Rules of Law from Westport to Wladiwostok - Separate Opinions in the European Court of Human Rights Part A 15 Netherlands Quarterly of Human Rights 1997

15 Neth. Q. Hum. Rts. 175 (1997)
Rules of Law from Westport to Wladiwostok - Separate Opinions in the European Court of Human Rights

handle is hein.journals/nethqur30 and id is 186 raw text is: Rules of Law from Westport to Wladiwostok. Separate Opinions
in the European Court of Human Rights
Fred J Bruinsma and Matthits de Blois*
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 offigures 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.
I National Judges in an International Court
The nomination procedure explicitly takes into account the national background of the
judges in the Court. Article 38 states:
'The European Court of Human Rights shall consist of a number of judges equal to that of the
Members of the Council of Europe. No two judges may be nationals of the same State.'
Article 39(1) states:
'The members of the Court shall be elected by the Consultative Assembly by a majority of
votes cast from a list of persons nominated by the Members of the Council of Europe; each
Member shall nominate three candidates, of whom two at least shall be its nationals.'
The authors both work at the Department of Legal Theory of the Law Faculty of Utrecht University. A
Dutch version of this article has been published in the NJCM-Bulletin, Vol. 21, No. 7, 1996, pp. 889-904.
Netherlands Quarterly of Human Rights, Vol. 15/2, 175-186, 1997.
0 Netherlands Institute of Human Rights (SIM). Printed in the Netherlands. 175

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