(New Haven: Yale University Press,
1986).
Fuller, ‘The Forms and Limits
of
Adjudication’
(1978)
92
Harvard
L
Rev
353.
I
2
3
4
5
207
0
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1996
(MLR
592,
March). Published by Blackwell Publishers,
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and
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Main
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USA.
The
Modern
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[Vol.
59
The work of scholars in this field is largely confined to descriptive comment.
Although attention has been focused upon the procedural tools available to the
Court pursuant to its Statute and Rules, few attempts have been made to analyse
these and their application in relation to the character of disputes in questiom6 This
article adopts the following scheme. Part one develops Damaska’s thesis. Parts two
and three consider, respectively, the applicability of Damaska’s ‘ideal-types’ and
the relevance of Fuller’s analysis to a study of the nature of fact-finding by the
International Court. In the course of the article, the theoretical discussion is
illuminated by reference to practical examples of fact determination by the Court.
I
Damaska’s ‘ideal-types’: an outline
of
the faces of justice
Damaska’s thesis seeks to anchor the multifarious ingredients of procedural
arrangements, including the phenomena of fact-finding in civil and common law
jurisdictions, upon a foundation which anticipates a symbiosis between political
ideology, forms of organisation of judicial authority and the objectives of legal
proceedings. According to Damaska, the political ideology of a State mandates the
form of organisation of judicial authority which in
turn
spawns two different
visions of the purposes of adjudication. The consequent procedural structures are
thus derived from the fusion of the three hierarchically interdependent paradigms
of ideology, judicial authority and adjudicative purpose.
Damaska emphasises that his theoretical constructs are not reflected in their
entirety in the world of ‘hard facts,’ but are of value in contrasting the design and
purpose of extant procedural systems and the procedural choices made therein.
Comparisons may thus be drawn between the ‘ideal-type’ procedural
configurations of the
Faces
of
Justice
and existing procedural patterns of civil
and common law jurisdictions.
Damaska establishes three hierarchically interrelated typologies: first, the
dominant political ideology
of
a State; second, the corresponding forms of legal-
bureaucratic authority; and, finally, the resulting procedural paradigms best suited
to the particular objectives of adjudicative proceedings, the contrasting goals of
these proceedings resulting from the union of the first two typologies. The
procedural paradigms
are
interpreted by Damaska
as
fundamental to the
application of governmental ideology through,
inter alia,
the substantive law.’
~
6 See, for example, Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 195
1-
1954: General Principles and Sources
of
Law’ (1953) British Yearbook
Int
Law
1;
Fitzmaurice,
The
Law and Procedure of the International Court of Justice
(VolII)
(Cambridge:
Grotius
Publications,
1986) pp575-586; Highet, ‘Evidence and Proof of Facts’ in Damrosch (ed),
The International Court
of Justice at a Crossroads
(New York Transnational Publishers, 1987) p355; Rosenne,
Procedure in
the International Court:
A
Commentary
on
the
1978
Rules of the International Court of Justice
(The
Hague: Martinus Nijhoff, 1983); Sandifer,
Evidence Before International Tribunals
(Charlotteville:
University
Press
of
Virginia, 1975).
7 For reviews of Damaska’s thesis, see Lewis,
Book
Review
(1987)
14
JLS
502;
Markovits, ‘Playing the
Opposites Game: On Mirjan Damaska’s
The Faces of Justice
and
State Authority’
(1988-1989)
41
Stanford L Rev 1313; Von Mehren, ‘The Importance of Structures and Ideologies for the
Administration of Justice’ (1987) 97 Yale LJ 341; Shapiro,
Book
Review
(1987) 35 Am
J
Comp Law
835; Stein, ‘A Political Analysis of Procedural Law’ (1988) 51 MLR 659.
208
0
The
Modem
Law
Review Limted
1996

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