Following my previous question on the ICJ case in which every judge has written an individual opinion, I have a question dealing with the opposite phenomenon:
In which International Court of Justice case or advisory proceedings have none of the judges involved in the case, appended an individual (or joint) opinion to a judgment or opinion of the Court?
In other words, in the case(s) or proceedings in question, there was only a single judgment - the Judgment of the Court. No judge wrote a separate opinion, a dissenting opinion or a declaration? Just to be clear, I am asking only about individual or joint opinions appended to judgments by the Court. By judgment, I mean a judgment either on the merits or on a preliminary objection regarding jurisdition or admissibility. I also include advisory opinions. I exclude from the question orders on provisional measures or other procedural orders.It is quite common for there to be no individual opinions appended to orders on procedural matters. However, it is rare for the judges to be so restrained when it comes to judgments. Usually, one or more of them wishes to point out something that the Court’s judgment has not said or that they disagree with.
UPDATE: The answer I was looking for was indeed the Maritime Delimitation in the Black Sea (Romania v Ukraine) case (2009), which as far I know is the only “judgment” (in the sense used above) of the International Court of Justice which was not only reached unanimously but where no judge appended a separate opinion, dissenting opinion or declaration. Congratulations to Tamás Hoffmann.
But congratulations also to Daniel Wisehart who points out that there are several PCIJ cases that also fit this description. I have to confess I hadn’t looked into the PCIJ practice on this point. There was one case by the 3 judge Chamber of Special Procedure (which has not been used in the ICJ era) (see his comment below) relating to interpretation of a judgment – which does count as it is a case on the merits of that particular question. Daniel then goes on to make the make the point that between 1922 and 1930 there were several advisory opinions of the PCIJ (all reported in the PCIJ Series B) where no judge appended an individual opinion. In fact, the dominant practice in this period was to have the opinion of the Court without any individual opinions. However, this changed after 1930. From that point on, we see no more cases/opinions (reported in PCIJ Series A/B) without individual opinions or declarations. Daniel then says:
“What could be the reason for this. I would spontaneously guess that there could be two possible explanations. First, maybe the advisory opinions in the twenties were less politicized then today. This means they were really asked in order to get a legal answer – as it is done in France where the Conseil d’État advises the government on legal issues. Second, maybe the ”continental” background of judges in the Court made them more reluctant to append any declaration, since this practice derives from the common law system they were just not so familiar with it and did not want to weaken the authority of the Court. But this still would not explain why there was a shift in the thirties What do you think?”
A very interesting question indeed! Any answers by readers? Tamas had made some suggestions. Any other ideas? Read the rest of this entry…