Abstract This article examines recent developments relating to the use of third-party findings of fact at the International Court of Justice (ICJ). A proliferation of fact-finding mechanisms creates more opportunities for litigants to ask the ICJ to rely on third-party facts. This demands renewed attention to how the ICJ responds to this type of evidence, especially given the rise of public interest litigation that may depend especially heavily on such materials. The analysis focuses on the ICJ’s approach in recent requests for the indication of provisional measures and asks whether the Court’s approach to third-party evidence differs depending on the phase of litigation, using the 2024 judgment in Ukraine v. Russia as a case study. Ultimately, recent decisions suggest that the ICJ’s efforts to distinguish evidence generated through an adversarial, court-like process from findings of fact based on investigation and fieldwork are often blurred in practice. Moreover, while the Court’s liberal approach to third-party evidence at the provisional measures phase may be justifiable, the quest for coherence in how the Court approaches third-party evidence, especially on the merits, remains a work in progress. To that end, the article suggests ways in which the Court could engage more closely with third-party fact-finding reports in the fulfillment of its adjudicatory function.
Michael A. Becker (Wed,) studied this question.