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The International Court of Justice by Thirlway, Hugh

V The Decision, 12 Judges’ Separate and Dissenting Opinions

From: The International Court of Justice

Hugh Thirlway

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 30 March 2020

Subject(s):
Judges — Concurring, dissenting, separate, joint or individual opinions — Judgments

(p. 143) 12  Judges’ Separate and Dissenting Opinions

As indicated in Chapter 10, the decision of the Court is adopted by majority vote, the President of the Court (or the judge presiding in the case) having a casting vote in the event of a tie (Statute, Art. 55 para. 2). Although it is not specifically so stated in the Statute, it is understood that every judge who has participated in the case is under a legal duty to cast his vote on each of the questions stated in the operative clause of the decision: there is no possibility of abstention.1 Consistently with this, or in consequence, a judge who has dissented from a decision finding that the Court has jurisdiction over a particular dispute, if still sitting when the Court considers the merits, is obliged to examine the merits and cast his vote even though he may still be of the opinion that the Court is acting without jurisdiction.2

Under Article 57 of the Statute, every judge has the right to append to the decision an individual statement of his views; this is not an obligation, nor is there any reward other than intellectual satisfaction.3 The Article in fact refers simply to ‘a separate opinion’, but the practice of the two successive Courts has been that the judge entitles his opinion a ‘separate opinion’ if he agrees with the decision, or a ‘dissenting opinion’ if he does not.4 The non-statutory term ‘declaration’ is also used: according to the Rules of Court, this is intended for the situation where the judge ‘wishes to record his concurrence or dissent without stating his reasons’, but in practice it has come to be used as a sort of catch-all title for brief statements or opinions that are not clearly either the one thing or the other. The purpose of a declaration as stated in the Rules has in fact become obsolete: until 1978, the way in which a judge had voted would not become public unless he chose to attach such a statement (or an opinion); but the revised Rules of Court adopted in that year (p. 144) provided that in future the decision would indicate not only the numbers of the votes on each side, but also the names of the judges.5

Generally, the purpose of an opinion is indicated by the title given to it. A dissenting opinion indicates principally the reasons why the author of the opinion was unable to support the adoption of one or more of the operative clauses of the decision. The choice of a separate opinion generally indicates that its author voted in favour of the decision (or the relevant part of it), but would have wished the reasoning to be fuller or different, or for certain matters to be treated which the majority considered it unnecessary or inappropriate to go into. The more neutral term ‘declaration’ is often used when what is discussed is a minor matter or side-issue, or when the opinion is ‘in part dissenting’.6

As was well stated by Judge Higgins in the Oil Platforms case, ‘The function served by a separate or dissenting opinion is to allow a judge to explain why she or he disagrees with part or all of the dispositif or the reasoning. It is not the occasion for writing an alternative judgment.’7

Some judges treat the right of attaching an opinion as an excuse for publishing a lengthy discursus or lecture on some or all of the legal issues they see as raised in the case, sometimes duplicating the arguments employed in the decision without substantively adding anything useful, and sometimes ranging far and wide beyond the confines of the case. The practice was defended as long ago as 1961 by Fitzmaurice, who considered it justified for a judge in this way ‘to make general pronouncements of law and principle that may enrich and develop the law’, but he added ‘while not unduly straying outside the four corners of the case’.8 Whatever objections there may be of principle to this practice,9 it is understood to be unpopular with the other Members of the Court, in view of the extra time required for the preparation of such a document, and the consequent delay in the preparation and finalizing of the decision.10

(p. 145) The problem of the scope of judges’ opinions arose in an acute form as long ago as the South West Africa case in 1966. Since the Court was very divided, the controversial decision being adopted only by the President’s casting vote, numerous judges were anxious to indicate in opinions how they would have decided the merits. President Sir Percy Spender did not consider this a proper exercise of the right, and attached to the judgment a Declaration discussing the issue. Briefly, his view was that, while the right of attaching an opinion is ‘an important right which must be safeguarded’, it is not the case that ‘there are no limits to the scope and extent of the exercise of this right by any individual judge’.11 Citing the records of the drafting of the PCIJ Statute, and the views of President Huber, he considered that at least the ‘main purpose’ of the right was ‘to enable the view of the dissenting judge or judges on particular questions of law dealt with in the Court’s judgment to be seen side by side with the views of the Court on those questions’;12 the implication thus being that if the Court had seen fit to be silent on a point, then the judge was also bound to keep his views to himself. Spender noted that ‘if a dissenting judge is free to state his opinion on matters which are not directly connected with the Court’s judgment’, then so may a concurring judge in a separate opinion, which would lead to confusion ‘destructive of the Court’s authority’.13 In terms that seem to cover also opinions written as irrelevant pontifications (as described above), he concluded that ‘[t]‌he mere fact that a judgment (or opinion) of the Court has been given does not afford justification for an expression of views at large on matters which entirely exceed the limits and intended scope of the judgment (or opinion).’14 Subsequent practice has contradicted Spender on the specific issue of opinions on matters that, though they have been argued, the Court has decided it cannot or should not deal with; but there is much merit in his observations in relation to purely academic disquisitions entitled ‘opinions’. Unfortunately, it does not seem possible to regulate the matter by amending either the Rules or the Resolution Concerning the Internal Judicial Practice of the Court; too specific a restriction would be objectionable as fettering the right of a judge to indicate in what respects he disagrees (or agrees) with the judgment; and a mere recommendation would undoubtedly be ignored.(p. 146)

