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Declarations by Judges of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Farrokh Jhabvala
Farrokh Jhabvala*
Affiliation:
Florida International University, Miami, Florida
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Extract

Judges of the International Court of Justice have a variety of vehicles through which they may express their judicial opinions. There are, in the first place, the judgments and opinions of the Court—results of the collegial deliberations—to which every judge may contribute. If, however, the judgment or opinion of the Court does not represent “in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.” And, despite misgivings on the part of some scholars early in the experience of the Permanent Court of International Justice, this right conferred by Article 57 of the Statute of the Court has been consistently interpreted as allowing individual and joint separate and dissenting opinions. Finally, Article 95 of the Rules of Court, adopted on April 14, 1978, provides, inter alia, that “[a]ny judge may, if he so desires, attach his individual opinion to the judgment, whether he dissents from the majority or not; a judge who wishes to record his concurrence or dissent without stating his reasons may do so in the form of a declaration.”

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 4 , October 1978 , pp. 830 - 855
Copyright
Copyright © American Society of International Law 1978

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References

1 Individual judges have several opportunities of presenting their viewpoints to the Court at different stages of the internal proceedings; see “Resolution Concerning the Internal Judicial Practice of the Court,” adopted on April 12, 1976, in 70 AJIL 905–08 (1976).

2 Art. 57 of the Statute of the International Court of Justice. By Article 68 the Statute extends this provision, among others, to the advisory proceedings.

3 See Alexander P. Fachtri, The Permanent Court Of International Justice 315 (1932). Fachiri was of the view that the “spirit” of the Statute and Rules of the PCIJ allowed only individual dissenting opinions and not joint opinions, even if the texts of these instruments could be interpreted to include joint opinions.

4 Rules of Court, adopted on Apr. 14, 1978, at 153. Article 107 makes an identical provision for the advisory procedure; ibid., at 161. These provisions are among the rules which were amended through the promulgation of the new Rules of Court.

5 The statistics given here refer exclusively to the judgments and advisory opinions of the two Courts and do not include opinions and declarations made in connection with the Orders of the Courts.

6 The author entreats the indulgence of the reader for the lack of a definition of “Declaration.” As will become clear, however, practice on the Courts has been too diverse, and at times declarations have been indistinguishable from individual opinions, so that a succinct definition is all but impossible.

7 Acts and Documents Concerning the Organization of the Court, Pcij, ser. D, No. 1, at 25. This article was not altered by the 1936 revision of the Statute. As is well known, the 1922 Statute had not made any provision for the Court's advisory jurisdiction and the Court had rectified this omission partially through Article 71 of the 1922 Rules of Court; ibid., at 81. This gap in the Statute was finally closed through Articles 65–68 of the revised Statute, which came into force on February 1, 1936; Acts and Documents Concerning the Organization of the Court, PCIJ, ser. D, No. 1, at 27–28 (4th ed. 1940). See also, Sixteenth Report of the Permanent Court of International Justice, 1935–1965, PCIJ, ser. E, No. 16, at 198.

8 Art. 56 of the Advisory Committee's draft, Procées-Verbaux of the Proceedings of the Advisory Committee 683–84 (The Hague: Advisory Committee of Jurists, 1920); See also 570, 591 and 669.

9 Ibid., 683–84.

10 Procés-verbal of the 10th Session of the Council, (Geneva: League of Nations,1920), Official Journal No. 8 (Nov.-Dec. at 18, 21, 1920); and Documents Concerningthe Action Taken by the Council of the League of Nations Under Article 14 of the Covenant And The Adoption by the Assembly of the Statute of the Permanent Court 24, 60, 69, 138, 213, 256–57 (Geneva: League of Nations 1921.

11 The Reports to the Hague Conferences of 1899 and 1907, (J. Scott ed. 1917).This right was withdrawn in 1907 when the Second Hague Conference revised the arbitration provisions of the 1899 Convention; 1 The Proceedings of the Hague Peace Conferences 436 (trans. J. Scott 1920).

