Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights

Abstract

Whereas lawyers usually pay only attention to the added value of majority judgments in courts, we have taken an interest in the separate opinions of the European Court of Human Rights (the Court). The jurisdiction of this court stretches from Westport (Ireland) to Wladiwostok (Russia), and from Iceland to Cyprus. Member States of the Council of Europe have a right to select a national for the Court, and are politically expected to accept the Court's jurisdiction. The Preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states that the participating European countries have ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Article 51(2) ECHR entitles any judge to deliver a separate opinion, and pursuant to Article 43 the judge of the State in the dock sits ex officio. These two articles taken together inspired us to hypothesise about the separate opinion: does a judge dissent more often if the majority finds a violation of the Convention by his/her own country? A separate concurring opinion might be understood if we consider the judge as an intermediary between the international court and national audiences. Both ways, separate opinions are seen as expressions of a national orientation. On the basis of a quantitative research of the voting pattern from 1991 to 1995 we may conclude that the Court has become a truly international court, since it does not show any impact of national backgrounds. However, underneath the surface of figures we found some striking examples of national bias in separate opinions. In the second half of this article we bring them together under the heading of conservatism and judicial restraint – a separate undercurrent of the Court's mainstream of liberalism and judicial activism. There is not just one rule of law in Europe, there are many rules of law. But to see them you have to look beyond the majority judgment.