Footnotes:

1  See Ch. 10 sect. D, above. Nor would it be easy to evade the duty to participate, one way or the other, in the final vote. The Resolution Concerning the Internal Judicial Practice of the Court makes elaborate provision for the taking of the vote of a judge who ‘is otherwise in a fit condition to record his vote’, but unable ‘because of physical incapacity to attend the meeting’: Art. 9 para. (ii). There have, however, been cases in which it has simply been announced that judges had been unable to participate in a decision by reason of illness, e.g. President Lachs and Judge Dillard in the decisions on provisional measures in the Nuclear Tests cases (Public Sitting of 22 June 1973, Pleadings, 245).

2  See Ch. 10 sect. F.

3  Unlike in Homeric times, where the custom was to reward (with 2 talents of gold) the judge who best expounded the law: see Maine’s Ancient Law, 405, and Iliad, Σ‎. 497–508 (shield of Achilles).

4  These terms are not used in the English text of the Rules of Court, which refers to ‘his individual opinion’ (Art. 95 para. 2); the sentence is differently constructed in the French text, and does use the terms ‘son opinion individuelle ou dissidente’.

5  Interestingly, the legality of this change seems nowhere to have been questioned, even though it deprived each judge of the right (if it was a right) not to reveal which way he had voted. The practice of some national courts (e.g. the UK Supreme Court and Court of Appeal) is that every judge states whether he is or is not in favour of the decision, with as much in the way of opinion as he cares to add. Others (e.g. the French Cour de cassation) give a decision of the Court, with no indication of the distribution of votes.

6  Some opinions in the past have in fact carried the title ‘Separate opinion (in part dissenting) of Judge X’, but this indication is rarely used now.

7  [2003] ICJ Rep 233 para. 29.

8  ‘Hersch Lauterpacht—the Scholar as Judge’, 37 BYIL (1961) 14–15. See also the present writer’s study, ‘Judicial Activism and the International Court of Justice’, in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002), 75–105. The procedure has been defended by some judges, e.g. Judge Ammoun in Barcelona Traction [1970] ICJ Rep 287.

9  See e.g. the criticism of G. I. Hernández, The International Court and the Judicial Function (Oxford: Oxford University Press, 2014), 114–17, naming Judge Cançado Trindade in particular. The record for length of an opinion is probably still held by Judge Schwebel, whose dissent in Military and Paramilitary Activities runs to 379 pages of the Reports: [1986] ICJ Rep 259–527; but Judge Schwebel’s opinion is focused on the case (particularly the facts), and is not one of the irrelevant discourses offered by some judges in other cases.

10  At least theoretically, all Members of the Court should be able to read their colleagues’ opinions before the final vote on the decision, and in the language of their choice (cf. Resolution Concerning the Internal Judicial Practice of the Court, art. 7 (2)). In the modern practice, the translations of many of the opinions do not appear until some considerable time after the decision has been given (which is why the printed text of the decision is only then available). The translation and printing costs of lengthy opinions have a measurable effect on the Court’s budget.

11  [1966] ICJ Rep 52 para. 7.

12  [1966] ICJ Rep 53 para. 12.

13  [1966] ICJ Rep 54 paras. 19–20. This is an unexpected approach by a judge from a common-law tradition, in which it has long been the practice that every member of a multi-judge court may explain his reasons for his vote; as a result, there will be a majority (or even unanimity) as to what is decided, but there may be several different stated explanations why. Finding the ratio decidendi is then something of a puzzle.

14  [1966] ICJ Rep 55 para. 24.