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The Judicial Trilemma

  • Jeffrey L. Dunoff (a1) and Mark A. Pollack (a2)
Abstract
Abstract

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.

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1 See, e.g., Shawn Donnan, US Accused of Undermining WTO, Fin. Times (May 30, 2016); Bryce Baschuk, U.S. Rejects Reappointment of Korean to WTO Panel, BNA Int'l Trade Daily (May 11, 2016); TWN Info Service on WTO and Trade Issues, US Body Blow to DSU, Creating Systemic Crisis, Third World Network (May 20, 2016), at http://www.twn.my/title2/wto.info/2016/ti160514.htm.

2 To be clear, our claim is not that the independence of judges on courts with renewable terms and frequent dissents is necessarily compromised; our more limited claim is that this combination of structural factors introduces a systemic threat to judicial independence, and that international judges recognize this threat and have taken steps to address it. Whether these steps are adequate is an issue we consider below.

3 The seminal works in this area are Barbara Koremenos, The Continent of International Law (2016) [hereinafter Koremenos, Continent]; Koremenos Barbara, Lipson Charles & Snidal Duncan, The Rational Design of International Institutions, 55 Int'l Org. 761 (2001). Important legal scholarship in this vein includes Guzman Andrew T., International Tribunals: A Rational Choice Analysis, 157 U. Pa. L. Rev. 171 (2008); Raustiala Kal, Form and Substance in International Agreements, 99 AJIL 581 (2005); Guzman Andrew T., The Design of International Agreements, 16 Eur. J. Int'l L. 579 (2005).

4 On judicial independence, see, e.g., Voeten Erik, International Judicial Independence, in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art 421 (Dunoff Jeffrey L. & Pollack Mark A. eds., 2013) [hereinafter The State of the Art]. On appointment practices, see, e.g., Ruth Mackenzie, Kate Malleson, Penny Martin & Philippe Sands, Selecting International Judges: Principle, Process, and Politics (2010). On transparency, see Neumann Thore & Simma Bruno, Transparency in International Adjudication, in Transparency in International Law 436 (Bianchi Andrea & Peters Anne eds., 2014).

5 See, e.g., Mackenzie Ruth, The Selection of International Judges, in The Oxford Handbook of International Adjudication 737 (Romano Cesare P. R., Alter Karen J. & Shany Yuval eds., 2013) [hereinafter Oxford Handbook].

6 Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Trial Judgment (Mar. 24, 2016).

7 Philip Morris Brands Sàrl v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award (July 8, 2016).

8 See, e.g., Obligations Concerning Negotiations Relating the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. U.K.), Preliminary Objections (Oct. 5, 2016).

9 In the Matter of the South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award (July 12, 2016).

10 Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights 4 (2014); Karen J. Alter, Emilie M. Hafner-Burton & Laurence R. Helfer, The Judicialization of International Relations (unpublished manuscript, on file with authors).

11 E.g., Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (1984).

12 See, e.g., Koremenos, Rational Design, supra note 3.

13 E.g., Laurence R. Helfer, Flexibility in International Agreements, in The State of the Art, supra note 4, at 177.

14 Koremenos, Continent, supra note 3; Barbara Koremenos & Timm Betz, The Design of Dispute Settlement Procedures in International Agreements, in The State of the Art, supra note 4, at 371; Koremenos Barbara, If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining?, 36 J. Leg. Stud. 189 (2007).

15 Koremenos, Continent, supra note 3, at 214.

16 Helfer Laurence R., Why States Create International Tribunals: A Theory of Constrained Independence, in International Conflict Resolution 253 (Voigt Stefan, Albert Max & Schmidtchen Dieter eds., 2006).

17 For excellent introductions and overviews, see, e.g., Lee Epstein & Jack Knight, The Choices Justices Make (1998); Lee Epstein, William M. Landes & Richard A. Posner, The Behavior of Federal Judges (2013).

18 E.g., Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002).

19 For an excellent review of this debate, see Spiller Pablo T. & Gely Rafael, Strategic Judicial Decision-Making, in The Oxford Handbook of Law and Politics 34 (Whittington Keith E., Kelemen R. Daniel & Caldeira Gregory A. eds., 2008) [hereinafter Law and Politics].

20 See, e.g., Georg Vanberg, Establishing and Maintaining Judicial Independence, in Law and Politics, id. at 99, and the discussion in Section II of this article.

21 For influential explanations of judicial independence, see, e.g., Landes William & Posner Richard, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & Econ. 875 (1975); North Douglas & Weingast Barry, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. Econ. Hist. 803 (1989); Ramseyer J. Mark, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. Legal Stud. 721 (1994); Ferejohn John, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353 (1999).

22 Vanberg, supra note 20, at 100.

23 On the judicial independence and accountability of U.S. state court judges, see, e.g., Russell Peter H., Toward a General Theory of Judicial Independence, in Judicial Independence in the Age of Democracy 1 (Russell Peter H. & O'Brien David M. eds., 2001); G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (2012).

24 See, e.g., Frank Cross, Judicial Independence, in Law and Politics, supra note 19, at 557, 566 (“Independence is generally considered a virtue, but so is accountability; and the two terms are roughly antonymous.”); Vanberg, supra note 20, at 101 (“Importantly, efforts to increase judicial independence can conflict with attempts to secure judicial accountability. In particular, independence and accountability often involve tradeoffs in institutional design.”).

25 Ramseyer, supra note 21; Cooter Robert D. & Ginsburg Tom, Comparative Judicial Discretion: An Empirical Test of Economic Models, 16 Int'l Rev. L. & Econ. 295 (1996).

