THE JUDICIAL TRILEMMA

• 成果类型: Article
• 署名作者: Dunoff, Jeffrey L.; Pollack, Mark A.
• 署名单位: Pennsylvania Commonwealth System of Higher Education (PCSHE); Temple University; Pennsylvania Commonwealth System of Higher Education (PCSHE); Temple University; Pennsylvania Commonwealth System of Higher Education (PCSHE); Temple University
• 刊物名称: AMERICAN JOURNAL OF INTERNATIONAL LAW
• ISSN/ISSBN: 0002-9300
• DOI: 10.1017/ajil.2017.23
• 发表日期: 2017
• 页码: 225-276
• 关键词: european court; international judiciary; HUMAN-RIGHTS; INDEPENDENCE; WTO; opinions; JUSTICE; TRIBUNALS; EVOLUTION; POLITICS

摘要

International tribunals confront a Judicial Trilemma. More specifically the states that design, and the judges that serve on, international courts face an interlocking series of tradeoffs among three core values: (1) judicial independence, the freedom of judges to decide cases on the facts and the law; (2) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (3) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this article unpacks the logic underlying the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization's Appellate Body. The Judicial Trilemma does not identify an ideal court design. Rather it provides a framework that enables international actors to understand the inevitable tradeoffs that international courts confront, and thereby helps to ensure that these tradeoffs are made deliberately and with a richer appreciation of their implications.