Judicial Deference in International Adjudication: A Comparative Analysis (Studies in International Law)

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. Volume 78 in the series Studies in International Law "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"-- Provided by the publisher Foreword 6 Acknowledgements 10 Contents 12 Table of Cases 16 List of Abbreviations 34 1. Introduction 38 I. Deference in International Adjudication 38 II. The Concept of Deference 42 III. Approach: A Comparative Analysis of Deference 54 2. Judicial Deference in International Practice 60 I. Introduction 60 II. The International Court of Justice 62 III. The European Court of Human Rights 67 IV. The Inter-American Court of Human Rights 84 V. The African Court on Human and Peoples' Rights 92 VI. The World Trade Organization 95 VII. Investor-State Arbitration Tribunals 108 VIII. The International Tribunal for the Law of the Sea 121 IX. Conclusions 124 3. A Comparative Analysis of Deference in International Practice 126 I. Introduction 126 II. The Scope of Deference 127 III. The Depth of Deference 163 IV. Conclusions 184 4. A Normative Assessment of Deference in International Adjudication 186 I. Introduction 186 II. Epistemic Deference 188 III. Constitutional Deference 191 IV. Conclusions 252 5. Final Conclusions 254 Bibliography 262 Index 298