Absence of Evidence? – ICJ’s Evidentiary Assumption in Gabon v. Equatorial Guinea – Indian Blog of International Law

Kusha Grover

Introduction

The International Court of Justice (‘ICJ’ or ‘Court’) delivered its judgement in the contentious case between Gabon and Equatorial Guinea over the legal title over land and maritime boundaries between the countries. The Court was not to demarcate or finally decide on the boundaries between the States; it was merely requested to determine whether the legal titles, treaties and international conventions invoked by the parties had the force of law for the purposes of delimitation of land and maritime boundaries.

At the heart of the dispute was a mysterious document deemed by Gabon as the ‘Bata Convention’, allegedly concluded between the Presidents of both the countries in 1974. As per Gabon, the ‘Bata Convention’ is a legal title that settled the dispute between the two countries. Equatorial Guinea, however, questioned the existence of such a document. It had also objected to its registration in the United National Treaty Series vide a letter to the Secretary-General of the United Nations. The Court explained the dispute in the following words: ‘the Parties disagree on the existence and authenticity of the alleged convention, its binding character and whether it constitutes a legal title within the meaning of Article 1 of the Special Agreement.’

Methodology of the Court

The question pertaining to the Bata Convention can be divided into two parts. First, regarding validity, and second, regarding enforceability. The former required the Court to decide on the existence and authenticity of the document, and the latter on its binding force (or lack thereof). The Court concluded in favour of Equatorial Guinea, ruling that the document did not bind the two countries. However, in order to reach this conclusion, the court made the assumption that the document was existent and authentic. The methodology of the court is laid down in paragraph 57 of the judgement:

While Gabon has not dispelled all doubts pertaining to the matter, there is some reason to believe that a document referred to by Gabon as the “Convention delimiting the land and maritime frontiers of Equatorial Guinea and Gabon” was signed at Bata. … For the present purposes, the Court will assume, without deciding, that a text was signed in Bata and that the “copies” put on the record in these proceedings are reproductions of that text. (Emphasis supplied)

In so assuming, the Court made a comparative citation to the case of Portugal v. India where the court had observed, ‘(t)he Marathas themselves regarded the Treaty of 1779 as valid and binding upon them, and gave effect to its provisions. … The Marathas did not at any time cast any doubt upon the validity or binding character of the Treaty.’ (p. 37) Considering these facts, the Court had ruled that the treaty has continued to be valid since the era it was concluded.

It should be noted here that in Portugal v. India, the existence of the treaty was not in question. It was only its binding nature that had to be examined. In contrast, in the present case, Equatorial Guinea has historically denied the existence of the treaty, as is evident from its opposition to its registration. Yet, in the absence of comparable evidence as Portugal v. India, the court made an assumption of the treaty’s validity in order to further deliberate upon its enforceability.

Significance of Facts in International Adjudication

International courts and tribunals, much like the domestic ones, function on the principle of jura novit curia, meaning the court knows the law. It is the facts that the court is alien to, and it falls upon the parties to establish them before the court. This is the reason lengthy memorials and bulky compendia are prepared by parties to present before the court a detailed breakdown of facts relevant to the dispute. This is also why reports of Fact-Finding Missions are given importance while making important determinations.

Parties have an interest in the proving or disproving of some facts, which may be determinative of their case. This is where the role of the Court is instrumental. The Court has to carefully assess the evidence presented to it, and apply its judicial mind to decide which one will shape the ruling. In its judgement in the Pulp Mills case between Argentina and Uruguay, the Court observed that it had the responsibility to give due consideration to all the evidence before it, and ‘determine which facts must be considered relevant’, ‘assess their probative value’, and ‘draw conclusions from them as appropriate.’ (para. 168)

In this light, the evidentiary assumption of the Court in Gabon v. Equatorial Guinea seems to be inconsistent with the Court’s responsibility of factual determination of the dispute before itself. Indeed, Judge Aurescu rightly noted in his declaration in this case that ‘the Court should have been clearer and consistent in expressing, throughout the text of the Judgement, that the existence of the so-called “Bata Convention” is not certain and that, even if it exists, it does not constitute a legally binding instrument (a treaty).’ (Emphasis in the original text) (para. 2) In the following section, I strengthen this view by discussing the applicable law and preceding practice of the Court that points to a more procedurally sound approach.

