Dissenting Opinions at International Courts: Doctrine and Practice

Abstract

In the article author critically assesses rile and significance of the dissenting opinions ofthe international judges and arbitrator pointing out its obvious insufficient coverage bythe Russian scholar literature. An absolute majority of the authors looks at the dissentingopinions as either something non-significant or undisputable positive for internationaljustice. At the same time activity of numerous international courts and arbitration providesextensive empirical data allowing to evaluate an impact of the dissenting opinions on theprocess of judicial deliberation and on the acceptance of the judgment of specific courtand of the court itself by the parties of the dispute and by the states that created thecourt or tribunal in question. Assessing “pro” and “contra” arguments in relation to thedissenting opinions on the international justice, the author argues that the dissentingopinions continues to be a highly controversial feature of contemporary internationaljustice. Obvious procedural uncertainty regarding admissibility of the dissenting opinionsresults 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 innerrestraints and a character of every judge discovering itself in a minority, and by the judicialculture and traditions of the courts in questions. Age of the court and its reputation andauthority may present an effective shield against bad or ill-fated dissenting opinions.Newly-created courts may be less immune against such dissenters which may bringharm to the authority of the court and its legitimacy. A current practice of the Court ofthe Eurasian Economic Union provide a persuasive example how unrestrained dissentingopinions may undermine integrity and collegiality of international court and thus the useof the dissents shall be either limited or fully forbidden or the dissents shall be used in avery responsible manner.