This chapter reviews the Working Group on Arbitrary Detention’s (WGAD) approach to issues of evidence and burdens of proof. It aims to provide a useful point of comparison with the UNTBs’ evidentiary procedures. The WGAD has developed an increasingly sophisticated approach to evidence, providing strong incentives for other decision-making bodies to take up its conclusions and procedures. In this chapter, the following arguments are substantiated: first, that the Working Group’s increasingly formalised and standardised approach to evidence reflects the maturing of the Working Group and its entrenchment in the ecosystem of human rights bodies; second, that its nuanced evidentiary approach can serve to enhance its credibility with states and claimants, in order to increase compliance rates; and third, its detailed approaches to evidentiary standards and challenges could provide precedents for UNTBs with individual claims mandates to follow a similar approach.

Over time, United Nations human rights treaty bodies (UNTBs) have developed an admissibility requirement that individuals’ allegations be ‘sufficiently substantiated’ or ‘not manifestly unfounded’. Explanations of these terms have varied, but States, treaty body members and scholars have equated them with a prima facie threshold. Among international tribunals, prima facie is commonly understood to require the complainant to make a plausible claim. However, review of UNTB decisions indicates that application of this requirement clashes with the accepted meaning of prima facie by: (1) often requiring the complainant to present convincing allegations; (2) taking into account – or giving greater weight to – the state’s arguments and evidence at the admissibility stage; and 3) sometimes requiring the complainant to pre-emptively overcome the state’s possible defences. This chapter seeks to identify relevant trends in order to both better understand current UNTB practice and illuminate paths to greater consistency and clarity in admissibility determinations.

This chapter addresses evidence-related recommendations for the consideration of the UN treaty bodies. Written by three practitioners from the civil society sector, with direct experience of the individual communication procedure before the UNTBs, it also benefited from input from all the contributors to the volume, which it concludes. Part I offers normative reflections. It deals with legal questions, including: What should the applicable standard be when determining human rights claims? How should this standard vary according to the type of claim and the stage of the proceedings? In what circumstances and under which conditions should the burden of proof be shifted from the complainant to the respondent state? Part II deals with organisational, and thus more mundane issues, but it highlights how proper identification and communication of the applicable evidentiary concepts and norms are essential to a transparent, accessible and fair system, therefore necessitating proper resourcing.

Failure to deliver a fair trial within a reasonable time is the most common violation found by the European Court of Human Rights (ECtHR) as almost half of all its judgments include a violation of Article 6. If the ECtHR were subject to its own jurisdiction, however, it, too, would be in violation of Article 6 in a sizable portion of its judgments. Therefore, both reports by the Court itself and academic literature have urged the Court to increase digitalisation and employ new technologies, including AI, in its procedures. Historically, the Court has employed an ambivalent approach to new technology, incorporating it in its caseload management, but insisting on the use of fax and physical mail in its communications with applicants. There are indicators, such as allowing electronic applications from Ukraine due to the suspension of physical mail during the war with Russia, that the Court may be abandoning this ambivalence. This chapter accounts for the current and potential use of AI at the ECtHR in each of the steps in its adjudication, evaluating the potential of existing AI technologies and the risks involved, considering the procedures and divisions of labour at the ECtHR.

Abstract: This chapter explores the procedural and substantive dimensions of compliance disputes before international courts (ICs), focusing on jurisdiction, admissibility, and available remedies. It considers consent to adjudication at the compliance stage and examines the legal bases for ICs to address claims of non-compliance with previous judgments. The chapter analyses objections to admissibility, including challenges based on res judicata, the absence of a meaningful dispute, and the lack of concrete legal effects, then discusses how ICs navigate these objections, employing procedural techniques and remedy escalation to address persistent non-compliance. This inquiry demonstrates the dual role of compliance adjudication: deterring breaches through authoritative declarations and enabling new remedies where prior rulings fail to lead to compliance. These mechanisms underscore the potential of compliance adjudication to enhance the enforceability of international obligations despite ICs’ inability to order the deployment of coercion against recalcitrant states.

This chapter considers the rules affecting confessions and admissions in civil and criminal proceedings. Parties can make admissions because a previous representation can constitute an admission before there is even any case. As a matter of terminology, in criminal proceedings admissions involve the defendant acknowledging only a limited aspect of the case against them, whereas a confession involves a full acknowledgement of guilt. Despite these technical differences, the term ‘admissions’ is used in the Act to cover both circumstances and therefore in this chapter for consistency.

The first issue this chapter addresses is whether the evidence adduced is in fact an admission. This is followed by an explanation of the statutory rules and cases pertaining to mandatory electronic recording of admissions. The chapter then considers the voluntariness and reliability requirements under ss 84 and 85. The types of statements and conduct that may amount to evidence of an admission in civil and criminal proceedings are explored. Finally, the unfairness discretion under the common law and the role of s 90 are considered.

This chapter addresses the concept of ’receivability’ of complaints to international administrative tribunals, encompassing requirements of both jurisdiction and admissibility. The analysis distinguishes between jurisdiction ratione personae (who can bring claims) and ratione materiae (subject matter), as well as procedural issues like exhaustion of remedies and time limits. By comparing statutory provisions and case law, the chapter identifies common practices across IATs, such as conditions under which non-staff personnel or former staff members may have standing. The chapter underscores how similar approaches have evolved among IATs despite varying statutory constraints.

Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

Chapter 5 on Admissibility delves into the factors determining whether a climate case can be heard in court. It presents a clear understanding of the criteria for admissibility and their potential implications on the trajectory of climate litigation. The chapter also delves into the interplay between domestic and international legal rules and norms and their influence on the criteria for admissibility. The author’s analysis reveals that a restrictive interpretation of admissibility criteria can present formidable access to justice barriers, particularly for those most impacted by climate change. In light of these challenges, the author’s distillation of emerging best practice highlights instances where courts and quasi-judicial bodies have interpreted admissibility criteria to ensure access to justice. Specifically, the chapter highlights cases where these bodies have considered human rights and justice imperatives in their admissibility decisions. These decisions highlight the potential for an inclusive and equitable approach to climate litigation, one that aligns with the global nature of the climate crisis and the urgent need for climate justice.

This title delves into the mechanisms and processes of international human rights litigation, focusing on the various judicial and quasi-judicial bodies that adjudicate human rights complaints. It examines the diversity of international complaints mechanisms, including regional human rights courts, such as the European Court of Human Rights, Inter-American Court of Human Rights, and African Court on Human and Peoples’ Rights, as well as nonjudicial bodies such as the Human Rights Committee and other treaty bodies. The section discusses the conditions of admissibility for international complaints, the procedures for examining claims, and the standards of proof and evidence. It also explores the role of provisional measures in protecting human rights during litigation and the challenges in enforcing international human rights decisions. By providing insights into the litigation process, this title highlights the importance of access to justice and the role of international bodies in holding states accountable for human rights violations.

Accession of the EU to the ECHR is again a realistic prospect after the 46 + 1 Group reached a deal in March 2023. This chapter answers the question as to what the potential impact of EU accession to the ECHR is from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. This chapter discusses the added value of accession showing how it fills two protection gaps while also contributing to coherence and legal certainty. It argues that actual substantive effects depend on the way in which the ECtHR will apply its case law vis-à-vis the EU, such as the margin of appreciation, positive obligations or locus standi, and access to justice. The second part of the chapter focuses on the procedural practicalities, including admissibility, the co-respondent mechanism, and the prior involvement procedure. The third part analyses how accession could remedy the gaps in judicial protection in the Common Foreign and Security Policy.

This chapter describes: the creation of the ICC; its main features (such as its jurisdiction and its rules for selecting cases); opposition and criticisms; and a brief assessment of its work, including its controversial and sometimes disappointing early efforts, and the challenges that the Court confronts. The chapter discusses the Court’s jurisdiction – including personal and territorial jurisdiction, temporal jurisdiction, and subject matter jurisdiction. It discusses the ‘trigger mechanisms’: State Party referrals (including self-referrals), Security Council referrals, and initiation by the Prosecutor. It explains preliminary examination, investigation, and prosecution, as well as the selection criteria of admissibility (complementarity and gravity), and the interests of justice. It discusses opposition to the ICC, including the criticisms from the United States and the African Union, as well as key developments, such as US attacks on the ICC and threats of withdrawal from the African Union. The chapter reviews the Court’s record, including problems of collapsed cases, slow proceedings, the early focus on Africa, and accusations of selectivity and bias, as well as recent indications of progress.

In the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court of the United States articulated the admissibility standard for expert evidence. In jurisdictions that have adopted the Daubert standard, trial court judges must make difficult decisions regarding the admissibility of proffered expert evidence. Although all federal courts and nearly all state courts use the Daubert standard, we know little about how judges fulfill their gatekeeping role when making admissibility decisions. This chapter reviews the empirical and theoretical considerations regarding how judges in Daubert jurisdictions determine which proffered expert evidence should be admitted. After reviewing the standards governing the admissibility of expert testimony, which includes a discussion of the Federal Rules of Evidence, Daubert, and related cases, the chapter provides a discussion of each Daubert criterion, including the available evidence relating to judges’ understanding of those criteria. It then discusses the heuristics and biases that affect judicial decision-making. The chapter concludes with a discussion of implications for practice and research.

Complaints procedures offer a unique opportunity for individuals and groups to have claims of human rights violations considered and their rights vindicated in a judicial or quasi-judicial procedure. On the one hand, for non-governmental organisations (NGOs) and human rights lawyers, complaints procedures are an important avenue to pursue strategic objectives, in addition to supporting victims in individual cases. States, on the other hand, may find themselves having to defend allegations of specific or systemic violations. Ideally, complaints procedures act as a mirror that provides an opportunity for states to bring their practices into conformity with the respective treaty. In practice, however, states often view unfavourable decisions as unwarranted criticism, which may create difficulties at the implementation stage. The treaty bodies themselves are in theory neutral arbiters that apply the treaty provisions and rules of procedures. However, inevitably, their position as bodies created by states, and relying on states’ cooperation on the one hand and seeking the effective protection of human rights on the other, raises a host of challenges in actual practice.

This chapter discusses how international courts operate, and how their jurisdiction is dependent on consent of states. It goes systematically through notions of jurisdiction, admissibility, interim measures, and compensation, ending with a discussion of advisory opinions and the possibilities for judicial review