12 Proceedings, The Conference of 1899, at 149, n. 11.

13 Ibid. ,149, 616.

14 Four cases were arbitrated under the 1899 rules: the Pious Fund case, the Venezuelan Preferential case, the Muscat Dhows case and the Japanese House Tax case. Only the last mentioned of these produced a dissenting statement; the rest, presumably, were unanimous decisions. the Hague Court Reports, (J. Scott ed. 1916); the unreasoned dissenting statement of the Japanese arbitrator, I. Motono, is on pp. 84–85. For the practice of earlier tribunals see Manley O. hudson, International Tribunals:Past and Future (1944).

15 Art. 62, Acts and Documents, n. 7, at 79.

16 Acts and Documents Concerning the Organization of the Court, Pcij, ser. D,Addendum to No. 2, at 5, 272 (1926). See also, Third Annual Report of The Permanentcourt of International Justice, 1926–1927, PCIJ, ser. E, No. 3, 217; and, Rosenne, S., The Composition of the Court, in The future of the international court of justice, 377 at 425. (Gross, Leo ed. 1976)Google Scholar.

17 Acts and Documents, n. 16, at 272.

18 Ibid., 202–21. See also the explanation given by the Registrar of the Court in Acts and Documents Concerning the Organization of the Court, PCIJ, ser. D,Third Addendum to No. 2, at 325 (1936).

19 Acts and Documents, n. 16, at 172, 313; Acts and Documents Concerning Theorganization of the Court, PCIJ ser. D, No. 1, at 59 (1926).

20 Acts And Documents, n. 16, at 172; Annual Report of the Permanent Court of international Justice 1922–1925, PCIJ ser. E, No. 1, at 203.

21 Annual Report, n. 20, at 256. Similarly, in the Mavrommatis case Judge Altamirahad been allowed by special decision of the Court to mention his dissent; ibid., 257.

22 Ibid., 257.

23 Third Report, n. 16, at 36–37.

24 Acts and Documents Concerning the Organization of the Court, Pcij, ser.D, (Second Addendum to No. 2) 294 (1931). Translation mine; emphasis added. TheCourt did not discuss Sir Cecil's proposal during the discussions over its 1931 modificationof the Rules of Court; ibid., 178–79, 315.

25 Acts And Documents, n. 18, at 325.

26 On this, see declaration of Judge Sir Percy Spender in the South West Africa Cases (Second Phase), ICJ Reports 1966, at 51 ff.; and Anand, R. P., The Role of Individual and Dissenting Opinions in International Adjudication, 15 Intl and Comp. L. Q., 788 ff. (1965)CrossRefGoogle Scholar, especially 795.

27 Fourth Annual Report of the Permanent Court of International Justice, 1927–1928, PCIJ ser. E, No. 4, at 291. (Emphasis added.)

28 Ibid. Emphasis added.

29 F. Jhabvala, The Development and Scope of Individual Opinions in the International Court of Justice, (1977) (unpublished dissertation, Fletcher School of Law and Diplomacy). The Permanent Court's “Resolution Regarding the Court's Judicial Practice” made no mention of declarations; Twelfth Report of the Permanent Court of International Justice, PCIJ ser. E, No. 12, at 196–97; neither does the “ResolutionConcerning the Internal Judicial Practice” of the International Court, 70 AJIL 905–08 (1976).

30 Annual Report, n. 20, at 257.

31 Second Report of the Permanent Court of International Justice, 1925–1926,PCIJ ser. E, No. 2, 173–74.

32 In 1926, Judge Huber had remarked that while he had started from the above position, he had come to conclude that the greater right (reasoned dissenting opinions) might include the lesser (simple statements of dissent); Acts And Documents, n. 16, at 215.

