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Home EJIL Analysis Trivia: NO Individual Opinions by Judges at the International Court of Justice – UPDATED

Trivia: NO Individual Opinions by Judges at the International Court of Justice – UPDATED

Published on September 9, 2012        Author: 

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?

Answers in the comments box below please.

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6 Responses

  1. Tamás Hoffmann

    That’s the really recent case of “Maritime delimitation in the Black Sea (Romania v Ukraine)”, in which the Court unanimously determined the maritime boundary between the respective countries. (Judgment of 3 February 2009)

  2. Daniel Wisehart

    Do you exclude judgments by the Permanent Court of International Justice?

  3. Dapo Akande Dapo Akande

    Daniel,

    I do not exclude PCIJ cases. Were there any such cases in the PCIJ in which no judge appended an individual opinion?

  4. Daniel Wisehart

    Dapo ,
    I cannot add any ICJ Cases besides the Maritime delimitation in the Black Sea (Romania v Ukraine) Case…

    However there are a couple of PCIJ cases that fit this description

    1. INTERPRETATION OF PARAGRAPH 4 OF THE ANNEX FOLLOWING
    ARTICLE 179 OF THE TREATY OF NEUILLY (Bulgary v. Greece), – although I am not perfectly sure whether this one counts since it not referred to as judgment but as interpretation and it was issued only issued by the chamber of summary procedure.

    2. From the Website of the PCIJI get the impression that that quite a few advisory opinion published in the Series B (http://www.icj-cij.org/pcij/series-a-b.php?p1=9&p2=3)were issued without any declarations, or individual/dissenting opinions. See e.g. German Settlers in Poland, Advisory Opinion of 10. December 1923; QUESTION OF THE MONASTERY OF SAINT-NAOUM, Advisory Opinion of 4. September 1925; JURISDICTION OF THE COURTS OF DANZIG Advisory Opinion of 3 March 1928;
    3. This seems to have changed in the thirties during the times of the AB Series (cf. http://www.icj-cij.org/pcij/series-a-b.php?p1=9&p2=3) where neither in contentious cases nor in advisory opinions unanimity could be achieved.
    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?

    Daniel

  5. Tamás Hoffmann

    This is really interesting. I haven’t checked out the PCIJ cases because Dapo’s original question referred to ICJ cases (i.e. apparently excluded PCIJ cases).

    However, having browsed through Spiermann’s great book on the PCIJ (see Ole Spiermann, International Legal Argument in the Permanent Court of International Justice. CUP, 2004) it seems that in the first 15 years of the PCIJ’s existence – especially under the presidency of Max Huber – judges made a huge effort to achieve unanimity, redacted and cut out parts of judgments which might have been controversial. Consequently, most of the advisory opinions and some of the cases as well were adopted without a dissent. It seems that judges sometimes circulated “personal dissenting opinions” among themselves. (We don’t have the official voting records in all cases, either…)

  6. Salamanca

    Just for the sake of the discussion (congratulations in any case for the two winners), I would like to add to qualified opinions to Daniel’s explanations:

    1. That Professor Charles de Visscher, who wrote somewhere in his classic “Théories et réalités en droit international public” that Judges sitting at the ICJ should avoid separate/dissenting opinions as much as possible in order not to undermine the integrity of the Court ( I have tried to look for the exact quotation but I can’t find it now, sorry).

    2. That of Prof. Cassese, during one of his lectures at the Geneva Academy of International Humanitarian Law and Human Rights: Dissenting opinions at any International court too often encapsulate the upcoming international law.