The Law and Practice of International Courts and Tribunals 4 : 197–245, 2005 © 2005 Koninklijke Brill NV, Leiden, The Netherlands. THE ROLE OF PRESUMPTIONS IN INTERNATIONAL TRIBUNALS T HOMAS M. F RANCK * AND P ETER P ROWS ** I. M AY W E P RESUME ? O RIGINS OF AN I NQUIRY Our thinking about this subject has been triggered by what seems to us a counter-intuitive event in which one of the co-authors played a role. In 2002, the International Court of Justice (ICJ) decided a case involving a territorial dispute between Indonesia and Malaysia. 1 The subject of the dispute was two tiny islands off the east coast of Borneo: Pulau Ligitan and Pulau Sipadan. Relying on evidence of various marginal acts that appeared to display an element of purported sovereignty (effectivities), the Court decided the case in favor of Malaysia. Professor Franck, serving as a judge ad hoc in that case, urged the other judges to balance evidence of these effectivities against a proposed presumption that a line designated by treaty more than a century earlier to divide what were at that time vast Dutch and British colonial territories in Borneo, 2 ought
The Law & Practice of International Courts and Tribunals – Brill
Published: Jan 1, 2005
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