26 For excellent overviews, see Hafner-Burton Emilie M., Victor David & Lupu Yonatan, Political Science Research on International Law: The State of the Field, 106 AJIL 47 (2012); Erik Voeten, International Judicial Behavior, in Oxford Handbook, supra note 5, at 550–67.

27 E.g., Pollack Manfred Elsig & Mark A., Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization, 20 Eur. J. Int'l Rel. 391 (2014).

28 Lupu Yonatan & Voeten Erik, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, 42 Brit. J. Pol. Sci. 413 (2011).

29 Important recent contributions to this debate include Carrubba Clifford J., Gabel Matthew & Hankla Charles, Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice, 102 Am. Pol. Sci. Rev. 435 (2008); Sweet Alec Stone & Brunell Thomas, The European Court of Justice, State Noncompliance, and the Politics of Override, 106 Am. Pol. Sci. Rev. 204 (2012); Larsson Olof & Naurin Daniel, Judicial Independence and Political Uncertainty: How the Risk of Override Affects the Court of Justice of the EU, 70 Int'l Org. 377 (2016).

30 Judicial independence is not, of course, a binary variable; rather, it exists along a continuum from entirely independent “trustees” to perfectly responsive “agents” who are entirely dependent upon their political principals. See, e.g., Alter Karen J., Agents or Trustees: International Courts in their Political Context, 14 Eur. J. Int'l Rel. 33 (2008).

31 Helfer, supra note 16, at 253.

32 Id.

33 E.g., Mahoney Paul, The International Judiciary – Independence and Accountability, 7 L. Prac. Int'l Cts. 313 (2008).

34 Grant Ruth W. & Keohane Robert O., Accountability and Abuses of Power in World Politics, 99 Am. Pol. Sci. Rev. 29 (2005).

35 Mahoney, supra note 33, at 339.

36 In domestic settings, additional mechanisms are available and frequently employed. For example, in systems that have multitier systems, governments can discipline judicial behavior by facilitating or blocking promotion to a higher-tier court. See, e.g., J. Mark Ramseyer & Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (2003); Klerman Daniel, Nonpromotion and Judicial Independence, 72 S. Cal. L. Rev. 455 (1999). As appellate mechanisms are rare in international law, this tool is not as readily available on the international plane. Similarly, many domestic systems use judicial councils to manage the appointment, promotion, and discipline of judges, but this approach likewise has not been used in international courts. See, e.g., Garoupa Nuno & Ginsburg Tom, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 Am. J. Comp. L. 103 (2009).

37 The possibility of reappointment is a formal accountability mechanism, but we acknowledge that individual judges may be informally accountable to member governments or other types of actors insofar as, for example, they may seek future appointments in government, the private sector, or academe following their terms on the court. Non-renewable terms of office, therefore, do not entirely insulate judges from possible career incentives controlled by governments, but they do remove the immediate threat of loss of a judge's current (and typically prestigious and well-remunerated) office at the hands of member governments.

38 International Court of Justice (ICJ) nominations do not come directly from governments, but rather from national groups at the Permanent Court of Arbitration. Thus, as a formal matter, candidates need not be nominated by their home state; in fact, candidates who lack the active support of their government will be extremely unlikely to secure a seat at the Court. Mackenzie, supra note 4, at 96.

39 E.g., Transparency in International Law, supra note 4.

40 Following common usage, we use the shorthand “dissent” to refer both to separate opinions that dissent from the majority decision, and concurring opinions that concur in the outcome but differ in their legal reasoning. See, e.g., Mosk Richard & Ginsburg Tom, Dissenting Opinions in International Arbitration, 15 Mealey's Int'l Arb. Rep. 6, n. 1 (1999).

41 Brennan William J., In Defense of Dissents, 37 Hast. L.J. 427 (1986).

42 Charles Evans Hughes, The Supreme Court of the United States: Its Foundation, Methods, and Achievements: An Interpretation 58 (1928).

43 Learned Hand, The Bill of Rights 72 (1958).

44 For an excellent exploration of the issues posed by judicial elections in the various U.S. states, see Tarr, supra note 23.

45 Ginsburg Ruth Bader, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 146 (1990).

46 See Tarr, supra note 23, for an excellent discussion of both critics and defenders.

47 A brief note on our empirical methods and sources: In this study, as in our wider work on international judicial practices, we adopt a multimethod approach to identify and analyze the often-hidden practices of international courts and judges. Specifically, we draw upon, inter alia: primary legal materials, such as international treaties, court statutes, rules of court, and international court decisions and separate opinions; secondary sources, such as drafting histories, judicial biographies and memoirs, the burgeoning literature on international courts, and scholarship in fields such as judicial politics and comparative law; off-the-bench speeches and writings of judges; and interviews with international judges, court officials, and members of each court's “community of practice.” For our analysis of the design of each international court, we have drawn primarily on black letter sources, while for judges' perceptions and practices we have relied most heavily on writings by, and interviews with, current and former judges on international courts. In particular, we have, over a period from 2012 through 2016, conducted a series of semistructured interviews on the subject of “international judicial dissent” with a selection of thirteen current and six former judges, as well as court officials, at four international courts selected for a wide range of variation with respect to the issuing of separate opinions: the European Court of Justice, the European Court of Human Rights, the International Court of Justice, and the WTO Appellate Body. Each interview began with a series of open-ended questions about the practices, causes, and consequences of dissent (or lack of dissent) for the court in question, designed to solicit judges’ understandings of dissent in their own words, followed by a set of more specific questions designed to access information relevant to specific hypotheses. Across the four international courts at which we conducted interviews, we attempted to speak with judges and other court officials who would reflect a wide range of geographic origins, legal traditions, professional backgrounds, and length of time spent in service on the bench. Nonetheless, for purposes of this article, we do not claim that the four courts upon which we focused constitute a representative sample of international tribunals, or that our interviewees constitute a representative sample of the members of the international judiciary. For a detailed explanation of our research methods, see Jeffrey L. Dunoff & Mark A. Pollack, International Judicial Practices: A Manifesto, at 56–68 (unpublished manuscript, on file with authors).

