The International Convention on the Elimination of All Forms of Racial Discrimination is the oldest UN human rights treaty, and for over forty years, the Committee overseeing its implementation, CERD, has had the power to decide individual communications. Despite this long history, a settled evidentiary framework has not materialised yet. The Committee rarely discussed evidence, and when it did, the results could differ markedly: In Dawas and Shava v. Denmark (2012), a case on mob violence, the Committee did not directly engage with the evidence, which led to a resurfacing of evidentiary questions during the follow-up phase, when they could no longer be addressed. Far preferable is the approach adopted in Zapescu v. Moldova (2021), dealing with discriminatory employment practices, where the Committee discussed the standard of proof for procedural violations and the necessary evidence. More elaborations of this kind are needed for a clear evidentiary pathway to emerge.

This introductory chapter illustrates why evidence in the individual communications procedure of the United Nations human rights treaty bodies (UNTB) is an issue requiring reflection and clarification. The chapter firstly contextualises this central topic of this book by broadly introducing the UNTBs’ mandates, composition and ways of working, as well as some general features of their individual communications procedures. Indications are given of how this legal, institutional and procedural setting interacts with the handling of evidence by the UNTBs, as well as some of the key questions it raises. The chapter further outlines some of the particular research challenges encountered in tackling the questions at the heart of this book, and how they have been addressed. It then goes on to introduce the four-part structure of the book and its ten chapters, including the final chapter, containing recommendations. Finally, this introduction discusses cross-cutting themes which emerge from the contributions.

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.

The concept of ‘stereotypes’ refers to generalisations that are made about the behaviour adopted and/or the characteristics possessed by the members of a particular group. Involving presumptions about human actions and attributes, a stereotype provides ready-made narratives as to how and why some events unfold as they do. Thus, stereotypes, especially when they operate ‘undetected’, hamper an objective analysis of the factual situation. In the courtroom, they tend to have a polluting effect on the assessment of evidence, leading to relevant pieces of evidence being ignored, irrelevant circumstances being given weight, and higher standards of proof being imposed than would have been the case in their absence. This chapter focuses on the approach of the CEDAW Committee in examining the impact of gender stereotypes on the evaluation of evidence performed by domestic courts. It provides an in-depth analysis of the views adopted by the Committee in selected individual communications.

Over decades of reviewing individual communications, the Human Rights Committee (HRC) has developed greater consistency when shifting the evidentiary burden between the author and the state in its decisions on individual communications. The grounds on which this shift is made, including the nature of the allegations, the evidence used to corroborate the allegations, and the extent to which the state engages with the process, seem to impact the articulation of the shifted burden in certain cases. To effect this burden shift, the chapter explains that the HRC appears to follow three steps when assessing claims of a breach of the prohibition against torture: (1) the allegations must be corroborated by some level of evidence; (2) the HRC applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture.

Human rights violations often form part of a pattern or practice of violations, rather than being purely isolated incidents. This context is not consistently taken into account by UNTBs during individual case consideration, however. This chapter explores several ways in which awareness of human rights violations’ embeddedness in wider contexts of violations should inform UNTB practice. In particular, the chapter considers the impact, or potential impact, of patterns and practices of violations on the manner in which UNTBs receive information, and the sorts of sources they recognize in their decisions; on UNTBs approaches to the exhaustion of domestic remedies and the burden of proof; on case structuring; and on findings, recommendations and follow-up procedures. The chapter ends by observing that UNTBs are not only receivers but also key disseminators of information, and suggests ways in which their findings as to the patterns and practices of violations may be more effectively disseminated.

Pushbacks are designed to prevent people on the move from accessing procedural and/or substantive legal safeguards. States thus tend to deny practising them and actively erase evidence of their occurrence. The resulting acute evidentiary challenges in any subsequent human rights litigation require adjustments to be made to the evidentiary framework. This chapter offers a four-branch matrix of what can logically happen to facts disputed in litigation. It then proceeds to critically examine how evidentiary issues have been handled in UNTB pushback case law, concluding the right findings have been made, but on a generally weak reasoning. The chapter finally stresses that the burden of proof should be shifted from complainant to state when two conditions are met: a context-proven to a high standard, such that the state can be presumed to have violated human rights; the complaint is linked to this context – with this proven prima facie. If the linkage is evidenced to a higher standard, the factual allegations must be recognised as established on the strength of the evidence –without any shift being alluded to, so as to avoid an upward slippage in the purposefully low standard of proof applied.

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.

The criminal law comprises a state response to wrongdoing on the part of the population, proscribing conduct that lies outside of the normal expected conduct of citizens. As such, the criminal law seeks to regulate socially transgressive or unacceptable (criminal) behaviour.In providing a framework of rules to address these behaviours, the criminal law actually comprises two discrete branches: substantive criminal law and procedural criminal law. This chapter is divided into two main sections. Section 1.2 looks at the nature of the criminal law; its purposes, limits and sources. This part examines a number of important issues, such as the purposes of the criminal law, the legitimate limits on its scope and its sources. Section 1.3 examines the notion of criminal responsibility, looking at who may be held liable for a criminal offence and the principles that underlie the state’s obligations in proving an offence.

This Chapter examines whether and to what extent WTO members can be accountable for applying security measures before international adjudicators and how the invocation of security exceptions can impact the international courts’ or tribunals’ proceedings. The idea of balancing free trade and national security is bound to substantiate itself in a compression of the right to sovereignty, which can be assessed through the good faith review or the use of a necessity test. The investigation of the meaning and mechanisms of these tests and the scope of discretion that should be granted to the decisions of WTO members in their national security matters allows for establishing the framework for reviewing security exceptions.

