Skip to main content Accessibility help
×
×
Home

‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice

  • Hemi Mistry (a1)

Abstract

Additional opinions (AOs) – dissenting opinions, separate opinions and declarations, whether authored individually or jointly – are a distinctive characteristic of the ICJ’s jurisprudence. Few decisions of the International Court of Justice (the Court, ICJ) are delivered without any additional opinion attached to it. Yet, despite their ubiquity, there is still significant disagreement as to their relationship to the authority of the Court and its decisions. Although this disagreement is commonly attributed to the different approaches and attitudes traditionally associated with the ‘civil law’ and ‘common law’ traditions, few ask specifically why those traditions take the approach they do, and even fewer consider the appropriateness of the extension of those attitudes to the ICJ, which of course is neither ‘civil law’ nor ‘common law’. In this article, using the work of Mirjan Damaška, I offer a contextually coherent and contextually contingent understand of the theory and practice of additional opinions at the ICJ upon which engagement with this practice – by judges, scholars and practitioners – can be premised. This effort to understand the relationship between additional opinions and institutional authority will, by its very nature, lead to a broader enquiry into the very nature of institutional authority at the ICJ. Having explained the importance of AOs to the structural integrity of the Court’s authority, I will close this article by highlighting the role of various stakeholders when engaging with that practice to ensure that their institutional function is discharged.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      ‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      ‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      ‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice
      Available formats
      ×

Copyright

Corresponding author

Footnotes

Hide All
*

Assistant Professor, School of Law, University of Nottingham. I thank Olympia Bekou, Edward Goodwin, Dino Kritsiotis and Marko Milanovic for comments on previous iterations of this work, and the two anonymous reviewers for their thoughtful and constructive comments.

Footnotes

References

Hide All

1 E. Root, Men and Policies: Addresses (1925), 400, reflecting upon the negotiations of the Advisory Committee for the drafting of the Statute of the Permanent Court of International Justice (PCIJ).

2 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-claims, Judgment of 6 November 2003, [2003] ICJ Rep. 161.

3 Kammerhofer, J., ‘Oil’s Well That Ends Well? Critical Comments on the Merits Judgement in the Oil Platforms Case’, (2004) 17 LJIL 695.

4 Ibid., at 716.

5 See Section 2.

6 See Section 5.

7 For explanation of this choice of nomenclature, see Section 2.1.

8 Undoubtedly, the most significant and nuanced account of the institutional function of additional opinions at the ICJ has been provided by G. Hernández, The International Court of Justice and the Judicial Function (2014), Ch. 4.

9 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, [1972] ICJ Rep. 46, at 116 (Judge De Castro, Separate Opinion); I. Hussain, Dissenting and Separate Opinions at the World Court (1984), 5–7, 263–4; F. Jhabvala, The Development and Scope of Individual Opinions in the International Court of Justice (1977); R. Kolb, The International Court of Justice (2013), 1012; Sluiter, G., ‘Unity and Division in Decision Making – The Law and Practice on Individual Opinions at the ICTY’, in Swart, B., Zahar, A. and Sluiter, G. (eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2011), 191, at 193; Dumbauld, E., ‘Dissenting Opinions in International Adjudication’, (1942) 90 University of Pennsylvania Law Review 929, at 929–34.

10 The civil law/common law dichotomy being a blunt comparative instrument even in the context of Western domestic legal systems alone, see Legrand, P., ‘The Same and Different’, in Legrand, P. and Munday, R. (eds.), Comparative Legal Studies: Traditions and Transitions (2003), 240, at 243–5; Örücü, E., ‘General View of “Legal Families” and of “Mixing Systems”’, in Örücü, E. and Nelken, D. (eds.), Comparative Law: A Handbook (2007), and generally, K. Zweigart and H. Kölz, An Introduction to Comparative Law (1998). On the matter of individual opinions there is no uniform approach across European civil law jurisdictions, with some – from the Napoleonic civil law tradition – maintaining a strict prohibition, whereas others from the Romano-Germanic tradition permit them in certain circumstances. For an overview of the approach of EU member states see R. Raffaelli, ‘Dissenting Opinions in the Supreme Courts of the Member States’ (2012), European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs – Legal Affairs, PE 462.470, available at www.europarl.europa.eu/RegData/etudes/etudes/join/2012/462470/IPOL-JURI_ET(2012)462470_EN.pdf.

