Item description for Judge Shigeru Oda and the Path to Judicial Wisdom: Opinions (Declarations, Separate Opinions, Dissenting Opinions) on the International Court of Justice, 1993-2003 by Edward McWhinney & Mariko Kawano...
The present volume is the fourth in a series, The Judges, which collects and synthesizes the opinions of leading international judges of the contemporary era who have contributed significantly to the progressive development of international law.
The series was launched with the Judicial Opinions of Shigeru Oda, former Judge and Vice President of the International Court of Justice. This collection of Opinions covers the period from the year 1993 until his retirement in 2003. All of the individual Opinions filed by Judge Oda in this period - Separate Opinions, Declarations and Dissenting Opinions - are included, and they are published in full, without editorial cuts. The study includes a rsum and analysis of Judge Oda's Judicial Opinions, through the cases, and attempts some identification and synthesis of the main elements in his approach to decision making and opinion writing, as well as the main strands in his judicial philosophy, as demonstrated in the actual case law.
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Edward (Ted) McWhinney, a graduate of Yale University, has held professorships at the Sorbonne, Heidelberg, Madrid, Toronto, McGill, Indiana and, most recently, Simon Fraser University. The author of more than 40 books and several hundred articles, he has been an adviser and consultant to the United Nations, the Government of Canada and a number of foreign states. Throughout the 1990s he served two full terms as Member of Parliament and Parliamentary Secretary before deciding not to stand for re-election. He now continues his work as legal counsel, governmental adviser, teacher and writer from his home base in Vancouver, BC.
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Opinions of Esteemed International Jurist Sep 28, 2006
The Series, The Judges, was begun by Martinus Nijhoff with the publication in 1993 of the volume, Judge Slug eru Oda and the Progressive Development of International Law. Opinions (Declarations, Separate Opinions, Dissents) on the International Court of Justice, 1976-1992. It covered the Opinions that he filed to the judgments of the International Court during his first two judicial mandates -- 1976-85, and 1985-94 following on his election to the Court in late 1975 as its then youngest member, at age fifty-one years. It was a philosophically divided Court at the time, living through the continuing political backlash in the United Nations and elsewhere against the Court's controversial, single¬vote-majority decision in South West Africa. Second Phase in 1966.' The differences within the Court in intellectual-legal terms centered around opposing views of the nature of the judicial process and the role of the Court qua institution and of its individual judges in restating or remaking classical International Law doctrines and jurisprudence devel¬oped in other, earlier eras of the World Community. Something of the basic antinomy in philosophy of judicial decision-making of that time is reflected in two rather different reviews of that first volume on Judge Oda's Opinions, coming, as it happened, from equally thoughtful jurists but from different sides of the Atlantic divide in legal education. Thus, a French Civil Law-trained scholar, no doubt with the classical tradition of the great Cour de Cassation in mind, asked whether the identification of individual judges of the International Court by name, in terms of the ideas expressed in their published Opinions, might not carry certain dangers: that it might encourage judges to refrain from publishing dissenting or individual Opinions in cases on which they sat; and, beyond that, that it might risk giv¬ing a totally deformed view of the Court and its memorials in so far as, in the reviewer's opinion, the influence of each judge and his or her contribution to the evolution of the law can in no way be reduced to the individualised expression of his or her thinking.'
To this, it can be said by way of some reply that every major Foreign Ministry today has its Legal Division conduct detailed profiles of the individual Judges within the International Court and other multi-member tribunals before which it may choose to litigate its disputes with other states, and also to maintain box-scores of their individual voting patterns in cases on which those judges sit and the reasons they advance for their votes. This is crucial to informed state decisions on whether to go to the Court in a particular case and, if so, what particular litigation strategies and advocacy tactics should then be adopted. What makes good sense in terms of Foreign Ministry Legal Advisers' analysis of Court decisions is relevant also to pro¬fessors and students studying the Court, and in no way, it may be suggested, conveys disrespect for the Court as an institution and as a collegial decision-making body.
An alternative approach and conception of the role of the Court and of its individual judges today is conveyed in the comments of a United States scholar who reproaches the first volume of Judge Oda Opinions for the fact that, in the reviewer's words: "It tells us nothing about Oda's parents, his class origins, his child¬hood, his adolescence, his faith and religious struggles, the formation of his sexuality, his relation to those closest to him and his family, his culture, and, in particular (and one would have thought indispensably) how he dealt with the collective trauma of Japan that ripped the coun¬try during his formative years".