33 Art. 62, Acts And Documents, n. 19, at 59; see also supra, n. 19 and associated text. The ICJ Rules of Court provide a similar choice; infra, at 13–14. Some evidence that declarations were considered as being distinct from individual opinions is also available in the ICJ Yearbooks. An early volume reported that “[i] n the Corfu Channel case (Merits), a Judge attached to the Judgment a reasoned declaration of his dissent, instead of filing a complete dissenting opinion.” ICJ Yearbook 1948–1949, at 80. The same Yearbook reported that in the Reparation case “a Judge attached a simple declarationof dissent from the Court's opinion and did not file a dissenting opinion.” Ibid

34 PCIJ ser. A, No. 23, at 32. Emphasis added.

35 PCIJ ser. B, Nos. 2 and 3, at 43. Emphasis added. Similar references will be noted by the declaration by Judge Loder in the Danzig and the ILO opinion, PCIJ ser. B, No. 18, at 17; and the joint declaration by Judges Adatci, Rostworowski, Altamira, Schiicking, van Eysinga and Rapazoff in the Greco-Bulgarian Agreement of December 9th 1927, PCIJ ser. A/B, No. 45, at 88.

36 ICJ Reports 1960, at 48–49, For the text of ICJ Article 57, see infra at 12.

37 ICJ Reports 1972, at 72. In the advisory opinion on the Review of Judgment No. 158, Judges Forster and Nagendra Singh, perhaps more aware of the constitutional situation, based their declaration upon “Article 57 of the Statute read with Article 84 of the Rules of Court …” ICJ Reports 1973, at 214.

38 “Recommendation of the Committee for the Revision of the Rules concerning Declarations adopted by the Court on 12 April 1976,” ICJ Doc. RR 76/12 of Apr. i5, 1976, para. 3.

39 In this connection, the remarks of Judge Spender in the Expenses advisory opinion are pertinent; ICJ Reports 1962, at 184–97.

40 R. B. Russell, A History of the United Nations Charter 864 (1958). Thereport to the President by the U.S. delegation to the San Francisco Conference stated that there had been “unanimous agreement” that the PCIJ had rendered effective service and had set up an excellent record; Hearings on the Charter of the United Nations(before the Committee on Foreign Relations) 80th Cong., 1st Sess. 123 (1945). See also, Report of the Rapporteur on the Draft of the Statute of the International Court of Justice, Doc. Jur. 61, G/49 of Apr. 20, 1945, in 14 UNCIO 649.

41 The outstanding work in this regard remains Shabtai Rosenne'S the Law and Practice of the International Court of Justice (1965), in 2 volumes. In thisconnection, see also G. I. Tunkln, Theory of International Law 190 ff. (trans.W. E. Butler 1974).

42 Art. 57, ICJ Acts and Documents Concerning the Organization of The Court, No. 1 (May 1947). The PCIJ text is given above.

43 The Drafting Committee expressly stated that this change was recommended to make the new provision “conform to the Court's practice of rendering concurring as well as dissenting opinions.” Doc. Jur. 58, G/46 of Apr. 16, 1945, in 14 UNCIO 211.

44 This partial blindness also affected an earlier panel of jurists which had been convened by the British Government in 1943—the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice. This Committee was muchheartened by the experience with the dissenting opinions, Report of the Committee, British Papers By Command, No. 6531 (1944), paras. 81–82 and 150 at 23–24 and 37.However, it said nothing about declarations, and this omission may well have influenced the Washington Committee of Jurists.

45 A comparable question arose in connection with the mandatory aspects of Articles 24 and 25 of the UN Charter, when the Security Council practice regarding abstentions combined with the increased membership of that body after the 1965 amendments created the possibility of Council resolutions and decisions being adopted without the affirmative vote of any permanent member. There has not been, to the knowledge of this writer, a satisfactory solution of this question. On this point, see Gross, Leo, Voting in the Security Council: Effect on Article 23 of Abstention under Amendments to U.N. Charter, 62 AJIL 315–34 (1968)CrossRefGoogle Scholar.