11 Briefly considered by Hussain, supra note 9, at 7 and more so by Kolb, supra note 9, at 1012.

12 Kolb, supra note 9, at 1012–13.

13 Hussain, supra note 9, at 39 et seq.

14 M. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).

15 On the difference between ‘power’ and ‘authority’, see Section 2.2.

16 While many use ‘individual opinion’ to refer to both individually-authored and jointly-authored opinions on the basis that ‘individual’ can refer to the individuality of the authorship as distinct from the collective of the Court, ‘individual’ also describes the number of authors of the opinion (a single (individual) judge as opposed to multiple judges (joint opinion). Thus, for the avoidance of doubt and to the risk of confusion with the French-language label of separate opinions – opinion individuelle – I use ‘additional opinion’ unless otherwise specified.

17 The French version of the ICJ Statute refers to opinion individuelle, opinion dissidente, and déclaration.

18 Art. 57, ICJ Statute; Arts. 95(2) and 107(3), Rules of Court.

19 Or, more accurately in some cases, ‘cacaphonic’ nature.

20 On the current bench, the opinions of Judge Cançado Trindade would be a prime example of such opinions. Previously, Judge Alvarez held the view that it was necessary for at least one of the judges to provide an extensive review of all the legal issues raised by the case. See Corfu Channel (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, 39 (Judge Alvarez, Separate Opinion).

21 Oil Platforms, supra note 2, at 233, para. 29 (Judge Higgins, Separate Opinion); H. Thirlway, The International Court of Justice (2016), 145.

22 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6 (President Sir Percy Spender, Declaration).

24 See Fawcett, J., ‘The Function of the ICJ in the World Community’, (1972) 2 Georgia Journal of International Law 59, at 62; T.O. Elias, ‘Report on “Does the International Court of Justice, as it is Presently Shaped, Correspond to the Requirements which Follow from its Function as the Central Body of the International Community?”’, in Max Planck Institute for International and Comparative Law, Judicial Settlement of International Disputes: International Court of Justice, other Courts and Tribunals, Arbitration and Conciliation: An International Symposium (1974), at 31–2; Jhabvala, supra note 9.

25 A particularly robust critique of President Spender’s restrictive theory was offered by Judge Tanaka in Barcelona Traction, Light and Power Limited (Belgium v. Spain), Second Phase, Preliminary Objections, Judgment of 5 February 1970, [1970] ICJ Rep. 3 (Judge Tanaka, Separate Opinion).

26 On the ‘general’ understanding of the different types of opinions connoted by their label see Thirlway, supra note 21, at 144.

27 Although Arts. 95(2) and 107(3) of the ICJ Rules of Court suggest that the purpose of declarations is for bare statements of assent or dissent, it is common practice for judges to issue substantive, and sometimes lengthy, opinions under the label of ‘declaration’.

28 Even conceived so broadly, one could argue with this conception; with some of the most profound disagreements with the Court’s judgment found in AOs labelled as ‘declarations’. For example, see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep 136, at 240 (Judge Buergenthal, Declaration) for Judge Buergenthal’s ‘dissent’, contained in a self-styled Declaration. Similarly, the recent Joint Declaration by Judges Tomka, Gaja, and Gevorgian while ‘declaration’ in name, is in substance an explanation of why the authors were unable vote with the Court (something conventionally understood to be a dissenting opinion), see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for Provisional Measures, Order of 23 July 2018 (not yet published) (Judges Tomka, Gaja, and Gevorgian, Joint Declaration).

29 Fitzmaurice, G., ‘The Law and Procedure of the International Court of Justice: General Principles and Substantive Law’, (1950) 27 BYBIL 1, at 1–2; Hofmann, R. and Laubner, T., ‘Article 57’, in Zimmermann, A. et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), 1387–8.