48 E.g., Mundell Robert A., Capital Mobility and Stabilization Policy Under Fixed and Flexible Exchange Rates, 29 Can. J. Econ. 475 (1963) (states cannot simultaneously pursue a fixed foreign exchange rate, free capital movement, and an independent monetary policy).

49 Compare, e.g., Epstein & Knight, supra note 17 (judges are highly strategic in the pursuit of policy objectives and understand and anticipate the preferences of other institutional actors, including legislatures, the executive, and other judges or courts, in their opinion writing strategies) with Schauer Frederick, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. Cinn. L. Rev. 615 (2000) (foregrounding role of personal ambition and self-interest in influencing judicial behavior).

50 Hence, to be clear, the Judicial Trilemma's logic would have no force in a world in which judges attach no value at all to being reappointed to additional terms of office. However, the empirical record of frequent reappointments at international courts, as well as our discussions with current and former judges, suggests that we do not live in that world.

51 One might, for example, hypothesize that liberal states might place a greater emphasis on judicial independence as a core value of any rule-of-law system, while authoritarian regimes might place a greater emphasis on the judicial identifiability and accountability of “their” judges. Similarly, common law states may place a greater emphasis on the judicial transparency than civil law states, since the former are more likely to have a domestic tradition of judges issuing separate concurring and dissenting opinions. We intend to explore these hypotheses in our ongoing research on international judicial dissent.

52 That said, our theory does make the simplifying assumption of treating states as unitary rational actors who design international courts and respond to the behavior of international judges in light of some conception of the national interest. It is, of course, true that states are internally plural, and that any particular decision to support or to block the reappointment of any specific judge may reflect highly contingent partisan, bureaucratic or personal considerations. Our analysis, however, abstracts away from such contingent, subnational factors, which may indeed explain individual design or appointment choices, in favor of a traditional, state-centric perspective that seeks to illuminate broad patterns of state behavior.

53 As a formal matter, the Court of Justice of the European Union (CJEU) is the judicial institution of the EU, and is made up of three courts: the Court of Justice, the General Court, and the Civil Service Tribunal. For current purposes, our focus is on the Court of Justice.

54 For detailed accounts, see Smedt Anne Boerger-De, La Cour de Justice dans les Négociations du Traité de Paris Instituant la CECA, 14 J. Eur. Integration Hist. 7, 3033 (2008); Smedt Anne Boerger-De, Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome, 21 Contemp. Eur. Hist. 339, 346, 355 (2012).

55 E.g., Weiler Joseph H.H.,The Transformation of Europe, 100 Yale L.J. 2403 (1991).

56 E.g., Karen J. Alter, Establishing the Supremacy of European Law (2001).

57 Sweet Alec Stone, The European Court of Justice and the Judicialization of EU Governance, in 5 Living Reviews in European Governance 2 (2010).

58 Protocol No. 3, On the Statute of the Court of Justice of the European Union, Art. 3, 2010 O.J. Eur. Union (C 83/210) [hereinafter Protocol No. 3].

59 Id. Art. 6.

60 This six-year renewable term, which was part of the Statute of the first Court in 1951, was a French proposal, and was contested by the Belgian delegate to the Paris negotiations, Fernand Muûls, who sought, unsuccessfully, to increase the length of the mandate to nine years. Muûls argued, in the words of historian Anne Boerger-de Smedt, that “the nomination procedure proposed by the French would put the judges at the mercy of the good will of the ministers, which seemed incompatible with the principle of independence … . This seemed even more alarming since the judges were not named for life and since the renewal of their mandates was also left to the discretion of the governments.” Boerger-De Smedt, La Cour de Justice, supra note 54, at 20–21 (authors' translation). The French position carried the day, and the provision for six-year renewable terms was included in the final draft of the Treaty in Article 32. This left the judges of the European Court of Justice (ECJ) more vulnerable to member-state pressure than the judges of either the ICJ or European Court of Human Rights (ECtHR), whose renewable terms of office were longer at nine years.

61 Franklin Dehousse, The Reform of the EU Courts (III): Abandoning the Management Approach by Doubling the General Court (2016).

62 It is worth noting, however, that this decision was not made thoughtlessly or by default, and the question was discussed in the negotiations. According to Maurice Lagrange, the French negotiator and former Conseil d’État judge who drafted the original text of the Court's Statute, the possibility of allowing explicitly for judicial dissent was raised toward the end of the negotiations by the Dutch delegation, and was rejected. It was at this point, according to Lagrange, that the French proposed the novel position of Advocate-General, modeled on the French Commissaire du Governement, who would be charged with undertaking an initial reading of the parties' written submissions and producing a public, nonbinding opinion for the judges' consideration. The proposal was accepted, according to Lagrange, “as a sort of compensation for the ban on the right of judges to publish dissenting opinions.” Maurice Lagrange, Discours Prononcé par M. l'Avocat Général Maurice Lagrange, à l'Audience Solennelle de la Cour (Oct. 8, 1964), available at http://www.cvce.eu/content/publication/2001/11/12/f2f00c1c-2587-497f-ace0-6890bf0cb85f/publishable_fr.pdf (quoted in Boerger-de Smedt, supra note 54, at 21).

63 Protocol No. 3, supra note 58, Art. 35.

64 Azizi Josef, Unveiling the EU Courts' Internal Decision-Making Process: A Case for Dissenting Opinions?, 12 ERA Forum 49, 52 (2011) (“the full secrecy of deliberations also excludes to reveal the mere number of judges who have adhered to the final judgment and to specify the reasons why they partly or entirely disagree with that judgment”).

