The Individual Expressions of Judges in the ICJ Provisional Measures Order in Ukraine v. Russia
Last Wednesday, the International Court of Justice (ICJ) issued its much-awaited order on provisional measures in the case brought by Ukraine against Russia’s military invasion. The Court decided on three issues: 1) Russia immediately has to suspend military operations in the territory of Ukraine; 2) Russia has to ensure that any military or irregular armed units which may be directed or supported by it, or controlled, take no steps in furtherance of military operations; and 3) both parties must ensure the non-aggravation of the dispute. Judges Gevorgian and Xue were the only two judges to dissent on the first two issues and the third measure was decided upon unanimously. Both Judge Gevorgian and Judge Xue appended declarations, as did three others: Judges Nolte, Bennouna and ad hoc Daudet. Judge Robinson issued a separate opinion. A remarkable feature of this ruling is that most judges opted to append declarations rather than full opinions. While it is not uncommon for ICJ judges to issue declarations, the vast majority of individual judicial expressions is framed as a separate, concurring, or dissenting opinion. So why the sudden strong recourse to declarations, especially by the two minority Judges?
Declarations at the ICJ
If one or more judges feel that the Court judgment or opinion does not represent “in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinions” (Article 57). We then look to Article 95(2) of the Rules of the Court to find further instructions on the possibilities to employ an individual opinion, which provides: “Any 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. The same shall also apply to orders made by the Court.”
Yet, in practice judges have not hesitated to give their reasons in declarations regardless. This has been possible in part because of the lack of further definition of the purpose and scope of individual opinions at the ICJ and has been further cemented in practice. While declarations are not the most-used tool for individual judicial expressions (that honour still falls on separate and dissenting opinions), ICJ judges have issued their fair share of declarations as well. Yet, it is rare for ICJ judges to append almost only declarations to a judgment/order and the declarations issued usually are less than half a page in length.
The Order at Hand
A declaration can be either a concurrence or a dissent and that is what makes declarations a particularly interesting tool for judges to use in the case at hand. Judges Gevorgian and Xue voted against the majority on two of the three points, yet did not issue a “full” individual opinion – which would set them even more clearly apart from the majority. Issuing dissenting opinions would have indicated a further lack of agreement and compromise in the majority decision, which the two judges have clearly chosen not to do. Instead, they opted to have their dissent recorded, nevertheless providing reasons for their disagreement that officially fall outside the scope of a declaration. In other words, it could be said that the reasons given have less impact then they potentially could have had in the form of a full dissenting opinion -at least from a procedural point of view. The stage of the proceedings could play a part here, but a quick glance at the Court’s other recent provisional measures orders provides limited support for this possibility (see the Provisional Measures Orders in Armenia v. Azerbaijan and The Gambia v. Myanmar for example).
So what were the other Judges issuing declarations, Nolte, Bennouna, and ad hoc Daudet, concerned with? In any case, it also was not what declarations were envisioned to be used for. All three judges went further than recording the concurrence or dissent and in fact each provided reasons for their recorded concurrence, yet did not choose to use a separate opinion to do so. In fact, only Judge Robinson opted for the official avenue and issued a separate opinion that provides several reasons clarifying and justifying his individual opinion.
The individual judicial behaviour here is relevant since it is rare for so many judges to issue only declarations and not full opinions, yet provide many different reasons in their declaration for speaking out individually from the judgment/order. In other cases, judges of this bench have not shied away from issuing full opinions which makes this case even more noteworthy. Now, one can only speculate on the reasons behind this: does this indicate a high level of agreement and compromise in the Order and awareness of the consequences of issuing a dissent? Or, is this an avenue to weaken the order “from the inside”? By not issuing full reasons for dissent, the Court, and its watchers, have less to go on about the judicial behaviour of its bench members as we enter the merits and the decision could go in multiple directions? Nevertheless, the Court’s order was particularly direct in tone and, as Marko Milanovic observed, it went “out of its way to make points that it was not legally required to make but were required by the necessity of the moment.”
ICJ judges are independent and full-time international civil servants. This does not mean geopolitical realities can or do not have an impact on judicial-decision-making at the ICJ (there are instances when such parallel is hard not to be drawn). Yet the ICJ, like other international institutions, does not operate in a vacuum; Ukraine’s recourse to the UN’s highest judicial body is itself an illustration of this. The two dissenting votes are not surprising, and in a way could be used to even further legitimize the order as made by the “World Court.” Nevertheless, the abundant use of declarations for purposes that fall outside the scope of the issuance of declarations is striking. As this case proceeds, there will perhaps be more clarity on the levels of agreement and compromises that the judges have (had) to find. Even more than that, the possible separate and dissenting opinions will undoubtedly provide for further insights – or will they all be declarations?