The Judicial Trilemma
American Journal of International Law, Forthcoming
64 Pages Posted: 19 Apr 2017 Last revised: 27 Apr 2017
Date Written: April 19, 2017
International tribunals confront a “Judicial Trilemma”: specifically the states that design, and the judges that serve on, international courts face an interlocking series of trade-offs among three core values: (i) judicial independence, the freedom of judges to decide cases on the facts and the law; (ii) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (iii) 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 paper unpacks the logic driving 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 Trilemma introduces a new set of perspectives that enables us to conceptualize the limits of judicial independence at international courts, and identify strategies to enhance this independence.
Keywords: International courts, institutional design, judicial politics, judicial independence, accountability, transparency, Trilemma
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