Deference In International Courts And Tribunals

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Deference in International Courts and Tribunals

Lukasz Gruszczynski,Wouter Werner
Deference in International Courts and Tribunals Book PDF

Author : Lukasz Gruszczynski,Wouter Werner
Publisher : OUP Oxford
Page : 400 pages
File Size : 41,7 Mb
Release : 2014-10-09
Category : Law
ISBN : 9780191026492

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Deference in International Courts and Tribunals by Lukasz Gruszczynski,Wouter Werner Pdf

International courts and tribunals are often asked to review decisions originally made by domestic decision-makers.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

Johannes Hendrik Fahner
Judicial Deference in International Adjudication Book PDF

Author : Johannes Hendrik Fahner
Publisher : Bloomsbury Publishing
Page : 312 pages
File Size : 48,5 Mb
Release : 2020-08-06
Category : Law
ISBN : 9781509932306

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Judicial Deference in International Adjudication by Johannes Hendrik Fahner Pdf

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.

Judging at the Interface

Esmé Shirlow
Judging at the Interface Book PDF

Author : Esmé Shirlow
Publisher : Cambridge University Press
Page : 381 pages
File Size : 52,9 Mb
Release : 2021-02-18
Category : Law
ISBN : 9781108490979

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Judging at the Interface by Esmé Shirlow Pdf

This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.

The Interpretation of International Law by Domestic Courts

Helmut Philipp Aust,Georg Nolte
The Interpretation of International Law by Domestic Courts Book PDF

Author : Helmut Philipp Aust,Georg Nolte
Publisher : Oxford University Press
Page : 384 pages
File Size : 40,6 Mb
Release : 2016-01-21
Category : Law
ISBN : 9780191059414

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The Interpretation of International Law by Domestic Courts by Helmut Philipp Aust,Georg Nolte Pdf

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.

Secondary Rules of Primary Importance in International Law

Gábor Kajtár,Basak Çali,Marko Milanovic
Secondary Rules of Primary Importance in International Law Book PDF

Author : Gábor Kajtár,Basak Çali,Marko Milanovic
Publisher : Oxford University Press
Page : 369 pages
File Size : 54,8 Mb
Release : 2022-10-31
Category : Law
ISBN : 9780192695611

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Secondary Rules of Primary Importance in International Law by Gábor Kajtár,Basak Çali,Marko Milanovic Pdf

The focus of this edited volume is the often-overlooked importance of secondary rules of international law. Secondary rules of international law-such as attribution, causality, and the standard and burden of proof-have often been neglected in scholarly literature and have seen fragmented application in international legal practice. Yet the systemic nature of international law entails that coherent and consistent application of such rules is a key element in reinforcing the legitimacy of decisions of international courts and tribunals. Accelerated development of international law and international litigation, coupled with the fragmented nature of the adjudicatory terrain calls for theoretical scrutiny and systemic analysis of the developments in the judicial treatment of secondary rules. This publication makes three important contributions to the study of secondary rules. First, it offers a comprehensive, expert doctrinal analysis of how standard of review, causation, evidentiary rules, and attribution operate in the case law of international courts or tribunals in fields spanning human rights, trade, investment, and humanitarian law. Second, it comparatively evaluates the divergent layers of meanings and normative expectations attached to secondary rules in international law scholarship as well as in the judicial practice of international courts and tribunals. Finally, the book investigates the role that secondary rules play in the development of the primary rules in international law and for the legitimacy of the decisions of international courts and tribunals. Earlier scholarly works have not problematized the role of secondary rules of international law in adjudication thoroughly. Secondary Rules of Primary Importance in International Law seeks to fill this gap by emphasizing the consequential nature of these secondary rules and argues that the outcome of litigation is fundamentally shaped by the exact standard of proof, standard of review, or attribution basis that is chosen by adjudicators. As such, the book offers an important resource for the study and practice of international law against the backdrop of the wide-ranging and fragmented nature of international adjudication.

The Performance of International Courts and Tribunals

Theresa Squatrito,Oran R. Young,Andreas Follesdal,Geir Ulfstein
The Performance of International Courts and Tribunals Book PDF

Author : Theresa Squatrito,Oran R. Young,Andreas Follesdal,Geir Ulfstein
Publisher : Cambridge University Press
Page : 471 pages
File Size : 41,5 Mb
Release : 2018-04-05
Category : Law
ISBN : 9781108425698

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The Performance of International Courts and Tribunals by Theresa Squatrito,Oran R. Young,Andreas Follesdal,Geir Ulfstein Pdf

Explores the contributions of international courts and tribunals in terms of performance by offering a comparative analysis of international courts.

