2 Also relevant are Art. 74 (1) of the Rules of the Court which, inter alia, provides that the number of judges constituting the majority in a judgment will be indicated, and Art. 74 (2), which provides: “Any judge may, if he so desires, attach his individual opinion to the judgment, whether he dissents from the majority or not, or a bare statement of his dissent.” See 1946-1947 I.C.J. Yearbook 596-608.

3 Edvard Hambro, “Dissenting and Individual Opinions in the International Court of Justice,” 17 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 229- 246 (1956). For further literature see especially Hudson, Manley O., International Tribunals: Past and Future, Ch. IX (Washington, D. C: Carnegie Endowment and Brookings Institution, 1944)Google Scholar, and The Permanent Court of International Justice, 1920- 1942: A Treatise 205-206 and 588-589 (New York: Macmillan Company, 1943), (hereinafter cited as Treatise). See also Lauterpacht, Sir Hersch, The Development of International Law by the International Court 66–70 (New York: Frederick A. Praeger, 1958)Google Scholar; Wilfred Jenks, C., The Common Law of Mankind 439?–441 (New York: Frederick A. Praeger, 1958)Google Scholar; and Rosenne, Shabtai, The World Court: What It Is and i How It Works 120–123 (Leiden: A. W. Sijthoff, 1962)Google Scholar. For further bibliography see ( Schwarzenberger, Georg, A Manual of International Law 583–584 (5th ed., New York: Frederick A. Praeger, 1967 Google Scholar). An interesting judicial discussion of the scope and limits of dissenting opinions appeared in the South West Africa Cases, Second Phase, Judgment of July 18; 1966. See [1966] I.C.J. Rep. 49-57 (of the Declaration by Sir Percy Spender) and 323-331 (of the Dissenting Opinion by Philip Jessup).

4 Along with Art. 74 of the Rules of the Court. See note 2 above. The practice of both the P.C.I.J. and the I.C.J, has been that a judge is entitled, but not obligated, to express a dissenting opinion. Hence it might not always be possible to identify all the dissenters, even though the Court's vote on the judgment becomes public, because some may choose not to write a separate opinion. The P.C.I.J. Statute did not seem I to anticipate “concurring” opinions, but they became the practice anyway (Art. 57 i does refer to dissents from a whole or a part of the judgment). This was confirmed by the Court's resolution of March 17, 1936. See Hudson, Treatise 589. See also Report of Rapporteur of Committee IV/1 to Commission IV, Annex 5, entitled “Report on Draft of Statute of an International Court of Justice” (Doc. 857, June 8, 1945), I Art. 57, which incorporates this practice into the I.C.J. Statute.

5 The method used and detailed results are too complex to be presented here. See Grieves, op. cit., Chs. 3 and 4. Briefly, however, of the 31 decisions rendered by the P.C.I.J. in contentious cases alone, there was evidence of a possible correlation between nationality and vote in 21 cases. There was a clear lack of correlation in only 3 cases, while the remaining 7 cases defied categorization. Of the 29 judgments rendered by the I.C.J, (as of July 31, 1968) in contentious cases, there was a possible correlation in 17 of them, 7 showed no correlation and 5 did not fit either category. This conclusion is generally borne out in the recent study by II Ro Suh, “Voting Behavior of National Judges in International Courts,” 63 A.J.I.L. 224-236 (1969). See also William Samore, “National Origins v. Impartial Decisions,” 34 Chicago-Kent Law Review 193-221 (1956).

6 Judge Hudson, writing about nationality-vote correlations with the Permanent Court of International Justice, warned: “The mere fact that a national judge is in a minority of one does not justify a conclusion that his views are attributable to national bias; such a conclusion could be reached only after a careful analysis of the substance of the views expressed by the majority and by the minority. Hence a statistical presentation of the positions taken by national judges in cases before the Court is almost certain to be misleading, and a conclusion that national judges are or are not disposed to follow the policies of their governments should not be based upon a mere tabulation of the votes which led to the adoption of the Court's judgments and opinions.” Hudson, Treatise 355.

7 Rosenne, op. cit. 64. Hambro makes this biting observation: “It is the opinion of this writer that the Judges ad hoc in 9 cases out of 10 do harm to the working of the Court, that they are in an invidious position as standing somewhere between independent judges and representatives of the parties. They have to give a solemn declaration to act as judge and are still expected by their countries—in most cases—to defend their interests. If the Statute of the Court should ever be amended, it is hoped that determined efforts will be made to suppress this institution.” Hambro, loc. cit. 240, note. For a detailed breakdown of judges’ votes in the Permanent Court of International Justice and the International Court of Justice, see Grieves, op. cit. 70-76 and 102-108 respectively.

