The Ugly Face of International Law in Practice

Authors

  • Allan Mukuki Strathmore University
  • Beatrice Kioko

Keywords:

Fraud, International Law, Evidence

Abstract

A purely theoretical understanding of International Law may preclude one from seeing the manner in which its practice is being abused. This paper examines the dark side of international legal practice, viz, when the practitioners have attempted to present the probative value of their claims by relying on false witness testimonies and documents. Further, it argues that the absence of a prescribed code of conduct complete with sanctions on counsels who do not honour it, have a negative impact on the procedural integrity and legitimacy of international courts. It examines the cases in which this has occurred and the consequences arising therefrom. Finally, this paper assesses the various approaches taken by the International Courts in relation to the presentation of fraudulent evidence by practitioners and offers suggestions on how better this could be handled.

References

Articles

Langbein, John H., "The Historical Foundations of the Law of Evidence: A View from the Ryder Sources" (1996). Faculty Scholarship Series

Moore, History and Digest, vol. II.

Weil B., Claim of Benjamin Weil no. 447 vs: Mexico award by the umpire of the United States & Mexican Claims Commission. Motion for rehearing, showing the fraudulent character of the claim, and declaration of the umpire in regard to it. An appeal to the sentiments of justice and equity of the United States. Published 1877 by Govt. Print. Off. in Mexico. Written in English p. 83-94

Books

J. Austen, Emma, reissue edn. (New York, NY: Bantam Classics, 1984),

W. Michael Reisman, Christina Skinner, Fraudulent Evidence before Public International Tribunals: The Dirty Stories of International Law, Cambridge University Press, Cambridge, 2014.

Case Law

Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, Diss. Op. Schwebel, p. 277.

Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986.

Claim of Benjamin Weil no. 447 vs: Mexico.

Claim of La Abra silver mining co No. 489. vs Mexico, Published 1877 by Govt. Print. Off. in Mexico. Written in English.

Continental Shelf, Tunisia v Libyan Arab Jamahiriya, Merits, Judgment, [1982] ICJ Rep 18, ICGJ 126 (ICJ 1982), 24th February 1982, International Court of Justice [ICJ], p. 93.

Corfu Channel Case (United Kingdom v. Albania); Merits, International Court of Justice (ICJ), 9 April 1949.

Hugh Lewis v. Mexico No. 653,1876.

John Mc. Mathi v Mexico No. 995, 1876.

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) International Court of Justice, 1994, ICJ, 112, Judgement, Merits.

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) [22] Lord Herbert, CJ for the High Court.

R v. Hardy (1794), p.2. Cross and Tapper on Evidence (12th Ed).

William F. Laird v. Mexico no 994, 1876.

International Documents

Code of Professional Conduct for counsel, ICC-ASP/4/Res.1.

IBA International Principles on Conduct for the Legal Profession, Adopted on 28th May 2011, by the International Bar Association.

Rules of the International Court of Justice, http://www.icj-cij.org/documents/index.php?pl=4&p2=38rp3=0

The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals; The Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, 2011.

National Documents

Advocates Act, CAP 16, available at http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2016 and the Law Society of Kenya Act, CAP 18, available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/LawSocietyofKenyaActCap18.pdf.

Law Society of Kenya Code of Ethics an Conduct for Advocates, January 2016, available at http://www.lsk.or.ke/Downloads/Code_of_Ethics_and_Conduct_for_Advocates.pdf

Other

ADM 1/22504, Minute from Hartley Shawcross, Attorney General, to Clement R. Attlee, Prime Minister (6 Nov. 1948); PREM 8/1312, Telegram from Foreign Office to Permanent United Kingdom Representative to the United Nations (11 Jan. 1947).

Treaties

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

Downloads

Published

2023-02-21