30 Whereas within other courts and tribunals judges some judges have attempted to inject some nuance in their labelling choice by labelling their opinions as ‘partially dissenting and separate opinion’, judges at the ICJ have not taken this approach. Some judges have, however, issued multiple distinct opinions alongside the same judgment (either two individual opinions or contributing to a joint opinion in addition to an individual opinion). Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment of 11 September 1992, [1992] ICJ Rep. 350 (Judge Oda, Declaration; Judge Oda, Dissenting Opinion); Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, [1993] ICJ Rep. 38 (Vice-President Oda, Declaration; Vice-President Oda, Separate Opinion); Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Islas Portillos (Costa Rica v. Nicaragua), Judgment of 2 February 2018 (not yet published) (Judge ad hoc Al-Khasawneh, Dissenting Opinion; Judge ad hoc Al-Khasawneh, Declaration); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, [2016] ICJ Rep. 100 (Vice-President Yusuf, Judges Cançado-Trindade, Xue, Gaja, Bhandari, Robinson, and Judge ad hoc Brower, Joint Dissenting Opinion; Judge Gaja, Declaration; Judge Bhandari, Declaration; Judge Robinson, Declaration; Judge ad hoc Brower, Declaration); Construction of a Road in Costa Rica Along the San Juan River and Certain Activities Carried Out by Nicaragua in the Border Area (Nicaragua v. Costa Rica), Judgment of 16 December 2015, [2015] ICJ Rep. 665 (Judges Tomka, Greenwood Sebutinde and Judge ad hoc Dugard, Declaration; Judge ad hoc Dugard, Separate Opinion). While this a more recent development in the culture of judicial practice within the Court – the beginning of this current trend marked by Legality of the Use of Force, Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 1011 (Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby, Joint Declaration; Judge Higgins, Separate Opinion; Judge Kooijmans, Separate Opinion; Judge Elaraby, Separate Opinion) – it is not without historical precedent: See Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment of 12 April 1960, [1960] ICJ Rep. 6 (Judges Winiarski and Badawi-Pasha, Joint Dissenting Opinion; Judge Badawi-Pasha, Declaration) and Fisheries Jurisdiction (UK v. Iceland), Merits, Judgment of 25 July 1974, [1974] ICJ Rep. 3 (Judges Forster, Bengzon, Jiménez de Aréchaga, Nagendra Singh and Ruda, Joint Separate Opinion; Judge Nagendra Singh, Declaration) and in Fisheries Jurisdiction (Germany v. Iceland), Merits, Judgment of 25 July 1974, [1974] ICJ Rep. 175 (Judges Forster, Bengzon, Jiménez de Aréchaga, Nagendra Singh and Ruda, Joint Separate Opinion; Judge Nagendra Singh, Declaration).

31 Such factors include the order of priority attached to opinions with different labels when published in the Court’s official records (see G. Guyomar, Commentaire de Réglement de la Cour Internationale de Justice (1983), 610, cited by Guillaume, G., ‘Les Declarations Jointes aux Decisions de la Cour Internationale de Justice’, in Ruda, J. and Barea, C. Armas (eds.), Liber Amicorum ‘In Memoriam’ of Judge José Maríe Ruda (2000), 426–7.

32 Jennings, R., ‘The Collegiate Responsibility and the Authority of the International Court of Justice’, in Dinstein, Y. (ed.), International Law at a Time of Perplexity (1989), 348; Hernández, supra note 8, at 97.

33 The use of the language of ‘dissent’ can invoke the political connotations associated with that language, in turn influencing how the opinion, its author, and their relationship to the Court’s judgment is perceived. See Jennings, R., ‘The Internal Judicial Practice of the International Court of Justice’, (1988) 59 BYBIL 32, at 46, explaining how some judges avoid invoking the language of ‘dissent’ to describe their opinions; Guillaume, supra note 31, at 433, explaining how the author preferred to style their opinions as ‘declarations’ in order to avoid having to invoke the connotations associated with ‘dissenting’ and ‘separate’.

34 M. Weber, Economy and Society: An Outline of Interpretive Sociology (1978), vol. I, at 212 et seq.

35 Ibid., at 53.

36 Coicaud, J.-M., ‘Legitimacy, Across Borders and Over Time’, in Charlesworth, H. and Coicard, J.-M. (eds.), Faultlines of International Legitimacy (2010), 17.

38 Radsen, M., ‘Sociological Approaches to International Courts’, in Romano, C., Alter, K. and Shany, Y. (eds.), The Oxford Handbook of International Adjudication (2014), 389, at 392. See also S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989).

39 A useful review of the field can be found in Bodansky, D., ‘Legitimacy in International Law and International Relations’, in Dunoff, J. and Pollack, M.A. (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013).

40 Ibid., at 330.

43 See Section 5, infra.

44 Weber, supra note 34, at 241.

45 Belleau, M.-C. and Johnson, R., ‘I Beg to Differ: Interdisciplinary Questions About Law, Language and Dissent’, in Atkinson, L. and Majury, D. (eds.), Law, Mystery and the Humanities: Collected Essays (2008), 177.

