Separate Opinions in International Courts and Tribunals

66 Pages Posted: 14 Sep 2023 Last revised: 15 Dec 2023

See all articles by Jeffrey L. Dunoff

Jeffrey L. Dunoff

Temple University - James E. Beasley School of Law

Mark A. Pollack

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

Date Written: September 11, 2023

Abstract

Separate opinions are common across many international courts and tribunals, yet their great variety and their impacts on judicial independence, judicial legitimacy, and the development of law are poorly understood. This paper provides a synoptic overview of separate opinions in international adjudication and arbitration by analyzing more than a century of debates over, and practice regarding, these judicial writings. To do so, it examines enduring normative debates over the desirability and impact of separate opinions and leading theories regarding the motivations for and frequency of separate opinions. It then explores the use and impact of separate opinions at the International Court of Justice, International Tribunal for the Law of the Sea, regional human rights courts, WTO dispute settlement, regional integration courts, international criminal courts, arbitration tribunals, and human rights treaty bodies.

Keywords: International courts, international tribunals, international arbitration, international judges, institutional design, separate opinions, dissenting opinions, concurrences, International Court of Justice, International Tribunal for the Law of the Sea, WTO dispute settlement, human rights courts, regi

JEL Classification: K00, K33, K40

Suggested Citation

Dunoff, Jeffrey L. and Pollack, Mark A., Separate Opinions in International Courts and Tribunals (September 11, 2023). Temple University Legal Studies Research Paper No. 2023-20, Available at SSRN: https://ssrn.com/abstract=4568438 or http://dx.doi.org/10.2139/ssrn.4568438

Jeffrey L. Dunoff (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8233 (Phone)
215-204-1185 (Fax)

Mark A. Pollack

Temple University - Department of Political Science ( email )

461 Gladfelter Hall
Philadelphia, PA 19122
United States

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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