Judicial authority, dissent and the project of international justice

Dissenting opinions, separate opinions and declarations are a familiar aspect of the international jurisprudential landscape. Despite this, in comparison to domestic judicial systems, there has been comparatively little by way of attempts to rationalise the institutional and systemic implications of this practice. While there is widespread agreement that the impact of additional opinions lies in their effect upon the authority of the court or tribunal and its decisions (‘institutional judicial authority’), the nature of that impact is open to greater contestation. How should additional opinions be viewed? An unnecessary and counterproductive distraction or an important mechanism of accountability for the exercise of judicial power? By conceiving additional opinions as the expression of individual judicial authority, this thesis examines the interplay between individual judicial authority and institutional judicial authority within two paradigms of international justice. The first – comprising the ICJ and PCIJ – represents the traditional paradigm of international justice wherein the culture of expressing individual judicial authority in international law was born. The second paradigm is international criminal justice as pursued by two institutions in particular, the ICTY and the ICC. By comparing these two paradigms, and the nature and purposes of judicial authority therein, this thesis considers how individual judges through their additional opinions have contributed to the evolving international judicial culture, and how that practice affects the manner in which the institutions in question advance the project of international justice. Drawing upon Mirjan Damaška’s work demonstrating how procedural choices and practices have implications upon authority, and the relationship between procedure and the purposes for which authority is claimed, this thesis demonstrates that not only is the expression of individual judicial authority consistent with institutional authority but it is constitutive of it. The final section of the thesis turns to consider a form of judicial expression – defined as judicial dissent – that places institutional and individual authority in conflict with one another. Despite the negative implications of judicial dissent upon judicial authority (both institutional and individual) and judicial collegiality, the final section considers whether such practice can play a legitimate systemic function