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Home International Tribunals Archive for category "Dissent"

The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

Published on July 7, 2017        Author: 

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative. Read the rest of this entry…

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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?

Read the rest of this entry…

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Trivia: Ad Hoc Judges in Agreement

Published on September 16, 2012        Author: 

Many international tribunals allow for States to appoint ad hoc judges in cases involving that State and where no national of the State is a judge on the Court. It is often said that these judges (and judges of the nationlity of parties)  vote in line with the State that has appointed them (or whose nationality they hold). This seems to be true in the majority of cases. However, it is worth nothing that (i) it is not true in all cases and (ii) in most cases the ad hoc judge votes together with the majority so it is perhaps not remarkable that they vote in favour of the appointing State.

However, this popular wisdom suggests that where there are two ad hoc judges appointed by opposing States in the case, the ad hoc judges will vote in opposite ways. This is probably true in the majority of cases, but it is not always true. This leads to my question:

In which cases before an international tribunal have ad hoc judges appointed by opposing States voted for the same result?

Obviously, I am including the International Court of Justice in the question but I would also include the International Tribunal for the Law of the Sea or any other tribunal in which opposing States can appoint ad hoc judges. I would also be prepared to accept as within the scope of my question cases in which an ad hoc judge appointed by one party voted for the same result as a judge of the nationality of the other party. Or even cases where judges that have the nationalities of opposing parties vote for the same result.

I realise that “voted for the same result” is a bit ambiguous. What I mean is that both ad hoc (or national) judges wanted the same outcome from the judgment. However, I don’t mean that both of them simply voted against the judgment because neither particularly liked it, though for different reasons. Also,  in cases where the tribunal’s dispositif may include several points, it is possible for ad hoc judges to agree on some of the minor points. What I really want to know is whether on core issues, the ad hoc judges have agreed.

I also have a follow up or bonus question:

Have ad hoc judges appointed by opposing States ever written a joint opinion with each other?

Read the rest of this entry…

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Cases in Which the ICJ/PCIJ Were Evenly Split

Published on September 10, 2012        Author: 

When I supplied an answer to my earlier trivia question on the ICJ case in which every judge appended an individual opinion, I asked a further question

In which other judgment (or opinion) has the ICJ or PCIJ been evenly split?

Remy was really quick off the mark in supplying the correct answers and identified that there had been two ICJ cases and one PCIJ case where the Court had been evenly split and the case was decided by the President’s casting vote.  In the ICJ era,  the  Nuclear Weapons Advisory Opinion (which was the answer to my first question) was the second case. The first was the very controversial decision of the ICJ in the South West Africa Cases (Ethiopia & Liberia v. South Africa), which was decided by the casting vote of Sir Percy Spender. In those cases, the ICJ held that Ethiopia and Liberia “cannot be considered to have established any legal right or  interest appertaining to them in the subject-matter of the present claims” – which concerned the observance by South Africa of its obligations under the Mandate for South West Africa (now Namibia).

This ripple effects of this decision were felt was for many years and in many ways – both institutionally and even in term of normative development of the law. African States turned away from the Court, in the 1970s and 80s,  largely as a result of this decision. Perhaps the International Tribunal for the Law of the Sea might not have been created had developing countries not been so dissatisfied with the ICJ. Sir Percy Spender was not re-elected to the Court and no Australian has been elected since (expect that to change soon!). Perhaps more importantly, the Court, in the Barcelona Traction case included the famous obiter dictum on the notion of erga omnes obligations. That dictum that was somewhat out of place in that decision. Perhaps, the Court included it as a way of overruling the decision in the South West Africa cases, implicitly. Just this year we have seen the first actual application of the erga omnes doctrine by the court in the Habre case (on which this earlier post by Joanna Harrington). A decision which shows how far we have come from the South West Africa cases

As Remy, Tamas and Thomas point out, the PCIJ was also evenly split in the Lotus Case [UPDATE: I forgot to mention that Daniel Wisehart also got it right. Apologies to him]. In that case, we had the “dissenting” judgment of 6 judges in which they rejected the passive personality principle (or “principle of protection” as they called it). The Corfu Channel Case (the ICJ’s first contentious case) was also mentioned but I don’t think the Court was evenly split at any stage of that case.

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