Law and Precedent

Article 48 of the Statute of the ICJ gives the Court the general powers to make orders regarding the conduct of the case and the taking of evidence. This provision has been noted to be a ‘guarantee for the orderly taking of evidence.’ Further, Article 50 of the Statute read with Article 67 of the Rules of the Court enables the court to arrange for an enquiry or expert opinion wherever it deems necessary. These provisions point to the fact-finding function of the Court. At this point a caveat is necessary: while the provisions in the Statute and the Rules are flexible, and the Court has the discretion to implement them, I rely on the previous practice of the Court where the Court took a painstaking approach to similar evidentiary issues, in order to bring forth my critique.

The issue of forged documents was brought before the Court in Qatar v. Bahrain. This case was also concerned with maritime and territorial delimitation. There are therefore sufficient similarities in both the cases for the purposes of our comparison. In this case, Bahrain challenged the authenticity of 82 documents relied on by Qatar, while making its claims. Even Bahrain, like Equatorial Guinea in the present case, had asserted that it had no prior knowledge of the said documents.

Over the course of this dispute, Qatar was asked to submit an interim report, containing the detailed and definitive position of Qatar on the authenticity of the documents. Pursuant to the report, Qatar had submitted the results of the forensic examination conducted on the documents to ascertain their authenticity. Eventually, the documents had to be dropped by Qatar owing to divergent views between the experts of the parties and between its own experts (para. 20). Thus, although the court did not get an opportunity to rule on the matter, the measures taken by the court are a testament to its willingness to arrive at the truth regarding the documents, rather than relying on assumptions to proceed.

Towards Procedural Consistency

Devaney explores criticisms of the methodology of the Court when it comes to factual determinations. He notes how scholars have found the Court unwilling at times, to engage in fact-finding. Instead, they observe, that the Court places disproportionate importance on legal issues, obfuscating the importance of factual determination in cases (p. 28). Therefore, Qatar v. Bahrain is a good precedent to study in order to understand the methods adopted by the Court in matters of evidence, especially documentary evidence.

In line with this precedent, the Court had the opportunity to further strengthen its practice and shed light on the standards and rules of evidence under public international law, especially before itself. However, in this judgement, it seems to have sidestepped the question of evidence by making an assumption. Had the Court ordered Gabon and Equatorial Guinea to conduct joint or separate inquiry into the existence of the document, the Court could have reinforced its earlier practice and set a strong precedent in the interest of evidentiary rules of international law. The procedures to arrive at accurate factual determinations do exist; their invocation can enhance the role of the international courts in providing definitive decisions in enigmatic cases.

There can be numerous explanations and justifications for why the Court did not do this. Perhaps the judges first ascertained the lack of legal enforceability and therefore, found it unnecessary to perform the intermediary task of ascertaining authenticity. Consideration could also have been given to judicial economy; spending time and resources into an investigation that yields the same conclusion otherwise is hardly judicious. However, as the adage goes, ‘the absence of evidence is not the evidence of absence.’

Going forward, it would be in the interest of fuller justice to adhere to the procedural norms developed by the Court in accordance with the Statute and the Rules. International (or any) adjudication is not merely about arriving at the correct conclusions; it is also about the methods applied by the courts and tribunals to pronounce their decisions. A consistency in evidentiary procedures can go a long way in strengthening the trust placed by States in these international adjudicatory bodies, and enhance the quality of justice imparted by them.

(Kusha is an undergraduate law student at the Rajiv Gandhi National University of Law, Punjab. She is interested in public international law and comparative law.)