Dissenting Opinions at International Courts: Doctrine and Practice

Abstract

In the article author critically assesses rile and significance of the dissenting opinions of the international judges and arbitrator pointing out its obvious insufficient coverage by the Russian scholar literature. An absolute majority of the authors looks at the dissenting opinions as either something non-significant or undisputable positive for international justice. At the same time activity of numerous international courts and arbitration provides extensive empirical data allowing to evaluate an impact of the dissenting opinions on the process of judicial deliberation and on the acceptance of the judgment of specific court and of the court itself by the parties of the dispute and by the states that created the court or tribunal in question. Assessing “pro” and “contra” arguments in relation to the dissenting opinions on the international justice, the author argues that the dissenting opinions continues to be a highly controversial feature of contemporary international justice. Obvious procedural uncertainty regarding admissibility of the dissenting opinions results in practical impossibility to separate “good” dissenting opinions from “bad” or “ugly” and true level of influence of the dissents remains to be determine by the inner restraints and a character of every judge discovering itself in a minority, and by the judicial culture and traditions of the courts in questions. Age of the court and its reputation and authority may present an effective shield against bad or ill-fated dissenting opinions. Newly-created courts may be less immune against such dissenters which may bring harm to the authority of the court and its legitimacy. A current practice of the Court of the Eurasian Economic Union provide a persuasive example how unrestrained dissenting opinions may undermine integrity and collegiality of international court and thus the use of the dissents shall be either limited or fully forbidden or the dissents shall be used in a very responsible manner.