International Law Trivia Questions: Prize Offered! Individual Opinions by All Judges in an International Court of Justice Case – UPDATE WITH ANSWER AND FURTHER UPDATE

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UPDATE: See below for updates with answer to the question posed below and to the further question asked below.

At the end of 2011, I had a series of posts asking some trivia questions regarding the International Court of Justice and international judges in general (see here, here, here, here and here). There seemed to be some interest from readers so over the next few days I will pose a few more trivia questions about international tribunals that might be of interest to readers.

This time around we will be offering a prize. At least one reader who is able to provide the correct answers to all the trivia questions I will be asking over the next week or two will receive a free year long subscription to the European Journal of International Law.

Today, my question is:

In which ICJ case or cases has every judge on the court appended an individual opinion to the Court’s judgment?

By individual opinion, I mean either a separate opinion, a dissenting opinion or a declaration. The questions asks about cases where every judge has appended an opinion so I am including ad hoc judges as well.

Answers in the comments box below please.

UPDATE – THE ANSWER: – Many thanks to those who provided a response to my question. I thought this was perhaps an easy question to start off with and most of those who responded were on the right track. In the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996), each of the judges on the Court appended either a declaration, a separate opinion or a dissenting opinion. Thanks to Remy and Tamas for pointing this out.  The opinion in question is the one requested by the General Assembly, where the Court addressed the merits of the issue. In the similar request by the World Health Organization, where the Court declined jurisdiction, not every judge added an individual opinion.

Daniel gave as his answer, the Nuclear Tests Case (Australia v. France) (1974) and said that all 16 Judges appended separate or dissenting opinions or declarations in that case. Close but not close enough! Actually, there were only 15 Judges in that case and though 12 of them appended opinions, Judges Nagendra Singh, Ruda and Morozov did not. What may have confused Daniel is that if you count the list of names attached to the declarations, dissenting opinions and separate opinions there are 16 names. But there is double counting there. Some judges, in addition to appending a separate opinion or a dissenting opinion, ALSO appended a declaration to the Judgment. [I see now that Remy has made this point]. In any case, some of the opinions in that case were joint opinions and not individual opinion as my question asked. But perhaps that is a technicality and I would not hold that against the answer

This leads me to whether the Nuclear Weapons advisory opinion can be the right answer given that it was advisory proceedings and not a contentious case. I have to say that I did not intend to make this distinction. Perhaps it was sloppy of me to use the word “case” but I meant it in the same way as that word is used when we refer to proceedings before the Court. We say “contentious case” because there is an assumption that there can be another type of “case”.

So to my mind [which is the mind that matters for these purposes!], the Nuclear Weapons Advisory Opinion is the right answer! One of the interesting thing about that case is that the ICJ was evenly split 7 votes to 7 on the crucial paragraph of the dispositif (if that is what they are called in advisory opinions!), para. 2(E) of para. 105 of the opinion. In such a case, the President gets a casting vote, i.e, another vote. This leads to me another question:

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

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Remy Jorritsma says

September 4, 2012

That would be Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. Every single judge has appended either a declaration, a separate opinion, or a dissent, while none of the opinions or declarations where written jointly.

Daniel Wisehart says

September 4, 2012

It was the Nuclear Tests (Australia v. France), Judgement,
I.C.J. Reports 1974, p. 253. Here, all16 members (including the Australian ad hoc judge Sir Garfield Barwick) of the Court appended a dissenting opinion, separate opinion or declaration.

Hoffmann Tamás says

September 4, 2012

Yep, that's the Nuclear Weapons Advisory Opinion.

(Actually, how is this thing supposed to work? If only the first correct answer is acceptable, then only Remy Jorritsma has a chance to win. If you accept all the comments, then the latecomers basically don't have to do anything. Wouldn't it make more sense to e-mail the correct answers to you and in two weeks you could disclose the results?)

Joost says

September 4, 2012

None. Technically an advisory opinion is not a judgement.

jpaust says

September 5, 2012

Joost is correct re: Adv. Ops., and they are not "cases" either. So Daniel wins?

Joost says

September 5, 2012

Joost wins.

Remy Jorritsma says

September 6, 2012

AOs are not cases? That seems at odds with the website of the ICJ itself, which lists both contentious cases and AOs under the heading "cases" (e.g. list of all cases, pending cases, etc).

In any event, the Nuclear Test case that Daniel Wiseheart refers to involved 15 judges (incl. one ad hoc), of which only 12 appended a declaration or opinion. On the ICJ website you can see 16 names because 4 judges made both a declaration ánd a dissenting opinion.

Daniel Wisehart says

September 6, 2012

Thanks Apo for explaining this to me. I first thought the Legality of nuclear weapons opinion was wrong,because only fourteen judges appended an opinion there - however as I have found out in the meantime, there were only fourteen judges to decide the case.
This time I think I am correct since I only read this recently: It was the Lotus (France v. Turkey) Case were the PCIJ was evenly split and the president's casting vote left us with a highly problematic solution on the question of jurisdiction and international law we are still dealing with today....

Remy Jorritsma says

September 6, 2012

The president's casting vote was decisive in two ICJ cases, and in one PCIJ case:
- South West Africa (Ethiopia v. South Africa; Liberia v. South Africa, cases joined) (1966), ICJ Reports 6
- Legality of the Threat of Use of Nuclear Weapons (1996), ICJ Reports 226 (already mentioned)
- Lotus (France v. Turkey) (1927), PCIJ Series A, No. 10

Joost says

September 6, 2012

Dear all,

Even if the Court's advisory proceedings deal with "cases", an advisory opinion is still not a judgement. The Court's website itself makes the distinction. You may be qualified as a lawyer but I'm afraid not as a webmaster.



Rodrigo Bastos Raposo says

September 6, 2012

Congratulations! I'm not competing, but I'm following the trivia with interest, curiosity and amusement.
Best regards!

Tamás Hoffmann says

September 7, 2012

That's the famous SS Lotus case, decided by the casting vote of President Max Huber in 1927.

Thomaz Santos says

September 8, 2012

I was going to say the Lotus Case, but I wasn't absolutely sure.
And, if I'm not mistaken, the vote on the Corfu Channel case, in at least one issue, was very close, if not split.
But again, I'm not sure of any of my answers, so I'm not to be counted as a true competitor.