65 For example, the ICJ Statute provides that, “The deliberations of the Court shall take place in private and remain secret,” ICJ Statute, Art. 54, and the ECtHR's Rules of Court state that, “The Court shall deliberate in private. Its deliberations shall be and shall remain secret.” European Court of Human Rights Rules of Court, Rule 22 (entered into force July 1, 2014). Judges at both courts have interpreted these provisions as consistent with the publication of the number and identities of the judges in the majority and minority, as well as separate opinions.

66 On short, renewable terms as a threat to EU judicial independence, and on the suppression of dissent as a strategy to preserve independence, see e.g., Weiler J.H.H., Epilogue: The Judicial Après Nice, in The European Court of Justice 225–26 (Búrca Gráinne de & Weiler J.H.H. eds., 2002); Weiler J.H.H., Epilogue: Judging the Judges: Apology and Critique, in Judging Europe's Judges: The Legitimacy of the Case Law of the European Court of Justice 252 (Adams Maurice, de Waele Henri, Meeusen Johan & Straetmans Gert eds., 2013); Perju Vlad, Reason and Authority in the European Court of Justice, 49 Va. J. Int. L. 307 (2009).

67 See, e.g., Mancini G. Federico & Keeling David T., Democracy and the European Court of Justice, 57 Modern L. Rev. 175, 176 (1994) (“[J]udges … hold office for six years and may be reappointed (or, of course, not reappointed)… . [I]n few countries is the judiciary so bereft of formal guarantees of its independence.”).

68 Azizi, supra note 64, at 55–57 (emphasis added).

69 Interviews with CJEU Judges L1 and L2 (on file with authors).

70 Judges mentioned other considerations as well. For example, some judges argued that unanimous opinions enhance the court's legitimacy, and judicial collegiality, understood as the collective effort to deliberate together and reach the broadest possible consensus on the rationale in support of a decision.

71 Weiler, Epilogue: The Judicial Après Nice, supra note 66, at 225.

72 Id. at 225–26 (“As a precondition for these changes in the style of ECJ decisions, the Member States in the next IGC would have finally to eliminate a continuous affront to the integrity of the European legal system, namely the renewability provisions for sitting judges on the Court… . The refusal of the Member States to accede to [requests to move to non-renewable terms] is simply unacceptable. Once this elementary anomaly is corrected, the conditions for dissents and separate opinions would be open.”).

73 Weiler, Epilogue: Judging the Judges, supra note 66, at 252.

74 Interviews with CJEU Judges L2, L3, and L5 (on file with authors).

75 Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, 1995 Eur. Ct. Jus. 6–7 (“The Court would not … object to a reform which would involve an extension of the term of office with a concomitant condition that the appointment be non-renewable. Such a reform would provide an even firmer basis for the independence of its members and would strengthen the continuity of its case-law.”).

76 See Task Force on the Intergovernmental Conference, No. 1: Briefing on the European Court of Justice (Sixth Update: Mar. 3, 1997) (noting support for non-renewable terms from European Parliament, the Reflection Group, and several member states).

77 Weiler, Epilogue: Judging the Judges, supra note 66, at 251–52 (“The possibility of reappointing judges … at the end of their term of office is an ongoing scandal… . It compromises the appearance of independence of the judges … and it has been argued over the years that in some instances it was not only the appearance of independence that has been compromised.”).

78 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (2011).

79 For an overview, see Caflisch Lucius, The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond, 6 Hum. Rts. L. Rev. 403 (2006).

80 E.g., Helfer Laurence, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 Eur. J. Int'l L. 125, 126 (2008).

81 See, e.g., Bates, supra note 78.

82 Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 21(1), Nov. 4, 1950, ETS No. 5, 213 UNTS 221 [hereinafter ECHR].

83 Rules of Court of the European Court of Human Rights, Rule 3, at 4 (1959). The original rules can be found at http://www.echr.coe.int/Documents/Archives_1959_Rules_Court_BIL.pdf.

84 Id. Rule 4.

85 ECHR, supra note 82, Art. 21(3).

86 Bates, supra note 78, at 405 (citation omitted).

87 The first draft European Convention was drawn up by the International Juridical Section of European Movement, along with a draft Statute, Article 1 of which states explicitly that it is “based on the Statute of the International Court of Justice” (reproduced in 1 Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on Human Rights (Council of Europe ed., 1975)). This deliberate copying of much of the ICJ Statute, in turn, explains the Statute's initial rules on both judicial accountability (nine-year renewable terms) and judicial transparency (separate opinions).

88 ECHR, supra note 82, Art. 45.

89 Nina-Louisa Arold, The Legal Culture of the European Court of Human Rights 91, n. 249 (2006).

90 Id. at 92. Dissent rates in Grand Chamber decisions are substantially higher than in the Court's regular seven-judge chambers, which likely reflects the facts that the Grand Chamber hears only “exceptional” cases, often involving difficult questions of law, substantial political issues, or important issues of policy, and that the Grand Chamber consists of seventeen judges, both of which render unanimity more difficult to obtain.

91 Interviews with ECtHR Judges S1–S7 (on file with authors). For discussions of dissent in the earlier Court, see, e.g., Bruinsma F.J., The Room at the Top: Separate Opinions in the Grand Chambers of the ECHR (1998–2006), 32 Ancilla Iuris 32 (2008); Florence Rivière, Les Opinions Séparées des Juges à la Cour Européenne des Droits de l'Homme (2004); White R.C.A. & Boussiakou I., Separate Opinions in the European Court of Human Rights, 9 Hum. Rts. L. Rev. 37 (2009).

