scholarly journals Independence and Impartiality in The Judicial Trilemma

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 344-348 ◽  
Author(s):  
Helen Keller ◽  
Severin Meier
Keyword(s):  
International Law ◽  
Judicial Independence ◽  
Holistic View ◽  
International Courts ◽  
The Past ◽  
Trade Offs ◽  
Transparency And Accountability ◽  
Judicial Systems

Jeffrey L. Dunoff and Mark A. Pollack's article is an important and very welcome contribution to the discussion about judicial values. The authors argue that with respect to judicial independence, transparency, and accountability “judicial systems face inherent trade-offs, such that any given court can maximize two, but not all three, of these features.” In our eyes, the article's most important contribution is its holistic view: it shows why these three judicial values can only be understood in their interconnectedness. It is, for instance, not meaningful to make a statement about the correlation between transparency and independence without also taking accountability into the equation. This is because the effect of transparency on independence can only be understood if information about judicial accountability is at one's disposal. In the past, these judicial values have often been analyzed in an isolated manner, thereby leading to wrong conclusions. The Judicial Trilemma will hopefully help in shifting the discourse from isolated to holistic views on independence, transparency, and accountability. Moreover, Dunoff and Pollack lay the groundwork for a meaningful normative discussion of these three judicial values. Any debate about how to structure (international) courts should henceforth take Dunoff and Pollack's holistic view as a basis for discussion.

scholarly journals Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 349-353
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Judicial Decision ◽  
International Court Of Justice ◽  
Judicial Decision Making ◽  
International Courts ◽  
Judicial Decisions ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Empirical Social Science

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

Equity in Arbitration and in Judicial Settlement of Disputes

1993 ◽  
Vol 6 (2) ◽  
pp. 323-329 ◽  
Author(s):  
Judge Manfred Lachs
Keyword(s):  
International Law ◽  
General Assembly ◽  
Type I ◽  
International Courts ◽  
The Past ◽  
Un General Assembly ◽  
Similarities And Differences ◽  
Settlement Of Disputes ◽  
Recommended Action

Much has been written on the similarities and differences between arbitration tribunals and international courts; much more could and will certainly be written in the future. The purpose of my comments is to define similarities and differences in regard to the role of equity in both. However, I hope to enter the caveat at the very outset that in this paper I will focus solely on the role of equity in cases where the decision is to be based on international law. Accordingly, I will not here discuss cases of the type I had in mind when I pointed out in a speech delivered 34 years ago to the Legal Committee of the UN General Assembly that “[t]he arbitral solution has been applied in the past to a variety of problems, some of which were not judicial in character and did not raise issues of law”. Nor will I now discuss arbitrations in which the parties have agreed that the arbitrators need not be guided by law, or where the arbitral tribunal is expressly authorized by the parties to decide ex aequo et bono and thereby to settle the matter in a liberal spirit without regard to legal requirements and technicalities. Thus, cases in which the arbitrators have been empowered to seek mutual accommodations that would give offense to neither party are outside the scope of this discussion, as are cases where arbitrators recommended action by one of the parties as an act of grace.

The Emergence of a Common Law of International Adjudication against a Background of Proliferation

2007 ◽  
pp. 15-34
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Common Law ◽  
Third Party ◽  
International Courts ◽  
The Past ◽  
The Creation ◽  
Jurisdictional Competition ◽  
International Adjudication ◽  
Fragmentation Of International Law

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

The Paris Peoples' Tribunal and the Istanbul Trials: Archives of the Armenian Genocide

2016 ◽  
Vol 29 (1) ◽  
pp. 245-268 ◽  
Author(s):  
GABRIELLE SIMM
Keyword(s):  
International Law ◽  
War Crimes ◽  
Armenian Genocide ◽  
History And Memory ◽  
International Courts ◽  
The Past ◽  
War Crimes Trials ◽  
The Relationship

AbstractThe decisions of international courts and tribunals affect how we read history. Alternative tribunals, such as peoples’ tribunals, attempt to write alternative histories to counter the official versions. This article locates controversies over the Armenian genocide in debates about the relationship between history and international law. It considers ways of reading archives and the role of archives in informing those debates. It compares the Istanbul war crimes trials held in 1919–1920 before the Ottoman Military Tribunals with the Paris session of the Permanent Peoples’ Tribunal held in 1984 that dealt with questions of history and memory through the juridical format of a hearing. A century after the events of 1915, the contested historiography of the Armenian genocide influences how international lawyers and historians seek to pass judgment on the past.

Reflections on the Past, Present, and Future of IUU Fishing under International Law

2020 ◽  
Vol 22 (3-4) ◽  
pp. 368-376
Author(s):  
Nilufer Oral
Keyword(s):  
Human Rights ◽  
International Law ◽  
Transnational Crime ◽  
Current Status ◽  
International Courts ◽  
The Past ◽  
Iuu Fishing ◽  
Management And Conservation ◽  
Institutional Process

Abstract The present brief contribution reflects on the evolution of IUU fishing, its current status, and possible future pathways to prevent, deter, and eliminate this practice. IUU fishing not only presents a question of management and conservation, but also entails serious human rights and transnational crime components. From these perspectives, this paper concludes that IUU fishing must be addressed through a multi-regime and multi-institutional process requiring the involvement of many stakeholders, including non-State actors. In particular, the effective settlement of IUU fishing disputes requires enhancing the role of international courts and tribunals as part of this process.

Inviolability Not Immunity

2019 ◽  
Vol 17 (1) ◽  
pp. 45-76
Author(s):  
Thomas Weatherall
Keyword(s):  
International Law ◽  
High State ◽  
International Courts ◽  
Customary International Law ◽  
Arrest Warrant ◽  
The Past ◽  
Physical Interference ◽  
State Official ◽  
Domestic Courts ◽  
Domestic Law

Abstract Recent proceedings involving former Sudanese President Omar Al-Bashir have highlighted a novel intersection of international and domestic law: the domestic execution of international arrest warrants for an incumbent high state official. While the overwhelming trend over the past decade has been for international and domestic courts to analyse this issue from the perspective of immunity, that approach is not sufficient. The domestic execution of an international arrest warrant presents a question of inviolability, not immunity. Although the immunity and inviolability enjoyed by incumbent high state officials under customary international law often apply coextensively, the two doctrines are distinct in function and scope. While immunity precludes the exercise of jurisdiction by a foreign court, it is inviolability that operates as a privilege from physical interference by domestic authorities. The arrest and surrender of incumbent high state officials is likely to persist as both an objective and a challenge for international courts. If they are to succeed in this regard, international courts must account for why the privilege of inviolability does not bar the execution of international arrest warrants.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

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