46 Bodansky, supra note 39.

47 Art. 55(1), ICJ Statute.

48 Art. 56(2), ICJ Statute.

49 Art. 57, ICJ Statute.

50 PCIJ, Documents Concerning the Action Taken by the Council of the League of Nations under Art. 14 and the Adoption by the Assembly of the Statute of the Permanent Court (January 1921), at 24.

51 For discussion, see Hussain, supra note 9.

52 Kammerhofer, supra note 3, at 716.

53 ‘Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice’ (10/02/1944), (1945) 39 AJILS 1, at para. 81(a); T. Franck, Judging the World Court (1986), 11.

54 R. Falk, Reviving the World Court (1986); Highet, K., ‘Reflections on Jurisprudence for the “Third World”: The World Court, the “Big Case”, and the Future’, (1986–87) 27 Virginia Journal of International Law 287. Certainly, not all proceedings before the Court have the political sensitivity of, say, the South West Africa proceedings, the proceedings in Military and Paramilitary Activities in and Against Nicaragua, the cases emanating out of the conflicts in the former Yugoslavia, or the advisory opinions in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136. Nevertheless, all cases have differing degrees of political sensitivity to a wider or narrower class of interested stakeholders that will impact upon how the Court’s authority is perceived by those stakeholders in any given case.

55 Indeed, the judgment that prompted Kammerhofer’s critique of judicial practice (supra note 3) – Oil Platforms (supra note 2) – was accompanied by 11 opinions. More recently, the three judgments issued in the Obligations Concerning Negotiations Relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament proceedings brought by the Marshall Islands against Pakistan ([2016] ICJ Rep 552), India ([2016] ICJ Rep 225), and the United Kingdom ([2016] ICJ Rep 883) each had 14 individual opinions attached to the respective judgments, and Application on the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Merits, Judgment of 3 February 2015, [2015] ICJ Rep. 3 had 12 individual opinions attached.

56 Brennan, W., ‘In Defense of Dissents’, (1985–1986) 37 Hastings Law Journal 427, 430.

57 Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice (September 1920), Draft Scheme Prepared by the Committee Appointed by the Danish Government, at 209.

58 On the complex matter of compliance with ICJ judgments see generally C. Schulte, Compliance with Decisions of the International Court of Justice (2004); Paulson, C., ‘Compliance with Final Judgments of the International Court of Justice’, (2004) 98 AJIL 434; Llamzon, A., ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, (2007) 18 EJIL 815.

59 Art. 38(1)(d), ICJ Statute.

60 Going further, see Barcelona Traction case, supra note 25, at 64, para. 2 (Judge Fitzmaurice, Separate Opinion).

61 H. Lauterpacht, The Development of International Law by the International Court (1958).

62 The Court has been able to revisit its case law in some areas (e.g., maritime and territorial delimitation), resulting in the opportunity for routinization in those areas. In turn, the authoritative potential of articulations of law in such areas of law is greater.

63 In the context of the PCIJ/ICJ, see Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee (June–July 1920), at 531, 570, 591–2.

64 It can be manifested in different degrees and in different ways – from the complete anonymity of the identity of judges and the suppression of the publication of any information that may reveal their identity, to the suppression of the publication of information that may reveal the views of any individual judges, to on the other end of the spectrum, the suppression of any information that may reveal the content of the Court’s internal deliberations.

65 A. Bogdandy and I. Venzke, In Whose Name: A Public Law Theory of International Adjudication (2014), 159; Mégret, F., ‘International Judges’ and Experts’ Impartiality and the Problem of Past Declarations’, (2011) 10 LPICT 31, at 42; Shaman, J., ‘The Impartial Judge: Detachment or Passion’, (1995) 45 DePaul Law Review 610; J. Shklar, Legalism (1964); R. Mackenzie, C. Romano and P. Sands, Selecting International Judges: Principle, Process, and Politics (2010), at 10; Advisory Committee of Jurists, Documents Presented to the Committee Relating to the Existing Plans for the Establishment of a Permanent Court of International Justice (September 1920), Appendix to Memorandum Presented by the Legal Section of the Permanent Secretariat of the League of Nations, at 113.

