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Judicial Deference in International Adjudication

A Comparative Analysis

By: Johannes Hendrik Fahner
Media of Judicial Deference in International Adjudication
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Published: 06-08-2020
Format: EPUB eBook (?)
Edition: 1st
Extent: 312
ISBN: 9781509932290
Imprint: Hart Publishing
Series: Studies in International Law
RRP: £81.00
Online price : £64.80
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About Judicial Deference in International Adjudication

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.

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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