1. See, Separate Opinion of Judge ad hoc Van Wyk and Dissenting Opinion of Judge Tanaka, (1966) ICJ pp. 67 and 250 respectively.

2. Id. at pp. 54–5. A similar concern has existed for quite some time with regard to the practice of judges of the US Supreme Court. See, ZoBell, K., “Division of Opinion in the Supreme Court: A History of Judicial Disintegration”, 44 Cornell LQ (1959) p. 186.Google Scholar

3. (1966) ICJ p. 262. It is clear from the context that Tanaka used the term “separate opinions” as including dissenting opinions: he was defending his dissenting opinion in the case. Tanaka reiterated his views on the scope of individual opinions in the Barcelona Traction (Second Phase) case, (1970) ICJ pp. 114–5. In the interests of semantic consistency the term “individual opinion” will be used to refer to all statements by individual judges, concurring and dissenting. See also, infra n. 54.

4. (1964) ICJ pp. 49–50. The connection between Koo's separate opinion and Jessup's declaration has been made by Rosenne; see, “The Composition of the Court”, in Gross, L., ed., The Future of the International Court of Justice (1976) p. 400.Google Scholar

5. (1973) ICJ pp. 23 and 66.

6. Id., at pp. 36–47 and 81–91.

7. (1967–1968) ICJ Yearbook p. 87. The question has also been raised outside the Court; see, Mosler, H. and Bernhardt, R., eds., Judicial Settlement of International Disputes, (1974) at p. 30Google Scholar; “Conclusions”, in Gross, op. cit. supra n. 4 pp. 727–86 at p. 738; and, Lillich, R. and White, G.E., “The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms”, 70 AJIL (1976) pp. 28–40.CrossRefGoogle Scholar

8. The scope of individual opinions in contentious cases has been the focus of attention both within and outside the Court, chiefly because of the voluntary nature of the Court's jurisdiction and the frequent challenges to its competence; see, infra, p. 49. This may account for the disinterest in the scope of individual opinions in advisory cases, although even here, “jurisdictional” issues could become paramount, as in the Advisory Opinion on Eastern Carelia, (1923) PCIJ Series B, No. 5. There seems to be no a priori reason for allowing radically different scope to individual opinions in advisory and contentious cases. Thus, the analysis and conclusions of this article, while being focussed on contentious cases, should also give clues to the scope of individual opinions in advisory cases. For an analysis of the development, scope and use of “Declarations”, see, Jhabvala, F., “Declarations by Judges of the International Court of Justice”, 72 AJIL (1978) p. 830.CrossRefGoogle Scholar

9. See, infra, n. 67 and associated text.

10. Dissenting opinions in the US Supreme Court were instituted through judicial practice; see ZoBell, supra n. 2; and Jackson, P., Dissent in the Supreme Court (1969).Google Scholar

11. Scott, J., ed., The Reports to the Hague Conferences of 1899 and 1907 (1917) p. 40Google Scholar. While the Hague Convention of 1899 represented the first community expression of support for public dissents, the major development of dissenting and concurring opinions occurred with the World Courts. Of more than 325 arbitration awards listed by one source, only seven carried individual opinions by arbitrators; see, Stuyt, A., Survey of International Arbitrations, 1794–1970, (1972).Google Scholar

12. Anand, R., “The Role of Individual and Dissenting Opinions in International Adjudication”, 14 ICLQ (1965) pp. 788–808.CrossRefGoogle Scholar

13. Scott, J., ed., The Proceedings of the Hague Peace Conferences: The Conference of 1899 (1920) pp. 616, 740.Google Scholar

14. Id.

15. Scott, J., ed., The Hague Court Reports (1916) pp. 84–5.Google Scholar

16. Scott, op. cit., supra n. 11 at p. 186. The difficulties inherent in the non-permanent nature of the 1899 Permanent Court of Arbitration were recognized by the delegates to the 1907 Conference who wished to set up a court which would be “permanent in fact,” and which would provide for the “judicial decision of international controversies”, instead of what was seen at the time as political compromises emanating from the 1899 tribunals. Id., The Conference of 1907, at pp. 342, 344, 348. The proposals for a new arbitral court foundered on the shoals of national representation, the parties being unable to settle upon a method of choosing the judges. The conference ultimately settled for a voeu.

