Las opiniones separadas y su repercusión sobre la independencia del juez internacional

• Main Author: Jiří Malenovský
• Format: Article
• Language: English
• Published: Universidad del Rosario 2010-12-01
• Series: ACDI: Anuario Colombiano de Derecho Internacional
• Subjects: Separate opinions; (right to) freedom of expression; secrecy of deliberations; authority and independence of the international judiciary; independence of the international judge.
• Online Access: http://revistas.urosario.edu.co/index.php/acdi/article/view/1396/1271

Significant discrepancies in the determination of the scope of theobligation of secrecy of deliberations by various international tribunals have led to the fact that some international judges are endowed with the right to a separate opinion, while others do not enjoy it. Taking into account the role and missions of theinternational judiciary, international judges should be given a right to separate opinions, like common law judges and many constitutional judges.Nevertheless, such analogies played only a marginal role in the preparatory works on the Statute of the Permanent Court of International Justice in 1920. Indeed, it seemed politicallyunacceptable to the States that the legal opinion of an international judge, personifying them and their sovereign power within the court, should be condemned to anonymity by virtue of the principle ofsecrecy of deliberations, due only to the “technical” factthat such an opinion has been outweighed by the majority at the momentof voting on the draft judgment.There is a permissive rule of general International Law guaranteeingan autonomous power to the international judiciary to lay down, in the rules of procedure of any international court, the right to a separate opinion, even if such a right is not expressly provided for by its statute or other constituting treaty. The aforementioned rule is presumed to apply unless it can be deduced from the behaviour of the founding States that they wished to derogate from it.The right to separate opinions can also be analysed from the perspective of judges’ right to freedom of expression. In accordance with this freedom, an international judge can feel free to demonstrate systematically, in the form of separate opinions, theintellectual weaknesses of the majority views and reasoning, subjectto avoiding offensive style and formulations.Such a form of expression is presumed to cause no harm to the authority of the judiciary.If some positive effects of absence or prohibition of separate opinions on the independence of international judges sitting in the case cannot be set aside too easily, nevertheless, such a seriousmeasure restricting substantially their right to freedom ofexpression seems to be neither sufficiently efficient norproportional to this pursued legitimate aim. There are other,more efficient and less restrictive tools which are also able to lead to the same result (for example, introduction of a single, non renewable mandate for international judges).