درخت حوزه‌های تخصصی

The International Court of Justice (ICJ) often faces criticism for allegedly exceeding its mandateby engaging in what some perceive as lawmaking. This debate, though not new, continues tospark significant scholarly discourse and is even echoed by some of its own judges. Althoughthe ICJ consistently denies having a lawmaking function, its practices demonstrate its role in thedevelopment of international law. This raises the question: How can the Court contribute to thedevelopment of international law, particularly in addressing gaps, if it lacks formal lawmakingcapacities? Are the criticisms of the Court exceeding its mandate valid? Existing literatureoften conflates ‘judicial legislation’ with ‘lawmaking’, creating a bottleneck in reasoning whichcausing scholars to necessarily conclude that the ICJ inevitably exceeds its judiciary mandate andengages in creating new laws. However, understanding the ICJ’s role in developing internationallaw and addressing gaps, despite its statutory limitations, requires distinguishing between ‘judicial legislation’ and ‘lawmaking’. While the latter involves creating new laws, ‘judiciallegislation’ refers to a method of interpretation for adapting existing laws and establishing newlegal relationships to address emerging legal requirements. This article goes further to identifywhich types of interpretation are most effective for such judicial legislation. By examining theapproaches of the UN International Law Commission (ILC), the article highlights ‘evolutiveinterpretation’ as a particularly suitable method. Evolutive interpretation enables the Court torejuvenate existing laws, clarify ambiguities, and develop legal frameworks for unregulatedissues – all while staying within its adjudicative-only mandate and avoiding lawmaking.

In the case of “Iran’s Foreign Military Sales” (Case B-1), which encompasses six claims and a counterclaim, proceedings have continued for over four decades. A focal point in the process of filing numerous applications and the rulings issued in this case has consistently been the issue of evidence and the burden of proof. This qualitative research aims to address the fundamental question of the approaches taken by the Iran-United States Claims Tribunal  regarding evidence and the burden of proof, as well as the implications of these approaches on the adjudication of Case B-1. The findings indicate that the Tribunal, in each case, has adhered not only to general legal principles - such as ‘actori incumbit onus probandi’ -but also to the unique circumstances and specific conditions of each case, such as the accessibility of evidence, in determining the allocation of the burden of proof. As the parties strive to substantiate the credibility of their evidence before the Tribunal using general principles of international law, which are potentially recognized as applicable law by the Tribunal, they also seek to undermine the credibility of the opposing party’s evidence through various arguments. It is essential for Iran to enhance its precision in referencing the submitted documents and to clarify the technical dimensions, as well as to ensure compliance with the Tribunal’s standards in future rulings, in order to achieve its objectives in other ongoing cases.