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Individual Opinions Under the New Rules of Court

Published online by Cambridge University Press:  27 February 2017

Farrokh Jhabvala
Farrokh Jhabvala*
Affiliation:
Florida International University, Miami, Florida
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Notes and Comments
Information
American Journal of International Law , Volume 73 , Issue 4 , October 1979 , pp. 661 - 668
Copyright
Copyright © American Society of International Law 1979

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References

1 Rules of Court, adopted on April 14, 1978, in International Court of Justice, Acts and Documents Concerning the Organization of the Court, No. 4, at 153, 161 (1978) (emphasis added), reprinted infra at p. 748 and in 17 ILM 1286 (1978).

2 See Jhabvala, , Declarations by Judges of the International Court of Justice , 72 AJIL 830 (1978)CrossRefGoogle Scholar.

3 An identical provision is required of advisory opinions by the second paragraph of Article 107; Rules of Court, supra note 1, at 161; infra at p. 782. The discussion that follows is conducted in terms of the Court’s contentious jurisdiction but is equally relevant for, and applicable to, its advisory proceedings.

It is worth noting that Article 107 of the new Rules does not have a counterpart in previous sets of Rules. The amended Rules of 1972 simply provided in a broad manner that the Court “shall also be guided by the provisions of the Rules which apply in contentious cases to the extent to which it recognizes them to be applicable.” Article 87(1), Rules of Court, adopted on 6 May 1946 as amended on 10 May 1972, in Acts and Documents Concerning the Organization of the Court, No. 2, at 30 (1972).

4 Rules of Court, 1946, as amended 1972, supra note 3, at 28.

5 Presumably, this provision does not apply to the Court’s orders, which are mentioned only in the second paragraph of Article 95; see infra pp. 667-68.

6 The Proceedings of the Hague Peace Conference 149 (trans, supervised by J. B. Scott, 1920). The idea of the separate concurring opinion was introduced into international tribunal procedure some years after the institution of the Permanent Court of International Justice.

7 Id. at 204.

8 Acts and Documents Concerning the Organization of the Court, PCIJ ser. D, Add. to No. 2, at 5 (1926).

9 Id. at 272. See also Rosenne, , The Composition of the Court , in The Future of the International Court of Justice 425 (Gross, L. ed., 1976)Google Scholar.

10 PCIJ, Acts and Documents, supra note 8, at 208, 212, 221. The 1920 Statute of the Permanent Court made no reference to its advisory function and the Court had to fill this gap through its Rules. Judges Loder and Weiss also fought against allowing individual opinions in advisory cases. Id. at 194, 284-85. Their proposal to abolish individual opinions in advisory cases was rejected by the PCIJ. On the question of “schools” of international law, see Lauterpacht, H., The So-Called Anglo- American and Continental Schools of Thought in International Law , 12 Brit. Y.B. Int’l L. 31 (1931)Google Scholar.

11 PCIJ, Acts and Documents, supra note 8, at 215-17.

12 Thus, the Drafting [Sub] Committee of the 1920 Advisory Committee of Jurists recommended that dissenting judges be entitled to have their opinions published along with the majority decision but that this right not be made available to national judges. The governing rationale, expressed most succinctly by de Lapradelle, was that “a national judge would always record his disapproval of a sentence unfavorable to his country.” PCIJ Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee 531, 570 (1920).

13 Ro, Suh II, Voting Behavior of National Judges in International Courts , 63 AJIL 230 (1969)Google Scholar. Also according to expectation, ad hoc judges were far more reluctant than regular judges to vote against national state positions: by 1967 only 11 votes had been cast by ad hoc judges against the position of their appointing state, whereas 25 votes had been cast by regular judges against national state positions. Furthermore, Suh reports that only once “was a regular judge the only dissenter in favor of his government, compared with ten such cases for the ad hoc judges.” Id. at 230. The reference, presumably, is to the sole dissent of Judge Count Rostworowski in the Advisory Opinion on Access to German Minority Schools in Polish Upper Silesia, [1931] PCIJ ser. A/B, No. 40. Since 1968 there has been one more case, Barcelona Traction, in which the ad hoc judge was the sole dissenter in favor of his state.

14 Since 1968 the International Court has given 9 judgments and 3 advisory opinions in which national judges cast a total of 25 votes—12 by regular judges and 13 by ad hoc judges. In no case did a national judge vote against the national state position or against a Court decision favorable to the national state. There were no national judges in the Namibia and Fasla Advisory Opinions. In 6 contentious cases, the Fisheries Jurisdiction and Nuclear Tests cases, the respondent state refused to appear before the Court or participate in the proceedings.

15 The individual statements accounted for here include individual and joint statements which may have been dissenting, concurring, or mere declarations.

16 Fully 75% (139 of 185) of the orders made by die International Court in die years 1947 to 1977 deal exclusively with time limits. Article 48 of the PCIJ Statute similarly required that Court to make orders related to the conduct of the case. Nonetheless, both Courts have made orders that do not necessarily relate to the “conduct of the case” as such. A report of the PCIJ acknowledged as much. See 8 PCIJ ANN. R. (ser. E), para. 3, note 1, at 266-67 (1931-1932).

17 See Jhabvala, supra note 2, for a parallel development of “declarations.”

18 6 PCIJ Ann. R. (ser. E) 295 (1929-1930) (emphasis added). See also Order of 19 August 1929, PCIJ ser. A, No. 22.

19 Order of 6 December 1930, PCIJ ser. A, No. 24.

20 7 PCIJ Ann. R. (ser. E) 297 (1930-1931) (emphasis added).

21 8 PCIJ Ann. R., supra note 16, at 267. See also [1931] PCIJ ser. A/R, No. 41, at 88.

22 10 PCIJ Ann. R. (ser. E) 161 (1933-1934) (emphasis added). See also Order of 29 July 1933, PCIJ ser. A/R, No. 58. It is of some interest that the Permanent Court did exercise its authority to deny permission to append individual opinions to its orders—an authority expressed in the second point mentioned here—in at least one case, that concerning the Electricity Company of Sofia and Bulgaria. See 16 PCIJ Ann. R. (ser. E) 198-99 (1939-1945).

23 12 PCIJ Ann. R. (ser. E) 195 (1935-1936). See also [1936] PCIJ ser. A/H, No. 67. Two points are noteworthy: first, Article 57 of the PCIJ Statute, just like Article 57 of the ICJ Statute, expressly provided for separate opinions in “judgments,” and not in “orders.” The PCIJ extended this provision to its advisory jurisdiction initially through its Rules of Court and later through an amendment to the Statute which came into force in 1936. Second, the practice of allowing public “declarations” in judgments and advisory opinions itself developed on an ad hoc basis and was incorporated into the Court’s Rules through an amendment in 1926. On this point, see Jhabvala, supra note 2, at 832-37.

24 [1951] ICJ Rep. 89.

25 The Resolution Concerning the Internal Judicial Practice of the Court uses the term “decision” rather than “judgment,” “advisory opinion,” or “order,” and so would serve the purpose indicated here without any further change. For the text of the resolution, see 70 AJIL 905 (1976).

26 Paragraph 3 of Article 107, dealing with individual opinions in advisory cases, does not include the last sentence of Article 95(2). Declarations and individual opinions have been attached to” orders in only 2 advisory opinions: Namibia and Western Sahara.

27 [1965] ICJ Rep. 3.

28 These 23 orders have ranged over the following issues: interim measures, the composition of the Court, an invitation to visit territories in question before the Court, requests for ad hoc judges, directives to the parties to address their pleadings to the question of the Court’s jurisdiction (in cases where one of the parties fails to appear before the Court), and applications for intervention.