The Standard of Proof at the ICJ : On Evidentiary Standards and Judicial Decision
(2025)- Abstract
- The standard of proof at the International Court of Justice (ICJ) is a central, yet underexplored, aspect of its judicial decision-making. Although central in shaping both fact-establishment and judicial outcomes, the articulation and application of the standard of proof by the Court are marked by inconsistency and a lack of transparent justification. This inconsistency is often linked to an assumed ‘flexibility’ in the Court’s evidentiary regime, the nature and extent of which have not been clearly delineated. This thesis combines doctrinal legal research with quantitative and qualitative analyses of the evidentiary and decisional practices of the ICJ. It draws on a general concept of proof and a theory of bounded discretionary power,... (More)
- The standard of proof at the International Court of Justice (ICJ) is a central, yet underexplored, aspect of its judicial decision-making. Although central in shaping both fact-establishment and judicial outcomes, the articulation and application of the standard of proof by the Court are marked by inconsistency and a lack of transparent justification. This inconsistency is often linked to an assumed ‘flexibility’ in the Court’s evidentiary regime, the nature and extent of which have not been clearly delineated. This thesis combines doctrinal legal research with quantitative and qualitative analyses of the evidentiary and decisional practices of the ICJ. It draws on a general concept of proof and a theory of bounded discretionary power, alongside a doctrinal analysis of sources of international law relevant to the ICJ’s procedural framework, to construct a conceptual framework for the standard of proof. The empirical component maps how the ICJ articulates and applies standards of proof through a quantitative review of judicial practice and in depth qualitative analysis of selected case studies. These case studies examine the Court’s application of ‘conclusive’ and ‘fully conclusive’ standards of proof in cases involving grave allegations, contrasted with the flexible and context-dependent requirement of ‘sufficient’ evidence standard in other types of cases. The thesis finds that the Court’s determination of the standard of proof is flexible and contextually adaptive, yet bounded by legal and institutional constraints. This evidentiary approach is shaped primarily by sensitivity to the interests and preferences of states appearing as parties before the Court, balancing sovereignty protection, reputational risks, and the imperative of legitimate and fair dispute settlement. Judicial restraint predominates in high stakes cases to safeguard state interests, while a degree of judicial pragmatism allows for greater flexibility in disputes involving less sensitive state interests. This dynamic is captured in the ‘open close’ model proposed by this thesis, which frames the Court’s discretion as expansive and flexible in its capacity to consider a broad range of legal, procedural, and normative factors (‘open’), yet one that remains bounded by a set of institutional constraints, state interests, and political sensitivities that limit its evidentiary decision-making (‘close’). This thesis offers a systematic framework clarifying the previously opaque evidentiary reasoning of the ICJ’s flexible yet bounded approach to the standard of proof, enabling more informed and critical engagement with its establishment of facts and broader evidentiary decision-making (Less)
- Abstract (Swedish)
- The standard of proof at the International Court of Justice (ICJ) is a central, yet underexplored, aspect of its judicial decision-making. Although central in shaping both fact-establishment and judicial outcomes, the articulation and application of the standard of proof by the Court are marked by inconsistency and a lack of transparent justification. This inconsistency is often linked to an assumed ‘flexibility’ in the Court’s evidentiary regime, the nature and extent of which have not been clearly delineated. This thesis combines doctrinal legal research with quantitative and qualitative analyses of the evidentiary and decisional practices of the ICJ. It draws on a general concept of proof and a theory of bounded discretionary power,... (More)
- The standard of proof at the International Court of Justice (ICJ) is a central, yet underexplored, aspect of its judicial decision-making. Although central in shaping both fact-establishment and judicial outcomes, the articulation and application of the standard of proof by the Court are marked by inconsistency and a lack of transparent justification. This inconsistency is often linked to an assumed ‘flexibility’ in the Court’s evidentiary regime, the nature and extent of which have not been clearly delineated. This thesis combines doctrinal legal research with quantitative and qualitative analyses of the evidentiary and decisional practices of the ICJ. It draws on a general concept of proof and a theory of bounded discretionary power, alongside a doctrinal analysis of sources of international law relevant to the ICJ’s procedural framework, to construct a conceptual framework for the standard of proof. The empirical component maps how the ICJ articulates and applies standards of proof through a quantitative review of judicial practice and in depth qualitative analysis of selected case studies. These case studies examine the Court’s application of ‘conclusive’ and ‘fully conclusive’ standards