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December 22, 2016
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September 26, 2011
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Approved For Release 2011/09/26: CIA-RDP05TO2051 R000100150029-3 11 igs, proof is of .itigation. The affirmations be akes an allega- who denies it, ecessary to cre- ment has sub- dicted, is suffi- ase will not be vidence by the further eluci- the German- the claimant )f the proceed- [its who killed mant as it was the defendant was no lenity ies."'" In the said that "[i]n the Court can- lrs to argue, that cular time in the is concerned; has proceedings as a his alleged Prima L. Heald, Sept. 18, s 126, 130 (1928- (United States v. ;24; Johnson Case 406 (1868). in refusing in the Alin a la frontilrc, ownership of the -nerally impossible not readily find that the lines adopted in these circumstances by the 1935 Decree are not in accordance with the traditional Nor- wegian System."'" Judge Read in his Dissenting Opinion in the Asylum Case concluded that Colombia had "established consid- erably more than a prima facie case," and added: The question remains whether the third day of January has been proved to have been a time of political disturbance of a revolutionary character. This is a matter peculiarly within the knowledge of the territorial State, and, in my opinion, Colombia was not bound to establish more than a prima facie case. There can be no doubt that Colombia has discharged the burden of proof to this extent. On the other hand Peru has not furnished a scintilla of evidence with regard to the political conditions ob- taining in Lima at the beginning of January 1949-247 If the facts stated by the claimant Government are substantiated only by partial proof, judgment in its favor has been held war- ranted when the respondent Government could easily have re- butted such statements, if untrue, by submitting evidence within its control24" The United States Foreign Claims Settlement Com- mission, in dealing with Cuban cases, followed the practice of holding, "in the absence of evidence to the contrary," that prop- erty shown to have been owned in Cuba by claimants had been taken by Cuba pursuant to its nationalization decrees 24? Cheng, in his treatise General Principles of Law as Applied by International Courts and Tribunals, has stated the controlling principle aptly: In cases where proof of a fact presents extreme difficulty, a tri- bunal may thus be satisfied with less conclusive proof, i.e., prima facie evidence...: The inference in every case must, however, be one which can reasonably be drawn. The situation, as es- 246 (1959] I.C.J. at 140. 247 (1950] I.C.J. at 326-27. 24s De Lemos Case (Great Britain v. Venezuela), 1903, RALSTON'S REPORT (1904), 302, 319; Brun Case (France v. Venezuela), French-Venezuelan Mixed. Claims Com- mission, 1902, RALSTON'S REPORT (1906) 5, 25; Hatton Case (United States v. Mex- ico), 1923, OPINIONS 6-so (1929) ; Janin v. Etat allemand (Franco-German Mixed Arbitral Tribunal), i RECUEIL DES DECISIONS 774 (1922). 249 Floyd W. Auld, Dec. No. CU-2o, Nov. 23, 1966; Wallace and Catherine Tabor, Dec. No. CU-14, Oct. 26, 1966; The Schwarzenbach Huber Co., Dec No. CU-21, Jan. 13, 1967; Mary Pauline Seal, Dec. No. CU-125, Aug. 23, 1967, Ms COMM. RECORDS. Approved For Release 2011/09/26: CIA-RDP05TO2051 R000100150029-3 Approved For Release 2011/09/26: CIA-RDP05TO2051 R000100150029-3 E 174 EVIDENCE BEFORE INTERNATIONAL TRIBUNALS tablished by prima facie evidence, coupled with the adverse presumption arising from the nonproduction of available counter. evidence, is thus sufficient to create a moral conviction of the truth of an allegation.250 Section 37. Judgment by Default. Giving judgment by default against a State on account of its failure to appear before the tri- bunal is a more serious matter than making an award to one party on the basis of a prima facie case opposed only by meager evidence on behalf of the other party. The possibility of such action ap- pears to have been contemplated in arbitral agreements in but a few instances 251 No recent instance of such a provision has been found. The rules of the Mixed Arbitral Tribunals appear in some cases to have contemplated a judgment in the event of the failure of a party to appear 252 The agreement of April 20, 1-910, between Italy and Peru, submitting the Canevaro Case to arbitration, pro- vided that "should said documents, proofs, or briefs not be pre- sented within this period, an arbitral sentence shall be passed as if the same did not exist." 251 In Article IV of the Treaty of Ghent, December 24, 1814, between the United States and Great Britain, submitting to arbitration the question of the boundary in the Bay of Fundy, provision was made for a determination first by two commissioners, and in the event of their disagreement, of the ref- erence of the case to "some friendly sovereign or state" on the basis of the reports of the commissioners or on the report of one com- missioner together with the grounds upon which the other com- missioner shall "have refused, declined or omitted to act...." The Article concluded: 250 Supra, note 53, at 323, 325- 251 Convention for the Establishment of a Central American Court of justice, art. XV, 2 MALLOY, TREATIES 2402; Prize Court Convention of 1907, art. 40, 2 Am. J. INT'L L. Surf. 192 (1908). 252 See Franco-German Rules, art. 73, 1 RECUEIL DES DEcisiONS 54 (1922) ; Austria- Belgian Rules, art. 70, id. at 18o. For cases invoking such rules, see Bumillier v. Etat Allemand (Franco-German Tribunal), id., 3:38g, 390 (1923) ; Schreider v. Metenett (Franco-German Tribunal) id. 2:334 (1923) ; Deutsch-Sudamerikansche Bank et Office Allemand v. Vaquin et Schwertzer et Office Francais (Franco-German Tri- bunal) id., 8:140 (1929). 253 PROTOCOLES DES SEANCES Er SENTENCE 6 (1912). For similar provisions, see Alsop Case (United States v. Chile), 1909, 3 TREATIES, CONVENTIONS (Redmond) 2508; Yuille, Shortridge and Co. Case (Great Britain v. Portugal), 1861, sec. 3, DE LAPRADELLE & POLms, 2 RECUEIL 89, 9o (1923). 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