46 The very ease with which the Court adopted the “Recommendation for the Revision of the Rules concerning Declarations,” n. 38, is testimony to the soundness of the above approach. Correspondingly, it also weakens the argument that declarations have their constitutional roots in the Statute. Our “informing principle” of continuity, mentioned above, supplies the element of continuity here

47 ICJ Yearbook, 1950–1951, at 259. Emphasis added. The partial amendments to the Rules carried out in 1972 did not affect this article except that its number was changed to 79(2). An identical provision applied to advisory opinions; Art. 84(2) of the 1946 Rules or Art. 90(2) of the 1972 version. See also, supra, n. 29;infra, n. 50 and associated text.

48 Rules of Court, n. 4. Emphasis added.

49 Supra, n. 29.

5o Supra, n. 38, para. 6.

51 PCIJ ser. A, No. 5, at 51. Emphasis added.

62 PCIJ ser. A, No. 17, at 65.1978]

53 Ibid..

54 PCIJ ser. B, No. 5, at 29. Emphasis added.

55 PCIJ ser. A/B, No. 44, at 44. Emphasis added. The same kind of declaration was made by Judge Schucking in the case concerning the Rights of Minorities in Upper Silesia, PCIJ ser. A, No. 15, at 74.

56 See, among others, declaration of Judge Winiarski in the Reparation case, ICJ Reports 1949, 174 at 188; and declarations of Judges Guerrero, Zoricic and Badawi in the opinion upon the International Status of South West Africa, ICJ Reports 1950, at 144–45.

57 PCIJ ser. A/B, No. 49, at 338–39.

58 ibid., at 339.

59 PCIJ ser. A/B, No. 65, at 59.

60 Ibid. 61 PCIJ ser. A/B, No. 68, at 90.

62 PCIJ ser. A/B, No. 41, at 53.

63 PCIJ ser. A, No. 11, at 24.

64 Ibid., at 4.

65 PCIJ ser. B, No. 7, at 6 and 21. A similar declaration by Judge Kellogg appeared in the Peter Pázmány University case; PCIJ ser. A/B, No. 61, at 250.666

66 PCIJ ser. A, No. 13, at 22. Emphasis added.

67 Ibid., at 21.

68 The individual opinion was introduced into international adjudication procedure to enable judges who dissented from the majority position to make known their disagreement and the reasons therefor. See, Spender, n. 26, at 49–57. This point is substantiated through historical evidence in Jhabvala, n. 29, Part I. In recent years, however, this position has been disputed; see, for instance, opinions of Judge Tanaka in the South West Africa Cases (Second Phase), 6 ICJ Reports 1966, at 262 ff.; and in Barcelona Traction (Second Phase), ICJ Reports 1970, at 114–15.

69 ICJ Yearbook, 1948–1949, at 80. See also, ICJ Reports 1949, at 37–38. The Yearbook apparently sought to draw a distinction between declarations and dissenting opinions, as may be deduced from the above quotation. This effort, however, was abandoned with the Yearbook for 1966–1967 and no sign whatsoever of this earlier effort appears in recent Yearbooks.

70 Whereas in the PCIJ the individual opinions at times were so briefly reasoned as to approach partially reasoned declarations (supra, at 16), in the ICJ the movement has been in the opposite direction, with the reasoning behind a declaration being expanded so as to approach the length and comprehensiveness of individual opinions. This developmentwas noted by the Court's Committee for the Revision of the Rules concerning Declarations, which reported that “many ‘declarations’ were in fact indistinguishable from separate or dissenting opinions…” “Recommendation for the Revision of Rules concerning Declarations,” n. 38, para. 5.

71 ICJ Reports 1972, at 72–75.

72 Ibid., at 71–72.

73 Judge Lachs's argument was directed to Pakistan's objection that the preliminary decision of the ICAO Council to accept Pakistan's Application and Complaint was not one which could be brought before the ICJ on appeal.

