February 03, 2022

LCIL Friday Lecture: 'Road Not Taken: Comparative International Judicial Dissent' - Prof Jeffrey L Dunoff, Temple University, Beasley School of Law

39 minutes

Lecture summary: Dissent has a long and controversial history in international adjudication. This lecture excavates a now-forgotten history of debate over dissent, and identifies competing claims regarding dissent’s effect on judicial legitimacy, independence, and legal doctrine. To evaluate these claims, I undertake a comparative study of dissent practices across three leading international tribunals, the International Court of Justice, the European Court of Human Rights, and the European Court of Justice. Surprisingly, this comparative inquiry reveals that that each of the central claims in long-standing debates over dissent at international courts is misleading – and each in a different way. Challenging conventional wisdom, we find that the presence of dissenting opinions has little systematic impact on legitimacy; the key factor instead is patterns of dissent that suggest geopolitical bias among international judges. Turning to independence, we find that the effects of dissent on judicial independence are mediated by a third factor, namely the length and renewability of judicial terms of office, which vary across international courts. Finally, turning to legal doctrine, we find considerable support for the view that dissents promote the dynamic development of law, but at best limited support for the more heroic claim that today’s dissents form the basis for future majority rulings.

In the aftermath of the Cold War, international courts proliferated and scholars could meaningfully speak of the judicialization of international relations. But international adjudication is currently under severe challenge, placing pressure on international courts’ ability to maintain authority within larger systems of global governance. In this context, the success of efforts to maintain and enhance the legitimacy of international courts, independence of their judges, and quality of their doctrine, may well determine the future of international adjudication. More accurately understanding dissent’s impact can substantially advance those efforts.

Additional information

Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law. His research focuses on public international law, international regulatory regimes, international courts, and interdisciplinary approaches to international law.

Among other activities, he has served as a Visiting Professor at Harvard Law School and Princeton University’s School for Public and International Affairs; a Fernand Braudel Senior Fellow at the European University Institute; a Senior Fellow at Humboldt University; and a Visiting Fellow at the Lauterpacht Research Centre at Cambridge University. Professor Dunoff’s publications include International Legal Theory: Foundations and Frontiers (coeditor, with Mark A. Pollack, forthcoming CUP 2022); International Law; Norms, Actors, Process (with Monica Hakimi, Steve Ratner & David Wippman, 5th edition 2020), a leading textbook; Interdisciplinary Perspectives on International Law and International Relations (coeditor, with Mark A. Pollack, CUP 2013); and Ruling the World? Constitutionalism, International Law and Global Governance (coeditor, with Joel P. Trachtman, CUP 2009).

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