92 ECHR, supra note 82, Art. 40 (“The members of the Court shall be elected for a period of nine years. They may be re-elected.”). This provision was taken verbatim from the ICJ Statute, and we find no evidence in the Travaux of any significant discussion on this provision. 1 Collected Edition of the ‘Travaux Preparatoires,’ supra note 87, at 305.

93 Council of Europe, Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, (restructuring the control machinery established thereby), Art. 23, Eur. Treaty Series 155 (1994), at http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007cda9.

94 See, e.g., Rudolf Bernhardt, Reform of the Control Machinery Under the European Convention on Human Rights: Protocol No. 11, 89 AJIL 145, 153 (1995) (“[S]ix years is a very short time for a position of this kind; at least one renewal should therefore become the rule. But this again will depend on governments, which submit the nominations, and they may be influenced by judicial pronouncements they do not like or by other political considerations.”).

95 Voeten Erik, The Impartiality of International Judges: Evidence from the European Court of Human Rights, 102 Am. Pol. Sci. Rev. 417, 421 (2008) (references removed). Gotchev, the judge appointed—but not reappointed—in respect of Bulgaria, had joined a unanimous 1997 decision finding a Bulgarian violation in Lukanov, which was the first decision in a case from any of the new member states of central and eastern Europe; see Joel Blocker, Bulgaria: Court Rules Lukanov's Human Rights Were Violated, Radio Free Europe (Mar. 9 1997), at http://www.rferl.org/content/article/1083937.html. He was denied renomination by the Bulgarian government the following year.

96 Report of the Evaluation Group to the Committee of Ministers on the ECHR, para. 89 (2001).

97 Recommendation 1649 (2004): Candidates for the European Court of Human Rights, Eur. Parl. Doc. (2204), paras. 9, 13.

98 Eaton Martin & Schokkenbroek Jeroen, Reforming the Human Rights Protection System Established by the European Convention on Human Rights, 6 Hum. Rts. L.J. 1, 10–11 (2005).

99 Id. at 10.

100 Jan Lathouwers, Protocol No. 14: Object, Purpose and Preparatory Work, in Protocol No. 14 and the Reform of the European Court of Human Rights 1, 9 (Paul Lemmens & Wouter Vandenhole eds., 2005) [hereinafter Protocol No. 14].

101 Nathalie Van Leuven, The Judges of the European Court and the Commissioner for Human Rights, in Protocol No. 14, id. at 24.

102 All seven of the current ECtHR judges we interviewed for this study indicated that they supported the move to non-renewable terms. Several judges, however, noted that the shift does not entirely remove extralegal pressures on judges, many of whom are relatively young and likely to seek judicial, governmental, or academic positions in their home states following their terms in Strasbourg. Interviews with ECtHR judges, December 2014, July 2016, Strasbourg (on file with authors).

103 UN Charter, Art. 92.

104 Id.

105 Id.

106 ICJ Statute, Art. 36.

107 UN Charter, Art. 94.

108 ICJ Statute, Art. 31. As a large literature addresses questions over the independence of the judge ad hoc, we do not further pursue it, and focus instead on the other members of the Court's bench.

109 ICJ Statute, Art. 9.

110 The sole exception to this unwritten rule being the lack of a Chinese judge during the time period 1967 to 1985.

111 Mackenzie, supra note 4, at 85–86.

112 ICJ Statute, Art. 8. The double election process reflects a compromise between the principle of equality of states and the desire to ensure the representation of judges from great powers. Patricia Georget, Vladimir Golitsyn & Ralph Zacklin, Article 4, in The Statute of the International Court of Justice: A Commentary 234, 265 (Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J. Tams eds., 2d ed. 2012).

113 ICJ Statute, Art. 13.

114 Elaboration of the Rules of Court of 11 March 1936, PCIJ, Series D, No. 2, 3d Add., at 319–26.

115 For example, the Maritime Safety Committee Advisory Opinion was adopted by a vote of nine to five, but only two of the dissenters chose to identify themselves. Lori F. Damrosch, Article 56, in The Statute of the International Court of Justice, supra note 112, at 1378.

116 ICJ Rules of Court, Art. 95 (1978), at http://www.icj-cij.org/en/rules.

117 The paragraphs that follow draw heavily upon earlier accounts of this history, particularly Anand R., The Role of Individual and Dissenting Opinions in International Adjudication, 14 Int'l & Comp. L. Q. 788 (1965); Dumbauld Edward, Dissenting Opinions in International Adjudication, 90 U. Pa. L. Rev. 929 (1942); Gleider Hernandez, The International Court of Justice and the Judicial Function 109–11 (2014).

118 Anand, supra note 117, at 796–97.

119 Id. at 797.

120 Id. at 798.

121 Id. at 798–99 (quoting Minutes of the Committee, League of Nations Doc. No. C. 166.M.66.1929.V., at 50).

122 Report of the Informal Inter-Allied Committee on the Future of the P.C.I.J., Miscellaneous No. 2 (1944), Cmd. 6531, para. 82.

123 Rainer Hoffman & Tilmann Laubner, Article 57, in The Statute of the International Court of Justice, supra note 112, at 1209.

124 Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicar. v. Colom.), Preliminary Objections (Int'l Ct. of Justice Mar. 17, 2016).

125 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colum.), Preliminary Objections (Int'l Ct. of Justice Mar. 17, 2016).

126 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Judgment, 2015 ICJ Rep. 665 (Dec. 16); Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 ICJ Rep. 665 (Dec. 16).

127 Obligation to Negotiate Access to the Pacific Ocean (Bol. v. Chile), Preliminary Objections, 2015 ICJ Rep. 592 (Sept. 24).