66 Advisory Committee of Jurists Procès-Verbaux (1920), supra note 63, at 531, 570.

67 Ibid., at 743; Committee of Jurists on the Statute of the PCIJ (‘PCIJ Committee of Jurists’), Minutes (May 1929), at 50.

68 Neumann, T. and Simma, B., ‘Transparency in International Adjudication’, in Bianchi, A. and Peters, A. (eds.), Transparency in International Law (2013), 457.

69 French, D., ‘The Heroic Undertaking? The Separate and Dissenting Opinions of Judge Weeramantry during His Time on the Bench of the International Court of Justice’, (2006) 11 AYBIL 35, at 41, referring to Legality of Use of Force (Serbia and Montenegro v. Belgium) Request for the Indication of Provisional Measures, Order of 2 June 1999, [1999] ICJ Rep. 124 (Judge Weeramantry, Dissenting Opinion) and Nuclear Weapons Advisory Opinion supra note 54 (Judge Weeramantry, Dissenting Opinion).

70 Questioning the fullness of ‘collegiate discussion’ in the case at hand see Barcelona Traction case, supra note 25, at 86, para. 37 (Judge Fitzmaurice, Separate Opinion).

71 Damaška, supra note 14.

72 Ibid., at 19, 24.

73 On ‘legal transplants’ and the importance of systemic ‘fit’ see Nelken, D., ‘Towards a Sociology of Legal Transplantation’, in Nelken, D. and Feest, J. (eds.), Adapting Legal Cultures (2001), 7, at 14.

74 Damaška, supra note 14, at 18–23.

75 Ibid., at 21–3.

76 Ibid., at 21.

78 Ibid., at 20.

80 Ibid., at 19.

81 Indeed, it might be argued that within hierarchically-structured systems, beyond the courtroom individual judges do not possess authority as the expression of individual judicial power within those systems is not considered legitimate.

82 Damaška, supra note 14, at 24.

83 And this established and reputed experience and expertise may furnish the individual judge and their opinions with greater individual authority.

85 Ibid., at 28.

86 On the professional backgrounds of judges see Arts. 2 and 13(1), ICJ Statute. Mackenzie, Romano, and Sands, supra note 65, at 51; D. Terris, C. Romano and I. Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (2007), 20.

87 On the diversity requirements for the Court’s composition as a whole see Art. 9, ICJ Statute; Elias, supra note 24, at 23; Bedjaoui, M., ‘From an Oligarchic Law to a Law of Community’, in Bedjaoui, M. (ed.), International Law: Achievements and Prospects (1991), 511; A. Anghie, Imperialism, Sovereignty and the Marking of International Law (2007), 198; Abi-Saab, G., ‘The International Court as a World Court’, in Lowe, V. and Fitzmaurice, M. (eds.), Fifty Years of the International Court of Justice (1996); M. McWhinney, The World Court and the Contemporary Law-Making Process (1979); N. Singh, The Role and Record of the International Court of Justice (1989), 257.

88 Art. 31, ICJ Statute.

89 See Arts. 26 and 27, ICJ Statute.

90 It is undoubted that informal hierarchies may emerge and while there may be limited opportunities for career progression within the institution, the development of a reputation for consensus-building and ‘team-playing’ may be rewarded by appointments to other prestigious institutions or regimes.

91 Damaška, supra note 14, at 27.

92 For example, see Barcelona Traction case, supra note 25 (Judge Tanaka, Separate Opinion) and more recently, the recital made by Judge Cançado Trindade at the beginning of all his AOs in justification of the opinion that follows. E.g., Alleged Violation of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Request of Provisional Measures, Order of 3 October 2018 (not yet published), at para. 3 (Judge Cançado Trindade, Separate Opinion):

I feel thus obliged to leave on the records, in the present Separate Opinion, the identification of such issues and the foundations of my own personal position thereon. I do so, once again under the merciless pressure of time, moved by the sense of duty in the exercise of the international judicial function.

93 On the triumvirate of judicial independence, judicial transparency and judicial accountability see Dunoff, J. and Pollack, M., ‘The Judicial Trilemma’, (2017) 111 AJIL 225.

94 Paulus, A., ‘International Adjudication’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2010), 219–20.

95 See Hernández (supra note 8, at 124) who concludes that ‘the Court’s practice of publishing individual opinions is part of its claim for the wider authority of its judgments, not vis-à-vis the parties before it but with respect to the wider audience’.