17. Scott, op. cit. supra n. 11 at p. 204.

18. Scott, op. cit. supra n. 13, The Conference of 1907, at p. 385.

19. Scott, op. cit. supra n. 11 at p. 350.

20. It is important not to identify the personal views of delegates with “schools of jurisprudence”, despite the obvious influence of the latter upon the former. Delegates of The Netherlands did not voice any objection to public dissents in 1899, although M. Leoff was outspoken against such dissents in 1907. And, despite their experience with dissents domestically, US delegates did not support public dissents at the Second Hague Conference. The classic analysis of this issue is by Lauterpacht, H., “The So-Called Anglo-American and Continental Schools of Thought in International Law”, 12 BYIL (1931) pp. 31–62Google Scholar. See also, infra, n. 34.

21. See, for instance, IIRo Sun, , “Voting Behaviour of National Judges in International Courts”, 63 AJIL (1969) pp. 224–36.Google Scholar

22. The new Rules of Court, adopted 14 April, 1978, require in Arts. 95 and 107 that the Court's judgments and opinions name all the judges who are in the majority, thus also identifying the dissenters. These Rules are reproduced in 73 AJIL (1979) p. 748 et seq.

23. Germany, Austria, Italy, Switzerland, Sweden, Norway, Denmark and The Netherlands submitted individual plans. In addition, the Scandinavians submitted a separate three-power proposal and, in conjunction with Switzerland and The Netherlands, a five-power draft. Proposals were also received from the Interparliamentary Union, The Union Juridique Internationale and from Clovis Bevilaqua, a Brazilian jurist who had been nominated to the Advisory Committee, but had been unable to participate in its deliberations. See Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920). For a recent discussion of the development of individual opinions by a member of the Court see Lachs, M., “Le Juge International a Visage Decouvert (Les Opinions et le Vote), in 2 Estudios de Derecho Internacional, Homenaje al Professor Miaja de la Muela (1979) pp. 939–53.Google Scholar

24. Advisory Committee of Jurists, Procés- Verbaux of the Proceedings of the Advisory Committee of Jurists (1921) pp. 338–9Google Scholar. The Root-Phillimore plan, commonly known to have been the design upon which the PCIJ Statute was based, did not address questions of Court procedure; id., at pp. 298–301, 326–8 and 339. Further, the Advisory Committee agreed to use the five-power proposal as its working paper only after it had rejected a proposal made by Mr. Root that the 1907 Hague procedures be used as “the basis for consideration.” Id., at pp. 23, 41. Had the Root proposal been accepted, the Committee would have started from the basis of denying the right of public dissent instead of starting from the premise, expressed in the five-power proposal, that the right of stating in public the purport of dissents was acceptable. While such a difference in starting points need not have made a significant alteration in the end result, it may have made that end more difficult to attain.

25. Art. 35 of the three-power plan and Art. 26 of the Swedish proposals, id., at p. 183. See also, Sereni, A., Les Opinions Individuelles et Dissidentes des Juges des Tribunaux Internationaux, 68 RGDIP (1964) pp. 819–57Google Scholar; and Hambro, E., “Dissenting and Individual Opinions in the International Court of Justice”, 17 ZaöRV (1956/1957) pp. 229–48.Google Scholar

26. Art. 46 of the five-power proposal; Advisory Committee of Jurists, op. cit., supra n. 24 at p. 319. Art. 18 of the Norwegian proposal also recommended an intermediate position; id., at p. 235.

27. Art. 18 of the Danish proposals; id., at p. 207. The three-power Scandinavian draft scheme also proposed such an approach as an alternative to the one mentioned above; Art. 35 of the three-power plan, id., at p. 183.

28. Id., at p. 353. See also, supra n. 20.

29. Id., at p. 570.

30. Id., at pp. 669–84, 742. See also, infra, n. 76.

31. 6 League of Nations Official Journal (1920) pp. 318–21.

