Introduction

In 1980 I delivered a paper called ‘Taking Facts Seriously’ which is quite well known but has made almost no impact. I think that the argument is both correct and important for our ideas and practice in academic law in respect of legal method, legal theory, the law of evidence, and legal education generally. Its fate reminds me of a dictum of Karl Llewellyn: ‘When Cicero made a speech, you said: “No mortal man is so eloquent”; when Demosthenes made a speech, you yelled: “WAR!!”. ’ It seems to have been a failure of advocacy.

The occasion for the original talk was the opening of a new law school building in Victoria, British Columbia; the context was a symposium on legal education; the audience consisted mainly of judges, senior practitioners, academic lawyers, and law students. There were probably no more than four or five specialists on evidence present. My thesis was that the subject of evidence, proof and fact-finding (EPF) deserves a more salient place in the discipline of law. The gist of the argument was that fact investigation, fact management, and argumentation about disputed questions of fact in legal contexts (not just in court) are as worthy of attention and as intellectually demanding as issues of interpretation and reasoning about questions of law. It was an argument about the importance of the study of facts in legal education and it was addressed to a general legal audience.

Introduction: two stories

This chapter links two stories, each with sub-plots. The first concerns one of the most famous cases in English legal history, the story of Edith Thompson and Frederick Bywaters, who were hanged in 1923 for the murder of Edith's husband, Percy. The second is the story of two scholars in different departments in the same institution who over several years had worked on the case and had each completed a substantial study before they learned of one another's interests. The first story is both a human tragedy and a historical mystery; the second exemplifies the fragmentation of learning and illustrates contrasting approaches to history by two scholars from different academic cultures. This chapter is a case-study of the methods of a jurist (William Twining) and a Shakespearean (René Weis) in approaching the question: Was Edith Thompson guilty of the murder of Percy Thompson? We shall start with the more modest tale.

The jurist's tale

Early in the 1970s I began to use original trial records as a vehicle for teaching evidence to undergraduate law students, first at the University of Warwick and later at the University of Miami. I was concerned with both the theory of proof in legal contexts and certain practical techniques of inferential reasoning, as part of what is known as the logic of proof. In particular, I was interested in how to construct and criticize complex arguments based on evidence in legal contexts.

The adoption of conference rules of procedure

The principles behind the adoption, by conferences, of their rules of procedure have generated very little debate at conferences, nor have they generated much academic discussion. This is remarkable as the issues involved touch on some fundamental principles of international law, including the process of formation of custom, treaty-making procedure and the role of tacit consent.

The independence of an international conference

An international conference of plenipotentiaries, unless it is a subsidiary organ of an international organisation, is an independent body. ‘No existing agency has the power to lay down rules of procedure or determine the competence and organisation of conferences in general.’ The Secretary-General of a conference convened by the League of Nations informed a delegation that:

Rosenne writes that: ‘The experience of the Convention on the Status of Refugees suggests that a Resolution of the General Assembly, whatever its persuasive value, cannot bind an ad hoc diplomatic conference, which has an autonomous existence of its own and is, in the words of a representative of the Secretary-General, a “sovereign body”.’ A recent comment on this issue is that “the relationship with the international organization does not prevent such conferences of disposing freely, and in an autonomous and final way, of the task entrusted to them”.

Adjournment of debate

The UNGA rules of procedure state:

The UN Model Rules propose:

Effect of adjourning the debate

Motions to adjourn the debate are normally adopted sine die, that is without deciding on a time for renewal, and such motions result in the termination of discussion and the prevention of voting on the issue concerned. A motion to adjourn the debate differs from a motion to close the debate in that a motion to ‘close’ terminates discussion and authorises the meeting to proceed immediately to a vote. A motion to adjourn prevents both debate and voting.

Development of conference rules of procedure

Sohn points out that at the 1868 Geneva Conference ‘a distinction seems to have been made for the first time between matters of substance and questions of procedure’. The Congress of Berlin of 1878 however is usually regarded as the first conference where a clear distinction was made between decisions on substance and those of procedure. It was there that Bismarck declared:

Despite these two examples and additional cases of adoption of ad hoc procedural decisions, Pastuhov writes that it ‘was not the practice of diplomatic conferences held prior to the twentieth century to adopt formal rules of procedure for conducting their business’. Although the First Hague Conference of 1899 voted on procedural issues, it did not have a formal set of rules of procedure; the first conference with a formal set of rules of procedure appears to have been the Second Hague Conference of 1907. The rules of the Second Hague Conference consisted of twelve short articles dealing with the structure and organisation. Only two of the articles dealt with the process of conduct of business and voting.

Invitation and participation

Who issues the invitations?

In his classic book on the Congress of Vienna, Harold Nicolson writes that: ‘The first two problems which face any international Conference are “Who is to issue the invitations?” and “Who is to be invited?”.’

Where an individual State convenes a conference, it is that State which issues the invitations. Nowadays however, most conferences are convened by the UN or by other international organisations and it is these organisations that issue the invitations. The European Community has also convened UN conferences.