96 Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12 (Vice-President Ammoun, Separate Opinion).

97 Ibid., at 85–7.

98 Some of which are collated in the following collection: A. Cançado Trindade, Judge Antonio A. Cançado Trindade. The Construction of a Humanized International Law: A Collection of Individual Opinions (1991–2013) (2015).

99 Oda, S., ‘Comments on the Report’, in Bowett, D. et al. (eds.), The ICJ: Process, Practice and Procedure (1997), 98; South West Africa case, supra note 22, at 262 (Judge Tanaka, Dissenting Opinion); and Judge Bedjaoui, writing extra-judicially, in Bedjaoui, M. (translated by Noble, B.), ‘The “Manufacture” of Judgments of the International Court of Justice’, (1991) 3 Pace Yearbook of International Law 29, at 58.

100 Kolb, supra note 9, at 1014; Petrén, S., ‘Forms of Expression of Judicial Activity’, in Gross, L. (ed.), The Future of the International Court of Justice (1976), vol. II.

101 Ibid.; I. Brownlie, Principles of Public International Law (2008), 24–5.

102 Observations of the International Court of Justice on the Report of the Joint Inspection Unit (05/12/1986), UN Doc. A/41/591, para. 8.

103 Fitzmaurice, supra note 29, at 1–2; expanded upon by Judge Jennings, supra note 33, at 352.

104 Bedjaoui, supra note 99, at 58.

105 Fitzmaurice, supra note 29, at 1–2; expanded upon by Judge Jennings, supra note 33, at 352, and Bedjaoui, supra note 99, at 58.

106 See Section 3.1, supra, on the Court’s interpretive authority.

107 PCIJ, Documents Concerning the Action Taken by the Council of the League of Nations under Article 14 and the Adoption by the Assembly of the Statute of the Permanent Court (January 1921) at 37, comments found in the Swedish Proposal and comments by Leon Bourgeois as the French representative to the Council of the League of Nations.

108 PCIJ Committee of Jurists, supra note 67, at 51, per Judge Politis.

109 M. Shahabuddeen, Precedent in the World Court (1996), 177 et seq.

110 J. Crawford, Brownlie’s Principles of Public International Law (2012), 40.

111 For example, Berman, F., ‘The International Court of Justice as an “Agent” of Legal Development’, in Tams, C. and Sloan, J. (eds.), The Development of International Law by the International Court of Justice (2013), 1213; Hoffmann and Laubner, supra note 29, at 1397. See also M. Manouvel, Les Opinions Séparées à la Cour Internationale: Un Instrument de Contrôle du Droit International Prétorien par les Etats (2005).

112 Kammerhofer, supra note 3, at 716.

113 An example from US constitutional law of an attempt to capitalize from the legitimizing value of consensus is the effort by Chief Justice Warren to ensure that the Supreme Court’s judgment in Brown v. Board of Education of Topeka, 347 US 483 (1954) was reached by consensus and without any AOs so as not to fuel the already deep political and social divisions within society on the matter of racial segregation.

114 K. Alter, The New Terrain of International Law (2014), 19.

115 Nuclear Weapons Advisory Opinion, supra note 54.

116 Matheson, M., ‘The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons’, (1997) 91 AJIL 417, 420.

117 Falk, R., ‘The Nuclear Weapons Advisory Opinion and the New Jurisprudence of Global Civil Society’, (1997) 7 Transnational Law and Contemporary Problems 333, at 343.

118 Even those judges who voted in favour of all the dispositive paragraphs used their AOs to express their dissatisfaction with it. Nuclear Weapons Advisory Opinion, supra note 54. Judge Ferrari Bravo explained his deep dissatisfaction and described the Court’s Opinion as ‘not very courageous’ (Judge Ferrari Bravo, Declaration, at 282) and Judge Herczegh described the Court’s Opinion as being ‘burdened with uncertainty and reluctance’ (Judge Herczegh, Declaration, at 275). Other judges, dissatisfied with the Court’s Opinion lay the blame not upon the Court itself, but rather upon the law it applied (Judge Vereshchetin, Declaration, at 280 and Judge Guillaume, Declaration, at 287).

119 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006), 597.

120 Ibid.

121 Ibid.

122 Guinier, L., ‘Demosprudence Through Dissent’, (2008) 122 HLR 4.

123 Mistry, H., ‘The Significance of Institutional Culture in Enhancing the Validity of International Criminal Tribunals’, (2017) 17 ICLR 703.