of proof in cases involving grave allegations, contrasted with the flexible and context-dependent requirement of ‘sufficient’ evidence standard in other types of cases. The thesis finds that the Court’s determination of the standard of proof is flexible and contextually adaptive, yet bounded by legal and institutional constraints. This evidentiary approach is shaped primarily by sensitivity to the interests and preferences of states appearing as parties before the Court, balancing sovereignty protection, reputational risks, and the imperative of legitimate and fair dispute settlement. Judicial restraint predominates in high stakes cases to safeguard state interests, while a degree of judicial pragmatism allows for greater flexibility in disputes involving less sensitive state interests. This dynamic is captured in the ‘open close’ model proposed by this thesis, which frames the Court’s discretion as expansive and flexible in its capacity to consider a broad range of legal, procedural, and normative factors (‘open’), yet one that remains bounded by a set of institutional constraints, state interests, and political sensitivities that limit its evidentiary decision-making (‘close’). This thesis offers a systematic framework clarifying the previously opaque evidentiary reasoning of the ICJ’s flexible yet bounded approach to the standard of proof, enabling more informed and critical engagement with its establishment of facts and broader evidentiary decision-making (Less)
Please use this url to cite or link to this publication:
https://lup.lub.lu.se/record/e5d68ffb-ebd4-47d2-9375-d50344309084
- author
- Bills, Amanda LU
- supervisor
-
- Lena Wahlberg LU
- Britta Sjöstedt LU
- opponent
-
- Professor de Brabandere, Eric, Leiden University
- organization
- publishing date
- 2025
- type
- Thesis
- publication status
- published
- subject
- keywords
- International procedural law, Internationell processrätt
- pages
- 301 pages
- publisher
- Lunds universitet, Media-Tryck
- defense location
- Pufendorfsalen, Lilla Gråbrödersgatan 3 C
- defense date
- 2025-09-25 10:00:00
- ISBN
- 978-91-8104-642-7
- 978-91-8104-643-4
- project
- The Standard of Proof at the ICJ: On Evidentiary Standards and Judicial Decision-Making at the International Court of Justice
- language
- English
- LU publication?
- yes
- id
- e5d68ffb-ebd4-47d2-9375-d50344309084
- date added to LUP
- 2025-08-20 14:31:47
- date last changed
- 2025-08-20 14:33:23
@phdthesis{e5d68ffb-ebd4-47d2-9375-d50344309084,
abstract = {{The standard of proof at the International Court of Justice (ICJ) is a central, yet underexplored, aspect of its judicial decision-making. Although central in shaping both fact-establishment and judicial outcomes, the articulation and application of the standard of proof by the Court are marked by inconsistency and a lack of transparent justification. This inconsistency is often linked to an assumed ‘flexibility’ in the Court’s evidentiary regime, the nature and extent of which have not been clearly delineated. This thesis combines doctrinal legal research with quantitative and qualitative analyses of the evidentiary and decisional practices of the ICJ. It draws on a general concept of proof and a theory of bounded discretionary power, alongside a doctrinal analysis of sources of international law relevant to the ICJ’s procedural framework, to construct a conceptual framework for the standard of proof. The empirical component maps how the ICJ articulates and applies standards of proof through a quantitative review of judicial practice and in depth qualitative analysis of selected case studies. These case studies examine the Court’s application of ‘conclusive’ and ‘fully conclusive’ standards of proof in cases involving grave allegations, contrasted with the flexible and context-dependent requirement of ‘sufficient’ evidence standard in other types of cases. The thesis finds that the Court’s determination of the standard of proof is flexible and contextually adaptive, yet bounded by legal and institutional constraints. This evidentiary approach is shaped primarily by sensitivity to the interests and preferences of states appearing as parties before the Court, balancing sovereignty protection, reputational risks, and the imperative of legitimate and fair dispute settlement. Judicial restraint predominates in high stakes cases to safeguard state interests, while a degree of judicial pragmatism allows for greater flexibility in disputes involving less sensitive state interests. This dynamic is captured in the ‘open close’ model proposed by this thesis, which frames the Court’s discretion as expansive and flexible in its capacity to consider a broad range of legal, procedural, and normative factors (‘open’), yet one that remains bounded by a set of institutional constraints, state interests, and political sensitivities that limit its evidentiary decision-making (‘close’). This thesis offers a systematic framework clarifying the previously opaque evidentiary reasoning of the ICJ’s flexible yet bounded approach to the standard of proof, enabling more informed and critical engagement with its establishment of facts and broader evidentiary decision-making}},
author = {{Bills, Amanda}},
isbn = {{978-91-8104-642-7}},
keywords = {{International procedural law; Internationell processrätt}},
language = {{eng}},
publisher = {{Lunds universitet, Media-Tryck}},
school = {{Lund University}},
title = {{The Standard of Proof at the ICJ : On Evidentiary Standards and Judicial Decision}},
year = {{2025}},
}