International Judicial Dissent: Causes and Consequences

Dunoff, Jeffrey L. and Pollack, Mark A. (2015) International Judicial Dissent: Causes and Consequences. [Conference Proceedings] (Submitted)

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Abstract

Introduction: The past two decades have witnessed an unprecedented increase in international adjudication. The increased judicialization of global politics, in turn, has sparked a flurry of research into the politics of judicial appointments, the independence of international tribunals, and the effectiveness and legitimacy of international courts. While this literature has made great strides, it has almost entirely ignored a feature critical to understanding the role and purpose of any court, namely the use, or non-use, of separate dissenting or concurring opinions by individual judges. It is a striking feature of international courts that some allow and make extensive use of dissents (e.g., the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLOS), and the European Court of Human Rights (ECtHR)), while others issue rulings as a court with no, or very few, concurring or dissenting opinions (e.g., the European Court of Justice (ECJ) and the Appellate Body of the World Trade Organization (WTO)). Yet we know very little about why courts adopt different approaches to this central question, or about the effects of dissent on the independence of international judges and the legitimacy of their courts. Thus far, political scientists have largely ignored these questions, while legal scholars have pursued primarily normative analyses of individual courts and tribunals.

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