124 Ibid. at 719–21.

125 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 158–61 (Judge Lachs, Separate Opinion); at 158–61 (Judge Elias, Separate Opinion); at 313, para. 109, at 314–15, para. 115 (Judge Schwebel, Dissenting Opinion); at 528 (Judge Jennings, Dissenting Opinion).

126 See Section 3, supra.

127 Shany, Y. and Giladi, R., ‘The International Court of Justice’, in Shany, Y. (ed.), Assessing the Effectiveness of International Courts (2014), 185; Keith, K., ‘The International Court of Justice: Reflections on the Electoral Process’, (2010) 9 Chinese Journal of International Law 49, at 73–4. However, at the same time the degree to which the diversity requirements translate to substantive plurality and diversity of viewpoints in practice can be questioned. See Hernández, supra note 8, at 133; Abi-Saab, G., ‘The Newly Independent States and the Rules of International Law: An Outline’, (1962) 8 Howard Law Journal 95, at 100.

128 Judicial support for this, addressing specifically the role of the ad hoc judge, can be found at Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Further Requests for the Provision of Additional Measures, Order of 13 September 1993, [1993] ICJ Rep. 325, at 409 (Judge ad hoc Lauterpacht, Separate Opinion).

129 See Section 3.2, supra.

130 Which itself limits their potential as mechanisms by which to monitor judges’ ‘discursive inputs’. See above, text accompanying note 68.

131 On ‘judicial whistleblowing’ in another judicial context see Mistry, H., ‘The Paradox of Dissent: Judicial Dissent and the Projects of International Criminal Justice’, (2015) 13 JICJ 449.

132 PCIJ Committee of Jurists, supra note 67, at 52. The bigger point that the Court’s collective judgment drafting process ensures that each individual judge is ‘a guarantor of the others’ integrity’ is made by Hernández, supra note 8, at 106.

133 Art. 4, Resolution of Concerning the Internal Judicial Practice of the Court, adopted on 12 April 1976.

134 Belleau and Johnson, supra note 45, at 175; Scalia, A., ‘The Dissenting Opinion’, (1994) 19 Journal of Supreme Court History 33, at 41.

135 Fuld, S., ‘The-Voices-of-Dissent’, (1962) 62 Columbia Law Review 923, at 927; L’Heureux-Dubé, C., ‘The Dissenting Opinion: Voice of the Future?’, (2000) 38 Osgoode Hall Law Journal 495, 517. See also Hernández, supra note 8, at 113, on the broader point that a collective judgment drafting process ensures that each individual judge is ‘a guarantor of the others’ integrity’.

136 Thirlway, H., ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’, (2006) 5 Chinese Journal of International Law 15, at 19.

137 R. Bleiker, Popular Dissent, Agency and Global Politics (2000), 26.

138 See Section 2.1, supra.

139 Thirlway, supra note 21, at 144–5, particularly fn. 10. Note also the impact of such opinions on the Court’s budget. For judicial acknowledgement of these considerations, see Judge Cançado Trindade’s Separate Opinion in the Alleged Violation of the 1955 Treaty of Amity case, supra note 92.

140 Mégret, supra note 65.

141 Though, Gleider Hernández has observed some notable exceptions. See Hernández, supra note 8, at 113.

142 I would not go so far as to encourage the Court’s departure from its policy not to explicitly cite or refer to AOs (Hernández, supra note 8 at 113 (fn. 128) and A. Pellet, ‘Article 38’, in A. Zimmerman et al. (eds.), supra note 29, at 868–9) or to academic writing (Brownlie, supra note 101, at 24–5). While the policy obscures the degree of individual authority that judges have within the internal sphere, for the Court to endorse or even engage with individual opinions in its judgment would significantly strengthen the authority of both opinions and their authors.

143 Morgan-Foster, J., Pinzauti, G. and Webb, P., ‘The International Court of Justice in the Leiden Journal: A Retrospective’, (2017) 30 LJIL 571, at 576.

* Assistant Professor, School of Law, University of Nottingham. I thank Olympia Bekou, Edward Goodwin, Dino Kritsiotis and Marko Milanovic for comments on previous iterations of this work, and the two anonymous reviewers for their thoughtful and constructive comments.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Keywords

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed