Lunch seminar with CHEN Mohan
Burden of Proof before the International Court of Justice: Perspectives from the Environmental Case Law
Abstract
At a time when States from all regions are exponentially increasing their participation in International Court of Justice (ICJ)’s proceedings, including through an unprecedent number of written statements in the advisory opinion on ‘Obligations of States in Respect of Climate Change’, the potential of the ICJ as a forum for international environmental law is higher than ever. The recent momentum of strategic litigations and interventions based on community interest is also conceivably relevant in the environmental context. This presentation will address the evidentiary aspects of environmental case law of the ICJ, with a focus on burden of proof. There is no concrete design at the ICJ for burden of proof, leading to questions include in the first place who shall obtain and present evidences? The ICJ should take on the active role of facilitating fact-finding proprio motu when the parties' evidence is insufficient. However, the extent to which this should be done needs to be carefully calibrated so as not to give rise to concerns about equality of arms. The ICJ should resume its neutral, managerial-like role when more evidence is brought in from the outside to tackle complex scientific and factual issues. The ICJ needs to value expert evidences and third-party cooperation in its proceedings, while being mindful of the possibility of and ways to respond to the introduction and subsequent evaluation of facts beyond the scope of the party's claims. In addition, given the compounded, continuous, and often irreparable nature of environmental impacts, the precautionary principle should be emphasized in litigation by means of introducing additional incidental proceedings to preserve evidence. The precautionary principle is also inherently incompatible with the best scientific evidence. And consideration could be given to change the ICJ’s previous stance to the shift of the burden of proof. The arguments and calculations made in individual cases are worth pondering, in order to examine why insufficient proof of environmental damage by a party in the face of evidentiary difficulties does not necessarily lead to total satisfaction of remedies nor total failure in a lawsuit. The presentation will end with comments on how a State can deal with the burden of proof in environmental cases before the ICJ, depending on its role as a party, an intervening State, or other ‘party-of-interest’.
Speaker bio
Ms. CHEN Mohan is a PhD candidate in public international law at Wuhan University, China. She holds degrees from Wuhan University (LLB, MA) and University of Geneva (LLM). Her research interests include history of international law, international environmental law and international procedural law. Her recent research project is entitled "Evidentiary issues in the environment-related cases before the International Court of Justice".
Meeting ID: 622 9414 6997
Passcode: 038783