For those working in the international judicial system and for the students of this discipline, “Evidence before the International Court of Justice” is a long-awaited and much overdue book. Although there are a number of earlier publications on the topic of evidence before international courts and tribunals, some better and more useful than others, there has never been a comprehensive study focusing on evidence before the International Court of Justice (ICJ). This may be surprising, considering that the ICJ is the principal judicial organ of the United Nations system and has been in existence for over six decades. Indeed, because this is the first comprehensive publication on the topic, the authors are almost guaranteed wide attention and readership.

Being the first to write so comprehensively on this topic, the authors have had the luxury, so to speak, of almost being able to define the field. They could choose which topics to discuss and in what level of detail. Happily, they adopted a wide and inclusive approach, providing a useful overview of a wide variety of issues and questions relating to evidence before the ICJ. The authors have also clearly attempted to be as thorough as possible in examining the past and present practice of the Court. In this sense, the book is an important empirical study, which offers a wealth of useful references. Although it is never possible to exclude the possibility that the authors may have missed an interesting issue or important obiter here or there, one gets the comforting sense of reading a solid peace of research, which covers the essential points and offers valuable detail. This book therefore provides a handy point of reference and it may soon come to be regarded as the first port of call for all questions relating to evidence before the ICJ. Before recommending this book as the standard reference, however, a few comments may be helpful in understanding what the book has to offer (and what not).

First, this is not a book about the law of evidence in the sense that this is normally understood. Indeed, the book is entitled “Evidence before the International Court of Justice”, but the authors might well have entitled their volume “Fact-finding by the International Court of Justice”, because this is the real subject of their study. Perhaps using such a title would have been preferable, because the book offers more than just a discussion of evidence rules. Indeed, it is one of the book's great strengths that the authors have tried to place the ICJ's fact-finding procedure within the overall legal context in which the Court operates. This helps the reader to understand why fact-finding by the ICJ is different from fact-finding by domestic courts and why it is sometimes difficult for the Court to develop clear rules or guidelines on proof and evidence. In fact, after having read the book, one realises that in reality there is very little hard law on evidence for the authors to discuss.

Instead, what we get from the authors is a rather detailed description of how the ICJ has dealt with questions of proof and evidence in different cases. The book is structured along the familiar lines of most works on the law of evidence and discusses the main issues of burden and standard of proof, admissibility, different types of evidence, etc. The text is based mainly on an analysis of the ICJ's decisions and therefore reflects the peculiarities and idiosyncrasies of the Court's practice. This sometimes leads to unexpected results. There is, for example, a surprisingly lengthy part dealing with maps and cartographic materials. The more than twenty pages devoted to this topic may seem like an inordinate amount of attention for what is, from an evidence law point of view, a minor issue. However, considering the relatively large number of border and maritime delimitation disputes handled by the ICJ, one readily understands the special significance this particular type of evidence has for the Court. By contrast, the part on testimonial evidence seems particularly short. For most students of the law of evidence, whose bread and butter usually consist of questions related to witness testimony, this may raise some eyebrows. But the international lawyer who is familiar with the ICJ's docket knows that this seemingly underdeveloped part of the study simply reflects the limited experience of the Court with testimonial evidence. Indeed, the ICJ has rarely heard witnesses in its 60 years of existence.

A second, more fundamental, remark is that “Evidence before the International Court of Justice” is a book with a purpose. One clearly gets the impression that one of the motivations behind this study of the British Institute for International and Comparative Law was to make a contribution towards the formation or consolidation of evidence rules before the ICJ. The authors seem to have been actively looking for rules, even when it is not always clear that there were any to discuss. In itself there is nothing wrong with this approach, but it creates a book with two layers – one objective and empirical, the other more programmatic – and it is not always clear which has the upper hand in the analysis.

