Overview

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.

Full Product Details

Author:   Johannes Hendrik Fahner (University of Amsterdam, The Netherlands)
Publisher:   Bloomsbury Publishing PLC
Imprint:   Hart Publishing
Weight:   0.440kg
ISBN:  

9781509943463

ISBN 10:   1509943463
Pages:   312
Publication Date:   24 February 2022
Audience:   College/higher education ,  Tertiary & Higher Education
Format:   Paperback
Publisher's Status:   Active
Availability:   Manufactured on demand  
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Table of 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

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Author Information

Johannes Hendrik Fahner is an attorney-at-law practising at the Dutch bar and a researcher at the University of Amsterdam.

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