Quite so! The proposals thus advanced for an extended examina¬tion in depth of the details of the subject's psychology and intimate family and social life, do reflect the wide-ranging curiosity of the American Legal Realist movement, represented in a particularly colourful and intellectually stimulating way at the Yale Law School when Oda was a graduate student there in the person of United States Court of Appeals Judge for the Second Circuit and former member of President Franklin Roosevelt's "brains trust", Jerome Frank, who was a guest Visiting Professor there. With respect, how¬ever, we would suggest that this line of investigation would be more appropriate for a literary history than for a judicial biography, and we have established our criteria of relevance accordingly. We would
also suggest, as a matter of general experience, in international and also national courts at the highest levels, that once one puts on the judicial robe the judge accepts it as part of the obligations of the office to put aside idiosyncratic elements of this extended nature that might otherwise intrude on his or her approach to decision-making or to rendering justice in the particular case. The present volume, the fourth in the Series, The Judges, picks up Judge Oda's judicial career at the end of his second mandate on the International Court and carries us through his third and final term of service. He was not the first judge to be elected, and then twice re-elected, to successive nine-year terms on the International Court. That signal honour belongs to the late Judge and sometime President of the Court, Manfred Lachs, a long-time colleague whose service preceded and then paralleled that of Judge Oda, and who had a particularly close friendship with him that stemmed, in part, from shared general intellectual interests but also from the happy accident that during the Court's period of enforced penury as to case-load in the late-1970s, he and Oda seem to have been the only members of the Court in year-round permanent residence in The Hague. Judge Lachs died in January, 1993, at the end of his twenty-sixth year of continuing service on the Court. Judge Oda, re-elected to a third term in October, 1993, and ending that mandate in early 2003, is thus the only judge in the Court's history to have com¬pleted three successive terms. It is a record that is unlikely to be repeated again. The International Court has fifteen seats only, and the elections today, with the recovery of full confidence in the Court as a fully representative tribunal, are always strongly contested, to the point where not merely are there the fully developed conven¬tions, at the elections, for regular rotation of the seats on a "regional" basis, but also for rotation, on a time basis, within each region, so that as many states as possible may have the opportunity of partic¬ipating in the Court's work. A rule of reason suggesting a two-term limit becomes understandable readily on this basis. The objection of age becomes largely irrelevant in such a context.
The present volume on Judge Oda's Opinions in his third man¬date should not be viewed, in this regard, as a mere continuation of the first volume. By the time of his third mandate he had become the oldest and most experienced scholar and jurist on the Court, in addition to becoming finally its longest serving member. He had also, it would seem, in recognition of the somewhat casual, accidental character of the presentation of particular issues of substantive law to the Court in the interstices of case-by-case litigation, begun to flesh out the exposition of legal policies and values in his judicial Opinions by extensive extra-judicial publication on legal affairs, much of it in the form of collections of previously unpublished notes, or of hitherto purely private, or restricted circulation, papers and reports. These assorted extra-judicial writings provide a rich new, supple¬mental, evidentiary source of material as to the development of his thinking as jurist.' They also constitute a form of intellectual counter¬point, at times, to ideas originally tried out in inchoate, incomplete form in his earlier judicial Opinions, and not further developed in later judicial Opinions because the opportunity for further elaborat¬ing was never there because of the absence of further litigation addressed to the same substantive issues. It will be noted also that, in his third and final mandate, there are certain changes in his style of Opinion-writing reflecting his status as senior member of the Court preparing for his own retirement from the Court, and anxious to fill in any gaps in the empirical record of his judicial philosophy. The Opinions are much shorter, in comparison to some of the academic dissertation-length studies of the first two mandates and they have less of a didactic, historical review presentation. A key element, how¬ever, is the reiteration of lessons first demonstrated in some of those earlier Opinions and evidently not profited from by the Court as a whole in later litigation on the same issues.
This is more than sufficient reason for characterising the present volume as an autonomous, self-sufficient study in its own right and not simply a Part II continuum of the earlier volume. It is extremely fortunate, in this regard, to have the full collaboration and partici¬pation, as Co-Editor of the present volume, of Professor Mariko Kawano, - in the volume's overall conception and planning but also, and most importantly, in her assuming charge of the preparation and completion of the detailed, case-by-case analysis, seriation, of the individual cases in which Judge Oda filed his own Opinions
(Declarations, Separate Opinions, Dissenting Opinions) over the whole of the period 1993-2003 up to his retirement from the International Court in February, 2003. Professor Kawano, who is Professor of International Law in the Faculty of Law of Waseda University, Tokyo, has had the extra advantage of having been a student of Judge Oda in his capacity of titular Professor of International Law at the Faculty of Law of Tohoku University in Sendai City, and of having also col¬laborated with him in his scientific-legal work in that Chair.
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