32. League of Nations, Documents Concerning the Action taken by the Council of the League of Nations under Art. 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (1922) pp. 24, 37.Google Scholar

33. Procàs- Verbal, League Council, 10 sess., at p. 21.

34. League of Nations, op. cit., supra, n. 32 at p. 138. It has been said that the right of public dissent “was admitted as a concession to the system of legal procedure followed in Anglo-Saxon countries;” Politis, N., “How the World Court has Functioned”, 4 Foreign Affairs (1925-1926) pp. 443–53 at p. 451CrossRefGoogle Scholar. This view was supported by Åke Hammerskjöld, Registrar and later Judge of the PCIJ, who saw the Court's procedure on judgments as a hybrid of “the Continental solution … insofar as the judgment (was) signed only by the President and the Registrar (and) … the Anglo-Saxon solution … insofar as dissenting opinions …” were allowed. See his article “Sidelights on the Permanent Court of International Justice”, 25 Mich. L. Rev. (1927) p. 334Google Scholar. While the Anglo-American procedure was clearly adopted, it is not as clear that opinion on the question was divided along Continental v. Anglo-American lines. Some jurists from the Continental school, such as Anzilotti, were stout supporters of the right of public dissent, while some from the Anglo-American tradition, such as the eminent British jurist who sat on the 1920 Advisory Committee, Lord Phillimore, were opposed to the notion. See statement to the PCIJ by Judge Anzilotti, Acts and Documents Concerning the Organization of the Court, PCIJ Series D. Add. to No. 2, (1926) p. 289Google Scholar; and Lord Phillimore, , “Scheme for the Permanent Court of International Justice”, 6 Transactions of the Grotius Society (1920) p. 89Google Scholar. In fact, such crossings of the “ideological” line were common after the fust Hague Conference. See also, supra, n. 20.

35. League of Nations, op. cit., supra, n. 32 at p. 60.

36. Art. 57, Acts and Documents Concerning the Organization of the Court, PCIJ Series D, No. 1, (1st ed., 1922) p. 25. The League Assembly approved revisions to the Statute in 1929 which entered into force on 1 February, 1936. The revisions relevant to this discussion were, (1) express provision for the Court's advisory role, and (2) extension to advisory cases of statute provisions applicable in contentious cases, including that on dissenting opinions.

37. Acts and Documents Concerning the Organization of the Court, PCIJ Series D, No. 2, (1922) p. 573.Google Scholar

38. In the Free Zones case, the Joint Dissenting Opinion of Judges Altamira and Sir Cecil Hurst only discussed the two main points on which they disagreed with the majority, see (1932) PCIJ Series A/B No. 46, at p. 174. In a similar vein, Judge de Bustamante's Dissenting Opinion in the Mavrommatis (Jurisdiction) case mentioned only “the principal” reasons for his dissent; (1924) PCIJ Series A No. 2, at p. 76. While this practice was common in the PCIJ, it has gradually disappeared from the ICJ. One of the ICJ judges who continued the PCIJ practice was Judge Basdevant; see his dissent in the Ambatielos case, (1952) ICJ p. 66.

39. PCIJ Series D, Add. to No. 2 (1926), pp. 194, 284–5.

40. Id., at p. 222; see also 3 PCIJ Series E (1926–1927) p. 217.

41. PCIJ Series D, Add. to No. 2, at p. 198. Emphasis added.

42. Id., at pp. 206–7, 221. Weiss was not a member of the 1920 Advisory Committee of Jurists; Altamira was.

43. Acts and Documents Concerning the Organization of the Court, PCIJ Series D, Add. to No. 2 (1936) Elaboration of the Rules of Court of 11 March, 1936, p. 671.

44. Id., at p. 325. Emphasis added.

45. Infra, pp. 45–6.

46. 4 PCIJ Series.E (1927–1928) p. 291.

47. Resolution of 17 February 1928; id. Emphasis added.

48. Resolution of 1 December, 1927, id.

49. Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, Cmd. No. 6531, at p. 3 para. 1, at p. 4 para. 5, at pp. 23–4 paras. 81–2, and at p. 37 para. 150.

50. Report of Rapporteur Basdevant on the Draft Statute of an International Court of Justice, Doc. Jur. 61, G/49, 14 UNCIO Docs. 649, 671–2 (1945).

