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Author: Johannes Hendrik Fahner Publisher: Bloomsbury Publishing ISBN: 1509932305 Category : Law Languages : en Pages : 312
Book Description
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.
Author: Johannes Hendrik Fahner Publisher: Bloomsbury Publishing ISBN: 1509932305 Category : Law Languages : en Pages : 312
Book Description
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.
Author: Lukasz Gruszczynski Publisher: OUP Oxford ISBN: 0191026506 Category : Law Languages : en Pages : 400
Book Description
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.
Author: Esmé Shirlow Publisher: Cambridge University Press ISBN: 1108490972 Category : Law Languages : en Pages : 381
Book Description
This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.
Author: Esmé Shirlow Publisher: Cambridge University Press ISBN: 1108853021 Category : Law Languages : en Pages : 381
Book Description
This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.
Author: Guobin Zhu Publisher: Springer Nature ISBN: 3030315398 Category : Law Languages : en Pages : 445
Book Description
This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.
Author: Eva R. Rieter Publisher: ISBN: Category : Law Languages : en Pages : 1282
Book Description
International human rights adjudicators, while facing urgent cases, have used provisional measures in order to prevent irreparable harm, e.g. to order States to halt an expulsion, the execution of a death sentence, the destruction of the natural habitat, as well as to ensure access to health care in detention or protection against death threats. In the practice of the various adjudicators, the traditional concept of provisional measures has undergone a process of humanization. Preventing Irreparable Harm addresses the question of how such provisional measures can be made as persuasive as possible. Apart from the Inter-American Court, none of the human rights adjudicators motivate or publish their provisional measures. Yet the book analyzes their best practices and obstacles, determines the underlying rationale for their use of provisional measures, and establishes the core of the concept of provisional measures that all adjudicators have in common. It argues that clarity - on what belongs to the core of the concept and on what does not belong to the concept at all - enhances the persuasive force of provisional measures. The practices of the international adjudicators that are made accessible in this book will prove useful in the ongoing cross-fertilization that occurs among these adjudicators. Moreover, the analysis provided allows individual victims, their counsel, NGOs, as well as international institutions, to address more effectively urgent human rights cases.
Author: David Rudenstine Publisher: Oxford University Press ISBN: 0199381488 Category : Law Languages : en Pages : 345
Book Description
"Rudenstine's [book] traces the [Supreme] Court's role in the rise of judicial deference to executive power since the end of World War II. He [posits that], in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary"--
Author: Andrew Legg Publisher: OUP Oxford ISBN: 0191632155 Category : Law Languages : en Pages : 272
Book Description
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Author: Johannes Hendrik Fahner
Author: Johannes Hendrik Fahner
Author: Lukasz Gruszczynski
Author: Esmé Shirlow
Author: Esmé Shirlow
Author: Clarence Wilfred Jenks
Author: Guobin Zhu
Author: Yuval Shany
Author: Eva R. Rieter
Author: David Rudenstine
Author: Andrew Legg