74 ICJ Reports 1974, at 36.

75 Ibid..

76 ICJ Reports 1970, at 52.77 Ibid..

78 ICJ Reports 1975, at 69–77.

79 Ibid., at 78–82. The tendency to reason out declarations is obviously reflected in the increasing lengths of declarations: in the PCI J most declarations were barely longer than a sentence or two, a few being as long as a paragraph and none exceeding a page of the Reports in length; while this situation obtained at the start of the ICJ, recent declarations have run from four to nine pages. The declaration by Judge Gros mentioned above was nine pages long.

80 ICJ Reports 1959, at 136–38 and 144.

81 ICJ Reports 1961, at 20–22.

82 Ibid., at 29–30 and 33–34.

83 Ibid., at 25–29.

84 See, declaration of Judge Wellington Koo, ICJ Reports 1961, at 36 joint declaration of Judges Fitzmaurice and Tanaka, ibid., at 36–38. Judges Spender and Morelliwrote separate opinions upon this point and Judge Alfaro wrote a declaration supporting the Court's position on consistency.

85 ICJ Reports 1964, at 28–29.

86 Ibid., at 29, 31 and 47.

87 Ibid. at 47. Judge Wellington Koo wrote a separate opinion in this case to the same point, rejecting the alleged distinction between Articles 36(5) and 37 and denying that the Aerial Incident judgment was “equally justifiable” in law; ibid., at 51–53. Judge Tanaka, who also wrote a separate opinion in the case, demonstrated very effectively that while “the Court [was] careful not to deal directly with the [Aerial Incident] Judgment, …the viewpoint adopted …[there was] substantially overruled” by the judgment in Barcelona Traction (Preliminary Objections); ibid., at 66–77.

88 Supra, n. 68 and associated text.

89 ICJ Reports 1964, at 46.

90 Ibid., at 51.

91 Shabtai Rosenne has made this connection; see Rosenne, n. 16, at 400.

92 ICJ Reports 1964, at 49–50.

93 ICJ Reports 1966, at 51–57.

94 The words within the quotation marks are attributed to Shabtai Rosenne in UN Doc. A/PV. 1439, at 47 and quoted by Leo Gross in “The International Court of Justice and the United Nations,” 120 Recueil Des Cours, 325 (1967–1). See also, Rosenne, n. 16, at 395–96; and Friedmann, Lissitzyn, Pugh, Cases And Materials On International Law 83 (1969) and references cited there.

95 ICJ Reports 1966, at 18.

96 Some passages in that judgment argued that the mandate agreement was in fact a resolution of the League Council and consequently could not be treated as an international agreement. While not going as far as expressly declaring the Mandate to have lapsed with the League, the judgment carried suggestions to this effect. It was this aspect which apparently promoted the spirited defense of the existence of the Mandate and its international supervisory provisions evidenced in Judge Jessup's dissenting opinion. See also, Jessup, The Price of International Justice 46 (1971). Judge Jessup's dissenting opinion in the South West Africa Cases (Second Phase) may also be characterized as going beyond the traditional scope of individual opinions.Consequently, Ignacio-Pinto declared that in the circumstances it would.

97 ICJ Reports 1966, at 52.

98 ibid., at 53. Emphasis added.

99 Ibid., at 52.

100 ibid., at 57.

101 ICJ Reports 1973, at 23 and 67.

102 Ibid., at 36 ff. and 81 ff.

103 ICJ Reports 1974, at 37. The questions at issue were those relating to the 200- mile economic zone proposal’ and the potential conflicts between “historical” and “preferential” rights within that zone.

104 Ibid..

105 ICJ Reports 1973, at 106 and 142.

106 ICJ Reports 1974, at 273. Judges Bengzon, Onyeama, Dillard, Jiménez de Aréchaga and Waldock wrote a joint declaration in that case, stating that they did not consider any of the criticisms of the Court's handling of the matter to be “in any way justified“; ibid., at 273.