51. The proposals are: Doc. Jur. 1, G/1, id., at pp. 442–3 (Cuba); Doc. Jur. 5, G/5, id., at pp. 339–45, (United States); and Doc. Jur. 14, DP/4, id., at p. 319 (United Kingdom).

52. The question of separate opinions is discussed immediately below.

53. See Rosenne, S., The Law and Practice of the International Court (1965) pp. 36–9Google Scholar. This notion was supported by the United States and the Soviet Union, among others, and found a place in Art. 92 of the UN Charter. See also Dissenting Opinion of Judge Read in the Advisory Opinion on the Peace Treaties, (1950) ICJ pp. 232–3.

54. The existence of the terms “individual opinion”, “separate opinion” and “dissenting opinion” has led to some confusion. Much of the blame for this must rest with the Court itself, because its Rules and Resolution on Internal Judicial Practice do not use the same terms as the Statute. The Court attempted to introduce some order into this area by adopting a resolution in May 1948 defining the terms “dissenting opinion” and “individual opinion” but not “separate opinion”; ICJ Yearbook (1947/1948) p. 80. Judicial practice has ignored part of that resolution and most opinions by judges who support the majority are called “separate opinions” in the English versions. The French versions of such opinions, however, have consistently been called “opinion individuelle”.

55. Recent practice in the International Court reveals that judges now write “separate opinions” not only when they accept the conclusions of the judgment, but, more significantly, when they accept only the disposition of the case without concurring in the conclusions of the judgment. See among others, Separate Opinions of Judges Gros and Petrén in the Nuclear Tests cases, (1974) ICJ 276–307, and 480–92. See also, S. Petrén, “Forms of Expression of Judicial Activity”, in Gross, op. cit., supra n. 4 at pp. 445–60; and infra nn. 101, 102 and associated text.

56. 1 PCIJ Series E (1922–1925) p. 257.

57. 2 PCIJ Series E (1925–1926) pp. 173–4.

58. Statement by Mr. Read, Chaiiman of the drafting committee, Doc. Jur. 58, G/46, 14 UNCIO Docs. (1945) p. 211. It is not clear why the Permanent Court did not avail itself of the opportunity provided by its revision of the Statute in 1929 to introduce this change. Further, no effort was made during the several revisions of the PCIJ's Rules of Court to provide a clear constitutional basis for separate concurring opinions. Clearly, however, the framers of the ICJ Statute felt otherwise. Rosenne does not include Art. 57 in the list of PCIJ provisions which underwent “principal change” in 1945; Rosenne, supra n. 53 at p. 36.

59. The amendment replaced the words “dissenting judges are” with “any judge shall be.”

60. Mosler and Bernhardt, op. cit., supra n. 7 at pp. 30–1.

61. In the Right of Passage (Merits) case, for instance, Judge Wellington Koo voted with the majority on the right of passage for private persons, civil officials and goods but against the majority on the right of passage of arms and armed personnel. His “separate” opinion expressed only his views on the latter question, thus being in reality a dissenting opinion. (1960) ICJ pp. 54–68. See also, Petrén, supra n. 55, at p. 452.

62. See, Gross, , “Election of States to United Nations Membership”, Proceedings, ASIL (1954) pp. 37–60 at p. 45Google Scholar, where such a situation in the Advisory Opinion on the Conditions of Admission to the UN is examined. See also, Prott, L., “Avoiding a Decision on the Merits in the International Court of Justice”, 7 Sydney L. Rev. (1974) pp. 433–51 at pp. 442–4Google Scholar; and supra, n. 55.

63. Art. 7 of the Resolution Concerning the Internal Judicial Practice of the Court, 70 AJIL (1976) p. 907. On 17 March 1936 the PCIJ amended its “Resolution regarding the Court's Judicial practice” to add to paragraph 8 the following: “Judges who wish to deliver a separate or dissenting opinion shall hand in the text thereof after the adoption of the draft decision in first reading and before the draft of the decision as prepared for second reading has been circulated”. 12 PCIJ Series E (1935–1936) pp. 196–7. The rule for the ICJ, contained in Art. 7 (ii) of its Resolution of 1976, is that “Judges who wish to deliver separate or dissenting opinions make the text thereof available to the Court after the first reading is concluded and within a time-limit fixed by the Court”. Paragraph (iv) of that Article states that “Judges who are delivering separate or dissenting opinions may make changes in or additions to their opinions only to the extent that changes have been made in the draft decision …”

64. Declaration of Judge Spender in the South West Africa cases, (1966) ICJ pp. 54–5. Also see Lachs, supra n. 23 at pp. 946–7.