128 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Merits, 2015 ICJ Rep. 3 (Feb. 3).

129 See, e.g., The SS Wimbledon, 1923 PCIJ (ser. A) No. 1, at 15, 34 (June 28) (dissenting opinion of Judge Anzilotti); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ Rep. 12, 70 (Mar. 31) (Judge Burgenthal joins with majority). Other examples include Judge Basdevant in Minquiers and Ecrehos (Fr./U.K.), Judgment, 1953 ICJ Rep. 47, 74 (Nov. 17); Judge McNair in Anglo-Iranian Oil Co. (U.K. v. Iran), Jurisdiction, 1952 ICJ Rep. 93, 116 (July 22); and Judges McNair, Basdevant, and Hackworth in Monetary Gold Removed from Rome in 1943 (It. v. Fr., U.K. & U.S.), Preliminary Question, 1954 ICJ Rep. 19, 34–35 (June 15).

130 ICJ Statute, Art. 19.

131 ICJ Statute, Art. 18.

132 José E. Alvarez, What Are International Judges For? The Main Functions of International Adjudication, in Oxford Handbook, supra note 5, 158, 173.

133 Abi-Saab Georges, Ensuring the Best Bench: Ways of Selecting Judges, in Increasing the Effectiveness of the International Court of Justice 185 (Peck Connie & Lee Roy S. eds., 1997).

134 Keith Kenneth J., Challenges to the Independence of the International Judiciary: Reflections on the International Court of Justice, 30 Leiden J. Int'l L. 137, 146 (2017).

135 Mackenzie Ruth & Sands Philippe, International Courts and Tribunals and the Independence of the International Judge, 44 Harv. Int'l L.J. 271, 279 (2003).

136 Id. at 279.

137 Elias T.O., ICJ: Present Trends and Future Prospects, in New Horizons in International Law 71, 7879 (Elias T.O. ed., 1979).

138 Abi-Saab, supra note 133, at 179 (quoting Sir Gerald Fitzmaurice, The Future of Public International Law and of the International Legal System in the Circumstances of Today, in Livre du Centenaire 288–89 (1973)). Fitzmaurice sat on the South West Africa cases. South West Africa Cases (Eth. v. S. Afr., Liber. v. S. Afr.), Judgment, 1966 ICJ Rep. 6 (July 18). In that highly controversial action, Sir Percy Spender, as President, cast the tie-breaking vote. This decision triggered an enormous political backlash, and Sir Percy declined to stand for reelection. In his place, Australia nominated Sir Kenneth Bailey, an accomplished law professor and diplomat who helped draft the UN Charter. Nonetheless, the backlash over Sir Percy's behavior led states to reject Bailey's candidature. E.g., Edward McWhinney, Judge Manfred Lachs and Judicial Law-Making 15 (1995) (“the anger against Spender … was enough to defeat Bailey”).

139 See, e.g., Schwebel Stephen M., Remarks on the International Court of Justice, 102 ASIL Proc. 282, 284 (2008) (“the tenure of judges conduces to independence, a tendency that would be enhanced if terms were longer but not open to renewal”); Meron Theodor, Judicial Independence and Impartiality in International Criminal Tribunals, 99 AJIL 359, 362 (2005) (“Concern is often expressed that a judge on an international court who is apprehensive about the prospects of renomination by his government or reelection may decide cases so as not to antagonize powerful UN member states, and especially his own state… . Nonrenewable long terms offer the best protection of independence … .”).

140 See, e.g., Mackenzie & Sands, supra note 135; Benvenisti Eyal & Downs George, Prospects for the Increased Independence of International Tribunals, 12 German L.J. 1057 (2011); Posner Eric A. & de Figueiredo Miguel F.P., Is the International Court of Justice Biased?, 34 J. Leg. Stud. 599 (2005).

141 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, 1869 UNTS 401, 33 ILM 1226 (1994) [hereinafter DSU].

142 Id. Art. 16(4).

143 Figures derived from WTO, Annual Report 2016, at https:// www.wto.org/english/res_e/booksp_e/anrep_e/anrep16_e.pdf; WTO, Appellate Body Annual Report for 2015, WT/AB/26 (June 3, 2016). The dispute settlement process involves a mandatory consultation stage, and roughly one-half of the matters are disposed of during this stage. Davey William J., The WTO and Rules-Based Dispute Settlement: Historical Evolution, Operational Success, and Future Challenges, 17 J. Int'l Econ. L. 679, 688 (2014).

144 Appellate Body Annual Report for 2015, supra note 143, at Ann. 7.

145 Id. at 15.

146 Craig VanGrasstek, The History and Future of the World Trade Organization 229 (2013).

147 Hughes Valerie, Working in WTO Dispute Settlement: Pride Without Prejudice, in A History of Law and Lawyers in the GATT/WTO 400 (Marceau Gabrielle ed., 2015); Davey, supra note 143.

148 Sacerdoti Giorgio, The WTO Dispute Settlement System: Consolidating Success and Confronting New Challenges, in Assessing the World Trade Organization: Fit for Purpose? 147 (Elsig Manfred, Hoekman Bernard & Pauwelyn Joost eds., 2017).

149 Alvarez José, How Not to Link: Institutional Conundrums of an Expanded Trade Regime, 7 Widener L. Symp. J. 1 (2001).

150 Howse Robert, The World Trade Organization 20 Years On: Global Governance by Judiciary, 27 Eur. J. Int'l L. 9, 12 (2016)

151 The DSU addresses both AB members and panelists; as we are primarily interested in AB members we shall focus on provisions addressing the Appellate Body.

152 DSU, supra note 141, Art. 17(3).

153 Id.

154 Dispute Settlement Body, Establishment of the Appellate Body, Decision Adopted on 10 February 1995, WT/DSB/1, para. 7.