The Standard of Review before the International Court of Justice

Felix Fouchard
The Standard of Review before the International Court of Justice Book PDF

Author : Felix Fouchard
Publisher : Bloomsbury Publishing
Page : 286 pages
File Size : 42,9 Mb
Release : 2024-05-02
Category : Law
ISBN : 9781509971312

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The Standard of Review before the International Court of Justice by Felix Fouchard Pdf

This book examines how the International Court of Justice (ICJ) reviews State behaviour through the prism of the standard of review. It develops a novel rationale to support the ICJ's application of deferential standards of review as a judicial avoidance technique, based on strategic considerations. It then goes on to empirically assess all 31 decisions of the Court in which the standard of review was at issue, showing how the Court determines that standard, and answering the question of whether it varies its review intensity strategically. As a result, the book's original contribution is two-fold: establishing a new rationale for judicial deference (that can be applied to all international courts and tribunals); and providing the first comprehensive, empirical analysis of the ICJ's standards of review. It will be beneficial to all scholars of the Court and those interested in judicial strategy.

International Court Authority

Mikael Rask Madsen
International Court Authority Book PDF

Author : Mikael Rask Madsen
Publisher : Oxford University Press
Page : 450 pages
File Size : 44,7 Mb
Release : 2018-06-28
Category : Law
ISBN : 9780192515049

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International Court Authority by Mikael Rask Madsen Pdf

An innovative, interdisciplinary and far-reaching examination of the actual reality of international courts, International Court Authority challenges fundamental preconceptions about when, why, and how international courts become important and authoritative actors in national, regional, and international politics. A stellar group of scholars investigate the challenges that international courts face in transforming the formal legal authority conferred by states into an actual authority in fact that is respected by potential litigants, national actors, legal communities, and publics. Alter, Helfer, and Madsen provide a novel framework for conceptualizing international court authority that focuses on the reactions and practices of these key audiences. Eighteen scholars from the disciplines of law, political science and sociology apply this framework to study thirteen international courts operating in Africa, Latin America, and Europe, as well as on a global level. Together the contributors document and explore important and interesting variations in whether the audiences that interact with international courts around the world embrace or reject the rulings of these judicial institutions. Alter, Helfer, and Madsen's authority framework recognizes that international judges can and often do everything they 'should' do to ensure that their rulings possess the gravitas and stature that national courts enjoy. Yet even when imbued with these characteristics, the parties to the dispute, potential future litigants, and the broader set of actors that monitor and respond to the court's activities may fail to acknowledge the rulings as binding or take meaningful steps to modify their behaviour in response to them. For both specific judicial institutions, and more generally, the book documents and explains why most international courts possess de facto authority that is partial, variable, and highly dependent on a range of different audiences and contexts - and thus is highly fragile. An introduction situates the book's unique approach to conceptualizing international court authority within theoretical debates about the authority of global institutions. International Court Authority also includes critical reflections on the authority framework from legal theorists, international relations scholars, a philosopher, and an anthropologist. The book's conclusion questions a number of widely shared assumptions about how social and political contexts facilitate or undermine international courts in developing de facto authority and political power.

The International Judge

Daniel Terris,Cesare P. R. Romano,Leigh Swigart
The International Judge Book PDF

Author : Daniel Terris,Cesare P. R. Romano,Leigh Swigart
Publisher : Upne
Page : 352 pages
File Size : 52,6 Mb
Release : 2007
Category : Law
ISBN : UOM:39015074067342

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The International Judge by Daniel Terris,Cesare P. R. Romano,Leigh Swigart Pdf

An interdisciplinary introduction to international judges and their work

Judging at the Interface

Esmé Shirlow
Judging at the Interface Book PDF

Author : Esmé Shirlow
Publisher : Unknown
Page : 128 pages
File Size : 42,6 Mb
Release : 2020-12
Category : Electronic
ISBN : 1108867103

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Judging at the Interface by Esmé Shirlow Pdf

"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?"--

Regime Interaction in International Law

Margaret A. Young
Regime Interaction in International Law Book PDF

Author : Margaret A. Young
Publisher : Cambridge University Press
Page : 128 pages
File Size : 46,8 Mb
Release : 2012-01-12
Category : Law
ISBN : 9781139504935

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Regime Interaction in International Law by Margaret A. Young Pdf

This major extension of existing scholarship on the fragmentation of international law utilises the concept of 'regimes' from international law and international relations literature to define functional areas such as human rights or trade law. Responding to existing approaches, which focus on the resolution of conflicting norms between regimes, it contains a variety of critical, sociological and doctrinal perspectives on regime interaction. Leading international law scholars and practitioners reflect on how, in situations of diversity and concurrent activity, such interaction shapes and controls knowledge and norms in often hegemonic ways. The contributors draw on topical examples of interacting regimes, including climate, trade and investment regimes, to argue for new methods of regime interaction. Together, the essays combine approaches from international, transnational and comparative constitutional law to provide important insights into an issue that continues to challenge international legal theory and practice.

