More Than Trivial: Dissent as Design Element

Jeffrey L. Dunoff (left) is Professor of Law and Laura H. Carnell Chair at Temple University.

Mark A. Pollack (right) is Professor and Jean Monnet Chair  in the Department of Political Science at Temple University.

Kudos to Dapo for triggering an entertaining and informative set of posts (also here, here and here)about the use of dissents in international courts.   The exchanges on this topic unearthed many little-known practices and long-forgotten cases. More importantly, we believe, these posts raise a deeper set of questions about the causes and consequences of dissent that international lawyers have paid insufficient attention to.

One puzzle is why international courts show such great variation in the use of dissents; ECJ opinions never have dissents, ICJ opinions are regularly accompanied by dissents, and WTO dispute reports rarely have dissents – although this norm has been evolving in recent years.  The puzzle only deepens when we consider the rationales offered to explain these varied practices. Dissent at the ICJ is frequently justified on the grounds that it helps to preserve judicial independence.  In Judge Huber’s words, dissents serve as “a guarantee against any subconscious intrusion of political considerations, and the judgments were more likely to be given in accordance with the real force of the arguments submitted.”  Ironically, however, in the ECJ context, it is the absence of dissent that is thought to preserve judicial independence, as a single collegiate opinion is said to shield judges from national political pressures. How can it be that the presence and the absence of dissent both enhance judicial independence?

More fundamentally, what factors drive the decision by states to allow or prohibit dissents in the statutes of international courts, as well as the subsequent decisions by judges to issue dissents or refrain from doing so?  And, what consequences flow from international judicial dissents, for judicial independence, collegiality, and the development of law?

A functionalist approach to these questions explores the costs and benefits of dissent.  Much of the literature on US judicial practice adopts this perspective, and often argues that the benefits of dissent to law development outweigh the institutional and collegiality costs.  A competing sociological institutionalist approach focuses on the legal traditions of the states that belong to different tribunals.  Thus, for example, the six original members of the European Coal and Steel Community had civil law traditions that did not use dissenting opinions; not surprisingly, the supranational tribunal they created likewise did not utilize dissents.  In contrast, when common-law and civil law states jointly form international courts, dissents are often used, as in the PCIJ and ICJ.  An historical institutionalist approach emphasizes contingency (powerful personalities, etc) or historical stages (young courts suppress dissents).  This approach is common in studies of the US Supreme Court  — i.e., many argue that Chief Justice John Marshall suppressed dissents to buttress the strength and prestige of the early Court, while later Chief Justices encouraged the use of dissent.  Such an approach might help explain the PCIJ’s shift toward greater use of dissent, as well as recent developments in WTO dispute settlement.

While political scientists and comparative lawyers have generated rich accounts of judicial dissent, international lawyers have been largely missing in action.  In response, we are undertaking a study premised on the claim that dissent is a deliberate element of tribunal design.  Support for this approach can be found in the explicit and often extended debates over the merits of dissents that can be found in the negotiating records of many key moments in the development of modern international adjudication – including the 1899 Hague Conference, 1907 Hague Conference, 1920 Committee of Jurists report on the PCIJ, 1926 Conference for the Revision of the PCIJ’s Rules of the Court, 1929 Conference on the PCIJ, etc. – not to mention in more recent proposals to encourage judges to issue separate opinions at the ECJ and at the WTO.

One intriguing question is whether creators of international tribunals face systematic trade-offs between different design elements.  That is, just as treaty negotiators must make politically difficult choices between, say, depth (stringency of commitments) and breadth (number of parties), do tribunal designers face inescapable trade-offs among competing values?  There are many potential trade-offs here; one that we’re exploring might be called the “judicial trilemma.” Specifically, might there be systematic trade-offs between three desiderata – judicial independence, renewable judicial terms, and open voting and dissent – such that it is only possible to have two, but not all three, of these design elements?

In short, identifying patterns of dissent in international tribunals is much more than a parlor game.  Rather, provisions regarding the use of dissent are a deliberate design element of international courts – and provide an underappreciated key to understanding the nature, purpose and limitations of international tribunals.