The Function of Dissenting Opinions at the International Court of Justice

本研究审查了国际法院判决所附的异议和个别意见制度的功能。这一制度最初是在常设国际法院的前身--国际法院的前身--引入的，目的是克服对该制度的强烈反对。反对者声称，异议制度将不可避免地削弱判决(多数意见)的道德力量，从而削弱法院的司法权威。然而，两家法院的实践证明，这一制度是有益的，而不是有害的。首先，表达不同意见和持不同意见的制度有助于国际法的动态发展，因为它将不同的做法纳入法院将要作出的判决中。第二，它澄清了判决中有时含糊不清的各个部分的实质含义。另一方面，还有一个问题需要考虑。就目前的法院而言，持不同意见的法官越来越倾向于通过他们的个人意见来攻击法院的法律推理。这是旧法院从未经历过的问题。应当指出的是，正如法院《规约》第57条所表明的那样，反对意见的目的仅仅是指出法官不同意多数人意见的理由，而不是着手对他的意见所附的判决提出合理的批评。

The present research has examined functions of the system of dissenting and separate opinions which are attached to a judgment of the International Court of Justice. The system was first introduced at the Permanent Court of International Justice, the predecessor of the present Court, in overcoming a strong opposition to it. The opponents asserted that the system of dissenting opinions would inevitably undermine the moral force of the judgment (majority opinion), hence the judicial authority of the Court.The practice of the both Courts, however, has proved much usefulness of the system rather than its detrimental effect. First, the system of expressing separate and dissenting opinions contributes the dynamic development of international law by incorporating the diversity of approach in a judgment to be rendered by the Court. Second, it serves to clarify the substantial meaning of various portions of the judgment which are at times left in ambiguity.On the other hand, there is a problem to be considered. As far as the present Court concerned, there is a growing tendency in which dissenting judges are, through their individual opinions, inclined to making an attack on legal reasoning of the Court. This is a problem which the old Court had never experienced. It is to be noted that, as Article 57 of the Court's Statute suggests, the purpose of dissenting opinions is to solely indicate the reasons for which a judge is not in agreement with the majority, not to embark himself in expressing a reasoned criticism to the judgment to which his opinion attached.