Regulating Jurisdictional Relations Between National and International Courts

Yuval Shany
Regulating Jurisdictional Relations Between National and International Courts Book PDF

Author : Yuval Shany
Publisher : OUP Oxford
Page : 0 pages
File Size : 45,5 Mb
Release : 2009-02-26
Category : Law
ISBN : 0199563853

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Regulating Jurisdictional Relations Between National and International Courts by Yuval Shany Pdf

The book investigates the problems of increased interaction between national and international courts: What is the proper order of the proceedings? Should national and international proceedings take place concurrently? In particular, it advocates the use of judicial comity as a method for mitigating jurisdictional tensions between the courts.

Human Rights Norms in "other" International Courts

Martin Scheinin
Human Rights Norms in other International Courts Book PDF

Author : Martin Scheinin
Publisher : Unknown
Page : 413 pages
File Size : 43,8 Mb
Release : 2019
Category : Electronic
ISBN : 110873121X

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Human Rights Norms in "other" International Courts by Martin Scheinin Pdf

This unique book examines the role and impact of human rights norms in international courts other than human rights courts. It covers a whole range of courts and jurisdictions, looking at the practice of prominent international courts, such as the International Court of Justice and the International Criminal Court, as well as various fora of economic adjudication, including the World Trade Organisation, regional integration organisations in Europe and Africa, and investment arbitration. The book systematically explores the role of human rights norms at the International Tribunal for the Law of the Sea, thereby providing an insight into the future evolution of environmental law towards judicial enforcement at the international level. Within each jurisdiction under study, the respective authors, who all are experts within their fields, address the role of different categories of human rights, as well as the range of available modes of operation of human rights norms.

Procedural Fairness in International Courts and Tribunals

Arman Sarvarian,Rudy Baker,Filippo Fontanelli,Vassilis Tsevelekos
Procedural Fairness in International Courts and Tribunals Book PDF

Author : Arman Sarvarian,Rudy Baker,Filippo Fontanelli,Vassilis Tsevelekos
Publisher : British Institute for International & Comparative Law
Page : 0 pages
File Size : 41,5 Mb
Release : 2015
Category : Court proceedings
ISBN : 1905221606

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Procedural Fairness in International Courts and Tribunals by Arman Sarvarian,Rudy Baker,Filippo Fontanelli,Vassilis Tsevelekos Pdf

Procedural fairness is a topic of contemporary importance that touches upon the jurisdictional powers, the effectiveness, and the normative/institutional framework of international courts and tribunals. Increasingly prominent in practice, it features in a wide spectrum of arbitral and judicial settlement processes, from the handling of expert evidence before the International Court of Justice, as well as the burden and standard of proof in investor-State arbitration, to the role of victims and the right to a prompt and speedy trial at the International Criminal Court. The fairness of these proceedings is a topic of fundamental importance, not only to practitioners of international law (judges, counsels, registrars, NGO lawyers, legal advisers, and other civil servants), but also to scholars of international law due to its implications for the key topic of international dispute settlement. This book frames the study of procedural fairness as the identification of fundamental principles inherent to international judicial and arbitral processes. It draws together a number of pertinent issues on specific aspects of fairness (e.g. the equality of arms principle) before international courts and tribunals within a comprehensive narrative. It brings academics and practitioners together to initiate ground-breaking research into this novel topic. The book employs a comparative approach whereby the contributors analyze the procedures and practices of various international courts and tribunals. It identifies patterns of commonality and divergence in the core standards of procedural fairness of international courts, and it develops a holistic understanding of the nature of procedural fairness and the challenges to its realization in the international judicial system. The book concludes that, while there is no universal model of procedural fairness, nascent principles of fairness are emerging in the jurisprudence of international courts in order to resolve procedural and practical issues. [Subject: International Law, Comparative Law]

Deference in International Courts and Tribunals

Lukasz Gruszczynski,Wouter G. Werner
Deference in International Courts and Tribunals Book PDF

Author : Lukasz Gruszczynski,Wouter G. Werner
Publisher : Oxford University Press, USA
Page : 465 pages
File Size : 51,5 Mb
Release : 2014
Category : Law
ISBN : 9780198716945

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Deference in International Courts and Tribunals by Lukasz Gruszczynski,Wouter G. Werner Pdf

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.