155 The DSU does not provide that AB members are entitled to privileges and immunities. However, the Headquarters Agreement between the WTO and the Swiss Confederation states that AB members are entitled to the same privileges and immunities granted to diplomatic agents under international law. WT/GC/1, Add.1 (May 31, 1995).

156 DSU, supra note 141, Art. 17(8).

157 An April 2001 proposal that AB members receive a salary based on full time work and a pension was not accepted by WTO members.

158 Working Procedures for Appellate Review, WT/AB/WP/6 (Aug. 16, 2010), at 3.

159 Howse, supra note 150; Maton John & Maton Carolyn, Independence Under Fire: Extra-Legal Pressures and Coalition Building in WTO Dispute Settlement, 10 J. Int'l Econ L. 317 (2007).

160 Howse, supra note 150. For a general discussion of whether and how the threat of legislative reversal influences international judges, see Larsson & Naurin, supra note 29.

161 Yuval Shany, Assessing the Effectiveness of International Courts 203 (2014).

162 E.g., Charnovitz Steve, Judicial Independence in the World Trade Organization, in International Organizations and International Dispute Settlement: Trends and Prospects 219, 226 (de Chazournes Laurence Boisson, Romano Cesare & Mackenzie Ruth eds., 2002).

163 In addition to the director-general, the Selection Committee includes the chairs of the General Council, Council for Trade in Goods, Council for Trade in Services, Council for Trade-Related Aspects of Intellectual Property Rights, and of the Dispute Settlement Body.

164 US, Indian Nominees Appointed to Appellate Body, 15 Bridges (Nov. 23, 2011).

165 Sorayut Chasombat, A Reflection on the Selection of the Appellate Body Membership, Permanent Mission of Thailand to the WTO (Mar. 3, 2014), at http://www.thaiwto.com/article%201.html. Chasombat, the Minister Counselor of Thailand's Permanent Mission to the WTO, continued: “In theory candidates will be competing on their own merit… . However, it is naive to believe that there is no ‘lobbying’ going on by those concerned albeit in a low-key manner. At this level of competition, no candidate will be successful without a certain form of help from their governments.” Id.

166 US, Indian Nominees Appointed to Appellate Body, supra note 164.

167 See, e.g., Daniel Pruzin, WTO Selection Panel to Recommence Search for Appellate Body Judge Following Deadlock, BNA Int'l Trade Daily (Jan. 22, 2014).

168 Elsig & Pollack, supra note 27.

169 But not all. For example, two of the original seven AB members, El-Naggar and Matsushita, did not seek a second term for personal reasons.

170 DSU, supra note 141, Art. 14(1).

171 See, e.g., WTO Panel Report, European Communities – Selected Customs Matters, WT/DS315 (June 16, 2006), ann. E, paras. 2–3 (reproducing Panel's Working Procedures). The Rules of Conduct provide that “[e]ach covered person shall at all times maintain the confidentiality of dispute settlement deliberations and proceedings together with any information identified by a party as confidential.” Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. VII(1), WT-DSB/RC/1 (Dec. 11, 1996).

172 DSU, supra note 141, Art. 17(10). Despite this provision, in a few instances, at the request of parties to specific disputes, Appellate Body oral hearings have been opened to the public.

173 DSU, supra note 141, Art. 14(3) (panel reports), Art. 17(11) (AB reports).

174 Working Procedures for Appellate Review, Art. 3(2), WT/AB/WP/6 (Aug. 16, 2010).

175 With apologies to Louis Henkin. See Louis Henkin, How Nations Behave 47 (2d ed. 1979) (“almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”) (emphasis omitted).

176 Lacarte Julio, WTO Appellate Body Roundtable, 99 ASIL Proc. 175, 183 (2005).

177 A.V. Ganesan, The Appellate Body in Its Formative Years: A Personal Perspective, in A History of Law and Lawyers, supra note 147, at 517, 531.

178 Bacchus James, Table Talk: Around the Table of the Appellate Body of the World Trade Organization, 35 Vand. J. Transnat'l L. 1021, 1038 (2002).

179 Alvarez-Jimenez Alberto, The WTO Appellate Body's Decision-Making Process: A Perfect Model for International Adjudication?, 12 J. Int'l Econ. L. 289, 317 (2009).

180 Ehlermann Claus-Dieter, Reflections on the Appellate Body of the WTO, 97 ASIL Proc. 77, 78 (2003) (emphasis added).

181 Julio Lacarte-Muro, Launching the Appellate Body, in A History of Law and Lawyers, supra note 147, at 476, 478.

182 Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R (Mar. 3, 2005).

183 Id., paras. 631–41.

184 See, e.g., Daniel Pruzin & Gary Yerkey, WTO Appellate Body Upholds Ruling Against U.S. Subsidy Programs for Cotton, BNA Int'l Trade Daily (Mar. 4, 2005).

185 Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/AB/R (Apr. 18, 2006).

186 Daniel Pruzin, Merit Janow, Sole U.S. Member of WTO Appellate Body to Step Down, BNA Int'l Trade Daily (May 23, 2007).

187 Elsig & Pollack, supra note 27, at 406.

188 United States – Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW (May 14, 2009).

189 Id., paras. 259–70.

190 Flett James, Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO Jurisprudence, 13 J. Int'l Econ. L. 287, 300 (2010).

191 Elsig & Pollack, supra note 27, at 409.

192 USTR Blocks Hillman's Bid for Second WTO Appellate Body Term, Inside US Trade (Apr. 29, 2011).

193 For Appellate Body Candidates, USTR Prioritized Willingness to Dissent, Inside US Trade (Sept. 9, 2011).

194 Statement by the United States at the Meeting of the WTO Dispute Settlement Body, May 23, 2016, at https://geneva.usmission.gov/wp-content/uploads/2016/05/Item7.May23.DSB_.pdf.