107 Ibid., at 35 and 206.

108 Supra, n. 38 and associated text.

109 A recent study claims on the basis of private interviews that, “several judges criticized the [separate] opinions as exercises in academic irrelevancy“; Lillich, and White, , The Deliberative Process of the International Court of Justice: A Preliminary Critique and some Possible Reforms, 70 AJIL 36 (1976)Google Scholar. See also, Report by T. O. Elias in Judicial Settlement of International Disputes 30–31 (Mosler & Bernhardteds. 1976).

110 Supra, n. 38. Paragraph 9 of the Recommendation adds that “Any other statement of opinion which a judge wishes to attach to the decision of the Court should be treated as a separate or dissenting opinion.” Emphasis added. It may be pointed out that while this document claims only to “revise” the rules concerning declarations, it is in fact establishing such rules in a clear and express manner for the very first time; see, supra Parts II and III.

111 Rules of Court, n. 4, at 153. It ought to be added here that while the Rules use peremptory language to define the “declaration,” the “Recommendation …for the Revision of the Rules concerning Declarations” uses more flexible language and provides for “declarations” other than mere statements of concurrence or dissent. Paragraph 12 of the “Recommendation” finds that “[o]ne form of declaration constitutes a special case falling outside” its terms, such a declaration being one “made by the President, in his capacity as such, and in the discharge of his functions under Article 10 of the [old] Rules. Should the President, however, wish to express his views on the merits of the case, these should be made known only within the framework of his right to append a separate or dissenting opinion.” Supra, n. 38. This exception would clearly provide for declarations by the President of the sort made by Spender in 1966 and Lachs in 1974; supra, notes 93 and 106 and associated texts.

112 Rules of Court, n. 4, at 153.

113 But see below, n. 121 and associated text.

114 PCIJ ser. B, No. 5, at 29. For the full text of this declaration, see supra, n. 54 and associated text.

115 This could perhaps be said of the declarations of the Soviet judge, Kojevnikov, who sat on the Court in the mid-fifties and whose declarations received precedence over the opinions of more senior judges such as Basdevant, Klaestad, Badawi and Hackworth. See, inter alia, the Voting Procedure case, ICJ Reports 1955, at 67; and the ILO Tribunal case, ICJ Reports 1956 at 77. Judge Kojevnikov was elevated to the bench of the ICJ in 1953 whereas all the others had served on the Court since 1946.

116 There is one exception to the new rule in the “Recommendation,” which states in Paragraph 10 that “[i]f a judge expresses his separate or dissenting opinion only by concurring in the views of other judges, such a statement … [will] follow the opinion to which it refers.” Supra, n. 38. This certainly is a rational order. Paragraph 7 of the “Recommendation” recognized the “priority problem” and “considers that [the past] … practice should be changed…“

117 See, for instance, the statement by Judge Moore, made during the 1926 PCIJ deliberations on the revision of the Rules of Court; ACTS and Documents Concerningthe Organization of the Court, PCIJ ser. D, Addendum to No. 2, at 200 and 296(1926). Then, as now, “the breath of [the Court's] life is the public confidence,” inthe words of Judge Moore.

118 ICJ Yearbook, 1947–1948, at 68. The practice of the court has been different, and concurring opinions are usually labeled as “Separate Opinion” when in English and “Opinion Individuelle” when in French.

119 This procedure was confirmed in a letter dated July 12, 1977, to the author from Mr. A. Pillepich, Deputy-Registrar of the International Court. 120 In this confused practice, the ICJ apparently has carried on the tradition of the Permanent Court with perhaps somewhat less of the earlier contradictions of the PCIJ. For instance, Judge ad hoc Eugéne Dreyfus wrote a “Dissenting Separate Opinion” in the Free Zones case; PCIJ ser. A/H, No. 46, at 200.

121 Paragraph 9 of the Recommendation, quoted above in n. 110, would seem to encourage judges in such a course of action. If this potential loophole were to be exploited by the judges, it would erase any progress that may have been made through the 1976 “Recommendation” and the 1978 Rules and would effectively set the Court's procedure back into its pre-1976 mould.