65. Supra, nn. 54, 61.

66. Rosenne, , The World Court: What It Is And How It Works (1973) p. 106.Google Scholar

67. The 23 cases initiated in the ICJ through unilateral application restulted in 30 judgments: 18 “first phase” and 4 “second phase” judgments dealing with preliminary objections, and 4 “first phase” and 4 “second phase” judgments dealing solely with the “merits”.

68. See separate opinion of Judge Fitzmaurice in the Northern Cameroons case, (1963) ICJ pp. 100–8.

69. In cases where issues of jurisdiction are intimately related to the merits, the above conclusion may be modified to allow a consideration of questions of merit as a means of determining the Court's jurisdiction. See joint dissenting opinion of Judges McNair, Basdevant, Klaestad and Read in the Ambatielos case, (1953) ICJ pp. 25–7.

70. (1973) ICJ pp. 36–47 and 81–91.

71. (1970) ICJ pp. 114–5. See also infra, p. 51.

72. In the second phase of the South West Africa cases, the Court apparently reversed its judgment in the first phase on grounds “that appertained to the merits of the case but which had an antecedent character …” (1966) ICJ p. 18Google Scholar. A discussion of this case and the complex issues raised by the 1966 judgment is beyond the scope of this article. For present purposes, however, if the Court itself were to reopen jurisdictional questions in a subsequent phase of the case, and such a step is well within the Court's authority, there would be no objection to individual opinions doing likewise.

73. Infra, pp. 52–6.

74. (1963) ICJ pp. 97–111.

75. (1970) ICJ p. 3. Judge Tanaka had rejected Spain's objections to the Court's jurisdiction and the admissibility of the application. It is thus ironic that he was able to support the Court's dispositif precisely because he violated its decision on the admissibility of the application. Had he limited himself to the jurisdictional issues which comprised the Court's judgment he would perforce have voted against that judgment, for in his view the application was indeed admissible!

76. Id. at pp. 365–7.

77. Elias suggested such a measure in his report to the Max Planck Institute, Mosler and Bernhardt, op. cit., supra n. 7.

78. Article 2 of the ICJ Statute. See also, Rosenne, supra n. 4.

79. Article 36 (6) of the Statute.

80. (1963) ICJ pp. 29, 38. Analogies with municipal systems which allow judges free expression are inappropriate in international law, because the Court's jurisdiction is limited by the consent of the parties before it.

81. To date there has not been any judgment of the International Court in which it clearly adopted such a position. For statements by individual judges, see supra, pp. 33–5.

82. The Permanent Court refused to allow a judge to append a dissenting opinion to its order of 26 February 1940 in the case of The Electricity Co. of Sofia and Bulgaria. It was argued that the opinion in question had not been communicated to the Court during its drafting of the order. Thus, were the opinion to be published, “the Court would be obliged to add to its order a passage relating to the point raised by that opinion, a point with which the Court had not desired to deal at that stage”. 16 PCIJ Series E (1939–1945) pp. 198–9. There is no evidence that any other opinion was ever suppressed by either of the World Courts thus adding the weight of convention and practice to the other arguments against the suppression of judicial opinions.

83. This paralysis has been analysed by several writers; see, inter alia, Fitzmaurice, “The Future of Public International Law and the International Legal System in the Circumstances of Today”, Special Report to the Institut de Droit International, Livre du Centennaire 1873–1973; Fitzmaurice, , “Enlargement of the Contentious Jurisdiction of the Court”Google Scholar, in Gross, op. cit, supra n. 4 pp. 461–98; and Szasz, P., “Enhancing the Advisory Competence of the World Court”Google Scholar, id. pp. 499–549.

84. The Court is well aware of this limitation. See the Court's apprehension in appearing to influence the 1974 Caracas conference on the law of the sea in its judgments on the Fisheries Jurisdiction cases, (1974) ICJ pp. 23–4, 192. See also, Declarations of Judge Ignacio-Pinto there, at pp. 37, 210.

