Affording Oral Tradition Evidence Due Weight Before the International Court of Justice

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing the past. This Article then argues that, although oral traditions can provide reliable and relevant information, the Court’s general approach to assessing the probative value of evidence is based on sweeping generalizations concerning hearsay and other factors that, as applied, systematically encourage the undervaluation of all oral tradition evidence. This Article also advances that by denying oral tradition evidence due weight, the Court can hinder parties’ success on the merits. Grounded on the concepts of equity and the sound administration of justice, the Article ends with a call for the Court to reform its evidentiary practices so that oral tradition may be provided due weight. Starting from the position that oral tradition can have significant evidentiary weight, it proposes a flexible, culturally sensitive approach whereby the Court would assess each oral tradition submitted to it based on the infinitely variable circumstances that may surround such evidence.