8 One cannot help thinking back to the perceptive view of General Jan C. Smuts at the Paris Peace Conference of 1919 during the drafting of the Covenant, when he predicted that the real problem of building an international tribunal would be to find “international” judges. See II Miller, Hunter, The Drafting of the Covenant 56–57 (New York: G. P. Putnam's Sons, 1928).Google Scholar

9 P.C.I.J., Series A/B, No. 41. For a sampling of some of the literature on this case, see Lissitzyn, Oliver J., The International Court of Justice 54, note (New York: Carnegie Endowment, 1951).Google Scholar

10 Reprinted in U. S. Senate Committee on Foreign Relations, Hearings Relative, to the Protocols Concerning the Adherence of the United States to the Permanent Court of International Justice, Part 2, 73rd Cong., 2nd Sess. (May 16, 1934), p. 256. For a sampling of over 50 international newspapers, see entire Appendix D, pp. 252-267. All generally agree with this excerpt.

11 Ibid. 255.

12 Lissitzyn, op. cit. 54.

13 [1962] I.C.J. Rep. 319; [1966] ibid. 260.

14 Obviously they cannot be abolished.

15 Hudson, International Tribunals 116.

16 See Hambro, loc. cit. 231-233, for a survey of national practices. Interesting variations to both these approaches (at least in 1956) seem to be Switzerland, which has “public voting,” and Denmark, which has a compromise system. Neither the vote nor the names of dissenters are made known, only the dissenting arguments. Acceptance by judges on international tribunals of the Anglo-American or Continental system does not always follow national lines. See Hambro, loc. cit. 237-239.

17 Charles Evans Hughes, The Supreme Court of the United States, Its Foundation, Methods and Achievements: An Interpretation 67-68 (New York: Columbia University Press, 1936). See also the comments in Lauterpacht, op. cit. 66-70, and in Jenks, op. cit. 440-441.

18 See, however, the arguments of Sir Cecil Hurst, Elihu Root, N. Politis and Max Huber, reinforcing Hughes’ points, in Hambro, loc. cit. 237-239.

19 Sir Hersch Lauterpacht suggests one could also argue the opposite position: “For it may be contended that anonymity would enable a Judge to vote invariably in support of the cause of his State without incurring the odium of partisanship.” Lauterpacht, op. cit. 67, note. This seems, though, a more cynical view of the judge's oath of impartiality (Art. 20 of the Statute) than the one already suggested whereby judges, voting publicly, would try to please their home countries.

20 Provided for in Art. 54 (3) of the Statute.

21 See generally the arguments of Judges Fromageot (subsequently reversed) and Weiss (both from France), Loder (Netherlands) and Nyholm (Denmark). Reviewed in Hambro, loc. cit. 237, and Hudson, Treatise 205-206.

22 P. 144 above.

23 Hambro, loc. cit. 234. Art. 52 read: “La sentence arbitrale, votée à la majorité des voix, est motiveé. Elle est rédigée par écrit et signée par chacun des membres du Tribunal. Ceux des membres qui sont restés en minorité peuvent constater, en signant, leur dissentiment.”

24 Ibid. 234-235. The shift was apparently due to strong counter-pressure by those of the “Continental” school. The new Art. 74 stated that only the President and the Registrar would sign the award, thus abolishing dissents. “La sentence arbitrale est motivée. Elle mentionne les noms des Arbitres; elle est signée par le Président et par le GrefEer ou le Secrétaire faisant fonction de Greffier.”

25 See discussion in ibid., 235-239, and in Hudson, Treatise 205-206.

26 Footnote 4 above.

27 H.M. Stationery Office, Miscellaneous No. 2 (1944), Cmd. 6531, pp. 23-24; 39 A.J.I.L. Supp. 25-26 (1945); cited by Hambro, loc. cit. 241-242.

28 A. M. Donner, “The Court of Justice of the European Communities,” Int. and Comp. Law Q., Supp. Pub. No. 1 (1961), pp. 67-68. See also Judge Donner's article, “The Single Voice of the Court,” European Community, No. 107 (November, 1967), pp. 14-15. The merits of the “secret” system for the Court of Justice of the European Communities were the subject of debate between several European authorities during a meeting held in Cologne in 1963. See “Zehn Jahre Rechtsprechung des Gerichtshofs der Europäischen Gemeinschaften,” Kölner Schriften zum Europarecht, Band I, especially pp. 585, 603, 614, 617 and 618 (Koln: Carl Heymans Verlag KG, 1965).

29 The seven judges are appointed for terms of 6 years by unanimous agreement of the member states. In practice each state appoints “its” judge (one state gets two) who is not seriously challenged by the others.

30 The major drawback here is that the reputations of individual judges become deemphasized.