Deference in International Courts and Tribunals
Deference in International Courts and Tribunals

Author: Lukasz Gruszczynski

Publisher: OUP Oxford

Published: 2014-10-09

Total Pages: 465

ISBN-13: 0191026492

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International courts and tribunals are often asked to review decisions originally made by domestic decision-makers. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. As international courts and tribunals have proliferated, different courts have applied differing levels of deference to those originial decisions, which can lead to a fragmentation in international law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations. The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. It looks in-depth at how the public policy exception has been assessed by the European Court of Justice and the WTO dispute settlement bodies. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Finally, the book studies how a range of other international courts, such as the International Criminal Court, and the Law of the Sea Tribunal, have approached these two core doctrines.

Judicial Deference in International Adjudication
Judicial Deference in International Adjudication

Author: Johannes Hendrik Fahner

Publisher: Bloomsbury Publishing

Published: 2020-08-06

Total Pages: 312

ISBN-13: 1509932305

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International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.

Intensity of Review in International Courts and Tribunals
Intensity of Review in International Courts and Tribunals

Author: Johannes Hendrik Fahner

Publisher:

Published: 2018

Total Pages: 334

ISBN-13:

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This study provides a comparative analysis of judicial deference in the practice of international courts and tribunals. The descriptive part of the thesis investigates to what extent a range of international courts and tribunals have adopted structural doctrines of deference when evaluating State conduct against rules of international law. The analysis covers six permanent institutions (the International Court of Justice; the European, Inter-American and African human rights courts; the dispute settlement system of the World Trade Organization; and the International Tribunal for the Law of the Sea) as well as investment arbitration tribunals. The normative part of the thesis discusses whether international courts and tribunals should adopt a deferential standard of review when evaluating State conduct. I propose a distinction between epistemic deference, which is justified by the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. I conclude that epistemic deference is a prudent acknowledgement of the limited expertise of adjudicators with regard to non-legal assessments. There is generally no need, however, for constitutional deference in international adjudication, because of the limited impact of international judicial decisions on domestic decision-making. This is different for the human rights courts, whose jurisprudence can have far-reaching implications on any field of domestic public policy, and because an effective integration of human rights in domestic legal orders requires the involvement of domestic authorities in the definition of the scope and content of human rights.

Judging at the Interface
Judging at the Interface

Author: Esmé Shirlow

Publisher:

Published: 2020-12

Total Pages:

ISBN-13: 9781108867108

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"Introduction Deference and the International Adjudication of Private Property Disputes While working as a government lawyer in 2011, a letter came into our office advising that the Philip Morris tobacco company had decided to sue Australia under a bilateral investment treaty. The company contended that Australia's tobacco plain packaging requirements breached its intellectual property rights, entitling it to billions of dollars in compensation under international law. This news was not particularly shocking to the small team of which I was part, which had been assembled within the government's Office of International Law to respond to these types of claims. The news was shocking, though, to the wider Australian community. Over the ensuing months, the community's disbelief became better-articulated in the press: How can an international tribunal sit in judgment over a measure which the Australian Parliament had decided was in the public interest after extensive scientific enquiry and public consultation? Could an international tribunal really reverse the finding of Australia's highest court that the legislation was lawful?"--

Deference in International Courts and Tribunals
Deference in International Courts and Tribunals

Author: Lukasz Gruszczynski

Publisher: Oxford University Press, USA

Published: 2014

Total Pages: 465

ISBN-13: 019871694X

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International courts use two key methodologies to determine the degree of deference granted to states in their implementation of international obligations: the standard of review and margin of appreciation. This book investigates how these doctrines are applied in international courts, analysing where their approaches converge and diverge.

Research Handbook on International Courts and Tribunals
Research Handbook on International Courts and Tribunals

Author: William A. Schabas

Publisher: Edward Elgar Publishing

Published: 2017-02-24

Total Pages: 573

ISBN-13: 1781005028

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This collection takes a thematic and interpretive, system-wide and inter-jurisdictional comparative approach to the debates and controversies related to the growth of international courts and tribunals. By providing a synthetic overview and critical analysis of these developments from a variety of perspectives, it both contextualizes and stimulates future research and practice in this rapidly developing field.

Manual on International Courts and Tribunals
Manual on International Courts and Tribunals

Author: Ruth Mackenzie

Publisher:

Published: 2010

Total Pages: 575

ISBN-13: 0199545278

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The dramatic rise in the number of international courts and tribunals and the expansion of their legal powers has been one of the most significant developments in international law of the late 20th century. The emergence of an international judiciary provided international law with a stronger than ever law enforcement apparatus, and facilitated the transformation of many aspects of international relations from being power-based to being law-based. The first edition of the Manual on International Courts and Tribunals, published in 1999, was the first book to survey systematically this new institutional landscape, by describing in an accessible and uniformly structured manner the legal powers and operating procedures of all major international judicial and quasi-judicial bodies. In doing so, it laid the groundwork for comparative study and research of the law and practice of international courts and tribunals - an emerging field of international legal research, which has already spurred a series of publications, conferences and academic courses. This second edition updates the first edition by describing the many legal changes that have taken place in the last decade, including important reforms in the laws and procedures of many international courts and tribunals, relevant developments in their increasingly rich jurisprudence and the creation of new judicial fora. Moreover, it assesses the overall record of these judicial bodies. The data and legal analysis offered in the book provide both practitioners and academics with an important basis of knowledge that will help them better understand the details of international adjudication and its context.

The Rules, Practice, and Jurisprudence of International Courts and Tribunals
The Rules, Practice, and Jurisprudence of International Courts and Tribunals

Author: Chiara Giorgetti

Publisher: BRILL

Published: 2012-02-17

Total Pages: 644

ISBN-13: 9004194835

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This book examines existing international disputes resolution institutions of both general and specific subject-matter jurisdiction. Uniquely, it assesses both procedural rules and essential case-law, making it relevant for both academics and practitioners in international law.

Provisional Measures Issued by International Courts and Tribunals
Provisional Measures Issued by International Courts and Tribunals

Author: Fulvio Maria Palombino

Publisher: Springer Nature

Published: 2020-12-02

Total Pages: 365

ISBN-13: 9462654115

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This book makes a significant contribution to the comprehension of the law and practice of provisional measures issued by international courts and tribunals, including international commercial arbitration. After having analyzed the common features of provisional measures, it provides an overview of the peculiarities of these orders within the context of different international proceedings (e.g. the ICJ, the ITLOS, the CJEU, the ICC, human rights courts and investment arbitration). In this regard, the book is valuable in offering a broad and rigorous comparative analysis between the various forms of provisional measures. Owing to its original cross-cutting and case-driven approach, the book will be an essential tool for both scholars and practitioners dealing with the law of provisional measures in international adjudication. Indeed, this book will be an important novelty in international law libraries due to the broad range of regimes scrutinized and to a detailedanalysis of the general trends within the contemporary law of provisional measures. Fulvio Maria Palombino is Professor of International Law in the Department of Law at the University of Naples Federico II, Naples, Italy. Roberto Virzo is Associate Professor of International Law in the Department of Law, Economics, Management and Quantitative Methods (DEMM) at the University of Sannio, Benevento, Italy. Giovanni Zarra is Adjunct Professor of International Law in the Department of Law at the University of Naples Federico II, Naples, Italy.

The Interpretation of International Law by Domestic Courts
The Interpretation of International Law by Domestic Courts

Author: Helmut Philipp Aust

Publisher: Oxford University Press

Published: 2016-01-22

Total Pages: 401

ISBN-13: 0191059412

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The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective. The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.