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Judicial Deference in International Courts: A Comparative Analysis


ISBN13: 9781509932283
Published: August 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £100.00
Paperback edition , ISBN13 9781509943463



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International adjudicators are more and more often requested to pass judgement on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, trade, and investment law, international tribunals are now commonly required to evaluate decisions of national authorities that have been made in the due course of democratic procedures and public deliberation. This raises the question of whether international adjudicators should review such decisions de novo or whether they should give deference to domestic authorities. In many national legal orders, courts do not exercise de novo review with regard to legislative and administrative decisions, as this would allow them to supplant the powers of other branches of government. Instead, courts exercise only deferential forms of review, limiting the intensity of their review by giving special weight to the determinations made by the institution under review. This book investigates whether international courts and tribunals have also adopted deferential standards of review and whether they should do so.

Subjects:
Judiciary
Contents:
1. Introduction
I. Deference in International Adjudication
II. The Concept of Deference
A. Defining Deference
B. Deference in the Domestic Context
C. Deference in the International Context
III. Approach: A Comparative Analysis of Deference
2. Judicial Deference in International Practice
I. Introduction
II. The International Court of Justice
III. The European Court of Human Rights
A. Development of the Margin of Appreciation
B. Conceptual Analysis of the Margin of Appreciation
C. Justifications for the Margin of Appreciation
D. Deference to Domestic Courts Beyond the Margin of Appreciation
E. Conclusions on the European Court of Human Rights
IV. The Inter-American Court of Human Rights
V. The African Court on Human and Peoples' Rights
VI. The World Trade Organization
A. Article 11 of the Dispute Settlement Understanding
B. Article 17.6 of the Anti-dumping Agreement
C. Conclusions on the WTO
VII. Investor-State Arbitration Tribunals
A. Approaches in Favour of (Some) Deference
B. Approaches Critical of Deference
C. Conclusions on Investment Arbitration
VIII. The International Tribunal for the Law of the Sea
IX. Conclusions
3. A Comparative Analysis of Deference in International Practice
I. Introduction
II. The Scope of Deference
A. Deference in the Context of Specific Assessments
i. Assessments of Facts
ii. Technical Assessments
iii. Interpretation and Application of Domestic Law
iv. Public Policy Choices
v. Treaty Interpretation
B. Deference Towards Specific Domestic Actors
i. Domestic Parliaments
ii. Domestic Administrative Agencies
iii. Domestic Courts
C. Deference in the Context of Specific Norms
i. Indeterminate Standards
ii. Self-Judging Clauses
D. Conclusions on the Scope of Deference
III. The Depth of Deference
A. From Treaty Standard to Standard of Review
B. The Margin of Appreciation
C. Reasonableness
D. Good Faith
E. Proportionality
F. Procedural Review
G. Overlapping Standards of Review
IV. Conclusions
4. A Normative Assessment of Deference in International Adjudication
I. Introduction
II. Epistemic Deference
III. Constitutional Deference
A. Introduction
B. Arguments in Favour of Constitutional Deference: The Domestic Parallel
i. The Domestic Court Analogy
ii. The Democratic Argument
C. Arguments in Favour of Constitutional Deference: The International Dimension
i. State Sovereignty
ii. Subsidiarity
D. Arguments against Constitutional Deference
i. Deference as an Abdication of the Judicial Task
ii. Procedural Fairness
iii. Universalism and Uniformity
E. Taking Stock: A Purposeful Rejection of Constitutional Deference
i. The Separation of Powers and the Perks of Sovereignty
ii. The Purpose of International Courts and Tribunals
iii. The Ambiguities of Deference and the Alternative of Restrictive Interpretation
IV. Conclusions
5. Final Conclusions