195 Id.

196 Bryce Baschuk, U.S. Blocks Korean Judge from WTO Appellate Body, BNA Int'l Trade Daily (May 24, 2016).

197 WTO Members Debate Appointment/Reappointment of Appellate Body Members, World Trade Org. News (May 23, 2016), at https://www.wto.org/english/news_e/news16_e/dsb_23may16_e.htm.

198 Donnan, supra note 1.

199 WTO Members Debate, supra note 197.

200 Letter to Xavier Carim, Chair of the Dispute Settlement Body (May 31, 2016), available at http://worldtradelaw.typepad.com/files/abletter.pdf.

201 Letter to Xavier Carim, Chair of the Dispute Settlement Body (May 18, 2016).

202 Statement by the United States, Geneva, supra note 194.

203 A former AB member told us that AB members prepare questions prior to the oral proceedings, and then distribute the questions among different members of the division, which suggests that it is not always possible to discern a judge's position from the questions posed in oral proceedings.

204 For a very different analysis that reaches a similar conclusion, see Shaffer Gregory, Elsig Manfred & Puig Sergio, The Extensive (but Fragile) Authority of the WTO Appellate Body, 79 L. & Contemp. Probs. 237 (2016).

205 Berlin Isaiah, Two Concepts of Liberty, reprinted in Four Essays on Liberty 118, 167–68 (1969).

206 As an example, consider the use of the ICJ Statute as a template by the designers of the ECtHR, as well as the use of the French Conseil d’État as a template by the designers of the ECJ.

207 For a sampling of the voluminous literature on judicial independence, see Cox Archibald, The Independence of the Judiciary: History and Purposes, 21 U. Dayton L. Rev. 565 (1996); Epstein Richard, The Independence of Judges: The Uses and Limitations of Public Choice Theory, 1990 B.Y.U. L. Rev. 827 (1990); Kaufman Irving, The Essence of Judicial Independence, 80 Colum. L. Rev. 671 (1980); Landes & Posner, supra note 21.

208 A useful overview of non-consequentialist justifications for judicial independence is found at Macdonald Roderick A. & Kong Hoi, Judicial Independence as a Constitutional Virtue, in The Oxford Handbook of Comparative Constitutional Law 831 (2012).

209 Ferejohn, supra note 21, at 353.

210 Cross Frank B., Thoughts on Goldilocks and Judicial Independence, 64 Ohio St. L.J. (2003). See also Burbank Stephen B., What Do We Mean by “Judicial Independence”?, 64 Ohio St. L.J. 323 (2003) (“judicial independence is a means to an end (or, more probably, to more than one end)”); Russell, supra note 23, at 1, 3 (judicial independence is not intrinsically desirable and can only be justified on the grounds that it is “thought to serve some important objective, to contribute to some desirable state of affairs”).

211 Ferejohn, supra note 21, at 366 (1999). See also Burbank Stephen B., The Architecture of Judicial Independence, 72 S. Cal. L. Rev. 315 (1999) (judicial independence is interwoven with the rule of law); David Law, Judicial Independence, in 5 International Encyclopedia of Political Science 1371 (independence essential to “ultimate goal [of] the fair and impartial adjudication of disputes in accordance with law”).

212 Helfer Laurence R. & Slaughter Anne-Marie, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Calif. L. Rev. 1 (2005).

213 See, e.g., Brennan, supra note 41; Ginsburg, supra note 45.

214 The longstanding debate over whether dissents pose threats to judicial legitimacy is analyzed at length in Jeffrey L. Dunoff and Mark A. Pollack, International Judicial Dissent: Causes and Consequences (unpublished manuscript, on file with authors).

215 Weiler, Epilogue: The Judicial Après Nice, supra note 66, at 225.

216 E.g., Helfer, supra note 16, at 253.

217 For an exploration of whether the Trilemma's logic is applicable to other dispute resolution systems, including international arbitration, see Jeffrey L. Dunoff & Mark A. Pollack, The Arbitrator's Trilemma (unpublished manuscript, on file with authors).

218 Staton Jeffrey K. & Moore Will H., Judicial Power in Domestic and International Politics, 65 Int'l Org. 553, 557 (2011).

Earlier versions of this article were presented at the European University Institute, Harvard Law School, Hebrew University in Jerusalem, the iCourts Center at the University of Copenhagen, the Lauterpacht Center for International Law at Cambridge University, Oxford University, the Max Planck Institute (Heidelberg), the Max Planck Institute (Luxembourg), PluriCourts at the University of Oslo, Princeton University, Temple Law School, Yale Law School, Freie Universität Berlin, and Annual Meetings of the American Political Science Association, American Society of International Law, European Society of International Law, and International Society of Public Law. We thank participants at these events for thoughtful questions and comments. We are particularly grateful to Karen Alter, Eyal Benvenisti, Judge Joan Donoghue, Hélène Ruiz Fabri, Andreas Føllesdal, Larry Helfer, Holger Hestermeyer, Moshe Hirsch, Duncan Hollis, Craig Green, Heike Krieger, Georg Nolte, Sir Kenneth Keith, Anne Peters, Gregory Shaffer, Yuval Shany, Beth Simmons, Richard Steinberg, Alec Stone Sweet, Geir Ulfstein, Erik Voeten, Michael Waibel, Andreas Zimmermann, and several anonymous Journal reviewers for perceptive critiques and useful conversations. We also thank the judges, court officials, and practitioners that we interviewed, to whom we promised anonymity. This article is part of a larger interdisciplinary research project on international judicial practices.

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American Journal of International Law
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