Participation of States

Law-making conferences are open to participation by all States. The only recent exception was the 1997 Oslo Mine Ban Conference where participation was limited to those States that had agreed in advance to the principles of the anti-personnel mine ban, set out in the ‘Brussels Declaration’.

An early application of the principle of universality concerned the invitations issued to the 1899 Hague Peace Conference, which were addressed to the representatives of all the Powers of Europe, America and Asia represented at St Petersburg. Issuing such invitations was intended to allow what was regarded at the time as universal participation. During the early years of the UN, the criterion for invitation to conferences was the so-called ‘1949 Vienna’ formula, namely inviting States that were members of the UN, or of a UN specialised agency, or parties to the Statute of the International Court of Justice.

Languages of the conference

Official languages

The UN Model Rules propose:

The UN Model Rules generally follow UNGA practice.

The number of official languages of conferences has been steadily increasing from the original French-only of nineteenth- and early twentieth-century conferences. Both French and English were official languages of the 1919 Paris Peace Conference and the League of Nations, then English, French and Russian were recognised at the 1946 Paris Peace Conference.

Order of voting on proposals

A study of records of international conferences reveals that more time is devoted to debating the order of voting on proposals and amendments than to any other single procedural issue. Delegations will attempt to achieve priority for their proposal as there are obvious advantages to the proposers if a proposal is voted on before an opposing one. This is particularly true when there are similarities between two different proposals and either one of them is likely to attract floating or neutral votes. In such a case, either proposal is likely to get a majority and once the one proposal is accepted, the other alternative is likely to fall. It is therefore often the order in which proposals are put to the vote that determines which proposal will be adopted.

The rules of procedure of the UNGA stipulate:

The UN Model Rules propose:

Quorum

The UNGA rules of procedure, for the Plenary, state:

Regarding meetings of UNGA committees, the rule is:

The UN Model Rules propose the following rule for the issue of a quorum:

The distinction between the quorum necessary for debates and that necessary for voting was introduced in 1949 by the Special Committee on Methods and Procedures of the General Assembly. The proposal was adopted, despite the fact that during the debate on the report in the Sixth Committee, several delegations argued that the proposal was undesirable as it would enable delegations to vote without their having been present during the debate.

Defining consensus

The UNGA rules of procedure do not refer to consensus. The UN Model Rules propose:

Decision making by consensus is a fairly recent innovation in the procedure of international conferences and there is, as yet, no clear agreement as to its significance.

Skubiszewski refers to three meanings of consensus:

1. Means of adopting a resolution.

2. A kind of agreement, often loosely formulated, which concludes the deliberations, usually conducted in an organ or by a conference.

3. Consensus is said to perform the role of a law formative agency other than custom or treaty.

The present analysis centres on the first meaning, namely ‘means of adopting a resolution’.

In order to avoid voting, and thus raising the issue of States that were in arrears, the UNGA, at its Nineteenth Session, adopted a ‘no objection’ system described by Plant as being ‘tantamount to unanimity’. The system was in reality decision making by consensus and the President of the session explicitly referred to the fact that ‘decisions were taken on the basis of a non-voting consensus’.

Committees

Each conference determines its own needs for committees, although in treaty-making conferences, a credentials committee, a drafting committee and a general or steering committee are always among the committees appointed. The large size of international conferences requires that the conference set up main committees to carry out the task of preparing texts or resolutions. The practice of conferences appointing a committee of the whole, composed of the plenary, has become less common.

Pastuhov commented in 1945 that, according to custom, ‘all delegations are entitled to be represented on each main committee of an international conference’, and this custom remains valid.

Procedure of committees

Most rules of procedure stipulate that, with some exceptions, the rules applicable to the plenary apply to committees mutatis mutandis. The exceptions are usually that the quorum for opening a meeting is smaller than that required in plenary meetings; all decisions are taken by majority vote and a two-thirds majority is required only for reconsideration of an issue; and the chairmen can participate in the voting.

Relations between committees and plenary

At a 1989 meeting of the General Conference of the IAEA, the Legal Adviser was asked whether a proposal not approved by the Committee of the Whole could nevertheless be subject to a vote in the Plenary. The Legal Adviser gave his opinion that the ‘plenary, as master of its own procedure, could consider any proposal’ subject to the rules of procedure concerning notice of submission of proposals.

Withdrawal of motions

The UNGA rules of procedure state:

The UN Model Rules propose:

Neither the rules of procedure of the Assembly of the League of Nations nor those prepared by the Preparatory Commission of the United Nations contain any rule as to the withdrawal of motions. However, subsequent conferences follow the rules of the UNGA in allowing for withdrawal of motions provided that the motion has not been amended. A motion thus withdrawn may be reintroduced by any delegation.

Withdrawal of a motion adopted by a committee

If a proposal has been adopted by a committee, then it can no longer be withdrawn by its original sponsors.

Withdrawal of part of a motion

The UNGA rule refers to withdrawal of a ‘motion’.