85. Fitzmaurice, , “Hersch Lauterpacht – The Scholar as Judge: Part 1, 37 BYIL (1967) pp. 1–71 at pp. 14–5Google Scholar. The developmental aspect of separate opinons was freely acknowledged by Martens at the 1899 Hague Conference; Scott, op. cit., supra n. 13 at p. 740. During the League's debates on the draft PCIJ Statute, Sir Cecil Hurst supported dissenting opinions because of their part in “building up international laws;” League of Nations, op. cit., supra

86. See among others, Rosenne, , “Sir Hersch Lauterpacht's Concept of the Task of the International Judge”, 55 AJIL (1961) pp. 825–62CrossRefGoogle Scholar; and the three-part analysis by Fitzmaurice, , “Hersch Lauterpacht – The Scholar as Judge”, 37 BYIL (1961) pp. 1–71, 38Google Scholar id. (1962) pp. 1–83 and 39 id. (1963) pp. 133–88.

87. (1970) ICJ pp. 64–113, Judge Jessup's separate opinion in that case regretted that the judgment had not “included a wider range of legal considerations”, citing several cases of the PCIJ and ICJ in support of the Court's developmental role; id., at pp. 161–363. Other supporters of this view include Judge Dillard in the ICAO and Fisheries Jurisdiction cases, (1972) ICJ pp. 92–115, and (1974) ICJ pp. 53–71; Judge Alfaro in Temple (Merits), (1962) ICJ pp. 39–51.

88. (1939) PCIJ Series A/B No. 76, at pp. 42–8.

89. See supra p. 50.

90. Anzilotti has been called “The Great Dissenter”; see Hambro, supra n. 25.

91. (1932) PCIJ Series A/B No. 50.

92. Id., at p. 387. Anzilotti's views in this area have come to be accepted in international law; see Art. 31 of the 1969 Vienna Convention on the Law of Treaties, 63 AJIL (1969) p. 885.

93. (1931) PCIJ Series A/B No. 41.

94. Id., at pp. 52–3. See infra n. 98.

95. Id., at pp. 56–7, 68–70.

96. Id., at p. 71.

97. Brierly has described Anzilotti's opinion in the Customs Regime case as “a contribution of permanent value to international jurisprudence”; quoted by Dumbauld, E., “Dissenting Opinions in International Adjudication”, 90 U. Penn. L. Rev. (1941-1942) p. 929Google Scholar. See also Lauterpacht, H., ed., Oppenheim, International Law, vol. I, 8th ed. (1955) p. 287.Google Scholar

98. In the Customs Regime case discussed above, pp. 55–6, though seven of the eight judges who comprised the majority expressed their view that the proposed customs union would violate the Treaty of St. Germain, the majority opinion refrained from expressing such a view. It stands to reason that the views of the eighth judge in the majority, Busta-mante, determined that the opinion would rest on the narrower basis of incompatibility with Protocol No. 1. It might be added that the vote in the case was 8 to 7 and this perhaps gave an exaggerated importance to Bustamante's vote. Individual opinions which discuss relevant issues beyond those contained in the judgment may also deal more completely with the arguments and submissions of the parties than the majority opinion. See Lauterpacht, H., The Development of International Law by the International Court (1958) pp. 66–70, especially at p. 69Google Scholar; and his separate opinion in the Voting Procedure case, (1955) ICJ pp. 91–3.

99. Lissitzyn, O., International Law Today and Tomorrow (1965) p. 102.Google Scholar

100. (1974) ICJ pp. 35, 206.

101. Id., at pp. 275, 479.

102. Id., at pp. 276, 480.

103. Due to changes in other articles and the introduction of some new ones, the number of the relevant provision was changed from Art. 74 to Art. 79; Table of Concordance annexed to the Rules of Court of May 10, 1972, ICJ Acts and Documents Concerning the Organization of the Court, No. 2, (1972).

104. For a discussion of the changes in the Rules of Court relevant to individual opinions, see Jhabvala, F., “Individual Opinions under the New Rules of Court”, 73 AJIL (1979) pp. 661–8.Google Scholar

105. Supra p. 52 and n. 82.