The Scope of Individual Opinions in the World Court

Abstract

The 1966 decision of the International Court of Justice setting aside the applications of Ethiopia and Liberia, and consequently dealing a mortal blow to efforts which had sought a judicial resolution of the Namibia dispute, has come to be viewed as a watershed in the history of the Court. From the standpoint of the Court's procedure, the South West Africa decision was noteworthy because it produced some strongly-worded individual opinions that appeared to deal with questions which had been before the Court but had not been dealt with by the Court's Judgment. The publication of these opinions sparked a controversy over the proper scope of expression available to individual judges — a controversy that still remains to be resolved. The Court probably discussed this issue in its private deliberations on the 1966 Judgment but did not take any public position on the subject. The only indication of the Court's concern was a “declaration” by President Spender in which he analyzed the limits that individual opinions ought to observe. Spender concluded that the scope of individual opinions must be determined by the fact that they are “directly connected with and dependent upon the judgment;” that the judgment is the “focal point of the different judicial views expressed;” that “in principle (individual) opinions should not purport to deal with matters that fall entirely outside the range of the Court's decision;” and, finally, that “there must exist a close direct link between individual opinions and the judgment of the Court”.