Law students routinely forget that the legal tradition has been concerned with fact finding for centuries. The entire body of evidence law has evolved for two important purposes: ensuring that the evidence presented to a court is legally admissible; and ensuring that the evidence presented to the court is reliable so that the tribunal of fact is able to draw conclusions about whether or not an alleged fact existed in circumstances where the tribunal of fact has not witnessed the event for itself. Legal reasoning is empirically grounded and draws upon centuries of human experience in the examination of materials of this kind. With that in mind, principles from evidence law can be used to help us to think about facts as part of the analysis of a legal problem. Indeed, turning your mind to the rich body of evidence law is essential. It is not possible in a book like this to engage with evidence law in any detail. Evidence law in Australia is comprehensively examined by several authoritative authors, to which the reader is referred to for detail.

Remote work in Korea rapidly accelerated mainly with digitalization and covid-19, posing challenging issues for traditional labor law in this country. The practice of long working hours, and the crisis of the country’s low birth rate and aging population demand fundamental changes of working style. With the development of information and communication technology, traditional ways of direct command and supervision by employers seem to be reduced, while the discretion of workers expanded. However, technologies themselves also make possible more detailed direction by employers - even by the contractors of the employers. The character of the employment contract as a mutual contract presupposes fair distribution of obligation and responsibility. Changing situations surrounding working conditions such as remote work may encourage the re-distribution of responsibility. This chapter explores the impact of remote work on the employers’ responsibility from the standpoint of the response by Korean regulation and policies.

The focus of this book is the uniform Evidence Act (referred to throughout as ‘the Act’ or ‘the Acts’). The Act has not been introduced in Queensland, South Australia or Western Australia, where each state’s Evidence Act and the common law apply. However, the Act is still an important reference guide for those states due to the connection between the common law and the Act. Despite the differences between jurisdictions that have adopted the Act, there is a significant degree of uniformity. Accordingly, in this book, the provisions that are extracted to indicate the rules in relation to the Act come from the Commonwealth Act. Any important jurisdictional differences are separately identified.

This chapter considers the legislative history of evidence law and some fundamental introductory concepts that are used frequently in evidence law and the trial process. This chapter is an introductory overview; specific topics are dealt with in substance in subsequent chapters.

This chapter addresses the principle of non-discrimination within international administrative law. It examines how international administrative tribunals distinguish between types of discrimination—direct, indirect, positive, and negative—and outlines the allocation of the burden of proof in these cases. The chapter reviews grounds of discrimination, such as race, gender, nationality and place of residence, age, and disability. The jurisprudence spans a variety of contexts, including recruitment, salaries and financial entitlements, career progression, pension rights, and contract termination. The chapter also analyses the principle of equal pay for equal work, a cornerstone of the prohibition of discrimination, discussing its scope and limits. While many rulings reflect a high standard of scrutiny, some structural forms of discrimination persist within employer organisations, particularly concerning gender. The chapter concludes that, despite advancements, international administrative tribunals continue to play a crucial role in addressing and reducing discrimination through judicial oversight.

Human rights instruments in jurisdictions throughout the world assert the right to equality and non-discrimination. These principles lie at the heart of human rights. This chapter initially considers the meanings of equality and non-discrimination. It then examines equality and non-discrimination in the context of Article 14 of the ECHR. This includes an examination of direct and indirect discrimination and intersectionality. Examples from the Strasbourg jurisprudence illustrate the applicability of Article 14 ECHR to specific protected categories including race/ethnicity, religion, sex, gender, sexual orientation, gender identity, and sex characteristics. Article 14 ECHR and its influence in domestic UK law is analysed. The final section considers the UK Equality Act 2010 (EqA)and the complexities raised by competing equality claims. There are case studies concerning sexual orientation and religious belief, employment law, education and a discussion of the concept of ‘woman’ and ‘sex’ in the EqA as referring to a biological woman and biological sex.

This chapter explores three particular circumstances where integrity has been found to be breached in tennis, namely doping, match-fixing and other less serious offenses, such as failure to report or failure to cooperate. The chapter goes on to explain anti-doping jurisprudence in tennis, the nature of proceedings, the relevant burden of proof and the intricacies of “intent” and “fault,” as well as the standard of “no fault or negligence” and “no significant fault or negligence.” The section on anti-corruption examines match-fixing by athletes and third parties, and also by umpires and other officials, as well as the sanctions imposed under relevant rules. These offenses are typically associated with legitimate betting and may involve money laundering and other non-predicate offenses.

This chapter deals with ‘intime conviction’ and ‘beyond a reasonable doubt’ as ways in which fact-finders (professional judges or lay juries) in criminal trials decide on the question of guilt. The ‘beyond a reasonable doubt’ standard is typically associated with the Anglo-American system of criminal justice, whereas intime conviction is a characteristic feature of Continental procedural systems. Both standards belong to the phase of the evaluation and assessment of evidence in the criminal trial procedure. The chapter considers the way in which the two systems have converged on essentially the same standard of proof but have taken different paths towards it, with parallel discussions taking place along the way. The chapter discusses the definition of the ‘beyond a reasonable doubt’ standard in detail and introduces several important questions that have arisen around the two standards, such as those concerning definition and application of the standards, and how such issues have been resolved in the two different systems, and notes a few significant remaining differences.