Burden of Proof in International Courts and Tribunals

Abstract

The rule on the burden of proof is a permanent feature of international adjudication, and plays a potentially significant role in the outcome of disputes. Fundamental principles underlying the rule on burden of proof include the need to maintain the fairness of adjudication though a rough equality of the parties and the need to ensure relative certainty for litigants. International courts and tribunals’ articulation of the rule largely recognises the importance of certainty, leaving problems relating to fairness to be addressed at the stage of the application of the rule through such mechanisms as the prima facie case approach. However a number of concerns arise relating to the scope for the arbitrary exercise of judicial power in the application of the rule. These concerns include the need for establishing a standard or standards of proof in international law, and the need for greater clarity regarding the classification of the substantive rules governing a dispute as general rules or exceptions respectively. More certainty regarding the allocation of the burden of proof in compliance proceedings would also be helpful. There is scope for optimism regarding future evolution in relation to the rule on burden of proof, as the multiple sources of the rule endow it with a special capacity for development.