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Home International Tribunals Ad Hoc Judges Trivia: Cases Where Judge Votes Against National State or Appointing Party

Trivia: Cases Where Judge Votes Against National State or Appointing Party

Published on September 20, 2012        Author: 

In international tribunals it is often the case that a judge will vote in favour of a State that appoints that particular judge or that a judge will vote in favour of their State of nationality where that State is involved in a case before the tribunal. Sometimes, the suggestion is made that these facts show that judges have some sort of bias in favour of their national State or in favour of the State or party that appointed them. This suggestion of bias might well be an overstatement given that, at least in the case of the ICJ, many times the national judge or ad hoc judge, though voting in favour of their own State or the State that apointed them, is also voting with the majority.

The case of Velkhiyev v. Russia, a decision of the European Court of Human Rights (from July 2011), is a very interesting one with regard to the question of how judges vote in cases involving their national State. In that case, the Court found by six votes to one that Russia had NOT violated Art. 3 of the European Convention on Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) with regard to 6 of the applicants in the case. The sole dissent on that question was Judge Anatoly Kovler the Russian judge! He would have found that Russia had violated that provision. So in this case, the judge voted against his State of nationality when the majority would have found in favour of that State. I suspect that this is very rare indeed. So my question today is:

Are there any cases when a judge in an international tribunal has voted against his or her national State or against the party that appointed him or her but where the majority of the tribunal would have found in favour of that State?

For these purposes I would define an international tribunal to include any tribunal in which at least one party to the case is a State. So I include mixed arbitrations, like investment treaty arbitrations. I have to confess that at the time of writing this question, I do not know the answer to it. I would very much like to be enlightened. Perhaps this sort of thing happens more regularly than I imagine it does. Answers in the comments box please!

Just to complete the story with the Velkhiyev v. Russia. The Chamber of the ECHR dealing with that case had, unanimously, found Russia in violation of Article 2 of the ECHR (right to life) and in violation of Art. 3 with regard to one applicant.

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6 Responses

  1. Locke Jaw

    Without checking the judgment itself, I believe Judge Anzilotti (Italy) did not join the majority in PCIJ Wimbledon case, which ruled against Germany. Italy was one of the applicants.

  2. Kirill Koroteev

    That’s not an exception in the European Court. Anatoli Kovler also voted against the majority and against the Russian State in Berladir and others, this time with Nina Vajic. Sir Nicholas Bratza often votes against the UK, for example.

  3. Richard H.

    Judge Anzilotti (Italy) voted against Italy in SS Wimbledon case, PCIJ.

  4. Wim Muller

    Judge Thomas Buergenthal (USA) voted with the majority and against the United States of America on the most important substantive findings in LaGrand (Germany v USA) and Avena (Mexico v USA).

  5. Tamás Hoffmann

    Another fascinating question! At the ECHR it seems that Judge Kovler finds Russia quite often in violation of the European Convention of Human Rights, even if his fellow judges do not think so.
    Apart from the Berladir case quoted above, he also found Russia alone in violation of Article 3 of the Convention in Velkhiyev and others (Judgment of 5 July 2011). I also have to add that the European Court of Human Rights is really remarkable among other international courts in passing mainly unanimous judgments, which means that national judges do generally find that their home country committed an international wrong.

    At the ITLOS, I couldn’t find a single case, in the PCIJ/ICJ jurisprudence it was only the Wimbledon case by Judge Anzilotti’s dissent. I can imagine that there are quite a few cases from courts of arbitration…

  6. Alex

    Although not squarely within the bounds of Dapo’s question, the positions of Judge ad hoc Gaja in the various stages of Jurisdictional Immunities of the State are noteworthy. He was the only dissenter with the Court’s 2011 Order permitting the intervention by Greece (here the position of Italy was not clear-cut, but it must have been in favour of Greece’s intervention!). Second, he voted with the majority in the 2010 Order rejecting Italy’s counterclaim (Judge Cancado only dissenter). Third, his dissent with the 2012 Judgment is confined to the Court’s treatment of the tort exception (implying that he was in agreement with the crucial findings on jus cogens, crimes, etc.).
    After all, Judge Gaja is a most authoritative descendant of Anzilotti’s “school”…