Consistency in the ICJ’s Approach to the Standard of Proof: An Appraisal of the Court’s Flexibility

Taking steps from Judge Higgins’ invitation to the ICJ “mak[ing] clear what standards of proof it requires to establish what sorts of facts”, the contribution addresses the Court’s case law with a view to verifying the degree of consistency in its practice. The study comes in three parts. First, the absence of rules on the standard of proof in litigation before the ICJ is addressed, and the Court’s inherent power to choose the standard of proof is upheld. Second, the ICJ case law is addressed from which a highly flexible approach to the standard of proof is inferred. In particular, a two-tier approach in the matter is highlighted with regard to cases in which all the disputing parties appear, whereas the Court appears to follow a single-tier analysis in cases of non-appearance. Lastly, some concluding remarks are provided, highlighting the accordance of such a flexible approach with general principles of procedural law.