To their great credit, the authors remain intellectually honest and on many occasions they admit that no binding rules have emerged yet. The authors candidly conclude that the Court's “consideration of fact-finding procedures and evidence has been fragmented, resulting in a body of rules which are very difficult to identity” (p.416). However, this conclusion betrays an underlying assumption on the part of the authors that there must be a set of rules, even if they are hard to uncover or have not fully crystallised yet. This assumption is less self-evident as it may seem. In fact, there are a number of reasons that militate in favour of at least questioning the assumption that more formal evidence rules before the ICJ are necessarily a good thing.

First, as the authors acknowledge, flexibility of fact-finding procedures is an essential requirement for the ICJ, considering the wide range of subject-matters it deals with. Adopting one set of rules may be suitable for a border dispute but would be wholly inadequate for a use of force case. Although states may wish to know in advance which rules the Court will apply in relation to fact-finding, each case has to be approached in a manner adjusted to the issues at stake and the available evidence. There is thus a real tension between the desire for more legal certainty and the need for flexibility. This paradox is perhaps the most fundamental question that must be addressed in any discussion of the fact-finding procedures of the ICJ. The authors clearly identify this paradox, but appear to have concluded that, despite the Court's (and States'!) desire for maximum flexibility, there is a need for more predictability and therefore more regulation. They propose to address the need for flexibility by allowing for the development of different sets of evidence rules, depending on the type of dispute. They even suggest that, before hearing a case on the merits, the Court should first analyse the factual questions raised by it and then decide which set of evidence rules it will apply.

Second, the proposition that there is a need for greater regulation of fact-finding is at odds with the fact that a number of the most important evidence scholars of the common law tradition have advocated for the abolishment of most evidence rules (cf. Jeremy Bentham and, more recently, Sir Rupert Cross). The authors also do not confront the argument, commonly accepted in the Romano-Germanic tradition, that all proof should be free and that it is perilous to regulate judicial fact-finding, as it is inherently casuistic. Given that this book seems to have something of an agenda – to contribute to the development of clearer evidence rules – this lack of theoretical argumentation in favour of more regulation might be somewhat surprising. It also undermines one of the concluding messages of the book, in which the authors voice an optimistic hope that a stronger role of the President of the Court may contribute to the development of a “common approach unique to the ICJ”. What that “common approach” would be under a president from the Romano-Germanic tradition, who adheres to the freedom of proof doctrine, remains unclear.

Which brings us to the last important comment to make about “Evidence before the International Court of Justice”: This is a book written by international lawyers for international lawyers. It is clearly not intended as a study for evidence scholars, and one will not find many reflections about evidence theory or comparative analysis. This observation is by no means intended as a critique of the authors. The ICJ procedure is a unique and self-contained system, which can and deserves to be studied in its own right. The authors rightly warn against attempts to evaluate the Court by way of analogy with domestic legal bodies, as this raises the risk of misconstruing the ICJ's particular role and special position in the international legal system. However, despite the fact that the ICJ procedure is sui generis and is expected to stand above the common law-civil law debate, the authors themselves identify the different legal background of the judges as one of three key contributing factors to the lack of a coherent and considered approach to evidence by the ICJ. It is difficult to disagree with this assertion, which makes it all the more regrettable that the authors did not discuss the question of the mixed procedural heritage of the Court more thoroughly.

The main strength of “Evidence before the International Court of Justice” thus lies first and foremost in its empirical analysis of the jurisprudence of the Court. This is a practical and well-structured volume, which no one working in the international judicial system can afford to ignore. It provides a snapshot of the ICJ's practice to date and offers many interesting insights. It also identifies the most important problems the Court faces in dealing with fact-finding. This is done with apparent sympathy for the Court, but without shying away from shining the light of criticism wherever this is necessary. Despite its iconic status and central role in the development of international law, the ICJ sometimes struggles with its fact-finding role and may on occasion get it wrong. Insofar as the authors wanted to spark a debate on these issues, they have provided the reader with a lot of interesting elements for further reflection. For that reason and for the reasons mentioned above, it is a work of great value and well worth reading.